JUNE 1979 

The following cases were Directed for Review during the month of June. 

Southern Ohio Coal Co., v. Secretary of Labor, MSHA, VINC 79-98; 

(Interlocutory Review granted June 19, 1979) 

Secretary of Labor, MSHA, v. Stash Brothers, Inc., PITT 79-44-P; 

(granted June 22, 1979) 

Secretary of Labor, MSHA, v. Cut Slate, Inc., WILK 79-13-P; (granted 

June 22, 1979) 

FED~R/\L MINI: SAF:::7Y AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSRA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006. 

June 7, 1979 

Docket No. PIKE 77-89-P 

IBMA 77-67 

B B & W COAL COMPANY, INC. 

DECISION 

This is an appeal of a decision holding the operator, B B & W Coal 

Company, Inc., in default in a penalty proceeding under the Federal Coal 

Mine Health and Safety Act of 1969. 

On July 29, 1977, the Mining Enforcement and Safety Administration 

(MESA) filed a petition for assessment of civil penalty with the Department of Interior's Office of Hearings and Appeals (ORA), seeking a total 

of $905 for 20 alleged violations. Billy McPeek, president of B B & W 

Coal Co., Inc., filed a prose answer that raised certain defenses and 

moved that the petition be dismissed. 

On October 20, 1977, Administrative Law Judge Kennedy issued a 

notice scheduling a hearing for November 29, 1977, along with a pretrial 

order requiring MESA and the operator to make various prehearing submissions. Specifically, the operator was required to submit by November 

7th "a plain and concise statement .•• of the reasons why each of the 

violations is being contested." MESA was ordered to file by November 

7th a proposed stipulation regarding several factors including the 

statutory criteria for assessment of penalties. The pretrial order 

further ordered the operator to file a statement by November 21st regarding the extent of his agreement and disagreement with MESA's proposed 

stipulation, a statement whether the operator claims the amount of the 

penalties recommended will impair its ability to continue in business, 

and a_ list of the names of witnesses it intended to use and a brief 

summary of the subject matter of their testimony. 

On November 13th.Mr. McPeek mailed to the Office of Hearings and 

Appeals copies of the following two documents: (1) a letter to the 

Solicitor, dated November 7, 1977, which includes a summary of the 

reasons why he would like a hearing to contest the violations in question; 

and (2) a letter. to the Solicitor dated November 12, 1977, which stated 

that he was unable to agree with any points in the Solicitor's proposed 

stipulation. ·The November 12th letter further stated that the operator 

intended to use the inspectors who cited the alleged violations as 

witnesses at the hearing. These documents were received by ORA on 

79-6-4 

467 
November 16th. Judge Kennedy never issued a written ruling on the show 

cause order. However, on November 18th Judge Kennedy issued an amended 

notice of hearing changing the site for the November 29th hearing from 

Whitesburg, Kentucky to Abingdon, Virginia. 

On November 22, 1977, for reasons unexplained in the record, Judge 

Kennedy cancelled the scheduled hearing and recused himself on grounds 

that he did "not believe he [could] hear and decide this matter with 

complete impartiality toward the.respondent." 

On November 28th the case was assigned to Administrative Law Judge 

Moore. On the following day Judge Moore entered a summary decision, in 

which he made the following finding: "There was no response to Judge 

KennedyJs order to show cause and in accordance with the procedures set 

forth in 43 CFR 4.544, Respondent is declared in default ••• " ];/ 

On appeal, the operator argues that he did respond to and satisfy 

Judge Kennedy's order to show cause, and he notes that the hearing was 

scheduled to take place when Judge Kennedy recused himself. 

We agree that, in the circumstances here, the operator did adequately 

respond to and satisfy Judge Kennedy's show cause order. Judge Kennedy 

apparently considered the show cause ·::>rder satisfied since he transferred 

the hearing site to Abingdon, Virginia after receiving Mr. McPeek's 

response. Confusion may have occurred due to the fact that the response 

to Judge Kennedy's order to show cause was in the form of copies of 

letters to the Solicitor, but mailed to OHA, and because Judge Kennedy 

did not issue a written ruling on the show cause order prior to recusing 

himself. 

The decision holding the operator in default is reversed and the 

case is remanded for a hearing. 2/ 

...:.04-r?"'-'2- ('(_ C(/7~~ Jeroni'e R. Waldie, Chairman 

1_/ 43 CFR 4.544(b) provided: "(b) Fa·1 re to respond to prehearing order. 

Where the respondent fails to file a re onse to a prehearing order the 

administrative law judge may issue an order to show cause why the operator 

should not be considered in default and the case disposed of in accordance 

with paragraph (a) of this section." 

J:./ Remand for hearing is the appropriate remedy, not, as requested by 

the operator, a dismissal of the penalty proceedings. 

468 
fEDERAL MINE SAJ!ETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SHAMROCK COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

June 7, 1979 

Docket Nos. 

DECISION 

BARB 78-82-P 

BARB 78-83-P 

BARB 78-84-P 

BARB 78-85-P 

BARB 78-98-P 

BARB 78-99-P 

This penalty proceeding arises under the Federal Mine Safety and 

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

October 30, 1978, Administrative Law Judge Steffey found that Shamrock 

Coal Company had violated 31 mandatory safety and health standards and 

assessed civil penalties totaling $16,673. Shamrock petitioned for 

discretionary review of several of the findings of violation and penalty 

assessments. On December 11, 1978, the Commission granted the petition 

in part. The issues that we directed for review were: (1) whether 

sub~tantial evidence supports two of the findings of violation; and (2) 

whether substantial evidence supports the judge's penalty assessments 

with respect to twenty-one of the violations. 

After a thorough review of the record below, the decision of the 

judge and the arguments of the parties, we conclude that the judge's 

findings of violation in issue are supported in the record by substantial 

evidence. Accordingly, we affirm the findings that Shamrock violated 

the safety standards cited in notices of violation numbered 9 LLL (7-

81) and 3 RM (7-3). 

Shamrock presents no persuasive reasons why we should overturn the 

penalty assessments of the judge. Shamrock's argument that the judge 

cannot make a de ~ assessment of penalties, but must follow the 

criteria for assessment of penalties contained in the. 30 CFR Part 100 

procedures of the Secretafy of Labor's Office of Assessments, is misdirected. 

Under section llO(i) of the Act, de nova assessment of penalties is 

within the authority of the Commiss~nd its judges. 1/ Moreover, at 

the hearing counsel for Shamrock insisted that the judge refrain from 

consideration of the Secretary's Part 100 proposals. We conclude that 

the penalty assessments on review are based on the evidence in the 

record and reflect correct consideration of the statutory criteria set 

forth in section 110 of the Act. The penalties are appropriate and will 

not be disturbed. 

1./ Section llO(i) provides: 

The Commission shall have authority to assess all civil 

penalties provided in this Act. In assessing civil penalties, 

the Commission shall consider the operator's history of 

469 79-6-5 
Accordingly, the judge's decision is affirmed. 

1./ cont'd 

previous violations, the appropriateness of such penalty 

to the size of the business of the operator charged, whether 

the operator was negligent, the effect on the operator's 

ability to continue in business, the gravity of the violation, 

and the demonstrated good faith of the person charged in 

attempting to achieve rapid compliance after notification 

of a violation. In proposing civil penalties under this Act, 

the S~cretary may rely upon a summary review of' the information 

available to him and shall not be required to make findings 

of ·fact concerning the above factors. 

470 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADHINISTRATION (MSHA), 

On behalf of John Koerner, 

Applicant 

June 15, 1979 

' 

v. Docket No. DENV 78-564 

ARCH MINERAL COAL COMPA..."'N, 

Respondent. 

DECISION 

This is a discrimination proceeding under section 105(c) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C.A. §815(c)(l978). 

On September 12, 1978, on application of the Secretary of Labor, Acting 

Chief Judge Broderick issued an order of temporary reinstatement restoring John Koerner, the alleged discriminatee, to his job with Arch Mineral 

Coal Company. Thereafter the Secretary moved to vacate the temporary 

reinstatement order on the ground ~hat the parties had negotiated a 

settlement. Administrative Law Judge Littlefield granted the motion on 

February 7, 1979. The record did not indicate whether Mr. Koerner 

agreed to the motion to vacate the reinstatement order. 

The Commission directed review on March 9, 1979, to determine 

whether there were sufficient grounds to grant the motion. The case was 

remanded for the limited purpose of supplementing the record. The 

Secretary's submissions on remand indicate that Mr. Koerner was a party 

to the settlement and authorized the Secretary to move for vacation of 

the temporary reinstatement order. 

The primary concern of the Commission in directing review was to 

assure that the alleged discriminatee voluntarily agreed to vacating the 

reinstatement order. It is the miner's rights that are being settled, 

and we must, therefore, insure that the settlement and vacation of the 

reinstatement order were agreed to by the miner, not just the Secretary 

and the operator. 

79-6-16 

471 
The record now shows that Mr. Koerner was a voluntary party to 

the agreement. Our concern has been satisfied. Accordingly, the 

February 7, 1979 order of Judge Littlefield is affirmed. 

Jerome R. Waldie, Chaipnan 

Nease, Commissioner 

472 
ADMINISTRATIVE LAW JUDGE DECISIONS 

JUNE 1, 1979 - JUNE 29, 1979 

FEDERAL MINE SAFETY AND HEALTH REVDEW COMMISSION 

OFFICE Of ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VJRG INIA 22~03 

JUN 1 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

P~titioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

and 

PEABODY COAL COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR, . 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

1979 

Civil Penalty Proceeding 

Docket No. VINC 79-52-P 

A.C. No. 11-01008-03004 

Applications for Review 

Docket No. VINC 78-389 

Citation No. 269304; May 16, 1978 

Docket No. VINC 78-390 

Citation No. 269305; May 16, 1978 

Docket No. VINC 78-391 

Citation No. 269306; May 16, 1978 

Baldwin No. 1 Mine 

DECISION 

Appearances: Leo J. McGinn, Esq., MSHA Trials Branch, Office of the 

Solicitor, U.S. Department of Labor, for MSHA; 

Before: 

Thomas F. Linn, Esq., Peabody Coal Company, St. Louis, 

Missouri, for Respondent/Applicant. 

Administrative Law Judge Michels 

The above-c~ptioned cases consist of three applications for 

review filed June 2, 1978, by the Peabody Coal Company (Peabody) pursuant to section 105(a) of the Federal Mine Safety and Health Act of 

1977 (the Act), 30 U.S.C. § 815(a), and a civil penalty proceeding 

concerning the same three citations filed November 8, 1978, pursuant 

to section llO(a) of the Act, 30 U.S.C. § 820(a). These four proceedings were consolidated at the hearing (Tr. 10). They concern the 

issuance by Inspector Jack J. Eddy of three citations on May 16, 1978, 

charging a violation of 30 CFR 75.1700 for allegedly permitting in 

473 
three instances an oil well hole to be drilled through the mine 

coalbed in active workings and for the maintaining of a barrier of 

less than 300 feet in diameter ar~und those wells without the 

approval of the Secretary. 

In each application for review, Peabody (1) denies that the circumstances justified the issuance of a citation under section 104(a) 

of the Act; (2) alleges that the actions of the inspector were arbitrary and capricious, without authority in faet or law, and exceeded 

his authority; and (3) asserts that the length of the abatement time 

was unreasonable, arbitrary, capricious, and not justified. In its 

answer, MSHA (1) admits the issuance of the citations; (2) denies 

the allegations otherwise; (3) asserts that the time to abate as 

extended was reasonable; and (4) alleges as an affirmative defense 

in the review cases that each of the citations has been abated and 

terminated and that the Act does not provide for review in these 

circumstances.'};./ 

The petition for assessment of civil penalties was filed 

November 8, 197S, charging violations of 30 CFR 75.1700 in the 

three cited instances of a drilled oil hole and asking a penalty 

of $840 for each, or a total of $2,520. Peabody answered with a 

general denial. 

A hearing was held in St. Louis, Missouri) on March 7, 1979, at 

which both parties appeared through counsel. The parties have filed 

posthearing briefs and proposed findings and conclusions. Such of 

these as are not adopted herein or specifically rejected are hereby 

rejected as immaterial or not supported by the evidence. 

Issues and General Conclusions 

The general issues are: 

A. Has Peabody violated 30 CFR 75.1700 as charged? 

1/ MSHA also moved to dismiss the applications on June 15, 1978, 

asserting the same reasons stated in its affirmative defense and 

citing various authorities including Judge Richard Steffey's 

initial decision in Itmann Coal Company v. Secretary of Labor, 

HOPE 78-356 (May 26, 1978). The motion was denied by my order of 

August 22, 1978, but the hearing was delayed p~nding the filing of 

the prospective penalty case. The penalty case seeking assessment 

of ~ivil penalties for the three citations upon which review was 

s~ught was filed November 8, 1978, and is included herein as Docket 

No. VINC 79-52-P. 

The Commission's recent decision in Energy Fuels Corporation, 

DENV 78-410 (May 1, 1979), addresses this issue. Under that holding, 

I believe it is clear that the operator, in the circumstances shown, 

is entitled to a review of the citations. 

474 
B. Were the citations issued with reasonable promptness? 

C. If Peabody violated the mandatory standard, what should be 

the penalty assessed based on the criteria set forth in section 

llO(i) of the Act? :!:./ 

More specific issues are (a) whether 30 CFR 75.1700 governs the 

drilling of an oil or gas well through a section of a mine which has 

been worked out, although still an active part of the mine; and (b) 

whether MSHA acted arbitrarily and capriciously in requiring the 

building of extensive cribbing. 

This decision holds that 30 CFR 75.1700 was violated by Peabody 

only because of its failure to notify the Secretary of the existence 

of the oil or gas wells after they had been located and that the section was not otherwise violated. This decision further holds that 

MSHA acted arbitrarily and capriciously in requiring the building of 

cribs. A nominal penalty is assessed. 

Findings of Fact 

·Peabody Coal Company is the operator of the Baldwin No. 1 Mine 

which is a slope mine with 11 active sections. The size of the coal 

seam at the mine varies from 6-1/2 to 7 feet. Approximately 500 men 

are employed and the daily production is around 12,500. tons (Tr. 17-

18). 

Inspector Jack J. Eddy made a visit to the Baldwin No. 1 Mine on 

May 12, 1978, because he had been informed by his supervisor that oil 

wells were drilled through the active part of the mine. He asked 

Mr. Gary Craig, Peabody's assistant safety manager, for the location 

of these wells. Both went underground and attempted to determine the 

location of the wells from mine managers Jones and Laughland and two 

engineers. These persons did not seem to know the locations and 

Mr. Randall Dempsey, chief engineer, was called (Tr. 20-22). 

Mr. Dempsey was able to locate the wells and he apparently provided 

the engineers with a map showing their locations (Tr. 41). 

After acquiring transportation, the engineers took the inspector to the well locations. One of the wells was identified as an 

oil well on the rib of the coal, but the other locations were not 

so identified. In each case, the wells were encased in blocks or 

pillars of coal of various sizes and the locations of the wells 

2/ The issue of reasonableness of time for abatement was presented 

in the applications but was not raised during the hearing or in the 

posthearing briefs. Thus, the allegation as.to abatement time is 

not considered as an issue. 

475 
could not be determined visually (Tr. 26-27). The wells were 

located generally in the centers of the coal pillars (Tr. 51; R-8, 

R-9, R-10). 3/ The distances from the well to the nearest opening 

were as follows for the respective wells: Patton No. 1, approximately 25 feet; Stevenson No. 1, approximately 20 feet; and Hoffman 

No. 2, approximately 25 feet (Tr. 128). These were "active workings" 

even though the mining operation had advanced beyond the wells (Tr. 

26-27, 61). 4/ There was no plan for retreat mining in this area 

(Tr. 38). -

Tfie existence and location of these wells had not been reported 

to MSHA by Peabody, but MSHA learned this information through other 

sotlrces (Tr. 20). Peabody officials did not believe the regulation, 

30 CFR 75.1700, related to these wells which were in a mined-out 

area_ (Tr. 104, 122). 

The first well is identified as Stevenson No. 1 and it is 

located between the No. 6 and the No. 5 Main East entries in the 

intake aircourse. This well is 2,093 feet deep and passes the coal 

seam at 286 feet based on a surface elevation of 471 feet. The hole 

which passes through the coal seam is 7-7/8 inches in diameter. 

Stevenson No. 1 is located within a pillar of coal near the end of 

a long rectangle which measures 40 by 380 feet. This was the only 

barrier around the well. Drilling the well began on February 6, 

1978, and was completed on February 12, 1978 (Tr. 29-30; G-12, R-1, 

R-9). This well has been plugged (Tr. 47). 

The next well upon which a citation was issued is identified as 

Patton No. 1. It is 2,141 feet deep and is located between the third 

and fourth Main East entries. A 7-7/8-diameter pipe passes through 

the coal seam at 342 feet based on a surface elevation of 470 feet. 

The coal pillar through which the well is drii"led measures 64 by 

54 feet. This well is located approximately in the center of that 

pillar. Patton No. 1 was started June 6, 1977, and was completed 

June 12, 1977 (Tr. 31-32; R-8, G-14, R-1). 

The final of the three wells is identified as Hoffman No. 2, a 

dry well which is located between the No. 10 and No. 11 East Main 

entries. This well is 2,098 feet deep and it passes the coal seam 

at 332 feet based. on a surface elevation of 480 feet. The size of 

the well hole through the coal seam is 7-7/8 inches in diameter. 

This well is drilled approximately through the center of the coal 

3/ Peabody's exhibits are identified with a capital "R" and a number; 

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

4/ Peabody has not disputed in its posthearing brief that the well 

bores were in "active workings", that is, a place in a coal mine 

where miners are normally required to work or travel. See 30 CFR 

75.2(g)(4). 

476 
pillar which measures 54 by 52 feet. Hoffman No. 2 was started 

April 21, 1978, and finished on April 25, 1978 (Tr. 32; R-10, G-13; 

R-1) • 

The inspector visited the Baldwin No. 1 Mine and determined the 

location of the oil wells on May 12, 1978, but he did not issue his 

citations until May 16 (Tr. 62). Inspector Eddy considered this to 

be an unusual situation and so before issuing citations, he consulted 

with the district and subdistrict managers who ultimately made the 

determination on the abatement procedures to be_required. This was 

done before the citations were issued (Tr. 65). The decision by the 

MSHA managers that there was a violation included the procedure which 

would be required for abatement. The decision to issue the citations 

was not made by the inspector but by others in the district or subdistrict offices (Tr. 65). Inspector Eddy's supervisor, who had not 

inspected or seen the wells, told him to issue the citations (Tr. 55-

56). 

On May 17, MSHA made and communicated to Peabody its determination that cribbing would be required for abatement (Tr. 56). The 

conditions were thereafter abated by the construction of cribs pursuant to Peabody's plan approved by the MSHA district manager (Tr. 

36). These cribs consisted of fire-resistant ties built box-like 

with the ties interlaced one on top of the other at the ends leaving 

spaces between them. The ties were wedged against the top (Tr. 37). 

The cribs or cribbing boxes are themselves separated. The plan drawn 

up for the cribbing is R-4 (Tr. 95). This plan provides: for 

Stevenson No. 1, 21 cribs and 714 ties surrounding one end of the 

coal pillar; Patton No. 1, 38 cribs and 1,292 ties completely surrounding the coal pillar; and Hoffman No. 2, 40 cribs and 1,280 ties 

completely surrounding the coal pillar. 

The man-hours involved in building the cribs are shown on R-5 

as totaling 511 hours. The total·cost for the material, hauling and 

man-hours was $21~000 (Tr. 110). 

The purpose of the cribs was not to hold up the roof, but to prevent or diminish subsidence which might cause a rupture of the oil 

pipe (Tr. 38, 64). A rupture of the piping or casing could turn 

loose explosive gases. creating a fire hazard in the view of the 

inspector (Tr. 39). Nevertheless, generally cribs used to support 

top are put near the center of the entry or crosscut (Tr. 57) • 

Furthermore, the subsidence in this mine was normal and not very 

substantial (Tr. 109). 

Subsidence was described by Mr. Eddy, the inspector, as a 

"squeezing, shifting of the earth" (Tr. 39). Witness William Jones, 

chief mine manager for Peabody, described subsidence in the following words: 

477 
I use the word "squeeze." That's where your top comes down 

to meet the bottom and that happens because you have, 

several things can cause it. You could have an area that is 

overworked out, in other words, your extraction is greater 

than it should be, your bottoms would be soft and you would 

have very good top in the area. And that good top, if you 

had pressure and you opened your cavity would be a larger 

cavity than what the bottom would support, it pushes the 

pillars down into the bottom or the fire clay which closes 

up that area. This, I think, is what they're referring to 

as the subsidence. 

(Tr. 115). The pressure is mainly from the top downward though it 

could be riding to the side (Tr. 116). 5/ 

Inspector Eddy, although he testified the subsidence at the 

Baldwin No. 1 Mine could cause a rupture of the oil well piping, had 

no special qualifications on the subject of oil well drilling and the 

special problems this may create in a mine. The inspector had been 

a coal miner for about 30 years prior to joining MSHA and he has been 

an inspector for ab.out 9 years. As a coal miner, he had engaged in 

all practical coal mining and he also had been a foreman and mine 

manager for approximately 25 years (Tr. 16-17). Nevertheless, 

Mr. Eddy conceded that these oil wells created an unusual situation, 

one that he had never run into before (Tr. 65). He could not state 

whether, if subsidence occurred, the cribbing would or would not protect the oil well (Tr. 52). 

Gary Craig, Peabody's assistant safety manager, who also did not 

appear to have any special qualifications in the field of oil well 

drilling, expressed the view that cribbing was & waste of time and 

money (Tr. 109). He testified that since the abatement he has 

examined the cribs and they have taken no more weight than is normal 

as the mine progresses and that is not a significant amount (Tr. 109). 

MSHA adduced no evidence contrary to such testimony about weight. 

Randall Dempsey, area engineer for Peabody, supervises all mapping and plotting of the mine and supervises all permits issued for 

the mine. He has worked for Peabody for 9 years, has a B.S. degree 

in civil engineering from the University of Missouri and he has a 

registered professional engineer's license issued by the State of 

5/ "Subsidence" is defined in the Dictionary of Mining, Mineral and 

Related Terms, U.S. Department of the Interior (1968), as follows: 

"Subsidence. (a). A sinking down of a part of the earth's 

crust. Fay. (b). The lowering of the strata, including the surface, 

due to underground excavations. See also maximum subsidence. Nelson. 

(c). Surface caving or distortion due~effects of collapse of deep 

workings. Pryor, 3." 

478 
Illinois (Tr. 117-119). Mr. Dempsey testified that subsidence could 

happen and that in some cases it might be severe enough to take 

safety precautions, altho~gh not necessarily barriers (Tr. 137). 

In his view, the barrier provided by the coal pillars, in the case 

of the oil wells here in issue, was sufficient protection (Tr. 138). 

There was no evidence around the three wells of any oil, water 

or gas seepage. Also, there was no methane (Tr. 50, ·107, 140). 

Peabody has no direct control over the drilling of oil or gas 

wetls through its Baldwin No. 1 Mine coal seam. The evidence is 

sketchy, but it appears that Peabody either owns or leases the underground coal and other persons own the oil or gas resources and have 

a right of access to such resources (Tr. 68, 135). The driller is 

not required to obtain a permit from the mine owner to drill, but 

management at the Baldwin No. 1 Mine, when aware the drilling is to 

take place, requires the driller to operate where it will not be 

hazardous to the mine. Ordinarily, the driller informs State 

authorities, who, in turn, advise the driller to contact the operator of the affected mine. It is possible that drilling could take 

place without the knowledge of the operator unless the actual drilling is heard inside the mine. In the instances of the oil wells in 

issue, Peabody had advance notification of the drilling (Tr. 133, 

135-136). Mr. Dempsey was aware of the drilling and he imparted 

this information on two of the wells to the supervisor of the mine, 

but he could not recall whether he had advised the supervisor about 

the third well (Tr. 133). 

Peabody, when it locates an oil or gas well while advance mining, notifies MSHA of that fact and seeks a permit if it intends to 

mine within a 300-foot diameter around the well. One such permit 

is R-6. In that instance, MSHA granted a permit to extract coal 

within a 300-foot diameter subject to certain stated conditions, 

including one that the barrier would be no less than required by 

State laws. The pillar of coal containing the oil well in that 

situation was 110 by 100 feet and the well was in one corner of 

the pillar 30 feet from each of the two nearest openings or edges 

(Tr. 119-120, 129). ·There have been many permits of this nature 

issued to Peabody, but the minimum distance involved from the edge 

of the pillar to the well was 30 feet. A number of permits were 

in the 30- to 50-foot range (Tr. 141). 

Discussion of Facts and Law 

The inspector in these citations charged a violation of 30 CFR 

75.1700 for each oil well drilled, stating, in substance, that the 

479 
barrier was less than 300 feet in diameter and that there had been 

no approval given by MSHA for the smaller barrier. 6/ The cited 

regulation, 30 CFR 75.1700, which is identical to section 317(a) 

of the Act, requires (1) that the operator take measures to locate 

an oil or gas well penetrating its mine, and (2) that when located, 

the operator shall establish and maintain barriers around such oil 

and gas wells in accordance with the State laws and regulations, 

except that such barriers shall not be less than 300 feet in ' 

diameter subject to exceptions for lesser or greater barriers 

depending upon the circumstances. J_/ 

A contention of Peabody is that the citations were not issued 

witb reasonable promptness as required by section 105(a) of the Act 

and, thus, that no violation of the regulation occurred. The conditions, as shown by the evidence, were observed by the inspector on 

May 12, 1978, and the citations were not issued until 4 days later 

on May 16. The 12th was a Friday, so the 13th and the 14th were 

non-business days. Thus, the time of the investigation and the time 

of the issuance of the citations were separated by 1 business day. 

Normally, a citation is issued on the same day the condition alleged 

to be a violation is found. In this instance, however, the inspector was not certain either that the conditions were violations, or 

if violations, what corrective action should be recommended. He 

consulted with his superiors because of the unusual nature of the 

6/ The condition or practice described is the same in each of the 

three citations except for the locations and size of the pillars. 

That in Citation No. 269306 reads as follows: 

"The operator permitted an oil well drill hole to be drilled 

through the mine coal bed in active workings in a pillar approximately 380 feet by 40 feet between the No. 5 east and No. 6 east 

Main entries. This was at the survey station No. 209+54. The Mine 

Safety and Health Administration did not give approval nor were they 

aware of the drilling taking place. The barrier was less than 

300 feet in diameter." 

7/ The regulation, 30 CFR 75.1700, in full text reads as follows: 

- "Oil and gas wells. Each operator of a coal mine shall take 

rea.sonable measures to locate oil and gas wells penetrating coalbeds 

or any undergrourtd area of a coal mine. When located, such operator shall establish and maintain barriers around such oil and gas 

wells in accordance with State laws and regulations, except that 

such barriers shall not be less than 300 feet in diameter, unless 

the Secretary or his authorized representative permits a lesser 

barrier consistent with the applicable State laws and regulations 

where such lesser barrier will be adequate to protect against hazards from such wells to the miners in such mine, or unless the Secretary or his authorized representative requires a greater barrier 

where the depth of the mine, other geologic conditions, or other 

factors warrant such a greater barrier." 

480 
matter and ultimately the district and subdistrict managers determined the course of action which the inspector was to take. It 

does not appear to me to be inappropriate that the inspector would 

consult his superiors in these circumstances. The consultation took 

a little extra time; thus, the delay of 2 business days does not seem 

unreasonable. This is particularly so where there is no showing that 

such delay was in any way prejudicial to Peab9dy. Accordingly, I 

reject this contention of Peabody and hold that the citations were 

issued with reasonable promptness. 

The principal argument made by Peabody is that 30 CFR 75.1700 

does not cover wells drilled after an area has been mined. Peabody 

argued during the hearing that the regulation covers only the discovery of a well already in existence as mining progresses. It 

based this argument on asserted differences in the two situations. 

Peabody contended that mining into a new area where a well is located 

presents a special hazard because pressures may have been built up 

which will burst out suddenly if the well casing is ruptured. On 

the other hand, it maintained that where wells are drilled in a 

mined-through area and are maintained and producing, there is no 

pressure and the hazard is not that which 30 CFR 75.1700 was intended 

to cover. Peabody, in its posthearing brief, takes essentially the 

same position, but stresses more the fact that MSHA itself was not 

sure about the way to handle this matter. Peabody also contends in 

its brief that cribbing was not a proper barrier. 

MSHA argues that the requirement is for a 300-foot barrier around 

any oil or gas well in active workings whether it is before or after 

the area is mined. MSHA contends that the danger is the same in 

either case. 

The statutory provision and the regulation, 30 CFR 75.1700, as 

noted above, are one and the same. In my view, there is no ambiguity 

in this section of the Act. It requires the operator to establish 

and maintain appropriate barriers wherever and whenever oil or gas 

wells are located. Nevertheless, a review of the legislative background may be useful in giving a context to this provision of the law. 

The requirement for barriers around gas or oil wells was originated by Congress in the Federal Coal Mine Health and Safety Act of 

1969. This was section 317(a) of the 1969 Act and it became mandatory safety standard 30 CFR 75.1700. This provision was not changed 

by the 1977 Act; hence, the background and history under the 1969 

Act is relevant. 

The Senate Report for the 1969 Act in its section-by-section 

analysis explains the reason for the section: 

481 
Numerous inundations of gas into coal mines have been 

caused by cutting into or approaching too near gas wells. 

The sudden introduction of oil or gas into coal mines presents hazards that are difficult to handle. All possible 

precautions should be exercised to safeguard against penetrating oil and gas wells by the operators. 

Leg. Hist., Federal Coal Mine Health and Safety Act of 1969 (Comm. 

Print-:-1970), pp. 83-84. I have found no other comments in the 

1969 Act's Legislative History particularly useful in interpreting 

this section of the Act; however, see pages 869 and 1136, Legislative History, supra. 

Congress, in requiring the operator to establish and maintain 

"barriers" around located gas and oil wells, did not indicate the 

kind of barrier it intended and there is little to suggest the exact 

purpose of the barrier other than for the. brief explanation quoted 

above. 

A "barrier," as defined in Webster's Third International Dictionary (1966), is "a material object or set of objects that separates, 

keeps apart, demarcates, or serves as a unit or barricade." In the 

mining industry, the term appears to have a more specific meaning. 

A Dictionary of Mining, Mineral and Related Terms (Department of the 

Interior, 1968), defines the term as follows: 

barrier. a.) Blocks of coal left between the workings 

of different mine owners and within those of a particular 

mine for safety and the reduction of operational costs. It 

helps to prevent disasters of inundation by water, of explosions, or fire involving an adjacent mine or another part 

of a mine and to prevent water running from one mine to 

another or from one section to another of the same mine. 

Mason, v. 1, p. 312. See also barrier pillar. b.) A low 

ridge by wave of actiotl1lear the shore. Fay. 

The same dictionary defines a related term thusly: 

barrier pillar. a.) A solid block or rib of coal, 

etc., left unworked between two collieries or mines for 

security against accidents arising from an influx of water. 

Zern. b.) Any large pillar entirely or relatively unbroken 

by roadways or airways that is left around a property to 

protect it against water and squeezes from adjacent property, or to protect the latter property in a similar manner. 

Zern. c.) Incorrectly used for a similar pillar left to 

protect a roadway or airway, or a group of roadways or airways, or a panel of rooms from a squeeze. Zern. 

Based on these definitions, a "barrier" ordinarily would consist of a coal pillar or a rib of coal and the purpose is not only 

482 
to keep fluids and gases out of the mine, but also to prevent 

"squeezes," that is, the squeezing down of the top, at least from 

adjacent property~ As a historical matter, it appears that the use 

of the coal pillar was originally developed by the petroleum and 

natural gas industry to prevent subsidence due to mining from rupturing or dislocating a well bore. Quarto Mining Company, Docket No. 

M 77-48 (Initial Decision, Judge Michels) (Dece~ber 5, 1977), p. 3. 

The term "barrier", as used in the statute, would, I believe, 

generally define a coal pillar, and its principal purpose, as referred 

to in the legislative history quoted above, would be to safeguard 

against penetrating oil and gas wells by operators. Nevertheless, 

there is nothing in the statute or the legislative history limiting 

the type of barrier to be used or its purpose so long as it relates 

to protection against hazards from wells. The Act and the regulation 

require simply that measures are to be taken to locate wells--there 

being no implication that such must be in existence when the coal is 

mined--and that appropriate barriers be established and maintained 

when a well is located. The oil wells in issue in this proceeding 

now exist; thus, the required measures to locate and to provide for 

appropriate barriers must be taken. These particular wells were 

located when the drillers made known to Peabody the fact that the 

oil wells were to be drilled and where they were to be located. 

As indicated, ordinarily the barrier to be established and maintained would be the coal barrier, but when that no longer exists or 

only partially exists, other kinds of barriers made from other materials may have to be used. It is significant that the Act and the 

regu·lation, when referring to "barriers," or to a "barrie:i; 1' in no 

place limits these to coal barriers; thus, they can be made of other 

substances. The use of barriers may be required to protect against 

subsidence if there is a risk that such a condition would rupture 

the wells and release gases or liquids. The regulation is clearly 

broad enough to protect the miners from hazards of such a rupture 

as well as ruptures from accidental cutting in the mining process. 

The courts have consistently held that the 1969 Act, because it 

is safety or remedial legislation, should be broadly construed. The 

same construction would be applicable to the 1977 Act. In District 

#6, UMWA v. Interior Board of Mine Operations Appeals, 562 F.2d 1260, 

1265. (D.C. Cir. 1976), the -court stated-: "Should a conflict develop 

between a statutory interpretation that would promote safety and an 

interpretation that would serve another purpose at a possible compromise to safety, the first should be preferred." See also St. Mary's 

Sewer Pipe Company v. Director of U.S. Bureau of Mrrle-s:-2"62 F.2d 378 

(3rd Cir. ·1959); Phillips v. Interior Board of Mine Operations · 

Appeals, 500 F.2d 772 (D.C. Cir. 1974); UMWA v. Kleppe, 532 F.2d 1403 

(D.C. Cir. 1976); Freeman Coal Mining Co~ Interior Board of Mine 

Operations Appeals, 504 F.2d 741 (7th Cir. 1974). If the statutory 

provision reflected in 30 CFR 75.1700 is not interpreted to include 

483 
wells dr{lled in mined-out areas~ there would appear to be no 

practical way in which MSHA could take measures in appropriate 

instances to protect miners against the protential hazards of such 

well bores. The condition found by the inspector in this case did 

not constitute imminent danger and so, unless there is a violation, 

he would be powerless to correct the condition, though it is determined to be a safety hazard. Therefore, it appears espe~ially 

important to construe the Act so as to implement the remedial purpose in this particular section. 

Under 30 CFR 75.1700, after the wells have been L>i~ated--in 

this case after notification to Peabody by the drillers--the second 

sentence of the regulation becomes operative. Therein, the Secretary or his authorized representative is empowered to permit or 

require lesser or greater barriers. It necessarily follows and is 

implied from the language of the Act, particularly where the minimum of 300 feet in diameter will not be provided, that the Secretary must be notified of such fact. 

In these instances, in each case the coal pillar or barrier 

through which the well was drilled is significantly smaller than 

300 feet in diameter. Consequently, it was necessary for Peabody 

to inform the Secretary and to obtain the necessary authorization. 

Such a notification is designed to give and would give the Secretary an opportunity to investigate or to otherwise make a determination if the lesser barrier is adequate. If it is found not adequate, 

then MSHA determines the size and type of any substitute barrier. 

Based on the evidence and the reasonable implications therefrom, I 

find that no notification was given to MSHA by Peabody as to the 

existence and location of the three oil wells. 

The violations of 30 CFR 75.1700 as to the oil wells here in 

issue were, in my view, solely the failure to notify the Secretary 

and not the failure to take 0ther action such as the construction of 

additional barriers. The facts show that Peabody had no control over 

whether a well would be drilled into the Baldwin No. 1 Mine, although 

it apparently could exercise some influence over the exact location 

of .the well. Because Peabody could not prevent the drilling and 

because it had already mined the coal which would have constituted 

a 300-foot coal barrier, it can hardly be held liable for the failure to establish and maintain such a coal barrier. It can, however, 

be held for the failure to maintain a substitute barrier if that 

should thereafter be determined as necessary. 

Thus, I find that Peabody as to each of the oil wells, violated 

30 CFR 75.1700 as alleged because of its failure to notify the Secretary or his authorized representative that such wells had been 

located. 

4~4 
The primary challenge in these cases, however, is directed toward 

the requirements which MSHA imposed upon Peabody as an abatement measure. Peabody, as the statement of facts fully outline, was required 

to build cribs around each of the pillars at a cost ·to it of $21,000. 

The position of Peabody, in effect, is that all of this cribbing was 

unnecessary and of little or no value. 

As I found above, under 30 CFR 75.1700 the operator is obliged 

to notify MSHA that it has located oil or gas wells even if they are 

drilled after the area has been mined out. Further, it seems clear 

to me that under 30 CFR 75.1700, MSHA, after such notification, is 

obliged to make a determination of the adequacy of the existing 

batriers, which may be based upon an investigation. Thereafter, MSHA 

must advise the operator of the measures it must take, if any, to 

adequately protect the miners against potential hazards. While MSHA 

seems to have made that determination in this case it has, on the 

other hand, charged Peabody with violations of failures to have 

proper ba.rriers prior to the making of the determination. In its 

posthearing brief, MSHA makes clear its view that the lack of a sufficient barrier constitutes the violation (MSHA Brief, pp. 2 and 3). 

In the instances of these oil wells, the barriers of coal which 

were respectively 40 by 380 feet, 74 by 54 feet and 54 by 52 feet, all 

were obviously less than the 300 feet in diameter minimum required by 

the regulation regardless of where the wells were located within the 

pillars. In my view, the proviso reading "or unless the Secretary 

or his authorized representative requires a greater barrier where the 

depth of the mine, other geologic conditions, or other factors warrant 

such a greater barrier" is applicable to the conditions found. The 11 greater barrier" means in the instance of advance mining, a barrier 

of coal exceeding 300 feet in diameter, but in instances such as 

these oil wells where the coal has been partly removed before the 

drilling, it means one that exceeds the existing diameter-or 

measurement. 

Thus, a.s to the wells involved, MSHA should have made an initial 

or preliminary determination based on the depth of the mine, other 

geologic conditions and other factors as to the corrective action, 

if any, needed for the safety of the miners. Thereafter, if MSHA 

found that some additional barriers were necessary, its proper course 

of action would be t~ direct Peabody to erect such barriers and to 

fix a reasonable time for their completion. There would be no violation unless Peabody failed to comply within the time fixed and if 

it did fail it could be cited for a violation of 30 CFR 75.1700 even 

though the original lack of barriers is no.t__a violation. MSHA did 

not so enforce the regulation, but found violations for the initial 

absence of barriers. 

While MSHA did not follow the procedures outlined above, it did 

make a determination that additional barriers were needed and it is 

485 
my view that any such determination is reviewable. This is not an 

abatement procedure; rather, it concerns an initial determination by 

MSHA that barriers are needed based upon the depth of the mine, 

other geologic conditions or other factors. I will proceed hereafter 

to consider whether MSHA has shown on this record justification for 

its determination that greater pillars are needed. 

The only evidence in support of the additional barriers was the 

testimony of the inspector and as disclosed in the findings of fact, 

the inspector was not an expert in this field. The inspector had 

never been faced with a situation similar to this and considered it 

sufficiently unusual to go to his superiors for a determination as to 

what action to take. The inspector did not know whether the corrective action taken would prevent rupturing of the pipes. 

Furthermore, the inspector who had investigated the matter did 

not make the determination that cribs were necessary. The decision 

was made by Mr. Eddy's superiors, apparently including the subdistrict manager. The person or persons who made the decision are not 

identified in this record. There is no indication whatsoever that 

this person or persons had any firsthand knowledge of the Baldwin 

No. 1 Mine. The supervisor who told Mr. Eddy to issue the citations 

did not inspect the mine and had not viewed the conditions for which 

the citations were issued (Tr. 55-56). 

On the other hand, Peabody's witnesses both testified to the 

effect that the use of the cribs was unnecessary and a waste of 

effort. These witnesses had viewed the scene and were fully familiar 

with conditions at the mine. Peabody's Randall Dempsey, a licensed 

engineer, has the best technical background of the three witnesses. 

While Mr. Dempsey conceded that in some instances it might be necessary to take safety precautions where an oil well is drilled through 

a small pillar, it was his opinion that the coal pillars existing 

as to each of the wells in issue were sufficient. 

The Baldwin No. 1 Mine has been given permits many times for 

mining closer to wells than the mandated 150 feet and many of the 

permits were in the range of 30 to 50 feet. No evidence was adduced 

to show that the circumstances as to the wells in issue were markedly 

different from the other cases in which permits were granted or that 

the somewhat lesser distances involved were significant. 

While it was revealed that the Baldwin No. 1 Mine had some subsidence, the evidence establishes that this is a normal condition. 

There is no evidence that the degree of subsidence was in any way 

unusual or that it was significant so far as the oil wells are concerned. No methane was detected and there was no evidence of any gas 

or oil leaks. In particular, there was no evidence that the extensive cribbing, while possibly preventing some subsidence, would be 

effective against an oil pipe rupture. The evidence is mostly to the 

contrary, that is, that the cribhing would be ineffective. 

486 
Furthermore, because this is a mined-through area, there seems 

to be little or no danger of an accidental rupturing of an oil well 

and a sudden release of gas under pressure which may be occasioned 

by such a rupture. This is because the coal has already been mined 

in the area. No retreat mining is planned, but if it should take 

place, the locations of the wells are known and thus this particular 

danger would not be presented. 

'lllere are other circumstances bearing on the matter. The testimony indicates that there is no pressure on the wells which are 

active and pumping oil. The oil can be obtained only by pumping. 

Also, 9ne of the wells, Stevenson No. 1, was securely plugged 

below the coal seam with cement. As to this particular well, the 

possibility of a gas leak would appear to be extremely remote, if 

not entirely eliminated. There is no evidence that a rupture in 

this case would present any potential hazard. MSHA's brief makes 

no claim of a significant hazard stating only that "the possibility 

of subsidence cannot be ruled out, and the reality of potential 

danger associated with the presence of oil or gas wells in underground workings was not entirely eliminated" (MSHA Brief, p. 4). 

I find on the basis of the evidence of record that MSHA has 

failed to show that the cribs were necessary considering the depth of 

the mine, geologic conditions and other factors and that in -the circumstances its action requiring that they be built was arbitrary 

and capricious. §_/ 

In summary, Peabody violated 30 CFR 75.1700 by its failure to 

notify the Secretary or his authorized representative of the existence of the three oil wells. It did not violate the regulation by 

its failure to provide the cribbing which was ordered or required as 

a corrective measure. The question of erecting the cribs is now moot 

as they are already in place, but I further hold that MSHA did not 

prove the necessity for the building of such cribs and that its 

actions in the circumstances were arbitrary and capricious. MSHA 

in its posthearing brief seems to come close to admitting that the 

crib requirement was excessive, stating "It is possible that in this 

8/ It should be stressed that this finding is based upon the evidence which the parties have presented. I have little doubt that the 

MSHA officials proceeded with good motives. Nevertheless, if MSHA 

had valid reasons for ordering the cribs, it failed to reveal them 

on the record. It may be that MSHA believes it is not required to 

justify such action and thus did not develop the evidence. If so, 

it cannot prevail because as I have held above, MSHA has the burden 

to prove the need for the co~rective action it orders under this 

regulation. 

487 
case, a lesser barrier would have been determined as adequate, but 

this decision rests not with the Operator but with the Secretary or 

his authorized representative***" (MSHA Brief, p. 3). 

Assessment of Civil Penalties 

Having found that Peabody has violated 30 CFR 75.1700, it is 

necessary to make specific findings on the statutory criteria set 

forth in section llO(i) of the Act for the purpose of assessing an 

appropriate penalty. 

Peabody is a large company. There is no evidence that the penalties to be assessed herein will have an effect on the operator's 

ability to continue in business. The history of prior violations 

is shown by Government Exhibit No. G-10. This history will be 

taken into account although no prior violation of 30 CFR 75.1700 

is shown. The testimony indicates that Peabody otherwise has complied with this regulation. Insofar as the building of the cribs 

is concerned, it appears that Peabody made good faith efforts to 

achieve rapid compliance (Tr. 66). 

1he inspector testified that the violations in this case were 

serious because of the potential hazards from the possible rupturing 

of gas or oil pipes. However, it is clear that the inspector was 

addressing himself to the failure to provide the larger barriers, a 

condition which has not been found to be a violation. The only violation found here was the failure to notify the Secretary of the 

existence of the wells and such a failure to notify could be serious. 

However, in this proceeding it appears that any danger resulting from 

such failure was remote. I therefore find the violations to be only 

slightly serious. 

Finally to be considered is the matter of negligence. Peabody 

adduced evidence that it had always notified the Secretary in 

instances where it had located wells on advance mining. In these 

instances, it did not notify the Secretary because it believed that 

it was not required by the law to do so. While Peabody should have 

known the requirements of the law and the regulations, in this case 

because of the unusual circumstances, I find that it is liable only 

for slight negligence. 

Considering the above and also the good faith difference of view 

over the application of the regulation to the particular condition 

shown, I believe that only a nominal penalty is warranted. Accordingly, Peabody is assessed $25 for each of the three violations, or a 

total of $ 75. 

Conclusions 

1. The Baldwin No. 1 Mine owned by Peabody Coal Company is subject to the Federal Mine Safety and Health Act of 1977. 

488 
2. The Administrative Law Judge has jurisdiction in this matter. 

3. The Applications for Review should be denied and those. 

proceedings dismissed. 

4. Peabody Coal Company violated 30 CFR 75.1700 as found herein 

and should be and is assessed a penalty of $75. 

ORDER 

It is ORDERED that the applications for review are hereby DENIED 

and the proceedings for review are DISMISSED. 

It is FURTHER ORDERED that Peabody Coal Company pay the penalties assessed herein in Docket No. VINC 79-52-P in the sum of $75 

within 30 days of the date of service of this decision upon it. 

Distribution: 

~JM~ f??J1r~--M 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 

Thomas F. Linn, Esq., Peabody Coal Company, 301 N. Memorial Dr., 

St. Louis, MO 63102 (Certified Mail) 

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

St., NW., Washington, DC 20005 (Certified Mail) 

489 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTIMTIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRG tNIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EASTOVER MINING CO., 

Respo·ndent 

June 4 ,. 1979 

Civil Penalty Proceeding 

Docket No. BARB 79-198-P 

A.O. No. 15-02002-03001 F 

Darby No. 4 Mine 

DECISION 

Pursuant to notice this matter came on for an evidentiary 

hearing on Thursday, May 31, 1979. After the receipt of 

testimony and documentary evidence from respondent's eyewitnesses 

with respect to the violations charged l./ and the circumstances 

advanced in mitigation and exculpation the following dispositio1. 

was effected: · 

1. With respect to the charge that a bolter helper 

was killed as a result of his failure to move safety 

jacks in the sequence required by the approved roof 

control plan and safe mining practice due to inadequate 

training and supervision, the parties, after consultation with the Presiding Judge, agreed to settle the 

75.200 charge by payment of a penalty of $1,000. 

Because of· the time lapse, one and one/half years after 

the incident, it was impossible to determine what 

conditions existed immediately before the roof fall 

or the roof control plan that was being followed. It 

was clear beyond doubt, however, that Mr. Bennett was 

killed because of precipitous, unanticipated, ·and 

1/ Pursuant to Rule 6ll(a) of the Federal Rules of Evidence, 

the Presiding Judge reversed the order of proof to facilitate 

his understanding of the conditions charged. Under the authority 

of Rule 615 these witnesses were sequestered. 

490 
unpredictable behavior that was unforeseeable 

and unpreventable by the- operator. In this connection, the evidence showed that with respect to the 

particular conduct charged the operator had an adequate 

safety training program supported by disciplinary 

sanctions. It also showed that with an awareness that 

he was working under bad roof, Mr. Bennett, contrary 

to his training, instructions and common caution 

attempted to remove one or more safety jacks prior 

to installation of permanent support. 

Under the circumstances, it was agreed that only 

slight negligence could fairly be imputed to the 

operator. See MESA v. NACCO Mining Co., VINC 76-99-P, 

decision of December 17, 1976 (Merlin, J.); MESA v. 

Mathies Mining Co., PITT 77-13-P, decision of 

April 12, 1977 (Merlin, J.); Island Creek Coal Company, 

(NORT 74-1007-P) decision of November 5, 1975, 

(Kennedy, J.), modified 6 IBMA 240 (1976). Here, 

as in the cases cited, the consequences of the 

violation, while extremely serious, resulted from 

circumstances of employee negligence not reasonably 

foreseeable or preventable by the operator that 

diminished the operator's responsibility under the 

doc·trine of imputation to that of slight negligence. 

Compare National Realty and Construction Company, 

Inc. v. OSHRC, 489 F.2d 1257 at 1266-1267, n. 37 

(D.C. Cir. 1973); MSHA v. Grundy Mining Co., Inc., 

BARB 78-168-P, decision of June 19, 1978 (Kennedy, J.). 

2. With respect to the 9harge that the operator failed 

to take down or support loose roof in violation of 

75.202, the evidence showed that neither Mr. Bennett 

nor any other miner responsible for the work place 

in question was aware of or had any reason to believe 

that a concealed slickensided horseback rock was 

resting on the safety jacks. The removal of the jack 

or jacks did, of course, result in a failure to support 

loose roof that was fatal to Mr. Bennett. In view, 

however, of the uncontradict~d evidence that the roof 

had been sounded and found firm before the jacks were set; 

the fact that unintentional roof falls have never, 

standing alone, been considered violations of 75.202; 

the fact that the charge here was predicated on a claimed 

admission by the bolter, denied under oath at the hearing, 

that a jack had been set under an observed crack; and 

the fact that the conduct charged should fairly be 

considered subsumed under the 75.200 violation, the 

charge was ordered dismissed. 

491 
The premises considered, it is ORDERED that the parties' 

settlement of the 75.200 violation be, and hereby is APPROVED 

and that respondent pay the agreed upon penalty of $1,000 on or 

before Monday, June 11, 1979. It is FURTHER ORDERED that, subject 

to payment, the captioned petition be D ISSED. 

Issued: June 4, 1979 

Distribution: 

Joseph B. Kenne 

Administrative Law Judge 

Karl S. Forester, Esq., Forester & Forester, Forester Bldg., 

First Street, Harlan, KY 40831 (Certified Mail) 

Ster~en Kramer, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 

22203 

492 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE Of ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON. VIRGINIA 22203 

June 5, 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No: BARB 78-494-P 

A.O. No. 14-02502-02020V 

v. 

No. 18 Mine . SHAMROCK COAL COMPANY, 

Respondent 

DECISION 

Appearances: John H. O'Donnell, Attorney, Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Neville Smith, Attorney, Manchester, Kentucky, for 

Respondent. 

Before: Judge Littlefield 

Introduction 

This is a proceeding for assessment of a civil penalty against 

the Respondent and is governed by section llO(a) of the Federal Mine 

Safety and Health Act of 1977 (1977 Act), P.L. 95-164 (November 9, 

1977), and section 109(a)(l) of the Federal Coal Mine Health and 

Safety Act of 1969 (1969 Act), P.L. 91-173 (December 30, 1969). 

Section llO(a) provides as follows: 

The operator of a coal or other mine in which a violation occurs of a mandatory health or safety standard or 

who violates any other provision of this Act, shall be 

assessed a civil penalty by the Secretary which penalty 

shall not be more than $10,000 for each such violation. 

Each occurrence of a violation of a mandatory health or 

safety standard may constitute a separate offense. 

Section 109(a)(l) provides as follows: 

The operator of a coal mine in which a violation 

occurs of a mandatory health or safety standard or who 

violates any other provision of this Act, except the 

provisions of title 4, shall be assessed a civil penalty 

by the Secretary under paragraph (3) of this subsection 

which penalty shall not be more than $10,000 for each 

such violation. Each occurrence of a vioiation of a 

493 
separate offense. In determining the amount of the 

penalty, the Secretary shall consider the operator's 

history of previous violations, the appropriateness of 

such penalty to the size of the business of the operator 

charged, whether the operator was negligent, the effect 

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

gravity of the violation, and the demonstrated good 

faith of the operator charged in attempting to achieve 

rapid compliance after notification of a violation. 

Petition 

On June 23, 1978, the Mine Safety and Health Administration 

(MSHA), 1/ through its attorney, filed a petition for assessment of 

a civil penalty charging one violation of the Act as follows: 

Order No. 

7-0132 

Answer 

Date 

11/01/77 

30 CFR 

Standard 

75.329 

On July 21, 1978, Respondent, Shamrock Coal Company, filed a 

detailed answer thereto, which denied the allegation and requested 

a hearing thereon. 

Trlbunal 

A hearing was held on Wednesday, February 14, 1979, in Knoxville, 

Tennessee. Both MSHA and Shamrock Coal Company (Shamrock) were represented by co.unsel. Posthearing briefs were filed by both parties. 

Evidence 

1. Stipulations 

The following stipulations were entered: 

(a) The proceeding is governed by the 1969 Act and 1977 Act 

(Tr. 6). 

(b) The Judge has jurisdiction (Tr. 6). 

(c) ·shamrock is the operator of the No. 18 Mine and is subject 

to the Acts' jurisdiction (Tr. 6). 

1/ Successor-in-interest to the Mining Enforcement and Safety Administration (MESA). 

494 
(d) The No. 18 Mine currently employs 262 people (Tr. 7). 

(e) The total production of Shamrock for 1977 was 1.3 million 

tons. The total production for the controlling interested party, 

Mr. B. Ray Thompson, was 1.4 million tons in 1977 and projected to 

be 1.5 million tons in 1978 (Tr. 7). 

(f) The ability of Respondent to stay in business will not be 

affected by any civil penalty assessed in this matter (Tr. 7). 

(g) The inspectors who issued the notices and orders herein at 

issue were duly authorized representatives of the Secretary (DAR) (Tr. 

7-8). 

(h) Copies of the notices and orders which are the subject of 

the hearing were properly served on a representative of the operator 

(Tr. 8). 

(i) The No. 1 mine's previous history of violation is as 

follows: January 1, 1970 through April 8, 1974, 113 violations, 

$6,623 penalty paid; January 1, 1970, through May 1, 1977, 249 violations, $17,117 penalty paid (Tr. 8). 

2. TestimonyA. Michael F. Detherage 

MSHA initiated its case through the testimony of Mr. Detherage, 

the DAR who issued the 104(c)(2) order herein at issue (Tr. 9-15). 

The inspector has been a DAR since 1975 (Tr. 11-12). Previously, he 

had worked in Southeastern Kentucky during his apprentice period 

(Tr. 12). He had be~n certified as an electrician by the Federal 

Government but was~~ertified as a foreman by any jurisdiction (Tr. 

13-14). He identified Government Exhibit No. 99 as Order No. 1 MFD, 

herein at issue, as served on Mr. Charles L. Rice, superintendent of 

the mine (Tr. 15; Govt. Exh. No. 99). 

The order charges Respondent with the failure to establish a 

bleeder system for a panel in the F section of the mine (Tr. 16-17). 

There were, however, other bleeders in this active working section 

(Tr. 17). The area was not sealed (Tr. 18). The system that they 

had previously been following had involved cutting across a previously mined set of rooms leaving a path for ventilation (Tr. 19). 

They mined out the pillars with a continuous miner (Tr. 18). They 

were doing nothing in lieu of this system (Tr. 19-20). The required 

ventilation was 9,000 cfm in the last open crosscut. This was complied with (Tr. 20). Small amounts of methane. were released at the 

mine (Tr. 21). 

495 
He testified there was a ventilation system, however, according 

to him1 there was no bleeding for the area that had been pillared (Tr. 

21). He concluded that there had been an unwarrantable failure 

because there could have been a buildup of methane and an ignition 

(Tr. 21-22). The inspector understood "unwarrantable" as meaning 

that the operator knew or should have known of the violation (Tr. 

22). The operator knew of the violation because it was working in 

the area every day and the operator turned a map into the district 

office that showed the crosscuts to the old works had been left out 

(Tr. 23). 

This left-out area was brought to the attention of the inspector 

by someone in the district office (Tr. 23). One of the reasons he 

went to the mine was to investigate conditions seemingly appearing on 

the district office map (Tr. 23). He could not enter the area because 

it had been pillared out and fallen (Tr. 23). Therefore, all he could 

rely on was the aforementioned map (Tr. 24). 

On November 2, 1977, the next day, he issued a termination of 

the order (Tr.-25; Govt. Exh. No. 100). It was issued because there 

were two bleeders cut across to the righthand from the place from 

which they were mining (Tr. 25). The operator demonstrated good 

faith in affecting rapid compliance (Tr. 25-26). 

The inspector is 30 years old and has had no experience in operation management or control of the general practices of mining 

(Tt". 26A). 

Though he did not remember whether he prepared the withdrawal 

order before he arrived at the mine, he did know he was going to 

prepare it based on the map (Tr. 27-28). Testimony with respect to 

the district office map was accepted into evidence over Respondent's 

objection, however, no ruling as to probative value was made at that 

time and this fact will be addressed here (Tr. 33). The map was 

never introduced. The map, it was alleged, was not presented by 

counsel for MSHA because the inspector who possessed it was part of 

another case which had been resolved (Tr. 31). 

Respondent's lawyer averred that he did not know that Shamrock 

also lacked a copy of the map (Tr. 31-32). 

At the office, prior to the inspection, Messrs. Ken Dixon and 

Larry Lang went over the map and showed Inspector Detherage the 

deficiency and suggested that the inspector take action as the condition was dangerous (Tr. 34). 

Mr. Lang had had a disagreement with an em_ployee of_Shamrock 

Coal Company (Tr. 34). The order wa·s issued on the suggestion of 

Mr. Lang and Mr. Dixon (Tr. 34-35). 

496 
Mr. Detherage made no attempt to observe the actual condition 

as it was impossible to get into the area to check it out (Tr. 35), 

therefore, the only source of information with reference to the 

violation was on the map submitted (Tr. 36-37). 

In May of 1977, Mr. Detherage and Mr. Lang had previously written 

an order of this type (Tr. 38), however, the inspector had never been 

in this particular set of rooms, though he was a regular MSHA 

inspector. 

According to the map, with respect to other panels, Shamrock was 

establishing a bleeder system (Tr. 39). The .01 of 1 percent of 

methane that was found.at the mine was not found in the F section 

(Tr •. 40-41). The mine was approximately 7 square miles and the 

sample showing methane had been taken more than a mile away from the 

F section, at the fan (Tr. 42). 

The witness believed that there would have been the possibility 

of an ignition (Tr. 45). There also could possibly have been a 

methane buildup (Tr. 46). He failed to bring the map because nobody 

tolti him to bring it (Tr. 49). He further testified that the map for 

which the order was issued, showed a set of rooms that was stopped. 

He was unable to testify which of two separate panels the order 

referred to (Tr. 52). The map used herein did not purport to show 

the pillar recovery system (Tr. 53). Said map was provided by Respondent and was submitted for the ventilation plan (Tr. 54). 

Mr. Detherage did not remember checking the map posted at the 

mine on November 1, 1977, which was the most up-to-date map including 

prescribed changes (Tr. 59). 

Inspector Detherage attempted to sketch the panels involved, but 

stated that there was no way that the absence of a bleeder could be 

observed (Tr. 63), nor woulc a smoke tube test be conclusive on the 

subject (Tr. 64). 

In again discussing the missing map, Mr. Detherage stated that 

he thought inspector Albert F. McFarland was supposed to have had it, 

however he did not know if Mr. McFarland had actually found it (Tr. 

65). 

The sketch drawn by Inspector Detherage was acceppted into the 

record, over Respondent's objection, however, no ruling as to probative value was made at that time (Tr. 66; Govt. Exh. No. 99A). 

B. Gordon Couch 

Respondent initiated its case through the testimony of Gordon 

Couch, who has worked at Shamrock as company safety inspector since 

497 
August of 1977 (Tr. 76). He has worked in mining for about 20 years 

(Tr. 73). Previously, he had worked as a mine foreman and had been 

a Federal mine inspector (DAR) since 1970 (Tr. 74). He had became a 

coal mine inspector supervisor in 1975 at the subdistrict office in 

Barbourville until August of 1977 (Tr. 75-76). The order at issue 

was is.sued after he went to work for Shamrock (Tr. 77). 

He testified based on what he personally observed of bleeder 

systems at Shamrock (Tr. 78). The map upon which the order was based 

was submitted to MSHA as part of an effort to get a ventilation plan 

approved (Tr. 79), however, the map was not returned to Shamrock (Tr. 

79-80). 

The witness remembered the bleeder system because a road had 

sunk in the area of the panels in question (Tr. 81). He knew they 

had a bleeder system because they cut in two places (Tr. 81). The 

bleeder had been established at the time the order was issued (Tr. 

82). 

The reason that he knew the bleeders had been established before 

the order was issued is that this area at issue is two panels behind 

where a continuous miner had been covered up and removed from the 

surface (Tr. 83). Several mountain breaks were between the covered 

continuous miner panel and the panel at issue. They had several 

bleeders where the surface had slid in (Tr. 83-84). 

The map) which had to be kept up-to-date at the mine1 did reflect 

the bleeder system (Tr. 84-85). The witness believed that any violation was on the map, not in the mine, however, to his knowledge there 

was no violation on the map submitted (Tr. 86). 

Mr. Couch testified as to the description of the bleeders (Tr. 

90-94). He further testified that no methane was being released by 

the F section as shown by an MSHA report of May 16-31, 1978 (Tr. 94-

98). However, it probably would not show the situation in November 

1977 (Tr. 99). 

The witness believed that the map submitted did not reflect the 

bleeder system because they were not pillaring at the time (Tr. 101). 

He thought that they were in the development process (Tr. 101). 

c. John Henry Sizemore 

Respondent's second witness was John Henry Sizemore, general 

mine foreman at the mine (Tr. 105-106). He stated that the area in 

question was provided with a bleeder system which was adequate and 

proper (Tr. 107, 112). 

498 
Mr. Detherage brought the violation with him from the 

Barbourville office and laid it on Mr. Sizemore's desk. He never 

went to check the bleeder system and did not take a smoke tube test 

and did not check an outcrop (Tr. 108). 

Where the road collapsed as referred to, supra, they had to place 

a 2-inch plastic pipe to retain the integrity of the bleeder system 

(Tr. 110-111), however, he believed the pipe was added after the violation was written (Tr. 172). 

Mr. Sizemore never detected methane from the section (Tr. 116). 

issues Presented 

1. Whether Order No. 1 MFD, November 1, 1977, recites a violation of 30 CFR 75.329. 

2. Assuming that a violation has been established, what is the 

appropriate penalty to be imposed? 

Discussion 

A. General 

The standard herein at issue provides as follows: 

Bleeder Systems 

On or before December 30, 1970, all areas from which 

pillars have been wholly or partially extracted and abandoned areas as determined by the Secretary or his authorized representative, shall be ventilated by bleeder 

entries or by bleeder systems or equivalent means, or be 

sealed, as determined by the Secretary or his authorized 

representative. When ventilation of such areas is 

required, such ventilation shall be maintained so as 

continuously to dilute, render harmless, and carry away 

methane and other explosive gases within such areas and 

to protect the active workings of the mine from the hazards of such methane and other ~xplosive gases. Air 

coursed through underground areas from which pillars have 

been wholly or partially extracted which enters another. 

split of air shall not contain more than 2.0 volume per 

centum of methane, when tested at the point it enters 

.such 9ther split. When sealing is required, such seals 

shall be made in an approved manner so as to isolate with 

explosion-proof bulkheads such areas from the active 

workings of the mine. 

Two aspects of proof have been put in contest by the litigants 

with respect to the existence of a violation. 

499 
The first issue is whether MSHA has established a prima-facie 

case in demonstrating the existence of a violation on November 1, 

1977. The question presented is whether the best-evidence rule is 

properly invoked by Respondent to bar the testimony of Inspector 

Detherage with reference to the ventilation map forwarded to the 

Barbourville office. 

The second issue, on the merits, is whether, assuming MSHA has 

established its prima-facie case, the testimony of Respondent's 

witnesses Mr. Couch and Mr. Sizemore, successfully rebuts the 

Petitioner's showing. 

B. Best Evidence 

The best evidence rule has been defined as requ1r1ng that "in 

proving the terms of a writing, where the terms are material, the 

original writing must be produced unless& it is shown to be unavailable for some reason other than a serious fault of the proponent." 

McCormick on Evidence, § 230 (2nd ed., 1972). The rule has been 

limited to legally operative documents. See Id. at §§ 233-234. 

The map in question is clearly a legally operative document as 

Inspector Detherage testified that he did not inspect the mine, but 

issued the order based on the map (Tr. 24, 27-28, 36-37). 

The issue~of whether the map is a writing within the meaning of 

the rule, must give greater pause. It has been suggested that the 

limitation of the rule to writings rests on the principle that writings exhibit a finess of detail generally lacking in other chattels. 

Id. at § 232. The rationale prohibiting alternative admission is 

the protection of this detail. See id. Modern comment has suggested 

that a judge should have the discretion to apply the rule to other 

chattels in light.of the need for precision, the ease and difficulty 

of production, and the simplicity or complexity of the inscription. 

Id.; 4 Wigmore, Evidence, § 1182 (1972); cf. United States v. Duffy, 

454 F.2d 809 (5th Cir. 1972) (shirt with three-letter laundry mark 

not required for testimony on mark). In the Judge's view, the exercise of discretion shoulq also rely on the quality and nature of the 

proferred secondary evidence, ~McCormick, at §§ 231, 233. 

The proponent explained the failure of production on three 

grounds: (1) the inspector who possessed the map was a part of 

another case which had earlier been resolved, therefore, the inspector was no longer available, as he had left the hearing room (Tr. 31), 

(2) Inspector Detherage's testimony that he did not bring the map 

because nobody told him to bring it (Tr. 49), and (3) Inspector 

Detherage's testimony that he did not know whether Inspector 

McFarland, who was supposed to have brought the map, had actually 

found it (Tr. 65). Clearly, MSHA has not presented a case of dire 

necessity for the production ''of its secondary evidence. 

500 
Further, though these explanations could rationalize the failure to introduce the original map, they do not serve as adequate to 

justify the failure to introduce a copy of that map. Nor has MSHA 

attempted to explain this failure (Brief of MSHA, pp. 2-4). The 

void created by the absence of the map is purportedly filled by 

testimony of Inspector Detherage and a sketch made during the 

hearing in support of his testimony (Govt. Exh. No. 99A). 

The inspector testified that he had never been in this particular set of rooms, though he was the regular MSHA inspector for the 

mine (Tr. 38). Further, when shown a map, the inspector was unable 

to ·state which set of rooms, as between two separate panels, were 

involved in the alleged violation (Tr. 52). Further, Inspector 

Detherage had not originally identified the alleged deficiency on 

the submitted map. MSHA employees Dixon and Lang had identified it 

at the Barbourville office (Tr. 34), and recommended action (Tr. 34). 

I conclude that the probative value to be given Inspector Detherage's 

testimony is of de minimus value on the subject of the contents of 

the map on which~his alleged violation was based. 

Therefore, as there is obviously a need for precision, there was 

no apparent difficulty of production, the map's inscriptions are relatively complex, and the. proffered secondary evidence is inherently 

and in actuality, unreliable as to the crucial issue of which panels 

were alleged to be in violation (Tr. 52), I conclude that no probative 

value will be given the testimony of Inspector Detherage with respect 

to the district office map, as it fails to meet the requirements of 

the best-evidence rule. The motion of Respondent to strike said 

testimony will be granted. Without said testimony, MSHA has failed 

to establish a prima-facie case for the existence of the violation. 

C. Merits 

Assuming, arguendo, that the testimony of Inspector Detherage 

were admissible, MSHA has still failed to preponderate. The inspector introduced no evidence that pillar recovery had been initiated 

when the map was submitted. The regulation, by its terms, is not 

effective until the process has at least begun. 2/ 30 CFR 75.329. 

It was Mr. Couchts opinion that the map at issue: if it did not show 

a bleeder system, did. not show one because the operator had not 

started pillaring (Tr. 101). Therefore, even if MSHA had introduced 

the map, it could very well be that there would have been no violation established. 

As noted, supra, Inspector Detherage had not seen the panels 

(Tr. 38) or checked the up-to-date map at the mine (Tr. 59) which 

would allegedly have reflected the system (Tr. 84-85). 

2/ I express no op1n1on as to whether the regulation requires 

bleeders to be in place during or after recovery. 

501 
On the other hand, Mr. Couch stated that he had personally 

observed the bleeder system (Tr. 78). He remembered this particular 

one because a continuous minerhad covered two panels behind this 

panel (Tr. 83). Mr. Sizemore and Mr. Cou~h testified that they 

remembered this bleeder because of a road collapse which affected 

it (Tr. 110-111; 78-83). 

Weighing the personal observations of Respondent's witnesses 

backed by detailed explanations in support of their memories against 

the. testimony of the inspector who could not remember from the map on 

which the violation was based, which panel was involved, I conclude 

that Petitioner has failed to pr~ponderate. 

Findings of Fact 

Upon consideration of the record as a whole, I find: 

1. The Judge has jurisdiction over the subject matter and the 

parties in this ·proceeding. 

2. A bleeder system sufficient to comply with 30 CFR 75.329 

did exist at the Shamrock No. 18 Mine on November 1, 1977. 

3. The inspector did not inspect the mine, but issued the order 

based on the district-office map that was not offered into evidence. 

4. The inspector neither saw the panels involved nor checked 

the up-to-date map at the mine. 

5. The accumulated probative evidence fails to establish the 

fact of a violation cited above. 

Conclusions of Law 

1. This case arises under the provisions of sections llO(a) 

of the 1977 Act and 109(a)(l) of the 1969 Act. 

2. All procedural prerequisites established in the statutes 

cited above have been complied with. 

3. Testimony by Inspector Detherage with reference to the map 

upon which this order was issued is given no probative value and is 

struck for failure to comply with the best evidence rule. 

4. Exhibit No. 99A is given no probative value and is struck 

for failure to comply with the best evidence rule. 

5. The Government ha_s failed to establish a violation of either 

30 CFR 75.329 or the Act. 

502 
ORDER 

WHEREFORE the above-captioned .is DISMISSED. 

--,,JJ. ,1 I) --/';) . /?.,r/J.~ii· t,,,,I /I/ t.l.£:£AY'~--' • c1-,.i,:'.~. ; «,,,,_.. ""s'. 

Malcolm P. Littlefield,.Judge 

Distribution: 

·John H. O'Donnell, Trial Attorney, Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Neville Smith, Attorney, P.O. Box 441, Manchester, KY 40962 

(Certified Mail) 

Shamrock Coal Company, P.O. Box 10388, Knoxville, TN 37919 

(Certified Mail) 

503 
FEDERAL MINE SAFETY AND HEALTH REV&EW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULC::VARD 

ARLINGTON. VIRGINIA 22203 

June 5·, 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

NEW HAVEN TRAP ROCK-TOMASSO, 

Respondent 

Civil Penalty Proceedings 

Docket No. WILK 79-63-PM 

A/O No. 06-00345-05001 

Southington Pit and Mill 

Docket No. WILK 79-92-PM 

A/O No. 06-00012-05001 

North Branford Plant #7 

Docket No. WILK 79-93-PM 

A/O No. 06-00013-05001 

Plant #1 Quarry and Mill 

Docket No. WILK 79~101-PM 

A/O No. 06-00271-05001 

Helming Brothers Plant 

DECISION 

Appearances: Ronald C. Glover, Esq., Office of the Regional Solicitor, Department of Labor, Boston, Massachusetts, for 

Petitioner MSHA; 

Robert B. Smith, Esq., and Edward Kutchin, Esq., 

Boston, Massachusetts,· for Respondent. 

Before: Judge Merlin 

The above-captioned cases are petitions for the assessment of 

civil penalties filed by the Mine Safety and Health Administration 

against New Haven Trap Rock-Tomasso, heard on May 15, 1979. 

At the outset of the hearing, the operator's counsel challenged 

MSHA's assessment procedures. I held that the hearing before me is 

de novo in all aspects, and that MSHA's assessment procedures are 

not involved and that it is not my function to reapply MSHA's point 

system stating in this respect as follows (Tr •. 12-14): 

504 
I hold that I have no authority to review the manner 

in which the Secretary of Labor arrives at proposed penalty amounts, whether by a point system or otherwise. I 

further hold that I am not bound in any way to follow 

or apply the point system or.any other system the Secretary of Labor uses to arrive at a proposed penalty 

amount. Section 105(d) of the Act sets forth that when 

an operator disagrees with the proposed assessment, the 

Secretary.of Labor shall notify the Commission, and the 

Commission shall afford an opportunity for a hearing under 

section 554 of the Administrative Procedure Act. 

Section llO(a) of the Act provides that the operator 

of a mine shall be assessed a civil penalty by the Secretary which shall not be more than $10,000 for each violation. Thereafter, section llO(i) provides that the 

Commission has the authority to assess all civil penalties provided in this Act. Further, section llO(i) provides that in assessing civil monetary penalties, the 

Commission shall consider the operator's history of previous violations, the appropriateness of such penalty to 

the size of the business of the operator charged, whether 

the operator was negligent, the effect on the operator's 

ability to continue in business, the gravity of the violation, and the demonstrated good faith of the person 

charged in attempting to achieve rapid compliance after 

notification of a violation. 

Part 100 of 30 CFR contains a so-called point system 

which apparently is used by the Department of Labor in 

determining the amount of proposed civil penalty. In my 

view, Part 100 has nothing whatsoever to do with the Commission. Part lpO only concerns the Department of Labor. 

This is made clear by section 100.2 of Part 100 which 

refers only to the Office of Assessments, Mine Safety 

and Health Administration, Department of Labor. Section 

100.6 of 30 CFR makes clear that if an operator disagrees with a proposed assessment arrived at under the 

point system, it can then request a hearing before the 

Federal Mina Safety and Health Review Commission. 

Accordingly", it is clear to me that when a case 

comes to the Commission and its administrative law judges, 

the point system is left behind and is no longer a factor. 

The administrative law judge is to apply the six criteria 

set forth in section llO(i) solely in his own judgment, 

based upon the evidence presented before him in the hearing which as already noted is given in accordance with 

section 554 of the Administrative Procedure Act. I have 

no authority to express any views with respect to how the 

505 
Secre·tary of Labor reaches his proposed penalty amount, 

and I am not bound in any way to even consider that 

system when I determine what should be an appropriate 

penalty amount. 

The Act makes clear that my task is to give an operator who disagrees with the actions of the Secretary of 

Labor the opportunity to have a de novo hearing. In my 

opinion, a de novo hearing is one-in which the entire 

slate is wiped clean. Indeed, the Commission and its 

administrative law judges would not be independent if 

they were forced to follow some system devised by the 

Secretary of Labor in determining penalty amounts, and 

any hearing that was held on such a basis would not in 

my opinion truly be a de novo hearing. Therefore, based 

upon the evidence whic~I hear, I will determine for 

myself whether a violation exists in each instance, and 

where I determine that a violation does exist, th.en I 

will determine in my judgment in light of the six criteria set forth in section llO(i) what the appropriate 

amount of civil penalty should be. 

At the hearing, counsel for both parties agreed to the following 

s.tipulations: (1) the operator is the owner and operator of the subject surface mine which is an open quarry; (2) the operator and the 

mine are subject to the jurisdiction of the Federal Mine Safety and 

Health Act of 1977; (3) I have jurisdiction in these cases; (4) the 

inspector who issued the subject notices was a duly authorized representative of the Secretary; (5) true and correct copies of the subject notices were properly served upon the operator; (6) imposition 

of penalties in these matters will not affect the operator's ability 

to continue in business; (7) all the alleged violations were abated 

in good faith; (8) the operator is medium in size; (9) the operator 

has no history of prior violations; (10) all the witnesses who will 

testify are accepted as experts generally in the field of mine health 

and safety (Tr. 4). 

Citation No. 212801 

At the hear~ng, documentary exhibits were received and witnesses 

testified on behalf of MSHA and the operator regarding this item. At 

the conclusion of the taking of evidence, the parties presented oral 

argument (Tr. 44-46). A decision was then rendered from the bench 

setting forth findings, conclusions, and determinations with respect 

to the alleged violation as follows (Tr. 46-48): 

I find the violation occurred. The mandatory standard requires that cab windows shall be in good condition. 

There is no dispute that the side vent window had a crack 

of approximately 3 inches. I find therefore that the 

506 
window was not in good condition and accordingly, that a 

violation existed. 

I further find that the violation was of moderate 

gravity. I recognize that the inspector testified· that 

the occurrence of an injury was likely, ~1ereas his 

written statement completed at about the time of the 

inspection indicated the opposite. However, it is clear 

to me from the testimony that it was possible that the 

3-inch cut could have gone across the vent entirely and 

could have cut the operator of the cab, when the glass 

fell out. On this basis, I find the violation was of 

moderate gravity. If the major part of the window had 

been involved, this would have been a much more serious 

violation. I further find that the operator was negligent and that the degree of negligence was moderate. 

This truck was inspected on Saturday and the inspection 

took place on Tuesday. Either the inspection on Saturday 

missed this crack or the crack occurred between 6 a.m. 

Monday morning when work begPn for the week and the time 

the inspection took place. In any event, however, the 

crack on Tuesday was visible and the cab was being operated over roads at least part of which were rough and 

caused vibrations. Accordingly, I find the operator was 

guilty of moderate negligence. 

I further incorporate the stipulations with respect 

to the operator's ability to continue in business, good 

faith abatement, no history of prior violations and 

medium size. In light of all the foregoing factors 

and in accordance with the mandate of section llO(i) of 

the Act, a penalty of $75 is hereby imposed. 1/ 

The foregoing bench decision is hereby affirmed. 

Citation No. 212802 

This violation is based upon a failure to have an audible warning device on a piece of mobile equipment. The penalty originally 

assessed was $106. The parties recommended a settlement of $86. The 

Solicitor advised at the hearing that the equipment in question had 

been checked previously on the day the violation was found and that 

when it was checked it was found to be in appropriate working order. 

In addition, the Solicitor advised that the area in question was not 

heavily traveled. Accordingly, neither negligence nor gravity was 

as great as originally was ~hought. On this basis, I accepted from 

the bench the recommended settlement of $86. 

1/ The original assessment had been $32. 

507 
Citation .No. 212803 

This violation was for a cracked safety.glass in the window of a 

cab. Since the Solicitor advised at the hearing that the circurastances of this violation were the same as those in Citation 

No. 212801,_ an assessment of $75 was agreed to by counsel for both 

parties. I accepted the Solicitor's representations and a penalty 

of $75 was assessed for this item. 

Citation No. 212804 

This violation is based upon the failure to provide a "no 

smoking" sign in an area where explosion hazards might exist. The 

penalty originally assessed was $60. The parties recommended a 

settlement of $32. The Solicitor advised at the hearing that he had 

recently received information that the sign was in an area subject to 

inclement weather, that for 4 days previous to the date of the citation there had been a major storm in the area which blew the sign 

down and that the operator, even with the exercise of due diligence, 

could not have replaced the sign any faster. Accordingly, it appears 

that the operator's negligence was minimal. On this basis, I accepted 

from the bench the ·recommended st: ttlement. 

Citation No. 212805 

This violation is based upon the failure to provide berms for a 

portion of a roadway. The penalty originally assessed was $114. The 

parties recommended a settlement of $84. The Solicitor advised at the 

hearing that the roadway in question was not well-traveled and that 

immediately prior to issuance of the citation the road had been washed 

out by inclement weather so that the operator was not negligent. 

Based upon the foregoing factors, I accepted from the bench the 

settlement of $84. 

Citation No. 212806 

This violation is based upon the failure to provide a cover for 

an electrical junction box. The penalty originally assessed was 

$122. The parties recommended a settlement of $105. The Solicitor 

advised at the hearing that although the cover was not present all 

the wires involved were thoroughly and properly insulated,. thereby 

reducing the hazard of electrical shock. The Solicitor further 

advised that this was an area where employees did not usually work. 

On the basis, therefore, that gravity was less than had originally 

been evaluated, I accepted from the bench the settlement of $105. 

Citation No. 212807 

This violation is based upon the failure to guard a 5-foot 

crusher motor. The penalty originally assessed was $122. The parties 

508 
recommended a settlement of $85. The Solicitor advised at the hearing 

that the machine in question did have a railing but that because of 

vibrations the railing recently had become loose. Because of this, 

the Solicitor advised that the operator was less negligent than had 

originally been thought because the Office of Assessments did not 

know that there had been any railing at the time they proposed the initi 

assessment. On this basis, I approved from the bench the settlement 

of $85. 

Citation No. 212808 

This violation is based upon the failure to have guards around 

an item that was being welded. The penalty originally assessed was 

$90 and the parties recommended a settlement of $80. The Solicitor 

advised at the hearing that the operator has a very adamant policy 

instructing its employees that guarding is required and that this 

policy is strongly enforced. The employee disregarded this policy 

and in accordance with the operator's strong policy a letter regarding 

his failure to follow instructions was placed in his file and was 

sent to the union steward. On this basis, the Solicitor took ·the position that the operator was guilty of only minimal negligence. In 

light of the circumstances presented, I accepted from the bench the 

settlement of $80. 

Citation No. 212815 

The Solicitor moved to withdraw the citation on the ground that 

it.had been improperly issued and his motion to do so was granted from· 

the bench. 

Citation No. 212817 

The Solicitor moved to withdraw this citation on the ground that 

it had been improperly issued and the motion was granted from the 

bench. 

Citation No. 212833 

The alleged.violation was for a failure to provide a midrail on 

a conveyor walkway. The cited mandatory standard, 30 CFR 56.11-2 

provides that such walkways be of substantial construction and provided with handrails. Admittedly, the walkway in question had a 

handrail. Accordingly, I held that it satisfied the cited standard. 

The Solicitor then moved to amend the citation to reflect a violation 

of another mandatory standard. From the bench I denied the motion 

to amend because the operator was not afforded sufficient notice. 

Acc~rdingly, no penalty was assessed.with respect to this item. 

509 
Citation No. 212834 

This violation is for a failure to provide guarding on moving 

machinery. The penalty originally assessed was $78 and this is the 

amount of the recommended settlement. The Solicitor advised at the 

hearing that just prior to the inspection the guarding in this case 

had been taken off for repair and maintenance purposes. In addition, 

the Solicitor advised that the area in question was not well-traveled 

and there were no employees in the general area. Based upon these 

factors, I approved from the bench the recommended settlement of $78. 

Citation No. 212835 

This violation is based upon the failure to provide a guard for 

a balance wheel. The original assessment was $90 and this is the 

amount of the recommended settlement. The Solicitor advised at the 

hearing that the balance wheel was not located in a well-traveled 

portion of the plant. Accordingly, gravity was only moderate. 

Therefore, I approved from the bench the recommended settlement of 

$90. 

Citation No. 212836 

This violation is based upon the failure to provide a handrail 

on a portion of the platform for the sandplate. The initial assessment was $56 and the recommended settlement was for this amount. 

The Solicitor advised at the hearing that there were several mitigating factors. He stated that the total distance from the walkway 

to the ground level was only 5 to 6 feet and that a great deal of 

sand had fallen on this walkway so that any employee involved would 

only have fallen 3 or 4 feet into soft material. In addition, the 

Solicitor stated that the violation was the result of the action of 

one of the operator's employees which was contrary to the operator's 

own stated policy. In light of the foregoing circumstances, I 

accepted from the bench the recommended assessment of $56. 

Citation No. 212838 

This citation is for failure to provide a fire extinguisher on 

a fuel truck. The initial assessment was $60 and this is the amount 

of the recommended settlement. The Solicitor advised at the hearing 

that the cited truck without a fire extinguisher was parked between 

two other trucks each of which was equipped with an operating fire 

extinguisher and that therefore gravity was only moderate. In light 

of these circumstances, I accepted from the bench the recommended 

penalty of $60. 

510 
Citation No. 215486 

The Solicitor moved to withdraw this citation on the grounds that 

it had been improperly issued. The motion was granted and no penalty 

was assessed for this item. 

Citation No. 215487 

The violation in this case was based upon the fact that the 

emergency br.ake on the front-end loader was not adjusted properly. 

The initial assessment was $32 and the recommended settlement was 

for this amount. The Solicitor advised that the primary braking 

sy~tem was in proper working order and that therefore gravity was 

greatly mitigated. I pointed out that I was not bound by the 

original assessment amount which appeared to me to be low, but 

that in view of the fact that the primary braking system was 

operating satisfactorily, the recommended penalty was accepted. 

ORDER TO PAY 

The operator is hereby ORDERED to pay $938 within 30 days from 

the date of this decision~ wJ~ 

Paul Merlin 

Assistant Chief Administrative Law Judg 

Issued: June 5, 1979 

Distribution: 

Ronald C. Glover, Esq., Office of the Solicitor, U.S. Department 

of Labor, JFK Federal Building, Goverrunent Center, 

Boston, MA 02203 (Certified Mail) 

Robert B. Smith, Esq., Edward Kutchin, Esq., 52 Commercial Wharf, 

Boston, MA 02110 (Certified Mail) 

Thomas A. Pooley, Esq., 7th Floor, 675 Massachusetts Avenue, 

Cambridge, MA 02139 (Certified Mail) 

Administrator, Coal Mine Safety and Health, U.S. Department 

of Labor 

Standard Distribution 

511 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

WAUKESHA LIME & STONE COMPANY, 

INC., 

Respondent 

June 5, 1979 

Civil Penalty Proceeding 

Docket No. VINC 79-66-PM 

A.O. No. 47-00235-05003 

Waukesha Quarry & Mill 

DECISION 

Appearances: Eddie Jenkins, Esq., Office of the Solicitor; 

U.S. Department of Labor,- for Petitioner; 

Frederic G. Baldowsky, Esq., Miller & Niebler, 

Milwaukee, Wisconsin, for Respondent. 

Before: Chief Administrative Law Judge Broderick 

cSTATEMENT OF THE CASE 

This is a civil penalty proceeding charging Respondent with a violation of section 103(a) of the Federal Coal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 813(a). The violation charged is the refusal 

of Respondent to allow the Federal mine inspector to enter its premises 

on July 10, 1978, for the purpose of conducting a mine inspection. 

Respondent admits that it refused to permit the inspector to enter and 

inspect its premises. As affirmative defenses, Respondent states that 

it operates a quarry which is not a mine within the meaning of that 

term in the Act, and that a nonconsensual inspection of its premises 

without a valid search warrant would violate rights guaranteed to 

Respondent under the fourth amendment to the Constitution. 

Respondent moved for a continuance of the proceeding during the 

pendency of a civil action in the United States District Court for the 

Eastern District of Wisconsin, wherein the Secretary of Labor is seeking to have Respondent enjoined from refusing to admit authorized representatives of the Secretary of Labor to inspect Respondent's facilities. The motion was denied by order issued March 15, 1979. 

Pursuant to notice, the matter wa-s called for hearing on the 

merits on ApFil 23, 1979, in Milwaukee, Wisconsin. Walter C. Brey, a 

Federal mine inspector, testified for Petitioner. Douglas E. Dewey, 

president of Respondent, James L. Harris, foreman of Respondent's 

"dust plant," and George Hart, sales manager of Respondent, testified 

on behalf of Respondent. 

512 
At the conclusion of the testimony, counsel stated their respective positions on the issues raised by this proceeding and waived 

their rights to file written proposed findings and conclusions. All 

proposed findings and conclusions not incorporated herein are rejected. 

STATUTORY PROVISIONS 

Section 103(a) of the Act provides in part: 

Authorized representatives of the Secretary * * * 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 originating in 

such mines, (2) gathering information with respect to mandatory health or safety standards, (3) determining whether an 

imminent danger exists, and (4) determining whether there is 

compliance with the mandatory health or safety standards or 

with any citation, order, or decision issued under 

this title or other requirements of this Act. In carrying 

out the requirements of this subsection, no advance notice 

of an inspection shali be provided * * *· 

* * * * * * * 

Section 3(h)(l) of the Act provides in part: 

"Coal or other mine" means (A) an area of land from 

which minerals are extracted in nonliquid form or, if in 

liquid form, are extracted with workers underground, (B) 

private ways and roads appurtenant to such area, and (C) 

lands, excavations, underground passageways, shafts, slopes, 

tunnels and workings, structures, facilities, equipment, 

machines, tools, or other property including impoundments, 

retention dams, and tailing ponds, on the surface or underground * * * .. 

* * * * * * * 

ISSUES 

1. Is Respondent's stone quarry a "mine" subject to the provisions of the Act? 

2. Does the Act require or permit nonconsensual inspections 

without valid search warrants? 

3. ·If a violation of the Act has been established, what is the 

appropriate penalty? 

513 
FINDINGS OF FACT 

On the basis of the pleadings, stipulations of the parties, the 

testimony and other evidence introduced at the hearing, I make the 

following findings of fact. 

1. On July 10, 1978, Respondent was the operator of a limestone 

quarry in Waukesha County, Wisconsin, known as the Waukesha Quarry 

and Mill. 

2. Respondent's operation consists in drilling and blasting 

solid rock from the quarry, crushing it into different sizes for sale 

to customers as agricultural lime, as a base for concrete or blacktop 

and for other uses. The process of making agricultural lime involves 

pulverizing the limestone and bagging it. The employees involved in 

this process are exposed to silica dust. 

3. Respondent employs between 21 and 28 workers. Its operation 

extends over approximately 90 acres of land. The quarry has been 

operating since 1870 and has an expected future life of more than 

10 years. It is one of the largest quarrying operations in the State 

of Wisconsin. However, in comparison with mining operations throughout the country, Respondent is not a large operator. 

4. State and Federal safety inspectors have regularly inspected 

Respondent's facililty since prior to 1967. 

5. Inspector Walter Brey began inspecting Respondent's facility 

in 1974; he visited the premises on an average of three times per year 

prior to July 10, 1978. 

6. From April 25 through April 27, Inspector Brey conducted a 

regular health and safety inspection at Respondent's facility. 

Twenty five citations were written charging violations of mandatory 

sasfety standards. Twenty one were terminated by April 27. 

7. Inspector Brey returned to the facility in May and again on 

July 10, 1978, to check on the unabated citations. 

8. The purpose of the visit on July 10, 1978, was to do a 

resurvey of dust exposure in the AgLime building. 

9. Respondent has had a problem of employee explosure to silica 

dust 1n its Aglime plant. 

10. On July 10, 1978, Respondent's president, Douglas Dewey, 

informed the inspector that he would no longer be allowed to inspect 

the premises without a search warrant. This took place following 

Respondent's receipt of an assessment order imposing penalties for 

514 
the alleged violations found during the April inspection. A search 

warrant had not been demanded of either Federal or State inspectors 

prior to this time. 

11. On July 10, 1978, Inspector Brey issued a citation charging 

Respondent with a violation of section 103( a) of the Act for refusal 

to allow an authorized representative of the Secretary to conduct an 

inspection of the mine premises. 

CONCLUSIONS OF LAW 

IS A STONE QUARRY A "MINE" AS THAT TERM IS DEFINED IN THE ACT? 

The Act defines a "mine" to include an area of land from which 

minerals are extracted in nonliquid form. Respondent's facility is 

an area of land from which it extracts limestone and processes it. 

"Limestone" has been defined as "a sedimentary rock containing calcium carbonate (calcite), or calcium magnesium carbonate (dolomite), 

or any combination of these two carbonates at least to the extent of 

50 percent of the rock." 1/ "Mineral" has been defined as "an 

inorganic substance occurring in nature, though not necessarily of 

inorganic origin, which has (1) a definite chemical composition or, 

more commonly, a characteristic range of chemical composition, and 

(2) distinctive physical properties or molecular structure" and as 

including "every inorganic substance that can be extracted from the 

earth for profit whether it be solid, such as rock, fireclay, the 

various metals, and coal, or fluid, such as mineral waters, petroleum, and gas." 2/ The Senate Labor Committee Report on S.717, 

which was the basis for the 1977 Act, states that: 

[I]t is the Committee's intention that what is considered 

to be a mine and to be regulated under this Act be given 

the broadest possibly [sic] interpretation, and it is the 

intent of this Committee that doubts be resolved in favor 

of inclusion of a facility within the coverage of the 

Act. [1_/] 

The Federal Metal and Nonmetallic Mine Safety Act, P.L. 89-577 (1966), 

repealed P.L. 95-164 (1977), defined the term "mine" in much the same 

way except for the exclusion of coal. The Senate Committee Report 

on the 1966 Act stated that a "mine" is "an area of land from which 

1/ A Dictionary of Mining, Mineral and Related Terms (Paul W. Thrush, 

comp.) (1968), p. 643. 

~Id., p. 710. 

3/ S:- Rep. ·No. 95-181, 95th Cong., 1st Sess., 14 (1977), reprinted in 

Legislative History of the Federal Mine Safety and Health Act of 1977 

at 602. 

515 
minerals (minerals include sand, gravel, crushed stone, quartz, etc.) 

other than coal or lignite are extracted in nonliquid form."!!:_/ 

State 5/ and Federal 6/ courts have included limestone quarries 

within the definition of "mine." 

The parties have stipulated that Respondent's operations affect 

interstate commerce. 

It is clear, therefore, and I conclude, that Respondent i-s the 

operator of a mine and is subject to the provisions of the Mine 

Safety and Health Act of 1977. 

DOES THE ACT DIRECT NONCONSENSUAL WARRANTLESS INSPECTIONS OF MINES? 

Section 103(a) of the Act requires ("Authorized representatives 

* * * shall make") frequent inspections of mines. It prohibits giving 

"advance notice of an inspection" and thus necessarily prohibits 

obtaining the operator's consent. It does not specifically address 

the question whether a search warrant is required, but since the 

authorized representatives "shall have a right of entry to, upon, or 

through any coal or other mine," it is clear that a warrant is not 

required. The Senate Commmittee Report on S.717 states that the 

above language ''is intended to be an absolute right of entry without 

need to obtain a warrant." 7/ 

I conclude, therefore, that section 103(a) of the Act directs 

nonconsensual warrantless inspections of mines. 

DOES THE COMMISSION HAVE JURISDICTION TO RULE ON A CONSTITUTIONAL 

CHALLENGE TO SECTION 103(a) OF THE ACT? 

Respondent argues that if section 103(a) is interpreted to 

require or permit inspections without a search warrant, it would 

violate the fourth amendment's proscription against unreasonable 

searches and seizures. As a general proposition, an administrative 

agency does not have power to rule on constitutional challenges to 

the organic statute of the agency. Weinberger v. Salfi, 422 U.S. 

749 (1975); Johnson v. Robison, 415 U.S. 361 (1974); Public Utility 

Commission v. United States, 355 U.S. 534 (1958); Spregel, Inc. v. 

FTC, 540 F.2d 287 (7th Cir. 1976). 

However, it is the responsibility of an administrative agency to 

determine whether a provision of the statute it administers may 

4/ S. Rep. No. 1296, 89th Cong., 2d Sess., (1966), 1966 U.S. Code 

Cong. and Adm. News, p. 2846. 

5/ Lamb~rt v. Pritchett, 284 S.W.2d 90 (Ky. 1955). 

6/ Marshall v. Texoline Co., Civ. Action CA 4-78-49 (N.D. Texas 1979). 

I_/ S. Rep. No. 95-181, supra, note 3 at 615. 

516 
constitutionally be applied to facts found by the agency. Construction 

of its qrganic statute is peculiarly the duty of the agency, and a 

cardinal rule of construction requires that if possible, a statute 

be construed to avoid conflict with the Constitution. NLRB v. Mansion 

Home Center Management Corp., 473 F.2d 471 (8th Cir. 1973). 

For these reasons, I will address the constitutional issues 

raised by Respondent. There is a strong presumption in favor of the 

constitutionality of an act of Congress. Lockport v. Citizens for 

Community Action, 430 U.S. 259 (1977); FHA v. The Darlington, 358 U.S. 

84 (1958). _In Marshall v. Barlows, Inc-:-:-436 U.S. 307 (1978), the 

Supreme Court held that section 8(a) of the Occupational Safety and 

Health Act of 1970, 29 U.S.C. § 657(a), was unconstitutional insofar 

as it purported to authorize inspections without warrant. However, 

the Court expressly exempted: "[C]ertain industries (which) have 

such a history of government oversight that no reasonable expectation 

of privacy could exist for the proprietor over the stock of such an 

enterprise. Liquor (Colonade) and firearms (Biswell) are industries 

of this type." 436 U.S. 313. 

Replying to the Secretary's argument that requiring warrants for 

OSHA inspectors would overturn warrantless inspections in other 

statutes, the Court said: 

The reasonableness of a warrantless search, however, 

will depend upon the specific enforcement needs and privacy 

guarantees of each statute. Some of the statutes cited 

apply only to a single industry, where regulation might 

already be so pervasive that a Colonnade-Biswell exception 

to the warrant requirement could apply. 

With respect to coal mines, it has been held that warrantless 

searches authorized by the Federal Coal Mine Health and Safety Act 

did not contravene the fourth amendment. Youghiogheny & Ohio Coal 

Company v. Morton, 364 F. Supp. 45 (S.D. Ohio, 1973); accord, United 

States v. Consolidation Coal Company, 560 F.2d 214 (6th Cir. 1977), 

vacated and remanded, 436 U.S. 942, 98 s. Ct. 2481 (1978), reinstated, 579 F.2d 1011 (1978). Congress has determined that the 

mining industry historically and inherently has posed grave threats 

to the health and safety of those employed in it. It is a closelyregulated industry, and both coal and metal/nonmetallic mines have 

been subjected to Federal warrantless inspections for many years. 

In the Senate Report on the 1966 Federal Metal and Nonmetallic 

Safety Act, 30 U.S.C. § 721, it is stated that "the number and 

severity of the injuries experienced each year by persons employed 

in the extractive industries should be alarming to an America that 

prides itself on its * * * concern for the welfare of its citizens." 8/ 

§_f Quot~d in S. Rep. No. 95-181, 95th Cong., 1st Sess., 3 (1977), 

reprinted in Legislative History of the Federal Mine Safety and Health 

Act of 1977 at 591. 

517 
I conclude that the mining industry, including stone quarrying, 

is a pervasively regulated industry and that warrantless nonconsenual 

inspections are mandated by the Act and do not constitute unreasonable searches prohibited by the fourth amendment to the Constitution. 

DOES REFUSAL TO ADMIT AN INSPECTOR CONSTITUTE A VIOLATION OF THE ACT 

FOR WHICH A PENALTY MAY BE IMPOSED? 

Section 103(a) authorizes inspections of mines. "Authorized 

representatives of the Secretary of Health, Education, and Welfare 

shall make frequent inspections and investigations * * * (and) shall 

have (a) right of entry to, upon, or through any coal or other mine." 

Section 104(a) allows an inspector to issue a citation to an 

operator who has violated the Act: 

If, upon inspection or investigation, the Secretary or 

his authorized representative believes that an operator of 

a coal or other mine subject to this Act has violated this 

Act, or any mandatory health or safety standard, rule, 

order or regulation promulgated pursuant to this Act, he 

shall, with reasonable promptness issue a citation to the 

operator * * *· 

Likewise, section llO(a) states that an "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, shall be assessed a 

civil penalty by the Secretary * * *·" 

Therefore, I conclude that refusal to admit an inspector constitutes a violation for which civil penalties may be assessed. 

PENALTY 

Section llO(i) of the Act directs that in assessing a penalty, I 

consider six criteria: the operator's history of previous violations, 

the size of the business of the operator, whether the operator was 

n~gligent, the effect on the operator's ability to continue in business, the gravity of the violation, and the demonstrated good faith 

of the operator in attempting to achieve rapid compliance. There is 

no evidence concerning the operator's history of previous violations 

except the testimony that 25 citations were issued from April 25 

through April 27, 1978. I do not consider that this history is such 

that penalties should be increased because of it. The operator's 

business is moderate in size. There is no evidence that penalties 

will have any effect on the operator's ability to continue in business and th~refore, I conclude that they will not. 

The.violation was intentional. Respondent argues that it relied 

in good faith on what it conceived to be the protection of the fourth 

518 
amendment and that this fact should mitigate the amount of the penalty. However, the evidence shows that warrantless inspections authorized by the Metal and Monmetallic Safety Act have been conducted on 

Respondent's premises since at least 1967. The reliance on the fourth 

amendment was precipitated, not by a desire for privacy, but because 

penalties were assessed for alleged safety violations. I reject the 

argument for mitigation, and conclude that insofar as the negligence 

criterion is concerned, the penalty should be increased because the 

violation was intentional and thus the equivalent of gross negligence. 

I conclude that the violation was serious. The inspector was in 

the course of a dust survey of Respondent's operation. There was an 

admitted problem of silica dust in its AgLime plant. Exposure to 

excessive concentrations of silica dust could result in silicosis, a 

serious debilitating disease. Twenty five citations were issued during the course of a 2-day inspection in April. Refusal to admit an 

inspector could result in a lessening of health and safety consciousness and indirectly could cause illness or injury to Respondent's 

employees. Respondent has not demonstrated good faith in attempting 

to achieve rapid compliance, since it is not making any attempt to 

comply. 

Based on the testimony and other evidence introduced at the hearing and on the contentions of the parties, and considering the cricteria in section llO(i) of the Act, I conclude that a penalty of 

$1,000 should be imposed for the violation found. 

ORDER 

Therefore, Respondent is ORDERED to pay the sum of $1,000 within 

30 days of the date of this decision as a civil penalty for a violation of section 103(a) of the Act. 

J c?/f/H£-5 .k !3vockn~ James A. Broderick 

Chief Administrative Law Judge 

Distribution: 

Eddie Jenkins, Esq., Trial Attorney, Office of the Solicitor, 

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

VA 22203 

Muller and Niebler, Esqs., S.C., Attorneys for Respondent, 

611 North Broadway Street, Milwaukee, WI 53202 (Certified Mail) 

519 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISS!ON 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HARMAR" COAL COMPANY, 

Respondent 

June 5, 1979 

Civil Penalty Proceeding 

Docket No. PITT 79-157-P 

A/O No. 36-00803-03003 

Oakmont Mine 

DECISION APPROVING SETTLEMENT 

ORDER TO PAY 

The Solicitor has filed a motion to approve a settlement in the 

above-captioned action. This case has one violation. The violation 

was for section 75.1714-2(b) on the ground that a miner was found 

working without his self rescuer device. The Solicitor advises that 

the miner left his self rescuer approximately 125 feet away from the 

immediate area in which he was working and that the miner stated that 

he had forgotten to take it with him. The amount originally assessed 

was $98. The Solicitor recommends a reduction to $44 on the ground 

that the operator was not negligent. 

I accept the Solicitor's representations. Under the circumstances 

I find the operator was not negligent. Although q penalty must be 

assessed because a violation occurred the absence of negligence is 

relevant in determining the appropriate penalty assessment. I note 

that in Docket No. PITT 79-120-P I approved a settlement of $72 for a 

violation of the same mandatory standard where the operator was not 

negligent. The difference in the penalty amount is justified by a 

difference in gravity. My review of the citations in both cases 

indicates that the miner in this case was in a less dangerous location. 

It should not, however, be necessary for me to independently review the 

citations to find reasons to support the Solicitor's r~commended . 

settlements. The Solicitor himself should furnish ~he requisite data. 

520 
ORDER 

The operator is ORDERED to pay $44 within 30 days from the date 

of this decision. 

Paul Merlin 

Assistant Chief Administrative Law Judge 

Issued: June 5, 1979 

Distribution: 

James H. Swain, Esq., Office of the Solicitor, U.S. Department of 

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

Philadelphia, PA 19104 (Certified Mail) 

Karl T. Skrypak, Esq., Consolidation Coal Company, Consol Plaza, 

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

521 
FEDERAL MINE SAFETY AND HEALTH REVIEVV COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

June 7, 1979 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No, DENV 79-62-PM 

A,C, No, 10-00310-05001 

v, 

Coeur D'Alene Pitt & Plant 

CENTRAL PREMIX CONCRETE COMPANY, 

Appe.1rances: 

Before: 

Responde.nt 

Docket No, DENV 79-126-PM 

A,C, No, 45-00995-05002 

Yakima Pit & Plant 

DECISION 

Marshall Salzman, Esq,, Office of the Solicitor, 

U,S, Department of Labor, for Petitioner; 

R. M, Rawlines, Central Pre-Mix Concrete Co,, 

Spokane, Washington, for Respondent, 

Judge Chares C, Moore, Jr. 

At the beginning of the hearing in Spokane, Washington, Respondent announced that he was withdrawing his notice of contest in DENV 

79-126-PM and that he had already sent his check in the amount of 

the proposed assessment to the assessment officer, It was explained 

to him that the course of action which he followed was inappropriate 

in a case where a complaint had been filed, In view of his obvious 

misunderstanding and the fact that the attorney for the Government had 

no objection, it was agreed that this be considered a settlement and that 

judgment would be entered for the amount of the original proposed 

assessment, 

Docket No. DENV 79-62-PM involves two citations, 347017, alleging 

that an unguarded conveyor with a walkway was not equipped with an 

emergency stop cord and Citation 347018, alleging that the electric 

motor on the head pulley of a conveyor did not contain a cover plate 

over the electrical connections, 

As to the first alleged violation, the standard 30 CFR 56,9-7, 

requires that unguarded conveyors with walkways contain an emergency 

stop cord, There is no dispute about the facts, There ·was a conveyor 

that was unguarded and there was no stop cord •. There was what could 

be considered a walkway but it contained a chain across the entrance 

522 
and a sign saying "Do not enter while operating .. " It was the contention of Respondent that the chain and sign constituted a guard because 

no one was allowed in the area while the conveyor was operating.. I 

think it more reasonable, however, to consider the chain and sign not 

as a guard for the conveyor, but as factors which prevent the chainedoff area from being a walkway.. And if there is no walkway, there is 

no requirement of a stop cord and therefore, no violation.. The citation is accordingly VACATED. 

As to Citation No .. 347018, alleging a violation of 30 CFR 

56 .. 12-32, there is no question that the violation occurred.. Respondent's only defense was that it contracted out its electrical work 

and that the independent contractor must have left the electrical 

cover plate off .. While that may.be a mitigating circumstances, it 

is certainly no defense to the charge.. In view of the stipulations 

regarding four of the six statutory criteria, and the fact that 

there was good faith abatement and little negligence on Respondent's 

part, I assess a penalty of $30 for the violation found .. 

ORDER 

It is therefore ORDERED that Respondent pay to MSHA a civil penalty in the total sum of $56 within 30 days of the entry of this order. 

Issued: June 7, 1979 

Distribution: 

~ (>.?J?~;J· Charles C .. Moore, Jr .. 

Administrative Law Judge 

Marshall P .. Salzman, Esq .. , Office of the Solicitor, u .. s .. Department of Labor, 450 Golden Gate Avenue, Box 36017, 

Room 10404, Federal Bldg .. , San Francisco, CA 94102 

(Certified Mail) 

R .. M .. Rawlings, Loss Control Director, Central Pre-Mix Concrete 

Company, 805 North Division, f .. O .. Box 3366TA, Spokane, WA 

99220 (Certified Mail) 

Administrator for Metal & Non-Metal, Mine Safety and Health, 

U .. S .. Department of Labor 

Standard Distribution 

523 
FEDERAL MINE SAFETY ANO HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

June 7, 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v .. 

DWIGHT IRBY CONSTRUCTION CO,, 

Respondent 

Civil Penalty Proceeding 

Docket No, DENV 79-68-IM 

A,C, No, ~5-00432-05001 

St, Helens Quarry 

DECISION 

Appearances: Marshall Salz~an, Esq,, Office of the Solicitor, 

U .. S, Department of Labor, for Petitioner; 

Dwight Irby, pro se, St, Helens, Oregon. 

Before: Judge Charles C •. Moore, Jr. 

By a complaint filed on November 20, 1978, Respondent was charged 

with four violations of the Act and regulations, The complaint was 

based on Citation No, 345421, charging that a jaw crusher fly wheel 

was not properly guarded, Citation No, 345422, charging that the small 

elevated deck of the jaw crusher fly wheel was not provided with a 

railing, Citation No, 345423, charging that compressed oxygen was 

stored with oil and grease, and Citation No, 345424, charging that 

the ramp leading to the feed hopper was not provided with berms, 

The mine in question is a relatively small mine working only 

slightly more than 1,400 manhours per year, Respondent's Exhibit 

Nos, 1-6 are photographs of the mine depicting various aspects and 

showing just about the entire mine, Solid basalt is mined by shooting explosives, and then crushi~g and grading the debris into various 

sizes of gravel and stone.. The tlormal method of shooting at this 

u:in~ was by drilling what are termed "coyote holes" and implanting 

the explosives therein, A coyote hole is made by drilling a hole big 

enough for a man to enter at right angles to the face of the basalt 

for a certain distance, then drilling two other holes at right angles 

to the first hole for implanting the explosives, The top view of the 

coyo.te hole would be in the shape of a "T," but the dimensions of the 

various arms are not brought out in the testimony.. Respondent did 

try other methods of blasting, but testified that coyote holes were 

much cheaper, */ 

*/ Respondent actually did no blasting himself, but contracted the 

work out to an independent blaster. 

524 
While coyote holes are not prohibited by the Act and regulations, a number of miners consider them as a hazardous method of 

operation and the evidence indicates that Inspector Tallmadge, who 

issued all of the citations involved in this case, attempted to 

discourage Respondent from using coyote holes. Respondent is of the 

opinion that he was harassed by the inspector because of his use of 

the coyote holes. It was his statement that if an inspector gets 

down on you, he can always find something to cite you for, and while 

I am inclined.to agree with the latter statement as a general proposition, if the inspector in this case had been carrying out a 

personal vendetta against Respondent, I am sure he would have found 

more than four violations. 

The first two citations mentioned above, involve the area of the 

jaw crusher. The jaw crusher is basically two pieces of large tlat 

steel which come together periodically as the blasted basalt is fed 

in from a hopper. The engine which powers the jaw crusher in this 

mine is mounted on metal framework which is about 2 feet above ground 

level. The engine contains a fly wheel and the outer part, that is 

the part away from the engine~ was guarded, but there was no guard, 

according to the inspector's testimony, on the inner side of the fly 

wheel. It was his opinion that because of a V-belt driving the fly 

wheel a pinch point existed. I can accept the inspector's testimony 

regarding the pinch point, a point where a serious injury could occur 

if a miner were to be caught either by his hand or a piece of his 

clothing, but I cannot accept his opinion that the pinch point in 

this case was sufficiently accessible to constitute a violation of 

the standard. It was surrounded by 2-foot high framework. In order 

to get caught in this pinch point, a miner would have to climb 

through the framework. This would be a more difficult task than 

merely removing the guard, which Respondent placed on the inner side 

of the fly wheel in order to abate the citation. The framework 

itself was a guard and while the guard could be evaded, it could not 

be evaded so easily as the simple fly wheel guard which the inspector 

required. I find there was no violation of the standard. 

I also find that the top of the framework was not a platform 

requiring a guard rail as charged in Citation No. 345422. Respondent's employee Mr. Cecil had thrown some screening over the framework and stored some material there just to get it out of the way. 

Inspector Talmadge considered the framework with some material on top 

of it, perhaps some boards which he remembered, as a walkway. The 

"platform," however, was 2 feet high and had no steps leading to it. 

It would certainly have been difficult to step onto a platform 

2 feet high and in my opinion, it was not a work platform. There 

would have been no purpose in having a work platform in the area 

since a platform of that height would have made working on the equipment more difficult rather than easier. I find there was no platform 

and that the guard rail required by the inspector was not necessary. 

525 
Citation No, 345423 charges that compressed oxygen and acetylene 

cylinders were stored with oil and grease, The inspector issued the 

citation because he saw the oxygen and acetylene tanks in the back 

of a shed and saw oil and grease cans in the same shed, There was 

also a large grease gun which may or may not have contained grease at 

the time the inspector saw it, and it may have been sitting just 

inside the door or just outside the door of the shed, Testimony 

brought out by Respondent himself established that the grease gun was 

kept outside of the shed during working hours but was placed inside 

for overnight storage, Since the grease gun contained grease, 

oxygen and grease were stored together, but the inspector did not 

issue his citation on the basis of the grease gun, He issued it 

because of the cans he saw in the shed labeled "Grease," Respondent's 

witnesses, however, clearly established that the grease cans were 

used to store nuts and bolts and other odds and ends and that they 

did not, in fact, contain any grease, I will not rule on the question 

of whether overnight storage of the grease gun itself in the same shed 

with the oxygen is a violation, but I do rule in Respondent's favor 

insofar as the specific charges in this case are concerned, I find 

the various cans labeled "Grease" did not contain grease and that 

therefore, the citation was improperly issued, 

Citation No, 345424 charges that the ramp leading to the feed 

hopper was not provided with a berm or other protective barrier, In 

Cleveland Cliffs Iron Company v, MSHA, Docket No, VINC 78-300-M, 

issued on September 8, 1978, I stated at page 3: "Inasmuch as it is 

the elevation which creates the hazard that berms are designed to 

alleviate, the intent of the regulation must be to require those 

berms wherever there is a hazard created by the elevation," 

In the case quoted above, the road was elevated approximately 

40 feet above the surrounding terrain and the banks were at an angle 

of approximately 60 degrees from the horizontal, In my opinion, 

that elevated roadway presented a clear hazard, In the instant 

case, the roadway is 12 feet long, 9 or 10 feet wide and the elevation varies from 0 at the beginning up to 4 feet at the hopper, The 

articulated front-end loader that operates on this ramp is itself 

10 feet long, If therefore, the front-end loader is as close to the 

hopper as it can get, the back wheels would only be 2 feet onto the 

ramp and almost on level ground, In my opinion, this is not a type 

of elevated roadway which is sufficiently hazardous to require berms, 

In fact, the berms which were built in order to abate the citation 

may have created a hazardous condition themselves, ' 

526 
ORDER 

It is therefore ORDERED that all four citations involved in this 

case be VACATED and that the case be, and it hereby is, DISMISSED. 

~e~~~ 

Entered: June 7, 1979 

Distribution: 

Charles C. Moore, Jr. 

Administrative Law Judge 

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

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

Room 10404, Federal Bldg., San Francisco, CA 94102 

(Certified Mail) 

Dwight W. Irby, Dwight W. Irby Construction Co., Route 5, 

Box 5542, St. Helens, OR 97041 (Certified Mail) 

Administrator for Metal & Non-Metal, Mine Safety and Health, 

U.S. Department of Labor, 

Standard Distribution 

527 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HALQUIST STONE COMPANY, 

Res·pondent 

Civil Penalty Proceeding 

Docket No. VINC 79-118-PM 

A.O. No. 47-00218-05001 

Lannon Quarry and Mill 

DECISION 

Appearances: Eddie Jenkins, Esq., Office oZ the Solicitor, United 

States Department of Labor, for Petitioner; 

Paul Binzak, Esq., Kraemer: and Binzak, Menomonee Falls, 

Wisconsin, for Respondent. 

Before: Chief Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

This proceeding was commenced by the filing of a petition for the 

assessment of a civil penalty charging that Respondent violated section 103(a) of the Mine Safety and Health Act of 1977, ·30 U.S.C. 

§ 813(a), by refusing to permit a duly authorized representative of 

the Secretary to inspect Respondent's facility. 

Pursuant to notice, the case was called for hearing on the merits 

on April 23, 1979, in Milwaukee, Wisconsin. Walter C. Brey, a Federal mine inspector, testified on behalf of Petitioner. No witnesses 

were called by Respondent. At the conclusion of the hearing, counsel 

orally stated their respective positions on the issues presented, and 

each waived his right to file written proposed findings and conclusions. All proposed findings and conclusions not incorporated herein 

are rejected. 

STATUTORY PROVISIONS 

Section 103(a) of the Act provides, in part: 

Authorized representatives of the Secretary·*** shall 

make frequent inspections and investigations in coal or 

528 
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 originating in 

such mines, (2) gathering information with respect to mandatory health or safety standards, (3) determining whether 

an imminent danger exists, and (4) determining whether there 

is compliance with the mandatory health or safety standards 

or with anay citation, order, or decision issued under this 

title or other requirements of this Act. In carrying out 

the requirements of this subsection, no advance notice of 

an inspection shall be provided***· 

* * * * * * * 

ISSUES 

1. Does the Federal Mine Safety and Health Act of 1977 require 

or permit nonconsensual inspections of mine facilities without valid 

search warrants? 

2. Did Respondent on June 1, 1978, refuse a Federal mine inspector access to its mine premises? 

3. If a violation of the Act has been established, what is the 

appropriate penalty? 

FINDINGS OF FACT 

On the basis of the pleadings, stipulations of the parties, the 

testimony and other evidence introduced at the hearing, I make the 

following findings of fact: 

1. On June 1, 1978, Respondent was the operator of a stone 

quarry located in Waukesha County, Wisconsin, known as the Lannon 

Quarry and Mill. 

2. Respondent's operation includes a large pit area where stone 

is extracted by blasting and crushed to different sizes. It also 

includes a stone cutting operation where building stone is jarred 

loose from the earth by black powder, extracted with a fork lift and 

cut into different sizes. 

3. Respondent employed approximately four men in its quarry 

operation and approximately seven or eight in its stone cutting 

operation. 

4. Respondent's operation has been visited by Federal inspectors since at least 1974, on an average of three times a year. 

529 
5. On May 31, 1978, Federal mine inspector Walter C. Brey began 

a safety and health inspection of Respondent's Lannon Quarry. Three 

citations were issued on that date as the safety part of the inspection was completed. 

6. On June 1, 1978, Inspector Brey returned to Respondent's 

quarry to complete the health part of the inspection. He placed 

dosimeters to measure noise exposure and respirable pumps to measure 

dust exposure on selected employees. 

7. Approximately 2 hours after the inspection began on June 1, 

1978, Mr. Bud Halquist, who was in charge of the limestone operations 

for Respondent, approached the inspector and told him that he was 

harrassing Respondent and would not be allowed to remain on Respondent's property unless he got a search warrant. The inspector picked 

up his health equipment and left the property. 

8. On June 1, 1978, at about 10:05 a.m., Inspector Brey issued 

a citation alleging a violation of section 103(a) of the Act for 

deni~l of right of entry and served it on Respondent. 

9. I find as a fact that Respondent refused to permit the continuation of a health and safety inspection of its mining facility 

by an authorized representative of the Secretary on June 1, 1978. 

CONCLUSIONS OF LAW 

DOES THE ACT DIRECT NONCONSENSUAL, WARRANTLESS INSPECTIONS OF MINES? 

Section 103(a) of the Act requires ("Authorized representatives 

* * * shall make") frequent inspections of mines. It prohibits giving 0 advance notice of an inspection" and thus necessarily prohibits 

obtaining the operator's consent. It does not specifically address 

the question whether a search warrant is required, but since the 

authorized representatives "shall have a right of entry to, upon, or 

through any coal or other mine," it is clear that a warrant is not 

required. The Senate Committee Report on S.717 states that the 

above language "is intended to be an absolute right of entry without 

need to obtain a warrant." 1/ 

I conclude, therefore, that section 103(a) of the Act directs 

nonconsensual, warrantless inspections of mines. 

Respondent has conceded, and I conclude that its stone quarry is 

a mine as that term is defined in the Act. 

1/ s. Rep. No. 95-181, 95th Cong., 1st Sess. 14 (1977), reprinted in 

Legislative History of the Federal Mine Safety and Health Act of 1977 

at 615. 

530 
DOES THE.COMMISSION HAVE JURISDICTION TO RULE ON A CONSTITUTIONAL 

CHALLENGE TO SECTION 103(a) OF THE ACT? 

In the decision I issued on June 5, 1979, in the case of 

Secretary v. Waukesha Lime & Stone Company, Inc., Docket No. VINC 

79-66-PM, I discussed the constitutional issue raised here 1 recognizing that an administrative agency does not have the power to rule 

on a constitutional challenge to the organic statute of the agency. 

However, it is the responsibility of an administrative agency 

to determine whether a provision of the statute it administers may 

constitutionally be applied to facts found by the agency. Construction of its organic statute is peculiarly the duty of the agency, and 

a cardinal rule of construction requires that if possible, a statute 

be construed to avoid conflict with the Constitution. NLRB v. Mansion 

Home Center Management Corp., 473 F.2d 471 (8th Cir. 1973). 

I concluded in Waukesha, and conclude here, that the mining 

industry, including stone quarrying operations, is a pervasively 

regulated industry, that warrantless, nonconsensual inspections are 

mandated by the Act and do not constitute unreasonable searches 

under the fourth amendment. 

DOES REFUSAL TO ADMIT AN INSPECTOR CONSTITUTE A VIOLATION OF THE ACT 

FOR WHICH A PENALTY MAY BE IMPOSED? 

In the Waukesha decision, supra, I concluded that refusal to 

permit an authorized representative of the Secretary _to conduct an 

inspection of a mining facility constitutes a violation of the Act 

for which a civil penalty may be assessed. I reiterate that conclusion in this case. 

PENALTY 

The Act directs that in assessing a penalty, I consider six criteria: the operator's history of previous violations, the size of 

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

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

of the violation, and the demonstrated good faith of the operator in 

attempting to achieve rapid compliance. There is no evidence concerning the operator's history of previous violations except the testimony 

that three citations were issued on May 31, 1978. I do not consider 

that this history is such that penalties should be increased because 

of it. The operator's business is small in size. There is no evidence that penalties will have any effect on the operator's ability 

to continue in business and therefore, I conclude that they will not. 

The violation was intentional and thus the equivalent of gross 

negligence. I conclude that ·the violation was serious. Refusal to 

admit an inspector could result in a lessening of health and safety 

531 
consciousness and indirectly could cause illness or injury to Respondent's employees. Respondent has not demonstrated good faith in 

attempting to achieve rapid compliance, since it has made no effort 

to comply. 

Based on the testimony and other evidence introduced at the 

hearing and on the contentions of the parties, and considering the 

criteria in section llO(i) of the Act, I conclude that a penalty of 

$700 should be imposed. 

ORDER 

Wherefore, Respondent is ORDERED to pay the sum of $700 within 

30 days of the date of this decision as a civil penalty for a violation of section 103(a) of the Act. 

)

c;A-~1-~ 1 ~-~~~~ . 

James A. Broderick 

Chief Administrative Law Judge 

Distribution: 

Eddie Jenkins, Esq., Trial Attorney, Office of the Solicitor, 

United States Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 

Paul Binzak, Esq., Kraemer and Binzak, S.C., North 89, 

West 16800, Appleton Avenue, Menomonee Falls, WI 53051 

(Certified Mail) 

532 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFF1CE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSIIA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

June 13, 1979 

Civil Penalty Proceeding 

Dolket No. MORG 79-56-P 

A/O No. 46-01433-03011 

Loveridge Mine 

DECISION f PPROVING SETTLEMENTS 

ORDER TO PAY 

On June 1, 1979, the SoliLitor filed a motion to approve settlements 

in the above-captioned proceeding. 

In his motion, the Solicitor advises the following: 

1. The attorney for the S£cretary 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. 

2. Pursuant to those discussions, an agreed settlement 

has been reached between the parties in the amount of $1,458. 

The original assessment for the alleged violations was $2,002. 

3. A reduction from the original assessment is warranted 

because each of the violations was committed by one of four 

independent contractors engaged in construction activities at 

the Loveridge Mine and plant area. The contractors are West 

Virginia Electric Company, Industrial Contracting, Neely Construction Company and Iron Working Contractors. Accordingly, 

the operator's negligence in these circumstances should be 

reduced. The proposed settlement amounts have been reached 

by reducing negligence points approximately one-half thereby 

computing a new total number of points. These points were 

converted, by the use of the penalty conversion table, to the 

amounts proposed herein as settlement of this claim is as 

follows: 

533 
CITATION ORIGINAL PROPOSED 

NO. DATE STANDARD AMOUNT SETTLEMENT 

18804 8/10/78 77 .402 $140 $106 

18806 8/10/78 77.402 $180 $130 

18808 8/10/78 77. 701 $130 $98 

18810 8/10/78 77.505 $130 $98 

18812 8/10/78 77.516 $130 $98 

18814 8/10/78 77.516 $170 $130 

18844 8/8/78 77 .204 $170 $114 

18845 8/8/78 77.205 $160 $114 

18846 8/8/78 l7. 205 $160 $106 

18847 8/8/78 77.204 $160 $114 

18848 8/8/78 77.1112 $122 $90 

14259 8/9/78 77.402 $180 $130 

15174 8/29/78 77.410 $170 $130 

TOTAL $1,458 

In Secretary of Labor, Mine Safety and Health Administration v. 

Republic Steel Corporation (79-4-4) dated April 11, 1979, the Federal 

Mine Safety and Health Review Commission held that under the 1969 Act, 

the Secretary of Labor could issue citations against the owner of a 

coal mine for violations committed by independent contractors. Under 

the present Act, an operator is specifically defined to include an 

independent contractor as well as the operator. However, I believe 

the fact that the independent contractor now is specifically defined 

as an operator does not limit the Secretary's discretion with respect 

to whom to cite. Chief Judge Broderick reached the same conclusion in 

Secretary of Labor, Mine Safety and Health Administration v. Old Ben 

Coal Company (VINC 79-119-P) dated April 27, 1979. Accordingly, the 

citations against the.operator here are proper. The Commission also 

held in Republic that where an enforcement action is undertaken against 

the operator, the independent contractor may also be proceeded against 

in a separate or consolidated proceeding. I believe the amount of the 

penalty properly can take into account the circumstances of the violations. 

Chief Judge Broderick also reached the same conclusion in the Old Ben 

case cited above. Accordingly, I accept the Solicitor's representations. 

ORDER 

The operator is ORDERED to pay $1,458 within 30 days from the date 

of this decision. 

Paul Merlin 

Assistant Chief Administrative Law Judge 

534 
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. 

LAUREL RUN MINING COMPANY, 

Respondent 

June 14~ 1979 

Civil Penalty Proceeding 

Docket No. MORG 79-107-P 

A.O. No. 46-02845-03002 

Mine No. 1 

DECISION AND ORDER APPROVING SETTLEMENT 

AND DISMISSAL 

The Laurel Run Mine is not a gassy mine. A methane emission 

has, so it is claimed, never been detected. Even so, section 

305(a)(3) of the Act, 30 CFR 75.503 requires that "all electric 

face equipment" taken into or used inby the last open crosscut 

be maintained in a permissible condition. In addition, section 

305(g) of the Act, 30 CFR 75.512 requires that "all electric 

equipment" whether or not used in the face area be frequently 

examined, tested, and properly maintained to assure safe operating 

conditions. It seems clear therefore that any violation of 

75.503 would be a violation of 75.512. On the other hand, not 

every violation of 75.512 is a violation of 75.503. 

On April 6, 1978, the safety record at the Laurel Run Mine 

led a mine inspector to conclude that because of the "number of 

permissibility citations" (75.503) issued at the mine the "program 

for proper maintenance of the electrical equipment at the mine was 

in need of upgrading". For this reason, he issued a citation charging 

a violation of 75.512. 

The Solicitor moves to withdraw this charge on the ground that 

evidence which shows a pattern of peI111issibility violations does 

not properly lie under 75.512. I believe this is correct because: 

1. The citation does not comply with the notice 

requi.rements of section 104(e) (1) of the Act, as 

amended, 30 U.S.C. § 814(e)(l). 

535 
2. The citation does not charge that the pattern of 

permissibility violations alleged were of such a 

nature as could have significantly and substantially 

contributed to the cause and effect of a mine safety 

hazard. l/ 

3. The Secretary has not issued the rules mandated by 

section 104(e)(4) of the Act establishing the criteria 

for determining when a pattern violation occurs. 

4. It has been determined that absent the authority conferred by section 104(e) instances of repetitive 

violations of the permissibility standard must be 

charged individually or not at all. See Alabama ByProducts Corporation v. MSHA, Docket No. BARB 77-73, 

Decision of October 13, 1978, Luoma, J. J:./ 

Accordingly, it is ORDERED that the motion to withdraw Citation 

13265 be, and hereby is, GRANTED. 

With respect to the two 75.503 violations charged, my 

independent evaluation and de novo review of the circumstances lead 

me to conclude that the motion to approve settlement of these charges 

at the amounts originally assessed, $122.00 each, is in accord with 

the purposes and policy of the Act. 

Consequently, it is ORDERED that the motion to approve 

settlement be, and hereby is, GRANTED, that respondent pay the 

agreed upon penalty of $244.00 on or before Monday, June 25, 1979, 

and that subject to payment the capti ed petition be DISMISSED. 

Law Jud 

!/ This is rather inexplicable since even in the absence of 

methane an ignition from a nonpermissible piece of electric face 

equipment can cause a mine fire or explosion. 

!:_I On November 28, 1978, the Commission vacated its order 

docketing this decision for review, thereby allowing it to become 

a final decision of the Commission. The Secretary did not seek 

review of the decision by the courts. This means that until the 

Secretary acts to implement section 104(e) it is, for all practical 

purposes, a dead letter and unenforceable. 

536 
SAF~T'! /~;\!D HE~::~L·r~-; t~~V~E\tV co~~~:~5S5B0f·:J 

OfflCE Of ADMINIS7RATIVc LAW JU::>GES 

4015 WILSON BOULEVARD 

ARLINGTON, VH~G,INIA 22203 

JUN 14 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CREEK.VIEW COAL CORPORATION, 

Respondent 

Docket No. BARB 78-583-P 

A.C. No. 15-09365-02004 

No. 1 Surface ~i~e 

DECISION 

Appearances: Marvin Tincher, Esq., Office of the Solicitor. U.S. 

Department of Labor, for Petitioner, 

Tallie Young, President, Creekview Coal Corporation, 

for Respondent. 

Before: Judge Lasher 

This proceeding arose under section 109 of the Federal Coal Mine 

Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1970). Pursuant to section 30l(c) (3) of the Federal Mine Safety and Health Act of 

1977, proceedings pending at the time such Act takes effect shall be 

continued before the Federal Mine Safety and Health Review Commission. 

A hearing on the merits was held in Lexington, Kentucky, on 

May 21, 1979. After considering evidence submitted by both parties, 

and argument, I entered a detailed oral opinion on the record at the 

close of the hearing. It was found that the six violations charged 

did occur. It was further determined that a penalty otherwise warranted by consideration of the various penalty assessment criteria 

provided by statute would have no adverse affect on Respondent •"s 

ability to continue in business. Respondent was assessed penalties 

totaling $356. 

Respondent is ordered to pay the penalties assessed of $356 

within 30 days from the date of this decision. 

#;;~da//!";4,e~if-- Michael A. Lasher, Jr., Judge 

Distribution: 

Marvin Tincher, Esq., Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Tallie Young, President, Creekview Coal Corporation, P.O. 

Box 7240; Lexington, KY 40502 (Certified Mail) 

537 
FEDERAL MINE SAFETY AND BEALTH REVIEW COMMISSION 

OFFICE OF ADMINISlRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

CONSOLIDATION COAL COHPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADHINISTRATION (MSHA), 

Respondent 

UNITED.MINE WORKERS OF AMERICA, 

Respondent 

Application for Review 

Docket No. PITT 79-168 

Order No. 231633 

January 26, 1979 

Westland Mine 

DECISION 

Appearances: James T. Hemphill, Jr., Esq., Rose, Schmidt, Dixon, 

Hasley, Whyte & Hardesty, Washington, D.C., for 

Applicant; 

Barbara K. Kaufmann, Esq., and Sidney Salkin, Esq., 

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

Philadelphia, Pennsylvania, for Respondent MSHA. 

Before: Judge Merlin 

Statement of the Case 

This is a proceeding filed under section 105(d) of the Federal 

Mine Safety and Health Act of 1977 by Consolidation Coal Company for 

review of an order of withdrawal issued by an inspector of the Mine 

Safety and Health Administratjon (MSHA) under section 104(d) (2) of 

the Act. 

Pursuant to a notice of hearing issued April 6, 1979, this case 

was set for hearing on June 5, 1979, in Pittsburgh, Pennsylvania. The 

hearing was held as scheduled. The operator and MSHA appeared and 

presented evidence (Tr. 5-55). At the conclusion of the taking of 

evidence, the parties waived the filing of written briefs, agreed to 

have a decision rendered from the bench, and set forth their positions 

in oral argument. 

Bench Decision 

The decision rendered from the bench is as follows: 

538 
This case is an application for review of an order 

issued under section 104(d)(2) of the Act. 

The order recites that in violation of section 

75.1707 air was escaping from the track haulageway to 

the intake escapeway through thre-e man doors and 

through a hole in a permanent stopping, which hole had 

been covered with a brattice cloth. 

After the testimony of the inspector, the Solicitor 

moved to have the order vacated with respect to the three 

man doors on the grounds that the inspector's own statements made a finding of unwarrantable failure impossible. 

The Solicitor's motion was well taken under the circumstances and from the bench the order was vacated in part 

in accordance with the motion. 

This leaves for consideration the air which was 

coming through the hole in the damaged stopping from 

the track haulageway to the intake escapeway. The 

operator's inspector~escort agreed with the inspector 

that air was coming through the hole from the track 

haulageway to the intake escapeway. Accordingly, the 

existence of a violation under section 75.1707 is 

undisputed and I find it existed as alleged. 

There remains for consideration unwarrantable 

failure with respect to this aspect of the order. It 

appears that the hole in the stopping had been caused 

by a roof fall on the track haulage side of the stopping. Falling material apparently knocked out some 

of the blocks in the stopping. The inspector believes 

the operator was guilty of unwarrantable failure 

because the debris from the fall was covered with some 

rock dust. The area had been rock dusted on January 20, 

and the intake escapeway had been subject to its w~ekly 

examination on January 22. Accordingly, the inspector 

believed that the hole already existed before rock 

dusting had been done on January 20 and therefore 

before the fire boss examination on January 22. The 

order was, of course, issued on January 26. The 

inspector testified he had been told by a man in the 

mine that the hole had been there on January 22, but 

the inspector did not take the man's name and does not 

know who he is. 

Contrary to the inspector's testimony is the 

testimony of the fire boss, a union member, who 

stated that when he saw the stopping on January 22 

during his fire boss run there was nothing-wrong 

539 
with it, and that no brattice curtain was even there 

at that time. After due consideration, I accept the 

testimony of the fire boss. The testimony of the 

fire boss/is especially persuasive because as the 

mine map demonstrates, his route of travel inby 

meant that he was directly facing the stopping in 

question .. Indeed, he could not miss it. I found 

him a credible witness. Accordingly, I must reject 

the inspector's inference that the hole existed as 

far back as January 20 and January 22. 

Insofar as the record before me is concerned, the 

inspector's finding of unwarrantable failure is based 

solely upon his conclusion that the fire boss either 

missed or failed to report the stopping which was 

already damaged. This is a conclusion I do not accept. 

I have not overlooked the inspector's reliance upon the 

presence of roe~ dust on the fallen debris. However, 

the direct testimony of the fire boss is simply more 

persuasive to me than the inferences to be drawn from 

the presence of rock dust. 

Whether the brattice cloth was put up at some 

undefined later time after January 22 is not before me. 

The Solicitor has presented no evidence for such a 

theory to support a finding of unwarrantable failure. 

The inspector's opinion was not asked about this 

issue. I can only decide this. case on the evidence 

presented, and I cannot supply evidentiary gaps. 

Here the most probative evidence before me 

demonstrates that the inspector'~ theory of unwarrantable failure, however well-intentioned, cannot 

be sustained. 

The order 1s therefore vacated, and the application for review is granted. 

I express my appreciation to both counsel for a 

very helpful oral argument. 

540 
ORDER 

The bench decision is hereby AFFIR.t"vIED. Accordingly, it is 

ORDERED that Order No. 231633 be VACATED and that the operator's 

application for review ~T\:·::> 

Pa~ 

~ 

Assistant Chief Administrative Law Judge 

Issued: June 15, 1979 

Distribution: 

James T. Hemphill, Jr., Esq., Rose, Schmidt, Dixon, Hasley, 

Whyte & Hardesty, 818 Connecticut Ave., NW., Washington, DC 

20006 (Certified Mail) 

Karl T. Skrypak, Esq., and Michel Nardi, Esq., Consolidation 

Coal Company, Consol Plaza, 1800 Washington Road, Pittsburgh, 

PA 15241 (Certified Mail) 

Barbara K. Kaufmann, Esq., and Sidney Salkin, Esq., Office of 

the Solicitor, U.S. Department of Labor, Room 14480-Gateway 

Building, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

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

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

Administrator, Coal Mine Safety and Health, U.S. Department of 

Labor 

Standard Distribution 

541 
FEDERAL MINE SAFETY AND HEAtTH REVIE\\# COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

CONSOLIDATION COAL COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

UNITED MINE WORKERS OF AMERICA, 

Respondent 

Application for Review 

Docket No. MORG 79-70 

Order No. 012744 

December 28, 1978 

Shoemaker Mine 

DECISION 

Appearances: James T·. Hemphill, Jr , Esq., Rose, Schmidt, Dixon, 

Hasley, Whyte & Hardesty, Washington, D.C., for 

Applicant; 

Barbara K. Kaufmann, Esq., and Sidney Salkin, Esq., 

Office of the Solicitor, Department of Labor, 

Philadelphia, Pennsylvania, for Respondent MSHA. 

Before: Judge Merlin 

Statement of the Case 

This is a proceeding filed under section 105(d) of the Federal 

Mine Safety and Health Act of 1977 by Consolidation Coal Company for 

review of an order of withdrawal issued by an inspector of the Mine 

Safety and Health Administration (MSHA) under section 104(d)(2) of 

the _Act. 

Pursuant to a notice of hearing issued April 6, 1979, this case 

was set for hearing on June 5, 1979, in Pittsburgh, Pennsylvania. The 

hearing was held as scheduled. The operator and MSHA appeared and 

presented evidence (Tr. 5-46). At the conclusion of the taking of 

evidence, the parties waived the filing of written briefs, agreed to 

have a decision rendered from the bench, and set forth their positions 

in oral argument. 

Bench Decision 

The decision rendered from the bench 1s as follows: 

542 
This case is an application. for review of an order 

issued under section 104(d)(2) of the Act. The parties 

agree that the issues are (1) the existence of a violation and, (2) unwarrantable failure. 

The order recites that the distances between the 

nearest roof bolt and the three corners in question 

exceeded the 5 feet specified by the roof control plan. 

The inspector's testimony concerning his measurements of 

these distances and his conclusion regarding a violation 

of page 12 of the roof control plan are undisputed. i 

accept this evidence and based upon it I find a violation of section 75.200. Counsel for the operator du~ing 

oral argument conceded the existence of a violation. 

The inspector also testified that these excess distances existed for several days, during which the area 

in question had been idle but had been preshifted. The 

inspector's conclusions in this respect were based upon 

the appearances of the area, consisting of footprints 

and rock dust. The inspector also relied upon the 

presence of many dates left by preshift examiners during 

the several days in question. This testimony also is 

undisputed, and I accept it. The fact that the cited 

violations existed for several days justifies the inference, without more, that the operator knew or should 

have known about the violation. I hold that this alone 

constitutes unwarrantable failure. 

I note that during oral argument counsel for the 

operator conceded that the operator should have known 

about the existence of the violation. However, I 

further accept the testimony of the inspector to the 

effect that the operator's superintendent told him 

that he, the superintendent, knew about the violations, 

but because men were on vacation and because the section was idle, the condition had not been corrected. I 

hold this actual knowledge further demonstrates the 

existenee of unwarrantable failure. I note that during oral argument counsel for the operator conceded 

the existence of actual knowledge· on the part of the 

operator. 

The operator's defense apparently is based upon 

the section foreman's action in allegedly beginning to 

abate the violations upon the morning in question, 

shortly before the order was issued. Even if this 

testimony regarding the initiation of abatement is 

accepted, I hold that it makes no difference. In my 

opinion, it does not matter that the operator may have 

543 
started to correct the violation a few hours before the 

order was issued. The violations already had existed 

for several days and remained in existence when the 

order was issued. The fact that the operator may have 

recently begun abatement does not therefore preclude 

issuance of the order. 'Even if the inspector had 

ascertained what the operator was doing, it would not 

have made any difference. The order still should have 

been issued. The violation existed just too long. 

Even assuming that pursuant to section 30l(c) of 

the 1977 Amendments, the decision of the former Board of 

Mine Operations Appeals of the Department of the Interior 

in Zeigler Coal Company, 7 IBMA 280 ( 1977), remains 1n 

effect, it does not help the operator here. The Board 

in Zeigler defined unwarrantable failure as conditions 

or practices the operator knew or should have known 

existed and therefore should have abated prior to discovery by the inspector. The evidence in this case 

makes clear that the cited violation should have been 

abated long before discovery by the inspector. The 

operator exhibhed a lack of due diligence, indifference, and a lack of reasonable care in this instance. 

Accordingly, under the Zeigler decision the order is 

val id. 

In 1 ight of the foregoing, the order is upheld 

and the application for review is dismissed. 

ORDER 

The bench decision is hereby AFFIRMED. 

ORDERED that Order No. 012744 be UPHELD and 

Accordingly, it is 

that the operator's 

application for review ber~~I~~~ 

Assistant Chief Administrative Law Judge 

Issued: June 15, 1979 
FEDERAL MINE SAFETY AND ~1::.tii.tTH REVGE:W COMr~'HSS~ON OFFICE QF ADMINISTRATiVE LAW JUDGES 

4015 WILSON ~;ouLt::VARD 

ARLINGTON, VIRGINIA 22203 

June 18, 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MASSEY SAND AND ROCK COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No.· DENV 78-575-PM 

A.O. No. 04-02065-05001 

Garnett Pit & Mill 

DECISION 

Appearances: Marshall P. Salzman, Trial Attorney, Office of the 

Regional Solicitor, U.S. Department of Labor, 

Before: 

San Francisco, California, for the petitioner; 

Jack L. Corkill, Indio, California, for the 

respondent. 

Judge Koutras 

Statement of the Proceeding 

This is a civil penalty proceeding pursuant to section llO(a) of 

the Federal Mine Safety and Health Act of 1977, initiated by the petitioner against the respondent on September 25, 1978, through the filing of a petition for assessment of civil penalty, seeking a civil 

penalty assessment for 10 alleged violations of the provisions of 

mandatory safety standard 30 CFR 56.14-1, set forth in 10 citations 

issued by a Federal mine inspector on March 28 and 29, 1978. Respondent filed· ail answer and p.otice. of contest ..on Oc-tober 23, 1978, denying the allegations and requesting a hearing. A hearing was held in 

Indio, California, on March 12, 1979, and the parties waived the filing of written posthearing proposed findings, conclusions, and briefs, 

but presented oral argument on the record. 

Issues 

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

respondent has violated the provisions of the Act and implementing 

regu.lations, as alleged in the petition for assessment of civil penalty filed in this proceeding, and, if so, (2) the appropriate civil 

penalty that should be assessed against the respondent for the alleged 
violations, based upon the criteria set forth in section llO(i) of the 

Act. Additional issues raised by ·the parties are identified and disposed of in the course of this decision. 

In determining the amount of a civil penalty assessment, section 

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

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

(3) whether the operator was negligent, (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 u1 

attempting to achieve rapid compliance after notification of the 

violations. 

Applicable Statutory and Regulatory Provisions 

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

effective March 9, 1978, 30 U.S.C. § 801 ~seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Interim Commission Rules, 29 CFR 2700.1 et seq. 

Discussion 

The petition for assessment of civil penalties filed in this proceeding charges the respondent with 10 violations of mandatory safety 

standard 30 CFR 56.14-1, and the violations were noted in the following citations issued by MSH.A inspect.or Hilario S. Palacios during site 

inspections which he conducted on March 28 and 29, 1978: 

March 28, 1978 

376001. The pinch point on the rollers underneath the 

skirt boards of the main feed chute of the No. 5 conveyor 

belt at the pit were not guarded on the south side. 

376002. The pinch points on the rollers underneath the 

skirting of the feed chute of the No. 5 conveyor to the No. 4 

conveyor belt at the pit were not guarded on both sides. 

376003. The pinch points on the rollers underneath the 

skirting of the No. 3 belt by the head pulley of the No. 4 

belt at the pit were not guarded on both sides. 

March 29, 1978 

376005. The pinch points on the rollers underneath the 

skirting of the feed chute of the No. 1 belt at the pit were 

not guarded on the north side. 

546 
376006. The pinch points on the rollers underneath the 

skirting of the feed chute of the fine sand belt at the mill 

were not guarded. 

376067. The pinch points on the rollers underneath the 

skirt boards of the feed chute of the wet sand belt at the 

mill were not guarded. 

376010. The pinch points on the rollers underneath the 

skirt boards of the feed chute of the lower belt at the mill 

were not guarded. 

376012. The pinch points on the rollers underneath the 

skirt boards of the feed chute of the left to the crusher 

at the mill were not guarded on the north side. 

376013. The pinch points on the roller underneath the 

skirt boards of the feed chute of the second sand belt at 

the mill were not guarded. 

376014. The pinch points on the rollers underneath the 

skirt boards of the feed chute of the first dry sand belt atthe mill were not guarded. 

Testimony and Evidence Adduced by the Petitioner 

MSHA inspector Hilario S. Palacios, confirmed that he inspected 

the mine facility in question on March 28 and 29, 1978, and examined 

the 10 belts in question to ascertain whether they were properly 

guarded. He identified Exhibit P-1 as a diagram of a belt which is 

representative of the belts he inspected. All of the belts were 

equipped with skirt boards as depicted in the diagram and they were 

not guarded at the pinch points, that is, the point on the belt where 

the belt and skirt board come together. He indicated that these pinch 

points have a "wringer" effect, and if someone were to be caught in 

these pinch points, he could not get out. He believed that the stop 

cords were inadequate and not sufficient for compliance because once 

a man is caught in the pinch point beneath the skirt boards, damage 

would have occurred. He also believed that four men were exposed to 

a hazard of getting caught in the moving belt parts because they are 

usually working around tail pulleys greasing or shoveling or walking 

along the walkway, and in one instance, one man was walking along 

taking care of a couple of feeder belts (Tr. 7-14). 

Inspector Palacios testified that when he called the violations 

to the attention of the respondent's representatives, they ceased 

operating the belts and began installing screen guards over the pinch 

points. He believed the respondent knew of the conditions cited 

because stop cords were installed from one end ~f the belt to the 

other, and one could tell by observation that the pinch points were 

547 
not guarded. The belt tail pulleys and takeup pulleys were guarded, 

and the ones where no one could get at were guarded by location. He 

believe.d that the safety standard which he cited applied to the belt 

skirt board locations and he cited page 2 of a MESA memorandum dated 

December 19, 1975 (Exh. P-2), which states that section 57.14-1 may 

be cited for failure to provide guards at skirt board locations on a 

belt, and he believes that the industry recognizes the need for guarding these areas. He also identified Exhibits P-3 and P-4 as pictures 

of similar belts to the ones he cited which show skirt boards and 

guards, and he believes this supports his view that the industry 

recognizes the need to guard those locations (Tr. 14-21). 

On cross-examination, Inspector Palacios conceded that the manufacturer of the equipment depicted in Exhibits P-3 and P-4 may not 

be the only manufacturer of such equipment, but it is the only 

gua~ded equipment that he has seen. Theoretically, every roller and 

belt traveling in the same direction constitutes a pinch point, and 

while all moving parts on a belt are similar, all pinch points are 

not. He confirmed that the belts were immediately stopped when the 

violations were called to the attention of company management. He 

would not consider the MESA memorandum previously referred to as an 

"advisory circular" to district offices (Tr. 21-25). 

On redirect, Inspector Palacios testified that he considered the 

MESA memorandum to be mandatory on him. In all 10 citations, his concern was with the pinch points beneath the belt skirting, and he 

believed that someone walking adjacent to the belt or working around 

it could get his hand or clothing caught in those pinch points. The 

height and elevation location of the belts varied, and he indicated 

that if a man can reach 7 feet, he can stick his hand into a pinch 

point. Some of the belts in question were waist-high, others were 

higher, and others had work platforms around them where a man could 

perform work around the pulleys. Mr. Palacios did not believe that 

someone getting his hand caught between a roller and belt would be 

seriously injured because, unlike the skirt board "wringer"' pinch 

points, there is no pressu~e exerted which would create a pinch point 

(Tr. 25-29). 

Mr. Palacios could not state whether any one of the belts cited 

by him were more frequently worked upon than others, although he did 

indicate that he observed one man working on three belts, and that 

the usual work entails greasing and cleaning. He did not know whether 

greasing was performed while the belt was running because he had 

never observed that type of work being performed. He believed the 

danger present on all 10 belts cited was the same, and walking near 

the belts or shoveling under the tail pulleys would expose men to 

the pinch points. Men would likely spend more time at the feeder 

belts, such as the one involved in Citation No. 376001, than at the 

other belts. The person assigned to that belt normaily wor~s for 

4 hours performing maintenance to insure the belt runs properly or he 

is cleaning material off the belt. The belts in question are used 

548 
to move materials and men do not ride them. He did not know how 

many men would be at any of the locations cited by him at any given 

time (Tr. 30-36). 

Inspector Palacios stated that abatement was achieved by the 

installation of screens over the pinch points. With respect to the 

skirting which was installed on all of the belts, he indicated it 

varies in size depending on the materials moved along the belt. 

Regarding the skirting depicted on his sketch, Exhibit P-1, he indicated that if someone fell against the skirting, it would be pretty 

difficult for him to put his hand into the pinch point and he would 

have to do it intentionally. He has seen someone do precisely that 

(Tr. 36-39). 

On recross, Mr. Palacios indicated that he observed no one 

shoveling around the belts on the days the citations issued, and that 

some of the belts are elevated with an open area underneath where 

materials can fall to the ground and are cleaned up there. Of the 

four people he observed around the belts, one was "stationed down 

below taking care of the three belts," but he could not recall any 

mucking or maintenance being performed at the time. The "moving 

machine'' parts that he was concerned with in this case are th~ belt 

rollers (Tr. 40-43). He indicated that respondent has no prior 

history of violations (Tr. 47). 

Respondent's Testimony 

Milton H. Mathers, respondent's production foreman at the Garnett 

Plant, testified that the plant is inspected at least once a year by 

MSHA and OSHA, but the skirt guarding question has never previously 

come up in these inspections. He described the belt system and the 

components, and stated that the components, such as head, drive, and 

snub pulleys, have been guarded. Since the time guarding was required 

on the skirt boards, the emergency stop cords had to be mov~d and 

attache~ to the guard just before the skirting. The belt components 

are greased when the belt is shut down, and greasing is performed by 

means of grease line fittings located just outside the belt frames. 

One can stand away from the belt, at a distance of 6 inches or a foot, 

attach a grease gun to the grease line and grease the components, and 

the grease line usually comes out of the guarding. One or two men 

work on the belt system. One is an operator who observes the conveying system while it is running and he is watching for breakdowns, belt 

tears, etc. The second man is a laborer who cleans out from under 

the belt, and shoveling is conducted while the belt is running and 

also when it is stopped. Shoveling is only done along the middle part 

of the belt between the head and tail pulley, and only along the 

ground level of the belt and not at the elevated portion. Any shoveling at the tail pulley is away from the guarded areas, and that location is guarded. The roller area between the skirting and head pulley 

is not required to be guarded. A stop line r.uns along the length of 

549 
the belt and no one has ever mentioned the fact that the skirting area 

needed to be guarded. He described the skirting used on the belts in 

question, indicated that they were not like the pictures depicted in 

Exhibits P-3 and P-4, but ran approximately 2 or 3 inches inside the 

belt, sloping away, and the outside edge of the belt has no weight on 

it (Tr. 55-62). 

On cross-examination, Mr. Mathers testified that while the areas 

in question are now guarded, prior to that time it was possible in 

some instances for someone to come in contact with the rollers while 

greasing, and that at the time of the citations, three employees were 

assigned to the belt system. Also, in some places it was possible to 

shovel in the area where the stop cord was located, that is, just past 

the tail pulley (Tr. 62-63) •. 

On redirect, he stated that before the guards were installed, the 

stop cord was a little lower than the belt and a person would have to 

go under the cord or fall through it to get caught in the rollers. 

Such a person would have to deliberately stick his arm in or not watch 

what he was doing in order to get caught in the roller (Tr. 63). However, loose clothing could get caught in the roller, but one would 

have to be close to the equipment for this to happen. The belt 

travels at a constant speed, roughly 300 rpms (Tr. 64). 

James W. Harris, Engineering Representative, Aetna Life and 

Casua~ty Company, testified he is familiar with section 56.14-1 of 

the mandatory safety standards in question. lte stated that there are 

other standards recognized by the conveying industry, namely, the 

American National Standards Institute or ANSI standards. He cited 

ANSI Standard 6.01.1.1, which covers belt conveyors which are fixed 

in place, and indicated that the standards mention guarding troughing and skirting area rollers, as well as life lines. He does not 

consider troughing and idler or return rollers to be part of the 

drive train components of the conveyor system. He identified a MESA 

publication concerning surface .mining fatalities indicating that head, 

tail and takeup pulleys should be guarded, unguarded conveyors should 

be equipped with emergency stop devices or cords along their full 

length, and that pulleys or conveyors should not be cleaned manually 

while the conveyor is in motion. He also identified an MSHA "fatalgram" dated. December 15, 1979, reporting an accident involving someone whose arm was caught between a moving conveyor belt and troughing 

roller, and MSHA's recommendation in that case was that "Persons 

under the influence of alcohol shall not be permitted on the job 

55.20-1, 11 but there is no recommendation as to guardings (Tr. 65-

72). 

550 
Discussion 

Fact of Violation 

Petitioner's Arguments 

Petitioner's counsel candidly admitted that all of the citations 

which were issued by the inspector in this case were issued because 

of the failure of the respondent to install guards at the belt skirt 

board pinch point locations cited by the inspector. Counsel also 

indicated that while the inspector cited 10 separate violations, he 

could just as well have cited one violation as a "practice," but 

designating 10 separate locations where they occurred. He conceded 

that the citations were rapidly abated by the respondent, and that 

the inspector was most impressed.with the company's cooperation and 

concern for safety. As for the gravity presented by the violations, 

he indicated that the initial assessments made by the Assessment 

Office in the amount of $8 each, answers that question. Counsel 

believed that the penalties should be somewhat higher because of the 

severity of the injury which could result from the violations (Tr. 

43-50). Counsel indicated that he considered the roller pinch points 

to be a "similar exposed moving machine part" and that the addition 

of the skirt board becomes critical because of the additional danger 

(Tr. 74). In support of his theory of the case, counsel cited Judge 

Moore's decision in Dravo Lime Company, IBMA 77-M-l, October 28, 1977, 

holding that a skirted belt, in combination with a catwalk and ladder 

next to idler pulleys which are unguarded, constitutes a pinch point 

and "similar exposed moving machine parts which may be contacted by 

persons, and which may cause injury***" (Tr. 83). 

Inspector Palacios confirmed that he issued the citations because 

of the presence of the skirt boards and stated that if a skirt board 

were not preserit on the belts in question, he would not have•cited a 

v.iolation because the addition of the skirt board is what creates the 

hazard, since it has a tendency to squeeze someone in. .The "similar 

exposed parts" are the combination of rollers and belt, but the skirt 

board itself is not such a moving part. The presence of the skirt 

boards led him to believe that someone could be injured (Tr. 76). 

Respondent's Arguments 

At the close of the testimony, respondent's counsel moved for a 

dismissal of the case on the ground that the inspector cited section 

56.14-1 simply because of the presence of the skirt boards, and the 

standard does not mention such skirt boards, nor are they "similar 

moving parts" because they are welded to the side of the belt itself 

(Tr. 78). Regarding the gravity of the situation, counsel argued 

that the areas at the tail pulley where a man would be shoveling have 

always been guarded and stop cords were installed in compliance with 

section 57.9-1. As for any negligence, counsel argued that guards 

551 
have always been provided when required, the cited section makes no 

mention of anything other than drive train components, and that the 

skirt board memorandum relied on by the insp~ctor cannot be charged 

to the respondent since it is obviously addressed to someone within 

the agency to clean up an apparent unclear interpretation. Respondent maintains it has always acted in good faith in complying with 

safety requirements and that the stop cords were installed along the 

full belt lengths in compliance with a standard which it believed 

took care of the matter (Tr. 84-85). 

Respondent's counsel indicated that the violations were initially assessed at $52 each, but reduced at the conferen~e stage 

because of the rapid compliance demonstrated by the respondent in 

abating the conditions cited. Counsel expressed a concern that the 

company would be cited for 10 violations and have that on its record. 

He explained that a stop cord was installed along the entire length 

of the belts in compliance with section 57.9-7, that prior to starting the belts, there is a 12- to 15-second delay siren that sounds 

to warn persons of the startup, and that in all of the years that the 

company has been inspected, the problem has never been brought to its 

attention, and had it known, it would have corrected the situaL:ion 

(Tr. 52-53). 

Findings and Conclusions 

The condition or practice cited by the inspector in all 10 of 

the citations issued in this case charges the respondent with a failure to provide guards at the "pinch points on the rollers underneath 

the skirting (or skirt boards)" of certain designated conveyor belts. 

The gravamen of each charge is the assertion by the inspector that 

the respondent violated section 56.14-1 by failing to install a guard 

as required by that standard 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." 

Although the inspector generally alluded to the hazards which 

may result from someone getting his hand or clothing caught in a pinch 

point due to the "wringer" effect which he described, he indicated 

that the hazard presented at all 10 belt locations which he cited were 

identical, that is, anyone walking near-the belts or shoveling under 

the belt tail pulleys would be exposed to the pinch points at the 

rollers beneath the belt skirting and could get their hand or clothing 

caught in those pinch points. However, it seems clear from his testimony that he was unaware of any specific work activities taking place 

at any of the locations cited which could reasonably have exposed men 

to.danger. In addition, although he indicated that the height and 

elevation of each belt varied, that some were·waist-high and others 

552 
higher, he did not specify which belt locations were readily accessible to someone walking by or working around the pinch points. 

Further, while he indicated that men usually work around tail pulleys 

greasing or shoveling, he could not state whether greasing is performed while the belt is moving because he never observed that type 

of activity going on. As for any cleanup activity, he observed no 

one shoveling around the belts in question and indicated that some 

of the belts are elevated and allow materials to fall to the ground 

below where they are cleaned. However, he did not indicate which 

belts were cleaned from the ground and which were not. As for the 

tail pulleys and takeup pulleys, he stated that they were, in fact, 

guarded, and those where no one could get at were guarded by location, 

that is, they were apparently so inaccessible that physical guards 

were not required. And, as for the skirt boards in question, he 

indicated that if someone fell against them, it would be difficult to 

get their hands into the pinch point, and one would have to do it 

deliberately. 

I believe it 1s clear from the testimony of the inspector that he 

issued the citations in question solely because of the presence of the 

skirt boards which.were permanently attached to the belt frames, and 

in the absence of the skirt boards, he would not have cited any violations. In issuing the citations, the inspector followed an interpretative memorandum issued to all metal and nonmetal district and 

subdistrict managers by the then Acting Assistant Administrator for 

Metal and Nonmetal Mine Health and Safety on December 19, 1975. The 

concluding paragraph of that memorandum states that "Skirt board loca-

. tions, head pulleys, tail pulleys, open shaft ends, and other pinch 

points on conveyor belts can be cited for lack of guards under Mandatory Standard 55, 56, 57 .14-1. 11 It is obvious in this case that the 

inspector viewed that memorandum as a directive which required him to 

cite a violation whenever he discovered a skirt board installed on a 

belt at a location which he believed constituted a· "pinch point." 

While I cannot fault the inspector for following what he believed was 

the proper procedure for citing violations of section 56.14-1, the 

action taken by him must be examined in light of the language of the 

standard and the circumstances which prevailed at the time of the 

citations, particularly since the standard, on its face, does not 

specifically refer to "pinch points" or "skirts." 

I have carefully reviewed the Dravo Lime Company decision cited 

by the petitioner in support of its case, and aside from the fact that 

the decision by Judge Moore is not binding on me, the facts are distinguishable. Judge MQore made a finding that in the absence of a 

skirt, a belt idler pulley does not normally constitute a pinch point. 

However, he concluded that the combination of a skirted belt with a 

catwalk and ladder next to it caused the idler pulley to become 

"similar exposed moving machine parts which may be contacted by persons, and which may cause injury." Judge Moore observed that drive 

pulleys, head pulleys, tail pulleys, and takeup pulleys all contain 

553 
pinch points, and that was undoubtedly the reason why these particular pulleys were specifically included in the standard. Thus, by 

interpreting the standard in the way that he did, Judge Moore, in 

effect, added "idler pulley" to the standard, and, if I were to 

accept petiti"oner's arguments in this case, I would add "skirt board" 

or "roller" to the standard. I find this to be a most unsatisfactory 

method or procedure for enforcing or promulgating mandatory standards, 

violations of which will subject a mine operator to monetary civil 

penalties and possible mine closures. 

In this case, the respondent takes the position that it was never 

notified of the memorandum relied on by the inspector, that it complied with the guarding requirements of section 57.9-7 by installing 

safety stop cords along the belt walkways, and that the belt tail 

pulfeys have always been guarded. Respondent's counsel asserted that 

it stands ready to comply with any clear and unambiguous safety standard which it is apprised of, but finds it basically unfair to expect 

compliance with a standard such as section 57.14-1, which, in effect, 

has added a guarding requirement for skirt boards by means of an 

internal memorandum communicated only to MSHA's district and subdistric:t. offices. 

The requirement of the mandatory safety standard in issue in 

this proceeding is that certain designated machine parts, as well as 

similar exposed moving parts which may be contacted by persons, and 

which may cause injury to such persons, must be guarded. The stand-ci.rd 

makes no mention of pinch points or skirt boards. It seems to me that 

if the Secretary deems it desirable to include these factors in the 

standard, he should specifically take steps to amend the standard 

accordingly. Further, if the Secretary deems it desirable to distribute to his enforcement personnel an interpretive memorandum 

regarding any safety standard, basic fairness dictates that it also be 

circulated to mine operators so that they are made aware of~he ground 

rules. It seems clear to me that any basic changes or revisions in 

the application of safety standards set forth in the regulations must 

be accomplished in accordance with the rulemaking provisions of the 

Act, United States v. Finley Coal Company, 493 F.2d 285 (6th Cir. 

1974). Further, enforcement of a standard that fails to inform a 

party what he must do to comply therewith does not comport with due 

process requirements. Cape and Vineyard Division v. OSAHRC, F.2d 

(1st Cir. No. 74-1223, decided March 3, 1975). Where regulations 

are subject to civil sanctions, parties against whom such regulations 

are sought to be enforced are entitled to receive fair warning of the 

conduct required or prohibited thereby. Fleuti v. Rosenberg, 302 F.2d 

652 (9th Cir. 1962); Jordan v. DeGeorge, 341 U.S. 223 (1951). They 

are further entitled to be free from the arbitrary application of 

regulations which are capable of multiple interpretations. Bowie v. 

City of Columbia, 378 U.S. 347 (1964). As pointed out by the Fifth 

Circuit in Stokes v. Brennan, 476 F.2d 699, 701 (1973): "Far from 

impeding the goals of law enforcement, in fact, the disclosure of 

554 
information clarifying an agency's substanttve or procedtiral law 

serves the very goals of enforcement by encouraging knowledgeable 

and voluntary compliance with the law." 

While I subscribe to the proposition that the Act should be 

liberally construed to insure the safety and health of miners, I also 

believe that rational and workable interpretations must be applied so 

as to insure that those mine operators who are regulated by the 

Secretary clearly know what is to be expected of them in terms of 

compliance. I do not believe that an internal memorandum, addressed 

only to the enforcing arm of the Secretary, summarily advising mine 

inspectors to ipso facto cite a violation when skirt boards are 

encountered, thereby expanding the scope of the codified standard, 

serves to put an operator on notice as to what his responsibilities 

are. This is particularly true in proceedings brought under the 1977 

Act which provides for assessment of civil monetary penalties for violations. Prior to the enactment of the 1977 law, metal and non-metal 

mine operators were not subjected to civil penalties. A citation 

issued under the now repealed Metal and Nonmetallic Mine Safety Act 

simply imposed a duty on an operator to abate the condition cited 

within the time fixed for abatement, and his failure to do so resulted 

in a closure order effectively shutting down the mine. There were no 

provisions for the imposition of monetary civil penalties. However, 

under the 1977 law, metal and nonmetal mine operators are now subjected to civil penalty assessments for proven violations of any 

mandatory health or safety standard. In this setting, it seems to me 

that basic fairness dictates that the Secretary clearly and precisely 

advise an operator of what his responsibilities are, and the way to 

do, this is to promulgate clear, rational, and understandable guarding 

standards. Based on the facts and evidence developed in this proceeding, I am of the view that the present guarding standards are 

ripe for Secretarial scrutiny so as to insure clear understanding by 

both the enforcers and enforcees. 

On the basis of the facts developed in this proceeding, it is 

clear that the inspector acted on the basis of the internal memorandum concerning skirt boards. However, that memorandum is not a mandatory standard and is in no way binding on an operator, particularly 

when there is no evidence that the respondent in this case was even 

aware of it. See North American Coal Corporation, 3 IBMA 93 (197-4); 

Kaiser Steel Corporation, 3 IBMA 489', 498 (1978). I find that the 

memorandum's language goes beyond any reasonable and clear reading 

of the plain terms of section 56.14-1. I cannot conclude from the 

facts presented in this proceeding, as did Judge Moore in Dravo, 

that a skirt board can be construed to be a "similar exposed machine 

part." Nor can I conclude that anyone reading section 56.14-1 can 

reasonably conclude or know that skirt boards, in and of themselves, 

are required to be guarded. While I recognize the fact that serious 

injuries, as well as fatalities, have occurred when persons become 

555 
entangled in a moving belt, that does not justify a general indictment of all such devices, particularly in situations where they are 

isolated, otherwise adequately guarded, are located in areas where 

no one is likely to come into contact with them, or are covered· by 

other pertinent standards. As indicated earlier, if the Secretary 

feels that all potential pinch points, or all skirted areas of belts 

should be guarded, then it is incumbent on him to promulgate and 

articulate this by means of a clear and unambiguous standard. The 

present guarding standards, in my view, leave much to the imagination. 

For example, one standard allows the installation of a stop cord along 

the entire length of an unguarded belt as satisfactory protection 

against someone falling against a moving belt which may be loaded 

-with materials. Although every roller on a belt may constitute a 

potential pinch point, there is no requirement for guarding uordinary" 

rollers on the theory that someone is not likely to get "seriously" 

injured if he caught his hand or clothing in such a situation. No 

distinctions are made in loaded and empty belts, and the term "pinch 

point 11 is not.further defined. Although some of the belts which are 

isolated and out of reach are apparently deemed to be "guarded by 

location" and need not be physically protected with a guard or screen, 

the inspector in this case failed to distinguish them since he obviously believed they all required guards because of the installation. 

of skirt boards. 

I believe that when an inspector cites a violation of section 

56.14-1, it is incumbent on him to ascertain all of the pertinent 

factors which lead him to conclude that in the normal course -0f his 

work duties at or near exposed machine parts, an employee is likely 

to come into contact with such parts and be injured if such parts 

are not guarded. On the facts presented in this proceeding, I cannot 

conclude that the inspector made any real assessment of all of the 

circumstances which prevailed at each of the locations cited by him 

at the time the citations.issued. I conclude that he relieq solely 

on the memorandum which he interpreted as an instruction to 'cite a 

violation whenever he encountered a skirt board attached to a belt, 

without any real consideration'·given as to whether one was likely to 

come into contact with moving parts during the course of his duties. 

Here, the testimony of the inspector reflects that while he believed 

th.at the area where the belt and skirt board came together constituted a pinch point, he also believed that it would be difficult for 

someone falling against the skirt board to become entangled in the 

pinch point unless he deliberately reached into that area. 

In view of the foregoing, I conclude and find that petitioner 

has failed to establish a violation of the cited standard, and my 

finding in this regard is based on the following: 

1. The inspector relied solely on an internal memorandum which he viewed as a mandatory requirement that he 

cite a belt with a guarding violatioin when a skirt board 

was attached. 
2. The inspector failed to determine whether each of 

the locations cited by him <lid in fact present a hazard, 

that is, he failed to ascertain whether, in the normal 

course of his duties, it was likely that a miner would 

be exposed to a hazard of becoming entangled in a pinch 

point. 

3. The evidence adduced by the petitioner does not 

establish that it was likely that any miner would, in the 

normal course of his duties, become entangled in any of the 

belt locations cited simply because of the fact that a skirt 

board had been installed at those locations. 

ORDER 

In view of the foregoing findings and conclusions, it is ORDERED 

that the petition for assessment of civil penalties filed in this 

proceeding be DISMISSED, and the citations isssued be VACATED. 

~~~ "" ttf-~v(//--- ~vt-Y~:J , eorge~" Koutra 

Administrative Law Judge 

Distribution: 

Marshall P. Salzman, Trial Attorney, U.S. Department of Labor, 

Office of the Solicitor, 3247 Federal Building, 300 North 

Los Angeles Street, Los Angeles, CA 90012 (Certified Mail) 

Jack D. Corkill, Director of Safety, Massey Sand and Rock 

Company, 43850 Monroe, P.O. Box 1767, Indio, CA 92201-

(Certified Mail) 

Standard Distribution 
F'EDERhl i~;1H·~[E SfiU-:"ETY .r·J':lfJ MEALTM t1f:VH.:V:! CQR't~;.~r,~;,~{n~ 

OFFICC o:= l\C·rtitr~ISTRATIVE t.AW JUCGt::S 

4015 Wtl.~Of<J BOUL~VArW 

Jl,Rllt>!GTOf~. VIRG IMIA 22203 

Ju:1e 19, 1979 

SECRETARY OF LABOR, Discrimina.tion Complaint 

MIHE S/\.FETY AND HEALTH 

ADMINISTRATION (MSHA), 

ON BEilALF or ROBERT L. WEST, 

Complainant 

v. 

ELKINS F.:HERGY CORPORATION, 

Respondent 

Docket No. NOi>..T 78-382 

Elkins No. 6 Mine 

DECISION 

Appearances: 

Before: 

Robert A. Cohen, Esq., and Ann Rosenthal, Attorney, 

Department of Labor, for Complninant; 

Buddy H. Wallen, Esq., and Gerald L. Gray, Esq., 

Clintwood, Virginia, for Respondent. 

Administrative Law Judge Steffey 

Pursuant to a written order datE•d November 27, 1978, as amended 

December l and 11, 1978, a h~aring in the above-entitled proceeding 

was heJ.d on January 16 thro11gh January 18, 1979, in Wise, Virgini;i, 

under section 105(c) of the FeJeral Mine Safety and Health Act of 

1977. 

The d iscrimin.1t ion tornpl.s.int in this proceeding was filed on 

September 29, 1978, alleging that complainant, Robert L. West, had 

been discharged on April 4, 1978, by respondent in violation of 

section :!.05(c)(l) of the Federal Hine Safety and Health Act of 1977. 

Complainant was reinstated on July 10, 1978, under an order of temporary reinste.tement issued July 3, 1978. The discrimination com~ 

plaint was amended on November 15, 1978, to allege that complainant: 

had again been unlawfully discharged on September 28, 197 8. The 

Secretary made no finding under section 105(c)(2) as to whether the 

discrimination complaint with respect to the second discharge was 

frivolously brought. Therefore, co;nplainant was not temporarily 

reinstated after the second discharge and consequently has been without work since September 28, 1978, the date of the second discharge. 

Issues 

Counsel for complainant filed a posthearing brief on May 4, 

1979, and counsel for respondent filed a reply brief on May 29, 1979. 

Both briefs agree that the complaint raises the following two issues: 

558 
1. Whether complainant Robert L. West was discriminated against 

in violation of section 105(c) of the Act when he was "laid off" on 

April 4, 1978. 

2. Whether complainant Robert L. West was discriminated against 

when he was fired by Elkins Energy on September 28, 1978. 

Findings of Fact 

I am listing below the findings of fact on which I shall base my 

decision in this pro~eeding. Nearly every fact in this case was the 

subject of testimony by two or more witnesses. Therefore, my findings 

of fact necessarily involve some credibility determinations. In my 

discussion of the parties' arguments I shall refer to various findings 

of fact and, if those findings are based on credibility determinations, I shall hereinafter explain why I have elected to accept the 

testimony of one witness as being more credible than that of another 

witness. 

1. Elkins Energy Corporation, the respondent in this proceeding, 

owns four underground coal mines at the present time (Tr. 442). The 

Elkins No. 6 Hine is the only one directly involved in this proceeding. 

The No. 6 Mine produced an average monthly quantity of 15,766 tons of 

clean coal for the months of September, October, and November 1977 

(Tr. 10). A miners' strike occurred on December 6, 1977, and lasted 

through March 26, 1978 (Tr. 211). After the strike, the No. 6 Mine 

produced an average monthly quantity of 11,000 tons of clean coal for 

the months of April, May, and June 1978 (Tr. 11). Elkins Energy is 

owned by William Ridley Elkins, Hershel Elkins, and Dale Meade. 

Ridley Elkins is vice president and part owner; Dale Meade is a 

partner and chief electrician; and Hershel Elkins is a partner and 

supervisor of insurance, labor relations, and union arbitrations 

(Tr. 441; 444; 453). Other persons apparently own varying interests 

in Elkins Energy, but their names are not given in the record (Tr. 

461). 

2. Robert L. West, the complainant in this proceeding, began to 

work for Elkins Energy at the No. 6 Mine on November 16, 1977. For 

3 days after November 16, 1977, West was shown around the mine and 

given an opportunity to familiarize himself with its methods of operation. At the end of 3 days, West was· assigned to be the section 

foreman on the night shift which worked from 3 p.m. to 11 p.m. on 

Monday through Friday of each week (Tr. 17; 19; 179). West was paid 

a monthly salary of $1,925 (Tr. 19; 181) until the week following the 

miners' strike (March 27, 1978) when his ..salary was raised to $2, 100 

per month (Tr. 215-216). 

3. During the strike, that is, from December 6, 1977, to 

March 26, 1978, only four men worked at the No. 6 Mine. One of those 

men was Douglas Shelton who was superintendent of the No. 6 Mine. 

559 
The other three men were West, John Ed Mullins, and Morrell Mullins. 

John Ed Mullins had been an electrician at the No. 6 Mine anc.1 Morrell 

Mull ins had been the day-shift section foreman at the No. 6 Mine prior 

to the strike (Tr. 144-146; 556-557). The duties of all men during 

the strike were to preshift the mine, to keep the ventilation in good 

condition, and to maintain the equipment (Tr. 45; 185). During the 

strike, the four men were paid only half of the salnry which they 

normally received when the mine was actually producing coal (Tr. 355). 

4. On February 28, 1978, while the strike was still in progress, 

West was working with John Ed Mull ins at the belt feeder when a rock 

fell on West's head and shoulders (Tr. 47). John Ed rendered first 

aid and Morrell and John Ed succeeded in transporting West out of the 

mine qn the conveyor belt (Tr. 176). John Ed took West to thP. hospital in Wise, Virginia, which is about 20 miles from the No. 6 Hine 

(Tr. 175). No one was on duty on the surface of the mine when West 

was injured although Doug Shel ton, the superintendent, nonnally 

remained on the surface when the other three men were underground 

(Tr. 159; 389; 568). Doug Shelton had called on the telephone before 

the three men went into the mine on February 28 to advise them that 

he WC•.1ld be coming to the mine at a subsequent time (Tr. 168; 357; 

568). After the accident, West told Doug Shelton that he would 

thereafter go underground only when someone had been assigned to 

remain on the surface of the mine (Tr. 49; 150; 390). 

5. The strike ended on March 26, 1978, and on the next day, 

March 27, 1978, West resumed the duties of section foreman on the 

night shift. West worked for 6 days; or until April 4, 1978, when, 

at about 9: 30 a .m., West received a cal 1 from the superintendent of 

the mine, Doug Shelton, advising West that Ridl~y Elkins had asked 

Doug to lay off all the men on the night shift because the No. 6 Mine 

was not producing enough coal to justify retention of the night shift 

(Tr. 58; 405). 

6. West went to the No. 6 Mine about 2:30 p.m. on April 4, 1978, 

to collect his personal belongings and found that the miners on his 

shift were dressed in their working clothes and were waiting outside 

the mine preparatory to entering the mine to work the night shift. 

West went into the mine office and asked Doug Shel ton why the men on 

the night shift had reported for work if the night shift had been 

discontinued. Doug explained to West that between 9:30 a.m. and the 

time that West had come to pick up his personal equipment, Doug had 

received another call from Ridley Elkins retracting his orders to lay 

off the second shift and modifying his instructions so as to have 

Doug lay off only those men who had originally been hired to work on 

a third shift which would begin at 11 p.m. and end at 7 a.m. (Tr. 

60; 407). 

7. Doug then reminded West that West and a repairman named 

Hugh Stidham had originally been hired to work on the third shift and 

560 
that West and Stidham were being laid off until such time as management might detennine whether a third shift would be economically 

advantageous (Tr. 61; 391; 409). Although Doug could not recall.their 

names, he had tentatively hired two miners who lived at Clintwood, 

Virginia, to work on the third shift. Doug also called those two men 

on April fi., 1978, and told them that they would not be needed. They 

had expected to report for work at 11 p.m. on the night of April 4, 

1978, to begin working on the third shift and on the basis of that 

expectation had resigned their jobs at another mine (Tr. 391; 429). 

They were fortunately able to return to the mine where they had been 

working after Doug had advised them that they would not be needed at 

the No. 6 Mine for the third shift (Tr. 391; 429). Doug waited until 

after Stidham had reported for work on April 4, 1978, to lay him off 

(Tr. 128), but Stidham was rehired ~s a belt man a few days later. 

Stidham's substitute job as a belt man required him to crawl around 

on the wet mine floor which caused Stidham' s .:»:thritis to react s(; 

painfully that he was forced to stop working for Elkins Energy 

(Tr. 126; 130). 

8. Ridley Elkins and Doug Shelton had conferred before the 

strike and had tentatively decided to start a third shift as soon as 

the strike had ended. The third shift was planned as a maintenance 

shift. The men on the maintenance shift would do the kinds of work 

which were difficult to accomplish while coal was being produced. 

Work on the maintenance shift would consist of applying roe k dust, 

hanging ventilation curtains, installing roof bolts, hauling supplies 

in to the mine, ancl preparing belt structures for advancement of the 

belt to keep pace with production at.the faces (Tr. 268; 346; 457). 

The third shift was not instituted immediately after the stri.Le 

because a lot of equipment broke do~m soon after the strike which 

had an adverse effect on production (Tr. 56; 126; 153; 303-304; 360; 

445; 449). Both Ridley Elkins and Doug Shelton stated that the 

third shift was not actually begun until production after the strike 

had been built back up to the quantity that had been produced before 

the strike (Tr. 359; 361; 444; 457). 

9. Despite management's clal.m that the third shift was not 

begun until post-strike production reached pre-strike levels, th~ 

facts show that the third shift was begun on or about May 1, 1978, 

but post-strike production through June 1978 was only ll,000 tons 

per month as compared with 15,766 tons before the strike (Tr. 266-268; 

448). 

10. Qualified section foremen are difficult to find. Therefore, 

when Doug Shel ton and Ridley Elkins tentatively dee ided before the 

strike to institute a third shift after the strike, Doug began looking 

for a section foreman so that he could hire one before the strike and 

have him available to take over supervision of a third shift if conditions existing after the strike warranted commencement of a third 

shift. Since West was hired as the prospective third-shift foreman 

561 
on November 16, 1977, and the miners' contract did not expire until 

December 6, 1977, it was necessary to utilize West as a section foreman on the second shift until such time as a new contract could be 

negotiated. West's assumption of the position of section foreman on 

the second shift brought about a change in assignment of existing 

mine personnel because Don Shelton, who was acting as the secondshift section foreman when West became second-shift section foreman, 

had to be reassigned to the position of helper to the operator of 

the continuous-mining machine. Don, who was a brother of Doug 

Shelton, the mine's superintendent, was a foreman-trainee at the 

time West was hired and Don did not obtain his papers as a mine foreman until January 10, 1978 (Tr. 17-18; 307; 346; 376; 379; 457; 565). 

11. The strike lasted longer than Doug Shelton or Ridley Elkins 

expected (Tr. 429). By the end of the strike, Elkins Energy was in 

difficult financial circumstances because it had received little or 

no income during the strike and the legislation pertaining to strip 

·mining had forced Elkins Energy to close its surface mines and lay 

off app-roximately 300 miners (Tr. 458-fi.59; 461;). When production at 

the No. 6 Hine continued to lag below pre-strike levels, Ridley Elkins 

deci~ed to postpone the institution of a third shift at the No. 6 

Mine. In an effort to economize, Ridley instructed Doug Shel ton to 

lay off any llliners who had been hired for the third shift (Tr. 391; 

427). The only miners on Ridley's payroll who had been hired for t!-ie 

third shift were West and Stidham (Tr. 391). 

12. On A~ril 4, 1978, the day Weat was laid off, it was necessary for Doug to reinstate his broth~r, Don Shelton, as the section 

foreman on the second shift (Tr. 362; 407). Don Shelton had been 

working as the helper for the operator of th0 cpntinuous-mining 

·machine (Tr. 20). Another person had to be obtained to fill Don's 

position as helper to the operator of the continuous-mining mC?chine. 

Randall Goins .was transferred from another of Elkins' mines to be the 

section foreman on the third shift which was initiated on or about 

May 1, 1978 (Tr. 267; 362; 4l~9). Not long after Goins had been 

assigned as section foreman on the third shift, Don Shelton elected 

to resume his union job of helper for the operator of the continuousmining machine and Goins was moved from the thir-d shift to fil 1 the 

position of section foreman on the second shift which had been left 

vacant when Don Shelton resumed his union job (Tr. 268). Consequently, there was no net economic benefit to Elkins Energy in laying 

off West because vacancies were merely created which had to be filled 

by the hiring of a new section foreman or the transfer of miners from 

one place to another. Also see Finding No. 27, infra. 

13. On April 5, 1978, the day after his discharge, West went to 

Norton, Virginia, and filed a discrimination complaint with the Mine 

Safety and Heal th Administration alleging that he had been discharged 

for diligently trying to uphold the Federal and state m1n1ng laws 

(Exh. 2; Tr. 68). On the afternoon of the same day on which the 

562 
complaint had been filed, Doug Shel ton called West on the phone and 

asked him if he would be willing to accept a position at another mine 

owned by Elkins Energy. West stated th2t he would be willing to-

~ccept a substitute position and Doug told West that he would see 

what could be done. During the conversation, Doug asked West tf West 

had filed a discrimination complaint against him and West confinned 

that he had (Tr. 69; 251; 369-370; 399; 404). 

14. West's complaint of April 5, 1978, aileges that during his 

employment by Elkins Energy he had advised h·l.s crew that if he 

remained their section foreman, he would (1) restore ventilation, 

(2) stop cutting into auger holes on the return side in No. 6 entry, 

(3) stop miners from smoking in the mine, and (/+) make sure that . 

someone was always on the surface when men were underground (Exh. 2). 

In his direct testimony at the hearing, West repeated that he had 

brought the four items listed above to the attention of the mine 

superintendent, Doug Shelton. Additionally, West stated at the 

hearing that he had complained to Doug about the failure of the 

miners on the first shift to install temporary supports in all places 

from which coal had been removed and West also objected to Doug's 

failure to have an up-to-date mine map showing the location of .:.uger 

h6les (Tr. 21~. West stated that he actually had a list of 27 items 

about which he had complained, but no one at the hearing asked him to 

identify any complaints besides the ones enumerated above (Tr. 27). 

Finally, West stated at the hearing that Doug had ridden a gasolinepowered dune buggy in the No. 6 Mine during the strike and West had 

told Doug that riding the dune buggy in the mine was a violation of 

laK and dangerous becauSE.! the engine· on the dune buggy created noxious 

fumes in the mine and might cause an explosion (Tr. 42; L~Ol). 

15. Several witnesses were called in support of West's claiu 

that he had complained about safety violations to Doug Shelton, the 

superintendent of the No. 6 Mine. Hugh Stidham, a former repairman 

at the No. 6 Mine, testified that he had heard West complain to Doug 

about ve.ntilation curtains being knocked dO\m by the first shift, 

about the failure of the miners on the first shift to install temporary supports, and about the auger holes which had been encountered 

(Tr. 110; 113-114). 

16. James F<?.lin, a former mechanic at the No. 6 Mine, supported 

West's stataments with respect to smoking in the mines by testifying 

that he had seen the men smoking in the mine when West was not in 

their vicinity (Tr. 135). 

17. John Ed Mullins, a fonner electrician at the No. 6 Mine, 

supported West's claims that he had complained about safety. 

John Ed stated that he had heard West complain to Doug (1) about 

West's claim that fly curtains were needed in the mine, (2) about 

West's intention of stopping the men from smoking in the mine, 

563 
(3) about We~t's position that no men should be allowed to go underground unless there was a person on the surface who would be able to 

hear the mine phone, and (4) about West's objection to Doug's ha~ing 

ridden the dune buggy into the mine during the &trike (Tr. 148-150). 

John Ed stated that he had not personally made any complaints about 

safety at the No. 6 Mine and that West had made more complaints about 

safety than the day-shift section foreman, Morrell Mullins (Tr. 

167-172). 

18. Robert ·Hilton, a former roof bolter on the second shift at 

the No. 6 Mine, testified that West tried to get fly curtains at the 

No. 6 Mine but was unable to do so. Hilton said that the other 

c~rtains were often torn down by the shuttle cars and were kept 

rolled up most of the time. Hilton said that if men were accustomed 

to smoking out of the mine, they continued to do so when they were 

underground working in the mine. Hilton &aid that he heard West say 

that he was going to have a talk with Doug about the fact that the 

men were smoking in the mine because West could not allow the men to 

smoke. Hilton, who worked on West's shift, stated that temporary 

supports were supposed to be installed but that they did not practice 

followL1g the law. Hilton said they did not hav~ timbers underground 

for use as temporary supports and that none wer0 brought undergroun.:: 

for that purpose. Hilton found the roof unsupport~d when he went to 

each place to install roof bolts and no temporary supports were ever 

installed until he and his helper uent into a place to install roof 

bolts (Tr. 298-302). The roof-control plan for the No. 6 Mine 

requires that roof bolts be installed within 5 minutes after the 

continuous-mining rr.achine completes loading coal from a given working place (Tr. 248). 

19. The detailed complaint which West made about the ventilation 

curtains was that they were completely down every afternoon when he 

,.lent in to start his shift at 3 p.m. He said that a period of from 

30 minutes to an hour was required every afternoon to rehang the 

curtains and that his insistence that ventilation be properly maintained was a hind:rance to production which management could not tolerate (Tr. 188; 237; Exh. 2). West conceded during cross-examination 

that if management had laid him off because he was a hindrance to 

production, that production should have increased after West was laid 

off on April 4, 1978 (Tr. 193). The evidence shows, however, that 

production did not decrease after West was hired and did not increase 

after he was discharged (Tr. 10-11; Finding No. 1-, supra). 

20. Before the strike, when West was section foLeman on the 

second shift, he was not required under 30 CFR 75.303 to make a 

preshift examination on his shift because no production followed the 

second shift (Tr. 250; 589). Despite the fact that West \-las not 

required to make a preshift examination, he stated that he made such 

an examination any way and that he would make an entry in the onshift 

reporting book if he found that any place needed scooping or bolting 

564 
(Tr. 54). West stated on cross-examinntion, however, that he 

corrected the violations he observed and that it was unnecessary to 

report in the book the violations which he had corrected (Tr. 199). 

West later stated that he made at least one entry in the preshift and 

onshift book pertaining to lack of proper veotilo.tion (Tr. 205). 

West first stated that miners had smoked in his presence in the mine 

until he told them not to do so (Tr. 26). Later West said that he did 

not report the miners' smoking in the book because he did not personally see them s1i10king (Tr. 200). West eventually justified his failure to make entries in the book by stating that Doug Shelton told 

him not to write do\\"'rt ev'2.ry violation he sa\v in the preshift book so 

that the inspectors would not read the entries in the book regarding 

the violations and then check to see if the violations had been 

corrected \"hen they made their examination of the mine (Tr. 233). 

21. Weiot said that he started to sea1·ch the miners for smokers 1 

articles one or two times, but about 4 days after he began to work at 

the No. 6 Hine, Doug told him not to bother with searching the men 

for sm0kers 1 articles because they resented it and were inclined to 

slack off on production if they were searched (Tr. 235; 25LJ.). Robert 

Hiltc,,1, who was a roof bolter on West's shift, stated that he had 

never been searched for smokers' articles at the No. 6 Mine and had 

never seen anyone else searched for smokers' articles (Tr. 316). 

22. Ai though .West said that the roof-control plan required ternporary supportc to be set within 5 minutes after the coal was removed 

unless the roof bolters were ready to enter the work place to bolt, 

West did not have temporary supports set on his own shift in places 

left unsupported by the precedini; shift. The foregoing conclusion 

is supported by the testimony of at least two miners who worked on 

West 1 s shifts. Robert Hilton, who worked on West 1 s shift before the 

strike, stated that temporary supports were rarely set in any of the 

places before he entered them to bolt (Tr. 248; 301). Earl Houscright, 

who worked on West's third si·1ift after West 1 s temporary reinstatement, 

said that most of the time there were no supports in the places when 

he entered them to bolt. Thus, West left his men exposed to roof 

falls until such time as they bolted the roof despite the fact that 

the temporary supports are required to be installed \vithin 5 minutes 

after the coal has been removed. Rouseright also said that he would 

set from four to eight temporary supports, depending on the condition 

of the roof, but he said that he did not know how many were required 

by the law or roof-control plan (Tr. 652). West stated twice during 

the hearing that he did not know whether the roof-control plan 

required installation of six or eight temporary supports (Tr. 39; 

248). West also said that he had to send outside the mine to get 

timbers for making temporary supports when the miners on his own 

production shift removed coal from working places at a faster rate 

than the roof halters could enter the working places to install 

roof bolts (Tr. 255). 

565 
23. Jackson Sturgill, a former section foreman on the thi1·d 

shift al the No. 6 Mine, supported West's position by stating that 

the men on the second shift failed to install temporary supports 

after removing coal from working pl3ces and that he often found as 

many as eight places in need of bolting where no temporary supports 

had been erected (Tr. 290). At the time Sturgill testified, the 

second shift was supervised by Randall Goins who was not working at 

the No. 6 Mine at the time West. made his complaints to Doug about the 

failure of the.men on the first shift to install temporary supports. 

Sturgill_, however, did not support West's claims that Doug was 

indifferent about men smoking in the mine. Sturgill testified that. 

he searched the men for smoking articles and that Doug approved of 

the searches and that Doug personally told the men not to smoke in 

the mine (Tr. 292). Doug testified that he violated Federal law by 

failing to search the men for smoking articles because he believed 

that the miners resented it and that the searches caused them to 

believe that the superintendent did not trust them; nevertheless, 

Doug ~as opposed to smoking in the mine and warned the men of the 

dangers inherent in smoking in the mine (Tr. 422-425). 

2L~. Doug Shelton also admitted during his testimony that Fest 

talked to him about ventilation curtains being down at the face and 

Doug agreed thcit he had refused to buy the kind of fly curtains that 

West wantc;.d him to get because he believed they were unnecessary when 

the ventilation curtains were installed in accordance with the 

ventilation p1-an for the No. 6 Mine (Tr. 350; 371; 373-37l;; 383; 

Exh. A). Doug further admitted that the miners on neither the first 

nor &econd shift were installing temporary supports after they had 

cleaned up the coal and he agreed that this was a problem which West 

discussed with him (Tr. 354). Doug also agreed that it was a violation of the law for him to ride the dune buggy in the mine and he 

further agreed that he did not always have a man on the outside of 

the mine when men were underground and that he recognized that failure 

to do so was a violation of the l~w (Tr. 388; 401). 

25. Doug, on the other hand, denied that West had discussed the 

problem of mining into auger holes with him, but Doug conceded that 

the continuous--mining machine had cut into auger holes because the 

mine map did not correctly show their location. Doug stated that 

MSHA cited the mine for violating the requirement that the mine map 

show the location of the auger holes and that the map had to be 

updated for that purpose (Tr. 351; 353). Doug said there was a drill 

on the back of the scoop wl1ich was available for testing the coal in 

advance of mining to determine whether an auger hole or an abandoned 

mine raight be in the vicinity of active mining operations, but Do11~ 

noted that the drill could be detached from th~ scoop and that it 

was usually necessary to hunt for the drill when it was needed (Tr. 

352;. 385). Doug denied West's claim that the drill was not used to 

search for dangerous conditions in advance of the cutting operations 

of the continuous-mining machine (Tr. 386; 425-426). 

566 
26. Ridley Elkins testified that it was his decision to lay bff 

the miners who had been hired to work on the third shift, but he 

denied that he gave instructions to lay off West by name (Tr. 442; 

444). Ridley stated that section forernen should make their complaints 

to the superintendent ~10 is hired for that purpose because Ridley 

expects the superi.nt.cndc:nt either to take action on complaints or 

inform him about the complaints (Tr. 444). 

27. Ridley Elki~s had a detailed knowled~e of everything that 

happened at the No. 6 Mine. He knew precisely what equipment had 

broken down at the mine after the strike and readily enumerated the 

motors, etc., that had to be replaced (Tr. 448-449). Ridley knew 

that the shuttle cars were alternatively taken from the mine for the 

purpose of being rebuilt and he knew how long the mine operated with 

only one shuttle car before a small shuttle car was brought in to 

assist the remaining large one in maintaining production \vhile one 

large car was out of the mine for repair (Tr. 448). Ridley personally 

brought in a section foreman to work on the third shift when the third 

shift was instituted and Ridley personally transferred the foreman to 

the No. 6 Hine from another mine because the foreman 1 iked Ridley and 

wanted to work in a mine where he would often sec Ridley (Tr. 450). 

Ridley knew of two men at Clintwood, Virginia, who could be hired for 

the third shift when it was instituted and he had advised Doug of 

their availability (Tr. 429-430). Doug discussed the minute details 

of the operation of the mine with Ridley in that Doug stated that 

Ridley "knew from day to day what was going on, and he would tell me" 

what to do (Tr. 390). 

28. At the time of the hearing,' Doug Shelton no longer worked as 

superintendent of the No. 6 Mine because Doug had personally gone into 

the coal business after forming Shelton Coal Company (Tr. 343). 

Morrell Mullins, who had worked at the No. 6 Mine as section foreman 

on the first shift, had accepted the position of superintendent at the 

coal company owned by Doug Shelton. Morrell was, therefore, extremely 

supportive of Doug Shelton's position in this proceeding to the extent 

that he understood Doug's position. For example, he stated that West 

might have found the ventilation down at times when West ·reported for 

work at 3 p.m. on the second shift, but Morrell said that he also 

found the curtains dovm nearly every morning after the men on West's 

second shift had completed their work (Tr. 558; 571). Morrell said 

that it was just about "an every morning thing" that Doug was "ontc 

him" about preventing the men from smoking in the mine, although he 

said that their search policy for smokers' articles was not as 

stringent as it could have been (Tr. 560). Morrell stated that the 

men on his shift did not install temporary supports as they should 

have, but he claimed that the men on West's shift also failed to 

install temporary supports (Tr. 564). Morrell stated that West's 

entries in the preshift and onshift book were just a repetition ot 

the word "None", meaning that West had reported no hazardous conditions. Morrell said that West might enter something different 

567 
once in a while just to vary the appearance of the report, but Morrel 1 

said that West never did report a significant safety violation in the 

books (Tr. 570). 

29. Morrell was present when Dou,r; Shelton rode the dune buggy 

~nto the mine during the strike and he personally did not tell Doug 

that his doing so was a violation of the law (Tr. 573). Morrell 

stated that he had seen men smoking in the mine, but that he had not 

reported them to Doug or made an entry of that fact in the preGhift 

or onshift book (i'r. 571~). Horrell did not make an entry in the book 

about the fact that he found on a daily basis that temporary suppcirts 

were not being installed (Tr. 588). Likewise, although Horrell found 

the ventilation curtains we:ce constantly torn down and lyiniJ, i.n the 

mud, he did not make any entries in the book about that either (Tr. 

588). 

30. West stated that he made a round of the faces every 20 to 

25 minutes and tested for methane if there was machinery in the face 

area either extracting coal or bolting the roof (Tr. 55). Robert 

Hilton, who was a roof bolter on West's shift, stated that West could 

not have made a chec·k for rnethane in his working place without his 

seeing West do so, but he said that in all the time that West worked 

in the mine, he had seen West make only one methane test (Tr. 310). 

31. Chief Administrative Law Judge James A. Broderick issued an 

order of temporary reinstatement on July 3, 1978, requiring that 

Elkins Energy reinstate We.st to the position of section foreman at 

the rate of pay and with work duties .equivalent to those which had 

been assigned to him immediately prior to his discharge on April 4, 

1978. After the reinstatement order had been issued, Doug Shelton 

and Ridley Elkins conferred about the matter and concluded that West 

should be assigned to work on the third shift since that was the 

shift for which he had originally been hired (Tr. 410). When Doug 

called West on Saturday, July 8, 1978, and advised him that the only 

place they could use him was on the third shift, West agreed to work 

on that shift. West reported for work on Monday, July 10, 1978 

(Tr. 70). The working hours on the third nhift were from ll p.m. to 

7 a.m. and the third shift was a maintenance shift during which the 

miners performed duties such as rock dusting, roof bolting, rehanging 

or extending ventilation curtains, and making repairs to equipment 

(Tr. 71) . 

32. Jackson Sturgill had been hired on May 1, 1978, to be the 

section foreman on the third shift (Tr. 266). The reinstatement of 

West meant that two section foreman would be working on the third 

shift. Therefore, Doug advised Sturgil 1 that he was being promoted 

to the position of mine foreman on the third shift and that Sturgill 

should use West as an ordinary workman. Under Doug's instructions, 

West would be required to act as an ordinary laborer because Sturgill 

was told to assign West various tasks which could best be done by 

568 
two men, but since West was to be given only one man to assist in 

performing the tasks, West would be required to do the work of an 

ordinary laborer (Tr. 72; 268-269). Aft~~r West had done the work of 

a laborer for a few days, he complained to Sturgill about being 

assigned a laborer's work instead of a supervisor's duties. Sturgill 

agreed with West that We~t was being utilized in an improper manner 

and thereafter assigned at least two men to do any tasks delegated 

to West. The assignment of at least two miners to assist West in 

performing each job enabled West to work in the capacity of a supervisor. Sturgill stated that although he stopped treating West as 

an ordinary laborer, his doing so was contrary to the instructions 

which had been given to him by Doug (Tr. 71.i-; 291-292). 

33. After West had been reinstated for about 1-1/2 months, Doug 

told Sturgill that they could no longer afford to pay two section 

foremen to work on the third shift and Sturgill was laid off (Tr. 279; 

416; 1+22; 439-440; 458). About 2 weeks after West was reinstated, 

Doug Sb.elton ::esigned as superintendent of the No. 6 Mine and began 

to operate his own coal business under the name cf Shelton Coal Co1,1-

pany (Tr. l,16···ld7; 446-447). The name of the new 8uperinten<lent 

hired by Ridley Elkins was Donnie Short (Tr. 80; 446; 671). [NOTE: 

West stated that D9ug left about 2 weeks after West was reinstated 

(Tr. 79), but if that were correct, Sturgill would have been laid off 

by Doug's successor, Donnie Short, whereas both Sturgill and Doug 

agreed that Doug was superintendent when Sturgill was laid off (Tr. 

279; 439-44-0). The actual date that Doug left is immaterial to the 

real issues in this proceeding.] 

34. West first stated that he only complained to Short about 

three things: (1) the condition of the roadway on the surface leading 

to the No. 2 portal, (2) the condition of the intake haulageway, and 

(3) the disparity in West's and Sturgill's pay, that is, West said 

that he only received his regular salary after reinstatement of 

$2,100 per month regardless of the number of weekends he worked, 

whereas every time Sturgill worked on Saturday., he was paid $100 in 

additior:. to his regular salary (Tr. 217). At a subsequent time in 

his testimony, West stated that he also complained to Short about 

the fact that the ventilation curtains \Jere down at the face each 

day and that temporary supports were not being set (Tr. 239). Short 

denied that West had made any safety comp la int s to him (Tr. 681). 

Short also denied that any foreman had complained to him about 

curtains being down on a daily basis (Tr. 697). 

35. Ridley Elkins on September 28, 1978, discharged West for 

having fail-ed to perform his duties and for having been found asleep 

on the third shift which began at 11 p.m. on September 27, 1978, and 

ended at 7 a.m. on Septembe1~ 28 (Tr. 451-452). West denied tlwt he 

was asleep (Tr. 91), but he did admit that he had failed to make any 

methane checks in the mine after approximately 5:30 a.rn. even though 

four miners were roof bolting in two different headings up to about 

569 
7 a.m. (Tr. 84-85; 623; 647; Leland Maggard's Deposition, pp. 19-20). 

West said that his failure to make. the methane clwcks d:id not expose 

the miners to any danger because no methane had ever been detcc tecl in 

the No. 6 Mine and there was no likelihood that methane would be 

released unless actual production was in progress, and t~e only activity at the time he failed to check for methane, was roof bolting (Tr. 

92; 223). 

36. Based on credibility determinations hereinafter explained, 

I have made findings of fact for the events which occurred on the 

third shift beginning on September 27, 1978. The facts set forth in 

these findings of fact are based on the testimony of all 1-he men who 

worked on the third shift, namely, Robert L. West (Tr. 81-101; 

219-253), Donnie L. Dockery (Tr. 596-615), H. Doyle Phipps (Tr. 

618-636), Earl Houseright (Tr. 638-653), James Kelly (Tr. 654-669), 

and the deposition of Leland B. Maggard. Leland Maggard's deposition 

will hereinafter be cited as 11 Dep., p. 11 

(1) The third shift was a maintenance shift on which no coal 

was produced. The sole function of the maintenance shift was to get 

the mine in proper condition for producing coal when the day sh~ft 

reported for work at 7 a.m. On the night of September 27, 1978, tht~ 

primary work which needed to be done was roof bolting and prcp2ration 

of materials. for advancement of the conveyor belt (Tr. 81-·82). 

Therefore, all ·five of the men on West's crew worked on the surface 

of the mine for about an hour. They loaded supplies and prepared a 

new section of conveyor belt. Around midnight, West sent fc1ur of the 

men underground to install roof bolts. There \.;iere two roof-bolting 

machines in the mine. Leland Haggard ran one of the machines and 

Earl Houseright acted as his helper. Doyle Phipps operated the other 

r.oof-bol ting machine and James Kelly was his helper (Tr. 619·-621; 

638-639; 648; 655-656; Dep., p. 6). 

(2) Donnie Dockery was what is known as the "outside man. 11 

Generally, it was his responsibility to stay near the mine office so 

that he could be of assistance in case of an emergency. He also 

performed odd jobs such as sharpening bits. On the night of 

September 2 7, West asked Dockery to accompany him and the other men 

on his crew to the portal of the mine so that Dockery could splice 

the belt which was going to be used in advancing the belt conveyor. 

Dockery could perform his duties as outside man while splicing the 

belt because there was a telephone at the portal as well as one in 

the mine office. Dockery was inexperienced at splicing belts so 

West elected to remain on the outside of the mine to explain belt 

splicing to Dockery instead of going into the mine either to check 

the faces before the men began roof bolting or to make the methane 

tests which are required to be made every 20 minutes when equipment 

is operating at the face (Tr. 599; 620; 622; 639; 643; 657; Dep., 

p. 10). 

570 
(3). West remained on the outside of the mine with Dockery until 

5 a .m. at which time he told Dockery that he was going into the mine 

to ob ta in the scoop so thnt the bel 1

- they had prepared could be taken 

into the mine for. use in advancing the· belt conveyor. While he was 

underground, West went to the heading in which Maggard and Houseright 

were installing roof bolts. At ·that time, West observed that Haggard's 

cap light had become quite dim. West exchanged lights with Maggard 

so that Maggard could continue roof bolting. West then was unable to 

find an extra. cap 1 ight underground, so he went to the heading where 

Phipps and Kelly were installing roof bolts and asked that Kelly 

accompany him outside because West's light had become so dim by that 

time that he could not travel without the additional illumination 

pro·1ided by Kelly's light. For some reason not articulated in the 

record, West de:termined not to take the scoop out of the mine, and 

therefore Kelly and West walked out of the mine. If West had taken 

the scoop of the mine, he would have found on the scoop an extra cap 

light which was fully charged and usable (Tr. 597; 599; 616; 622; 

640; 657; Dep. p. 11). 

(4) It was about 5:55 a.m. when West and Kelly emerged from the 

mine. Kelly immediately went back into the mine to continue roof 

bolting and West told Dockery that Dockery could return to the n.ine 

office s'ince the task of splicing the belt had been completed. West 

found himself w~i.thout a usable cap light. Since it was about 6 a.m. 

when Dockery was allowed to return to the mine office and since it 

taken only about 20 minutes to walk to the mine office, West could 

have gone with Dockery to the mine office where he could have obtained 

a fresh cap light. He could then have returned to the portal by 

6:Lf0 a .m. If he had done so, he could have made final methane tests 

and could have perfonned a preshift exa.mination preparatory fr,r the 

day shift' s entering the mine at 7 a .m. A period of only 5 minutes 

is required to walk from the portal to the places where the miners 

were installing roof bolts (Tr. 600; 631; 657; 661). 

(5) At the time West told Dockery that Dockery could go to the 

mine office, West stated that he was going to get into Phipps' Jeep 

where it was warm. Phipps had parked his Jeep near the portal before 

he went into the mine to install roof bolts. West had given Phipps 

permission to leave early for personal reasons and West was expecting 

Phipps and Kelly to come out of the mine about 6:40 a.m. It was 

Kelly's practice to ride to and from work with Phipps. Therefore, 

Phipps' leaving early required that Kelly also leave early. As it 

turned out, Phipps and Kelly did not finish bolting the heading where 

they were working until nearly 7 a.m. Consequently, Phipps and Kelly 

did not come out of the mine until 6:50 a.m. They did not see West 

when they first came out of he mine, but when they reached Phipps' 

Jeep and started to open the doors, they found that West was asleep 

on the back seat of the Jeep with his feet stretched out between the 

two front bucket seats (Tr. 600; 617; 623; 625; 650; 658-659). 

571 
(6) Maggard and Houseright came out of the mine about 7 a.m. 

They do not now recall how they returned to the mine office on that 

particular morning (Tr. 647-650; Dep., p. 20). West went to the· 

mine office, turnPd in his cap light, and filled out the preshift 

book (Tr. 95). 

37. Donnie f;twrt, the superintendent of the mine on 

September 27 and 28, 1978, was asked by Ridley Elkins to interview 

Phipps and Kelly and to make a recommendation as to what discipl·inary 

action should be taken with respect to West's actions on the third 

shift which began at 11 p.rn. on September 27, 1978. After Short had 

heard their accounts of what had happened on the third shift, h0 

recommended that West be discharged because he said that West had 

failed to look after the health and safety of the miners since he had 

failed to go underground in order to make methane tests and had failed 

to perform a preshift examination. Short said that performance of 

the aforementioned duties is necessary to assure that the mine is i11 

a safe condition. Short stated that if an emergency or an accident 

had occurred, West would have been in serious trouble for having 

stayed on the surface of the mine instead of doing his duties underground. Therefore, ·short recommen::led to Ridley that West be dis·· 

charged for being asleep and for having failed to perform his dulies 

(Tr. 673-680). 

38. On September 28, 1978, the day after he had been discharged 

for the second time, West went to the MSHA office in Norton, Virginia, 

and filed a second discrimination complaint against El kin:> Ene-rgy 

(Exh. 3). The discrimination comp1 a int stated that Ridley Elkins had 

discharged West for allegedly failing to perform his duties and for 

sleepins on the job. The complaint alleged that the discriminatory 

action was that West had been discharged on the basis of a frame-up 

deal because West had asked about vacation pay and extra pay for the 

weekends he had worked and because management could find no fault with 

the way he had performed his job after his reinstatement (Sxh. 3). 

At the hearing, West claimed that his discharge was merely a culmination of the harrassrnent which he had received after his reinstatement 

(Tr. 102). 

39. The discrimination complaint filed by West on September 29, 

1978, requested a cash settlement without reinstatement. At the 

hearing, West stated that since Donnie Short had now become the 

superintendent of the No. 6 Mine, he would like to be reinstated in 

addition to receiving the salary he would have earned if he had not 

been unlawfully discharged. West stated that he was now asking for 

reinstatement because he felt that he could work with Short and be 

permitted to comply with the health and safety regulations, whereas 

he could not have done so if Doug Shel ton had continued to be superintendent of the No. 6 Mine (Tr. 103). The complaint in this proceeding was amended at the hearing to confonn with the evidence 

(Tr. 323-325) . 

572 
Respondent's brief (p. 2) argues one primary point, namely, that 

for complainant to prevail in this proceeding, the preponderance of 

the evidence must show that complainant was discharged because he 

made safety cornpla ints. Respondent cont.ends, however, that when 

complainant's testimony is read in light of th~ testimony of other 

witnesses, it will be seen that complainant did not carry his burden 

of proof because every major contention made by complainant is contrad icte<l by the testimony of other witnesses. As I indicated in 

the paragraph preceding my 39 findings of fact, supra, many of the 

witnesses disagreed with each other with respect.to various facts, 

but f;everal witnesses supported West 1 s claim that he had 1'1ade complaints about safety (Finding Nos. 15-18, supra). Since respondent's 

brief relies almost exclusively on the witnesse-s• contradictions for 

its argument that complainant failed to prove that he was discharged 

for co:nplaining about safety, I shall hereinl'J.fter consider each of the 

factual contradictions set forth in respondent's brief. 

3moking. Respondent 1 s brief ( p. L1.) states that Patrick Sturgill, 

who was thethird-shift section foreman when W!.'st was reinstated, 

testified tbe.t Doug Shelton, the mine superintendent, approved of 

Sturgill's searching the men for smokers' articles and that Doug told 

Sturgill not to allow the men to smoke. Respondent correctly cites 

the only transcript r2ference which shows that Doug approved of'having 

men searched for smokers 1 articles. I have, howe.ver, found that 

Sturgill's testhnony as to searches for smokers' articles is not 

necessarily in Doug's favor. It must be realized that Sturgill was 

not hired by Doug until after West had filed liis first discrimination 

complaint. A copy of the discrimination complaint (Exh. 2) was served 

on Doug and Doug therefore knew that one of the safety issues West had 

raised in the complaint was the fact that West intended to stop the 

men from smoking in the raine. Doug's own testimony shows that he was 

6pposed to seGrching the men for smokers' articles and that he 

deliberately failed to follow the law with respect to searching the 

men for smokers' articles (Tr. l~24-L:-25). Dour; did, however, urge the 

men not to smoke in the mine (Tr. 415; 422). 

The fact that Doug stated unequivocally in his own testimony 

that he did not approve of searching the miners for smokers' articles 

gives stron3 support to West's claim that Doug had instructed West 

not to make searches for snokers' articles (Finding No. 21, supra). 

Therefore, I find that it was not inconsistent for Doug to change his 

position with respect to searching the men for smokers' articles 

after West made that an issue in his discrimination complaint. 

Inasmuch as three different witnesses supported West's claim 

that he c0mplained about the miners 1 being allowed to smoke in the 

573 
mine, I find that West did complain to Doug about tlw fact that the 

miners were smokinr; in the mine (Fin<lings Nos. 16 through 18, supra). 

I am aware tl1.'.lt Doug denied that West lrnd cornpl.::ined to him about--

smoking (Tr. 351). I conclude that Dn~g's testimony to that effect 

lacks credibility for several reasons. First, other m<"n stated that 

smoking was being done in the mine and they agreed that West was 

opposed to it. Second, on~ of the miners stated that he had never 

seen anyone make a search for smokers' articles while he wAs work:ing 

at the mine (Finding No. 21, supra). Third, D0ug could hardly admit 

that West had complained about-smoking to him b2cause that was a 

violation which he said that he knowingly ha<l committed. If he had 

admitted that West complained to him about smoking, Doug would have 

given West enough corroboration to prove one of the allegs.tions in his 

discrimination complaint. 

I do not think that transcript page 300, cited on pagP 4 of 

respondent's brief, supports respondent's claim that West "had been 

on probation at another time for allowing men to smoke." The testimony at page 300 of the transcript states that West disallo~·1ed 

smoking at another mine \lh.ere he worked, but that the superintendent 

at that mine also had told him to let them smoke. The witness at 

page 300 specifically stated that West had told him that West could 

not "put up" with smoking in the mine (Tr. 300, 1 inc 4). 

T~1e reliance in respondent's brief (p. 4) on the testimony of 

Morrell Mullins is misplaced because Morrell Mullins must be given a 

very low credibility rating. As I have indicated in Finding Nos. 

28 and 29, supra, Morrell Mullins is now working as mine foreman in 

a coal mine which is now owned by Doug. Morrell' s testimony shows 

that his statements were intended to support Doug's testimony in every 

respect and Horrell' s testimony is so full of exaggerations as to make 

it suspect on its face. For example, M:orrell's claim that Doug was 

"onto him" nearly every morning about the miners' smoking is a great 

distortion of Doug's own testimony and is completely contrary to 

John Ed Mullins' testimony to the effect that Doug did not often telk 

to the miners about smoking and that no searches for smpkers' articles 

were made (Tr. 167). 

Au~~r h~es. The preponderance of the evidence shows that West 

did complain abqut having driven into an auger hole (Finding Nos. 14 

and 15, supra). Respondent's brief (p. 5) correctly notes that Doug 

and Morrelltestified that there was a drill on the back of the scoop 

which could be used to drill in advance of mining to test for the 

existence of auger holes. Doug's testimony, however, shows that the 

drill was used for anchoring tailpieces and he said that they had to 

hunt for it every time they wanted it (Finding No. 25, supra). The 

fact that they had to hunt for the drill supports a findio.gthat it 

was not used to drill in advance of mining with the regularity claimed 

by Morrell Mull ins. Moreover, the fact that Doug received a notice 

of violation for failing to have the auger hole·s identified on the 

574 
mine map is anothPr indication that the drill was not being used 

because there would have been no point in us~1a it unless they had 

r..:ason to believe that the auger holes were fairly close to the r_lace 

where they were mining coal. 

Here again, I find that Doug's denial of West's havinlj mentiorwd 

the auger hole lacks credibility because Doug had been given a notice 

of violation for failure to show the auger holes on his mine map. If 

Doug had admitted that West discussed n0~er holes with him, he would 

have been providing a great deal of corroboration to West's claim th<:t 

he had been discharged for complaining a~out safety. 

Providing a Man on the Surface. TI1e preponderance of the evidence7upport-~ U~-cTaim in respondent's brief (p. 5) that West went 

undeq;round on at least one occasion without a person befr1g on the 

surface who could have su:.inoned help in an emergency situation. As 

Finding No. 4, supra, sho\.'8, West did tell Doug that a. person 8liould 

be on the surfac(-;:-~hen mjners are underground, but West did not tak(,, 

that position until after he was injured by a rock falling on him 

on February 28, 1978. On that dRy, West and two other miners, John Ed 

Mullins and Morrell Hullins, had gone undecground at a time whe11_ no 

one wcis on the surface. West claims that Doug wa.s on the surface 

when he and the other two 1ainers went unclerground on reLruary 28, but 

Doug, Horreil, and John Ed all testified that Doug was still at home 

when they went uuclerground on February 28. 

I have detected nothing in John Ed Mullins' motivations which 

indicates that his testimony lacks credibility. Hort>ove:r, bis testi·-

mony is consistent throughout. Therefore, I find the-.:: John Ed's, 

Horrell's, and Doug's testimony is morP. credible than West's for the 

fact that West did go underground on February 28, 1978, when there 

was no one on the surface (Tr. 159; 356; 568). West did not take a 

firm position about having a person on the sur_face until after he 

was injured (Tr. 49; 150). Since Doug agreed after West's accident 

that a person should be on the surface at all times when miners were 

underground (Tr. 390), I find that West did not make a complaint about 

safety with respect to having a person on the surface which was any 

different from management's position regarding the stationing of a 

person on the surface while men are underground. Finding 36(2), 

supra, for example, shows that it was manag<!ment' s practice to have 

a man on the surfa.ce when coal was being produced. The failure of 

management to have a man on the surface at the time West was injured 

occurred at a time when the mine was inoperative during the miners' 

strike (Finding No. 4, supra). After West's ace ident, management 

agreed that a man should-th~reafter be stationed on the surface when 

men were unclerground reganiless of ,.1hether coal was being produced 

or not. 

Ventilation. Respondent's brief (pp. 6-7) correctly argues that 

while West may have complained to Doug about the failure of the 

575 
miners to maintain ventilat:ion curtains, West's shift was just as 

guilty of failing to maintain the curtains as the section foreman 

on the first shift was. There is- .':imple support in the record for 

making the forego ins conclusion. Robert Hi 1 ton, who operated a 

roof··bolting machine on West's shift, stated that the ventilation 

curtains on West's shift were constantly knocked down by the shuttle 

cars and that the curtains were kept rolled up most of the time (Tr. 

298). Doug stated that the day shift cnmpl~in~d about the nisht 

shift knocking the curtains down and the night shift complained about 

the day shift knockinr. the curtains down (Tr. 415). Horrell, who 

was the day--shift foreman, agreed that the miners on his shift 

allowed the curtains to fall, but he also claimed that the miners 

on West's evening shift were just as bad about knocking the curtaiQs 

down as the miners were on his day shift ('i\·. 558; 571; 586). As I 

have previously indicated, I believe that rforrell Mullins' te.stb:ony 

should be given a very low credibility rating, but since Robert 

Hilton also testified that the miners on West's shift allowed tbe 

curtains to lie on the mine floor or rollerl them up to the roof, 

there is corroboration in the record to support Morrell's statements 

as to the ventilation curtains. 

Respcindent's brief (p. 6), inappropriately cites John Ed Hullinf; 1 

testimony to support a claim that Elkins Energy stT.pplied fly curtd.ns 

when West asked for them. I believe that John Ed answered the ouestion about fly curtains at transcript. page 159 in a generic sense 

because ventilation curtains were supplied in ample quantity, but fly 

curtains were never provided at all. Doug himself agnoed that he h2d 

refused to provide fly curtains on two grounds, the first being that 

they were not needed, and the second beinr, that their cost was 

excessive (Tr. 371). Robert Hilton testified that he heard West 

complain about the need for fly curtains, but he said that no fly 

curta:i.ns were ever provided (Tr. 298). Finally, West himself stated 

that fly curtains could be dispensed with so long as ordinary curtains 

were made available and were properly used (Tr. 25). 

In addition to the testimony cited above, Hugh Stidham and 

John Ed Mullins testified that they had heard West complain to Doug 

about the lack of proper ventilation (Tr. 113; 148). Despite th~ 

evid.ence showing that West failed to provide proper ventilation on 

his own working shift, the fact remains that West did complain about 

the inadequate ventilation which. constant.lv existed in the mine. The 

superintendent had been a former Federal ii~spector and knew that the 

miners were being exposed on a continm;l basis to respirable du3t. 

He knew, or should have known, that constant exposure to respirable 

dust could cause the. miners t.o contract pneumoconiosis, but he di.d 

nothing to correct the deplorable ventilation conditions which had 

been called to his attention. It is, therefore, not surprising that 

West· did not succee<l in restoring adequate ventilation on his o"\m 

shift when the 11line superintendent gave him no ~upport in seeing that 

the miners maintained the curtains in proper position. Inasmuch as 

576 
Doug was iridifferent about providing proper ventilation (Tr. 309), 

I conclude that he would have resented West's complaints about venti.-

lc:tion and i;.;ould have wanted to free himself of a sect.ion foreman d:10 

kept discussing a subject which Doug did not want to hear about 

(Finding Noc. 14, 15, 17-20, 24, aad 28, su~ra). 

Failure to Install Temporary Supports. Respondent's brief (p. 7) 

correctlystate~that ~fest -failed -tO"-huve ·-temporary supports erected 

on his own shift. Even though West did discuDs with Doug the failure 

rif the miners ori the first shift to install temporary supports, West 

failed to protect the miners from roof falls on his own shift because 

he did not require that temporary supports be erected on his shift. 

The most da•naging testimony with respect to West 1 s perfonaance as a 

section foreraan CD.me from Robert Hilton who was a roof bolter on 

West's evening shift. He testified that temporary suppor~s were 

supposed to be installed but that they did not practice following 

the law. HiI ton said that they did not. have timbt'rs underr;round to 

use for roof support and that no timbers were brought in for that 

pL!rposs-. Hilton stated that the roof was never supported uni: il such 

time a& he entered a place to install roof bolts. Hilton testified 

that he had to install jacks in each place before he bolted (Tr. 

301-302). 

Since the roof-control plan for the No. 6 Mine required that 

tempnrary supports be installed within 5 minutes after the co~l w&s 

removed, it was essential that temporary supports be inst~lled 

rapidly (Finding No. 22, supra). Donnie Short, who replaced Doug as 

mine superi.:itendent at the-No. 6 Hine, stated the.t once the slc2te hRs 

separated from the roof, it is better to pry the slate ~own or let it 

fall than try to install temporary supports under the loose slale 

(Tr. 699). Therefore, the miners were unprotected day after day in 

the No. 6 Hine b c"cause no effort was being made to inst al 1 temporary 

supports. Additionally, Earl Houseright, a miner oa West's third 

shift after West's rein statement, test ifiecl that no supports were 

installed in the working places until he placed temporRry supports 

in the ~laces just prior to installing roof bolts (Tr. 652). 

Houseri&ht 1 s testimony chows that the miners were continuing to ignore 

the requirement that temporary supports be installed. 

Another serious shortco;ning in the miners' failure to follow the 

provisions of the roof-control plan was that the mine superintendent 

and the section foremen were obligated to explain the provisions of 

the roof-control plan to the miners. Yet, West stated twice that h:~ 

did not know whether six or eight temporary supports were required to 

be installed and Houscright stated that he did not know how many 

temporary supports were required (Tr. 39; 248; 652). It was Doug's 

duty as superintendent to know the provisions of the roof-control 

plan and to explain the plan to the section foremen and the m~ners so 

that the plan would be followed. Additionally, West claimed that he 

had to send outside the mine for a supply of timbers when he did want 

577 
to support th0 ,.,orkiag pla_ces (Tr. 255). Section 75.202 provides 

that a supply of timbers shall be kepL underground nf'ar the workin2 

faces and Doug should have. insisted that timbers be kept underground 

at all times. 

Despite West's shortcomings in fol ln\·1ing the p1:ov1si.ons of the 

roof-c0~trol plan, Doug's own testimony shows that W2st did complain 

to him about the failure of the min~rs to install temporary supports 

(Finding No. 2!;, supra). Hothing exposed the ri-.iners to greater danger 

than the failure ~se.t temporary supports, yet. Doug took no action to 

see that the roof-control plan was co;npl ied with. It is not surprising tl1.:;_t West fa.iled Lo see that the provisions of the roof-control 

!='lan were complied with on his ovm. shift: when he found that the mine 

superintendent was indiffer~nt about seeing that the provisiors of the 

roof-control plan were enforced. In such circumstances, r· conclud(~ 

that Doug would have been motivated to free himself of a section 

foreman w-ho kept re;ilinrJing him that the roof-control plan was not 

being fo 11 owed . 

Hindrance to I'Toduct10n. Respondent's brief (p. 7) correctly 

argueSthat the- evide~~e-faTl s to support West's claim that he \i'G.e 

discl:·tr[;ed, in p.:lrt., because his insistence on follo\ving safety regulations was a hindrance to production. West said that his following 

the safety regulations resulted in less co2l production on his shift 

tlHm was achieved on the day sbift_ FL1ding No. 19, supra, SlN~narizes 

the evidence \,·~th ·cespect to W2st' s clc.im 2bout bis being a him:lrc.:nce 

to production and shows that there is no merit to his claim that he 

was discha1~ged because he was a hindrance to :_:iro<luction. 

Dune Buggy Episod2. Respondent's briPf cioes not discuss Fest's 

claim-that he c:idvise-d Doug that it was a violation of the sa.fety 

standards for Doug to have ridden a gasoline-powered dune buggy into 

the mine (Fi:::ding !fos. 14, 17, 24, and 29, supra). I find that West 

must be givPn conside;-able credit for h.::cving hc;d the courage to tell 

the mine superintendent that the superinter.clent was violatin~ the law 

when he rode a dune buggy into the mine. Doug, John Ed Hull i;.ls, and 

Morrell Mull ins all agreed that Doug had rj_dden the dune buggy into 

the mine. John Ed stated that he heard West tell Doug that he ought 

nut to have ridden the dune buggy in the mine. Horrell personally 

did not say anything to Doug about having ridden the dune buggy in 

the mine. I find that West's criticism of the mine superintendent 

for riding the dune buggy in the mine mGy well h11ve been the type of 

complaint which would have made the superintendent want to disc.barge 

a section foreman who had the audacity to suggest to the superintendent that his actions were unsafe. 

The preponderance of the evidence supports the claim in MSHA's 

brie·f (pp. 3-4) that West made safety complaints to Doug, the mine 

superintendent. As the preceding disc1,1ssion ha_s shown, West complained about miners' smoking in the mine, about the failure of the 

578 
miners to clJ:-ill in advance of minjng opr->rations so as to d·iscover 

augf:r holes befo-::-e the contir.uous-·mining mac:1ine cut into them, .1bout 

the mfoers 1 al lo\-r:inr; the Vl'Hti lat i.on cur ta ins to f:lll to the ground 

so that adcqu3te ventilation was not provided at the working faces, 

about the miners' failure to ins~all temporary supports.after c~ts 

of coal had been removed, .?,I"Ld about the> r.1inc superi..r:tendent 1 s having 

driven a gasol ine-pc;\·i<:·n>d du1w buggy ·lnto the minP. It should be 

noted, however, that HSHA's brief incorrectly states c:t the top of 

page 4 that ~est overruled other managcMcrit personnel ~10 wanted to 

cut aro~nd old auger holes (Tr. 301). The testimony at page 301 

shows t!iat West d is;;greed with other personnel Bbout the tir.:.ing of 

cuttieg a breakthrough. That incident tad nothing to do with ;weer 

holes. 

Respcndent' s brief (p. 2) contends that West can prevail in this 

proce•::-ding only if the prepondera~ce (Jf the evidenc:e shows that. West 

wa~.: fired hecause he crnr.rlained about safety. RPspondent also claims 

that West must succeed on the strength of his own case and c~~ilot win 

~pon any weaknesses in respondent's case. I have ~lready found in 

the p(eceC.ing ·discussion that We.::'.: did coi"'lplain c:;bo:.1t safety, but as 

respondent notes, West cc.:.n win or,ly if th2 evidence sho\·Js that West 

was laid off bcc.::use he cor.i.plc-:ined ;~;_:oc't safety. 0;1e: is not likely 

to find a contested <liBcr"ililination c.:.:.::.;e in which tl:e respor:d\'l"i.t agrees 

that it leid off or dischurgeJ ~~ employPe for enfaging in an activity 

which is protected under thc. Act. Therefore, respondent is not 

entirely correct in argu~1g th3t West's ability to prove his cas2 may 

not to some extent depend on the weakness of respondent's case. 

In Finding Nos. 4 through 12, supra, I have given the reasons 

which were advanced by respondent for -ia~dng ~ .. \~st off on April Li-, 

1978. Respondent first claimed th&~ ~est was being discharged 

because Ridley Elkins l::;d determined to lay off all the minr:rs on the 

second shl.ft, but when West reported to the mine to pick u~·· his 

pers01rnl belongings, he found th[1t all the rainers who norui.0lly worked 

on the se::ond shift were present at the mine ancl ready to Fork the 

second shift e}:cept for hest and one repairma;.1 ,.;rho had beer. laid off. 

West was then advised that only the m211 who had be~n hired to \Wrk on 

the third shift were being laid off. A few dayb later the repairman 

was reemployed as a belt man, but West. was not offered a job in any 

dubstitute capacity. The reason given at the hearing for laying off 

West was that respondent had suffered financial losses and ne2ded to 

cut expenses through discharging West and the repairman. Resp..-:indent 

did not demonstrate any savings through the discharge of the repairman 

because he was reemployed a few days later to work as a belt man. 

While the repairman was not reemployed in the same capacity, the 

saving to respondent was insig-nificant because the only saving fro:n 

discharging the repa i.rman and rehiring him was the small d i.fferential 

in pay which he received as a repairman as compared with the salary 

he received as a belt man. 

579 
The laying off of West saved respondent no money bec~use 

Don Shel ton, \vbo was the mine superintendent's brothe:i.·, uas Horl:in;; o.~:> a 

helper for the operator of the continuous-miniDg machine. Don had 

obtained section for0man's papers on January 10, 1978, and Doug, the 

mine superintenden~ promoted his brother to the position of section 

foreman to fill the> section foreman's position whicb w2s left vacant 

when West was laid off. Of course=>, \vhen Don Shelton was made section 

forenrnn, "it was necessary to obtnin another ern;,loyee to take Don's 

place as 1H:lp2r for the operator of Lhe continuous-miuin;?, mile:hine. 

Tlwrefore, the': net saving to respond,~nt from L::ying off Hest was z.ero 

because Don S~elton had to be paid the same salary West was receiving 

before West 1-1~s_disc]:rnrgec1 _<ind th2 pers.on who toc>k Don's pGs1-t1.0:i -fr-S 

helper for the operator of the continnous-E1ir:·i·l1g machine had to be 

pai<l the sE~e salary which Don had been receiving in the helper's 

position. 

Don Shelton 1~:Ltimately resu:rr1~d his job as helper to the op2rator 

of the continuous-minir:g machine and a section forer1dn ha2 to he 

transferred from another of Elkins Energy's mines in order to fill 

the vacancy tbA.t had been created i:·lhen Don rctm:ned to his :hnner job. 

In view of the circu;nstanc{~S described ab·;r.J:c" respondent's claii:: th2t 

West was laid off ~ecause of a lack of work is simply not support0<l 

by the preponderance of the evidenc~ in this proceeding. 

Tl1P.re is support in the testimon·y of Rv1'f:rt Hilton for respon-.. 

dent's cL1im that West was hirc<l for the third shift (Tr. 307) and I 

am willing ta accept respondent's claim to that effect. Tte evidence 

shows, however, that respondent started the third shift within less 

than a month after West was laid c•ff (Tr. 4L~3). Although \.12st i-.ad 

been advised when he ·was laid off, that he would be called if a 

vacancy occurred, he was not offered the position as sect.inn foreman 

on the third shift whc'n that shift was begun. Doug explnined that he 

did nnt ofir'1: the position to l</est because by tlu:~t time West had m;:,de 

a number of statements about him that were untrue and he did not 

think that he an.d West would be able to work together han.:.oniously 

after those st8tements had been made (Tr. 397). Al though Doub 

referred to West's complaints about having te~n paid only at half his 

regular salary during the strike and to West's attempts to get two 

at.her section foreman \·iho worked during the strike to join him i11 a 

suit against respondent to collect the back wages allegedly due, the 

evi~ence shnws that such activity by West had ceased at the time the 

strike ended (Tr. 490). Therefore, I conclude that the primary reason 

for Doug's failure to offer West n job as section foreman on the third 

shift was that West had filed a discrimination complaint against 

respondent on April 5, 1978, or the day after West was laid off (Tr. 

404). 

It is true .that Doug claims to have offc~red West an alternative 

job at another mine owned by Elkins Energy, but West claims Doug only 

asked if w~st would consider taking another job and West claims that 

580 
he 2greod to accept aD alternative position, b~t West says that Doug 

nev0r did follow up the inquiry with a specific job offer. As to the 

t\W diffen·nt ~~!:ories told uy W0st and Doug with respect to a job 

offer, I fin;_; f0r t~·!O reasons that West's version is ;r;.ore credil;l(' 

than Doug's. First, at the time DDu.g called \fost with the alleged 

offer of another job, Dot:1g also askPd VlPHt if \vest had filed a discrimination cornploi.nt against hi::.. l!.n app-r.op)-iate excuse for ca1 ling 

West wou~d have been to ask if West would cons~deY taking ~nether job. 

It would not ht!V<" Lu!n log i.c;:<l for Doug to h.:t"l~ offered West a 

sp..:cific job 2.t: a ti.me when Doug wc:s ascertaining whether I-lest had 

filed a d-iscrimination crn'.1plaint. Second, Doug claimed th<:1t i·:est 

d0cl i.ncd thr' job which ]Jou:; offered him and Doug testifiE:cl that one 

of the reasons Wf'st z,ave for turninr, down the job offpr \·1Ds that Vif'st 

said ther~ was tio point in his accepting a substitute job ~s section 

f0reman at a min~ other than the No. 6 Mine ~hen the cocditio~s at 

the altern~te mine were less desirable than they were at the place 

where i'k·st was then uorking (Tr. 370). West wouJd h.2ve h<ld no reason 

to decline 2n alternate position by saying that the alternate job was 

less desirable Lh;tn ti1e position !1c then had wh(;n West wa.s then with--

out e.ny job at all as the phone call fro:n Douc; h;A occurred or: 

Apri: 5, 1978, or t1E: tl:-:y after West hacl be;>ri laid off by Douf,. 

The.re n~2 othe-;.. .. aspects of respondent's eviclPr1c~ i; .. ;hich <lo not 

support respor·tden.t 1 s claim that We-r;t .was laid off on i\pril L;, 1978, 

bf'.t:ausc~ of respe;,,dent. 1 s decision that. a third sh·i.fi:. 1 .. 'ould not 1::.e 

ins::.itut.<"d at j::.1!e No. 6 Hine until coal production a.ft.er the str:ike 

incre:iSC~'{ to tl:<! quantity of co.«l ,<,:ch w~s be-ins producPd b~fore the 

strike (Tr. 3fl; 430; 457). The cvid·2nce shovs that respondent elai.m::i 

t:o have disch<~rged West on Apri.i 4, 1978, because Hidlcy Elkins had 

decided that he would be unable lo start a thi1d shift because of the 

econc,:r11.C'. proL~lems which f.:iced him after the strike (l'ind:iags l:o. 11., 

supra). The f&cts shou, hoi;;-ever, that Ridley did. institute a third 

shitT on or a]:.out lfay 1., 197f~, ai-:.d that tliP third shift was b•~z·1n 

long befo:·e p1·oduct:ion at the lhJ. 6 U:i.ne hcd reg&in!''d the tonn2.ge 

which had beeu ffi.stinta:ine<l before th~; strike (Finding Nos. J <>nd 9, 

supr~). 

Secticm 105(c) of the Act provides that no person shall discharge 

or in any rr:d1ner discrieoin'.).te 2.gainst a m:i.ner because such miner has 

made a compla:int under or related to the Act to an operator or en 

operator's agent of an Rlleged danger er safety or health violation 

in a coal milie. As the findings of fact and the discussioti above 

have shown, West did rrw.kf! cor,1pla·!.nts about snfety with respect. to the 

niners' smoking underground, w-i th rccspect to respondent.' s failm:-e to 

see that drilling was don,'! in adv&nce of mining to determine whether 

auf' ~ holes might constitute a hazard, and with -respect. to Ht=-st 1 s 

telling the mine superintendent that it was a violation of the law 

581 
for the superintendent to ride a dune bu~~gy in the mine. The record shows 

that \·1'est also discu~>sed with tlw ;n·;ne supcrinteudcnt tlis fact that vcntila·· 

tj on cur ta ins were not being usr~d properly and that te1'!1porary sur.::o: U; 

were not being installed as required by the roof-control plan. 

While I believe that Ridley Elkins kn.(:•·1 that \.Jest w::is making 

safety complaints to the mine sup(;rintendcnt (Finding l·'.os. 26 and 2i, si.:;:_i::_~) 

thP Act do;:>s not require that \Jest prove that he complained to th!'· 

operator. Under. the Let, West ouly has to prove that i1c• complained 

to t:l<f' operator's ar,ent. Ridlt>y personally tPst1fic~d that he 

expected tbe :11incrs to m;ll<.e their crnuj)laints to his rnin2 supci:in--

tendcnt and th3t the superintendent was responsible for acting on th0 

complaints (Tr. t~44). Th~s, th2;-e is no doc.ht but that 1-/egt r.iade 

safety ccc:tplaints and raade ther:i. to the person to whom co•riplaints are 

required Lo be made under section lOS(c). 

If the reasons given by rEsp0ndent for laying We~t off on 

April 4, 1978, had been supp0rted by the facts, I \.;.:)uld h.<:;ve had to 

have found that Wc•r;t ~·:as d i.scha.::·r,eJ fol~ reasons which Clre not protected by secLion 105(c) of the Act. As I hnve demonstrateJ in th0 

discussion above with respc!Ct to l;iC reasons giv,~a by recpondent fo:r 

dit:cb..:irging hc:st, tho1>e reasons v.'i.1.l it•it stnEd clor:l~ examination 

without revr~a.ling that tile r.:asnus gi:·Jen for laying Wer;t off are 

flimsy cir.cl ur,eonv-Lncing. In thP r:.1.:-:,:ence of any convi11c:i.ng n~aso,.s 

[01· dische:t);it'<g \-~est, I am :ceqt!ir<:d to scrutinize the evidence to 

cietermi.ne if the real rea1,on fo;_· disch<:rgi11g him resulU~<l fr:;m his 

co1~ plnint.s fii"...,out sc~fct.y. 

While it is truP that West acco~plished little in chafiging the 

rrnne Sl1pe1_·intc1iclent' s inriiffe1:c1;:-. att·itude with n::cpect to ventilation and roof support, the fact r0maius that he did try to i~prove 

saf•:~-y conditioi:1s al the Ho. G J:·~ine cit a. time xdH'n Doug Shelto11, the 

mine r:;;perintendent, W.'.1S blatc:ntly cli3regard ing thC' mining lm:r-;. As 

has been shoFn abov\:~, Doug admitted t!1at he violated the ixinir~g la\·'s 

by f&iiing tn see that the miners wc:re searched for smokii1g an.iclet;, 

by delibPratoly not coming t0 we_ k on Febru~ry 28, 1978, so as to br 

on the surfc_ce wht>n he knew that mine1'.s had gon8 underg;:ound, .snd by 

delibe~·ately driving a dune buggy in the mine 1:1hen he knew tha.t he was 

creating a hazard by doing so. The fact that Doug kneD the v~ntilation curtains were not being used properly and knew that terr.porary 

supports vF~re not bei11g installed a;;d did nothing 2bout it is an 

additional reason to conclude th~t Dnug was not upholding the mandatory health end safely standards in any way, except for hi.s cl<.:.i:,, 

that L-:: Jici tell the mjners that they ought not to smoke unJ.2rgromtd. 

Since the evidence shows tho.t Doug was not folJ.m·:ing the mandatory health and safety standards, I conclude that Doug would resent 

having a mine foremai1 on the premises who kept reminding him of th~ 

fact that he was not carrying oul his responsibilities. Since Doug 

had bee· a Federal inspector before he became superintendent at the 

582 
No. 6 Min~, it is rensonable to conclude that he was aware of the 

discriminatory provisions of the Act. Therefore, he knew that he 

would have to give justifiable reasons for discharging West. If i.Je 

had been able to support his claim that West was laid off because 

of ~idley Elkins' decicicin to postpone instituting a third shift 

until production after the strike reached pre-strike levels, I would 

have been able to find that West was discharged for reasons other 

than West's having engaged in protected activities. Since the facts 

do not support the reasons Riven by Doug for discharging or laying 

West off on Api.·il l~, 1973, I must find and conclude that West was 

actually discharg0d because of his complaints about safety. 

As my discussion above shows, I am in general agreement with the 

arguments set forth in HSHA' s bric~£ on p<i.ges 4 to 7, but the evidence 

does not support some of the factual allegations made in that portion 

of MSHA's brief. For exampl2, West stated that Don Shc-'-lton worked 

as a helper for the operator of the continuous-mining machine (Tr. 20; 

173)--not as the operator of the continuous-mining machine, as is 

slated on page 4 of HS!L\ 1 s brief. It is doubtful that Don could have 

vacillated between the joL of section foreman and his union job if 

he had been the operator o-f, th~ cor!tinuous-mining machine because two 

skilled operators of the continuous-rnining machine would not likely 

have been avajlable at the mine, hut it is quite likely that more than 

one miner could act as the helper to the operator of the continuousm in i_ng mdc h ine . 

11SHA's Claim tlrnt West was Not Reinntatc~d to the Same Position 

I disagree with the claim in MSHA' s brief (p. 7) that West was 

not reinstated to the same position which he occupied prior to bis 

being laid off on April 4, 1978. As I have demonstrated in my prior 

discussiou, there is corroborating evidence that West was hired for 

the third shift. His beihg reinstated as a section foreman on the 

third shift was therefore in compliance with the order of reinstatement. Moreover, the order of reinstatement provided that West should 

be reinstaled "to the position of section foreman at the rate of pay 

and the same or equivalent work duties" (Finding No. 31, supra). 

Although West was not at first given duties equivalent tot-hoi<"e which 

he had prior to his discharge, that discrepancy in his reinstatement 

was eliminated after Patrick Sturgill, .the section forer:tan on the 

third shift at the time WP.st was reinstated, was laid off. Since 

West had originally been hired to work on the third d--, ~ tt and was 

reinstated as third-shift section foreman, I find that respondent 

complied with the provisions of the reinstatP.ment order. It is certain that West w:is working as the sole section foreman on the· thir<l 

shift on September 28, 1978, when he was discharged for the second_ 

time. 

The harassment which West clajms to_ have experienced after he 

was reinstated as section foreman was the result of respondent's 

583 
having to utilize two section foreman on the same shift and I think 

respondent should be given some consider.ation for having to deal with 

a difficult situation without being unduly pr~cipitous in laying off 

Sturgill so that West could be the sole section foreman working on 

the third shift. 

Failure to Pay West for Working on Saturday 

MSHA 1 s brief (p. 8) correctly states that respondent paid its 

other section foremen when they worked on Saturdays, but did not pay 

West when he worked on Saturdays. Doug, the mine superintendent, 

admitted that he did not pay West for working on Saturday, but Dou~ 

endeavored to justify his failure to pay Hest by saying that Sa.tu-ulc:y 

pay was given only to miners who showed outstanding diligence. For 

example, Doug said that he paid John Ed Mullins for working on 

Saturday because John Ed was so devoted to seeing that the min(~ wns 

in good condition that he would voluntarily come to the mine and vmrk. 

on Saturday and Sunday just ·to make sure that the equipment w<ts in 

good condition (Tr. 436). John Ed was an electrician--not a foreman--

and John Ed stopped working for respondent because he found a job 

that paid more money elsewhere (Tr. 163). Consequent:i.y, the loyalty 

attrj11uted to John Ed may have been exaggerated by Doug. Although 

Doug stated that he had paid Morrell Mull ins for worl~ing on Saturd:iy, 

the record does not show what outstanding contribution Horrell made 

in return for th~ extra pay he received for working on Saturday (Tr. 

413). Additionally, Patrick Sturgill. testified that he received 

$100 for each Saturday he xrorked. Doug justified the extra pay in 

Sturgill's case by saying that Sturgill did a better job in completing ~11 of the duties assigned for the third shift than any other 

section foreman he had ever had (Tr. 436). HSHA 1 s brief (p. 9) 

correctly notes other evidence in the record showing that Doug was 

not particularly pleased with Sturgill' s performance and that Doug 

threatened to lay off Sturgill and everyone on his third shift if 

the miners did not work more conscientiously th.::n they had been 

(Tr. 2 7 9; 2 85) . 

Moreover, the testimony of Ridley Elkins shows that he had given 

Doug authority to determine when men should be paid for working on 

Saturd.:1y, whereas Doug claimed that Ridley made the determintions as 

to \'7hich men should be pa id for working on Saturday (Tr. 19; 365; 

458). It is true that not everyone who v10rked on a \·!eekend received 

extra pay. For example, Doug himself did not receive extra po.y for 

working on Saturday, and neither did Dale t-~eade, but neither of them 

was a section foremen and Meade was a part owner of the mi.ne (Tr, 348; 

413), so the fact that th2y were not paid for working on Saturday 

hardly explains why West was not paid for working on Saturday while 

other section foremen were paid for working on Saturday. If payment 

for worki'-1g on Saturday had been based solely on merit, there would 

have been no reason for Doug to have asked Sturgill not to tell West 

that Sturgill was being paid extra to work on Saturday while West 

was not receiving extra pay for Saturday work (Tr. 276). 

584 
I conclude that respondent did not justify its failure to pay 

West for working on Saturd.::y. Such failure to pay West for working 

on Saturday was part of the pattern of discrimination shown toward 

West and respondent will hereinafter be ordered to pay West for the 

Sa!·urdc:.ys he worked during his ternporary reinstatement. 

!uificient_Grounds Were Shown for West's Discharge on Septe~ber 28, 

1918 

HSHA's bric>£ (pp. 9-10) argues that Elkins Energy had insuffident grounds for discharging \vest on September 28, 1978. West was 

discharged for sleeping on the surf-:_;ce of the mine and for failing 

to do his duties as section foreman on the third shift ~ii.ch r&n 

from 11 p.1-:!. on September 27 to 7 a.m. on September 28, 1978. MSHA's 

brief alleges that West was not allowed to tell his side of the events 

wtd r:h occurred on that third shift, but West stated in his d iscriininat ion complaint that 11 1 explained to Ridley Elkins in every detail the 

happenings cf TIY shift" (Exh. 3 p. 2). West further stated in h-is 

discrimination complaint that after he had finishc:-d his explanation, 

Ridley asked bim (1) why he did not get a replacement light, (2) why 

he d:id not take his outside rr.an' s light, and (3) whether he k1ww that 

some0n~ on his shift was drinking beer (Exh. 3, pp. 4-5). Therefore, 

Hest's own admissions clearly show that West was not only permitted 

to tell "his side" of thP events, but was asked questions about 

several aspects of his description of the events vhich occurred on 

September 27 and 28. 

NSHA's brief (pp. 9-10) also contends that the testimony of the 

five men who worked on West's shift is so contradictory as to be 

almost meaningless. As e;{amples of the contrc:dictory testimony, 

MSHA' s brief refers to the fact that Kelly was of the opinion that he 

and Phipps operated the only roof-bolting machine ~iich w2s used that 

night, whereas two other miriers (Hagge.rd and House:right) said that 

they were operating a second roof·-bol ting machine. Kelly testified 

that the continuous-mining machine h:is to be serviced each night. Hen 

on the second shift usually work over into the third shift to take 

care of servicing the continuous-mining machine and tb?y are generally 

assisted in that work by Houseright. After the servicing of the 

continuous-mining machine has been completed, which is around 

2:30 a.m., llouseright does other work. Kelly's testimony clearly 

shows that he did :-iot specifically recall what Maggard and Houseright 

did on the night of September 27 and that his statement about the use 

of only one roof-bolting m&.chine on the night of September 27 was 

based on what the men normally did--not on his recolll~ction of what 

they actually did on September 27 (Tr. 666-667). 

Haggard was the only one of the five men on West's shift who 

corroborated West's claim that he went underground at all before 

5 a.m. on the night of September 27 and rnorni~g of September 28. 

Although Haggard agreed that he saw West underground ebout twice 

585 
before 5 a.m., Maggard's testimony otherwise C(>ntradicts West's own 

account of \·1hat happened on thP night o:t September 27. When~as West 

and the four men (J11 his shift stated th::it West anJ.the entire·cre\·J 

worked outside the mine until about midni~;ht (Tr. 82; 219; 597; r)j6; 

620; 639; 656), Maggard testified that all the men went directly 

underground without doing any work on the surface (Dep., pp. 6-7). 

Whereas h'est said that Haggard and Houseright helped service the 

continuous-mining machine until about 2:30 a.m., and therefore would 

not have seen West.make nethane checks before 2:30 a.m. (Tr. 8.1+; 224), 

Maggard and Houseright testified that they started roof bolting as 

soon as they went into the 111ine and H::iggard said that he saw West 

about twice beforf' lunch (or 3 a.m.) while he and 1:-louseright \,'ere 

operating a roof~bolting mucL-ine (Tr. 639; Dep., p. 8). Moreover, 

while Haggard stated that he saw West about t\dcc~ before lunch ti.me, 

Maggard specifically stated that West did not make any methane checks 

1.n the lwading where he and Houseright werf' roof bolting (Dep., 

p. 10). 

Another e)rnr:iple in HSHA.' s brief of the "meaninglPss" testiwony 

of the men on West 1 s shift is the claim that whereas Kelly testified 

that he Cdme outside .with West and did not n:call any conversat<oa on 

the surfrc(', Dockery recalled that when Pc Gt and Kelly came out of 

the mine, West told Dockery to return to the mine office and that 

Dockery said that West and Kelly were still standi11g at the portal 

when Dockery left to go to the mine ()ffice (HSHA's Hr., p. 10). 

In my opinion, Dockery' s testimony rat.es extremely high in 

credibility. He specifically looked at hi.s watch and knew wh,_:m West 

went underground (1r. 616). Dockery refused to discuss aspects of the 

events of We3t 1 s discharge about which he had no direct knowiE:dge ('J"r. 

604). Docke~y specifically stated tha~ he could not be certain that 

West told Kelly to go back into the mine, but he was certain that West 

told him to go to the mine office (Tr. 609). Moreover, Dockery 1 s 

statement that West told him that he (West) W<lS going to get up in 

Phipps' .Teep where it wcis warm (Tr. 617) i·ms as detrim~ntal to I-Jest's 

position as any testimony given about the events of September 27 and 

28. Yet, Doe;kery did not make that detrimental statement until. l·fSHA' s 

counsel, during recross-examination, specifically asked Dockery w-hat 

West said he personally was going to do after West had instructed 

Dockery to return to the mine, office. If Dockery had set out in the 

beginning to testify adversely to \kst, it is fairly certain that he 

would have managed to use West's statement about getting into the 

Jeep where it was warm as a part of his direct testimony. 

I have seriously and painstakingly ccnsidered West's claim in 

his disc.i:imiirntion complaint that he was the victim of a frame-up by 

management as to the events of September 27 and 28. Hy detailed 

examination of the testimony of all witnesses lead::; me to conclude 

that my finding No. 36, supra, correctly states what actually happened 

on the night of September 27, 1978. Among the factors which have 

caused me to reject -the frame-c-up claim are the following: 

586 
(1) · lf Pllipps, who was a son-in-law of one of the owners of the 

No. 6 Mine, had been told to look for a reason to discharge West, it 

is logical to assur.1e that Phipps would have directly reported the 

matter of West's being asleep to his father-in-law rather than tell 

his fether-in-law about finding West asleep only after his father-inlaw, who was visiting in Phipps' home, had kidded Phipps about sleeping all the time (Tr. 625-626). 

(2) If the men on He st 1 s shi [t had been pen;uaded to agree on 

a story Lo su.pport We:::t's discharge, there would not have b\Oen as 

many minor v.:iriations in their testimony as there were. The important 

aspects of the occurrences on the night of September 27 are generally 

supp.:;rted by the testiraony_of all five men on West's crew. All but 

Maggnrcl agreed that they work·~d on the surfac~ nntil about midnight 

(Tr. 598; 620; 639; 656; Dep., p. 7). All hut Maggard sL~tPd that 

West did not go into the mine until 5 a.m. (Tr. 597; 616; 621; 656). 

Three of the rnc~n \·1ho worked unde~~grouncl, including Eaggard, unequivocally st.:"!tcs th&.t West made no methane checks a.f:: any time in the two 

hendings where they wen· roof bolting (Tr. 67.2; 640; Dep., p. 18). 

None of the four men working undergr.chH;cl ever saw West undc-rgrou;i<l 

afteJ. 5:30 a.m. and therefo;:·e West cou1d not have mrcde a pr0sh::_ft 

exam:i_nation before th(~ day shift enter:~d the min2 (Tr. 623; 641; 

657-653; Dcp., p. 13). West's own test.i.mony, of course, shows that 

he did not make a preshift examin&tion, but he filled out the preshift 

book.as ifhf' had (Tr. 90·-92; 95). 

(3) West filed his Gecond di~crimination complRint on 

Septcsber 29, 1978, or l day after the events of September 27 and 

28, 197 8, which resu1. ted in his discha;~ge. That di :3crirninat ion complaint was received in evidence as E~hibit No. 3 in this proceeding. 

Since: West 1 s account of the events of s,""ptewber 27 and 28 was written 

in Exhibit 3 whil-e -the facts were~fresh in West's memory, they are 

likely to be more accurate in the complaint than the facts given in 

his testimony at the hearing which was held about 4 raonths after his 

discharge. West's testimony at the hearing conflicts in several 

respects with the facts set forth in Exhibit 3. TI1e conflicts between 

the facts set forth in Exhibit 3 and the facts given in West's testimony are discussed below. 

First, in his discrimination comElaint, West explRined that there 

were 11 places which needed roof bolting and that roof bolts from 6 to 

10 feet long would be required. For that reason, West stated that he 

assigned all four men to installing bolts with use of both roof-bolting 

machines (Exh. 3, p. 3). At the hearing, however, Uest testified th2t 

he assigned Haggard and Houseright to assisting with servicing of the 

continuous-mining machine. Since servicing the continuous-mining 

machine was what Haggard and Houseri.gh t normally did, West testified 

at the hearing on the basis of what normally occurred and apparently. 

forgot about the special aspects of roof bolting which needed attt>ntion on the night of September 27 as described in his discrimination 

587 
complaint. For- lhnt reason, Haggard protably recalled thte> facts 

correctly when he stated that lw and Hou:::eright went undeqr,round 0n 

September 27 and began roof bolting as soon as they got underground 

Maggard' s testimony shows no mention of assi :3ting with any servic.-ing 

of the continuous-mining machine as was normally done (Dep., pp. 7-

8). 

Second, in his discrimination comp la int West stated that Dockery 

was still outside the mine when West and Kelly came 0ut at 5:55 a.m. 

(Exh. 3, p. 3), btit in his testimony at the hearing, West stated that 

Dockery was gone when he and Kelly came out because he 11ad given 

Dockery permission to retun1 to the mine officc7 bef,,re he (West.) went 

unde1~grour;.d at 5 a .m. (Tr. 88). Both Kelly and Dockery t\~stifiPd at 

the hearing that Dockery was still outside the mine portal ~1en West 

and Kelly came out (Tr. 599; 617; 658). Furtht?r.r:ore, in the discrjrnination complaint West explained to Ridley at the discharee meeting 

on Scptf:mbf'r 28 that West co.~ld not take Docb:ry' s 1 ight because 

Dockery needed the light to see to ual k dov.'n to the mine off ice in 

the dm~k (Exh. 3', pp. '1-5). If Dockery had already left, as West 

testified at the he&ring, it would hav2 been unnecessary for West to 

explai~ to Ridley ·ahy he ciid not use Docl<e:ry's light for use in go·)ag 

back inside the mine to uake his p~eshift exwnination. 

Third, in the discrin1inc:.tior1 ccmpla·int, l~est stat>~d that he \.;as 

sitt~_ng in Phipps' Je2p when Ph:i~)pS an.d Kelly ca,;1e out of the mi.ne at 

6:50 a.rn. (Exh. 3, p. 4), but in his testimony at the hearing Vest 

stated that he just opened the door on ~1ipps' Jeep and stood there 

leanin;:; e::gainst the Jeep with the doo·~ opt-On so that the Joor \'70uld 

knock sor,H:> of the cool air off of: hi:-a (Tr. 91; 93). i--72st 1 s stati>ment 

in the discrimination complaint that he was sitting in the Jeep is 

consistent with the testimony of Dockery who stated. that West told 

him th<::.t he was going to get up in the .Teep where it was warm (Tr. 

617). It is also reasonable to believe that a person who hes been 

at the mine froin 11 p.m. to about 6 a.m. may go to sleep once he has 

yielded lo the temptation of getting into a Jeep "whc~re it's \Hlrm. 11 

Fourth, in the discrimination complaint, West stated that Phipps 

and Kelly came out of the mine at 6:50 a.m. (Exh. 3, p. 4), but at the 

hearing West testified that Phipps and Kelly ca;r,e out at 6:40 a.m. 

(Tr.· 89). West 1 s statement in the d iscr:im)nation co~.-.pla-int is consistent witl1 Phipps' testimony because Phipps testified that he and 

Kelly came out of the mine at 6:50 a.m. Phipps explained that he had 

intended to leave earlier than 6:50 but that he could not leave before 

6:50 because it took Kelly and him that long to finish bolting )n the 

heading where t~ey were working (Tr. 624-625). Phipps' reference to 

the difficulty he had in fiPishing bolting is consist2nt with West's 

statement in the discrimination complaint to the effect that thc;~e 

was an abnormally large amount of roof bolting to be done on the night 

of September 27 (Exh. 3, p. 3). 

588 
Fifl"h, in his discrimination coraplaint, West stated that Dane 

He.::ide, ,,ho was servicing the continuous-mining ma~hine, came outs.ide 

about 2:30 a.m. to get two cans of Coke or beer and in his testimony 

West stat.ell that the two men who had been servicing the continuousmir.ine machine went home.about 2:30 or 3:00 a.m. (Exh. 3, p. 5; 

Tr. 225). W0st 1 s deuiiled knowledge about occurrences on the surfacP 

support Dockery's testim~n~ ihnt W0st remained on the surface with 

hit1 until 5 a.m.- without ever g01nr, underground (Tr. 597; 616). 

The foregoing discussion shows why I have concluded that the 

test:Lr..-,ny of the men on \Jest's shj ft is moT~ credible thnn West's 

testiu10ny wj th respect to U1f: events which occurred on ~'lest 1 s shift 

on the~ n:l23ht of Septe;nber 27 and morning of Septer:iber 28. Therefor;:, 

I must reject th2 claim in ilSHA's brief that Elk:ino En,~rgy did not 

have sufficient grounds for rlischarging West on September 28, 1978. 

Relief ltequested _ _!?y 1'iSHA 1 s rdc~ 

M.Sl:lA' s brief (p. 10) .-:;sks that I find th:it \\fest '.i•<;.s unlawfully 

disc.rimic2ted agair:t.t and laid off and subsequ0ntly di.sc.harged by 

respondent for engasing in actions protected by section 105(c) of the 

Act. If that finding is r.iade, HSHA's brief asks that Ct'rtain pc.t)1nents 

for back pay, etc., be m;:dr-:-. Then HSHA's hi~ief statps on page 11 

that 11lh]r~ca11se thc~r(:· c.:re two separate incidents in this case, 1!.: is 

rec::ignized that a fir.d·i_n;-; of discri;nin.:::.tion in only o:i.e of them is 

possible." Then HSlE's b;-_·ief (pp. 11.-12) makes certain recormnendations about respondent's being ordere<l to pay West for salary lost 

during the period he haR not worked. 

I do not m1derst:;:;r;d why two finrlings as to discririiinatory disclrnrg('! cou:i.d r:ot be m.:=i.d.r~ if the (~vidc,nce supported them.. It is certain thnl West filed two discrimination complaints and MSHI->., on Oest' s 

bel; ';f, amended the compL-::int in this proceeding so as to raise the 

issue of two unlawf;•l disch.:irges. I assrn-.;_(~ that l':SHA is under th2 

impression that when \J.'"st was "laid off" on April 4, 1978, that we 

cannot refer to that as a discharge unless it is also found that 

respondert discri1~in.:;ted against \·!2ct wt.en it decl incd to rehire 

West whe;-1 the third shift was b0gun about May 1, 1978, or less than 

a month afte.r West was laid off. 

I havP hereinbefore found that respondent discriminated against 

West in laying him off on April 4, 1978. That is one finding of 

discrimination. If t be evidc-'l1ce supported West 1 s c 1 aim that he was 

unlawfully discharged on September 28, 1978, thnt ~luld have been a 

basis for finding that respondent had for a secrrnrl tirr.e ciiscrir.1inated 

against West. As Finding No. 3l•, supra, shows, West had continu,"d 

to make corr:plaints nb0ut safety aftei.·h-e was reinstated. Therefore, 

I do not und0~stapd ~1y MSHA would claim that since there are two 

separate incidents, only one finding of discrimination is possible. 

589 
Additionally, I do not unden;t·.c.md why HSll.::\' s brief (p. 12) clci·.'1~' 

that the whole purpose of the Ac:t will be frvsti:ated if a re~,pondi:-:nt 

can discharge fl.i1 employee who has bt>en reinsU1!:ecl. All tlwt \!Ou 1 cl 

have been necessary to have put West back on r~spondent's payroll 

after West's second di sch<lrge wnul <l havP. ber~n for tii;~ Secr,;ta1·y lo 

make a finding u;1der section 105(c) that West's second <liscri:01inat:i()n 

complaint was not frivolouR. If such a finding hnd been IBaJe, I knov 

of nothing that \-muld have prevente:l. a second order of te,;:po:::-ary reiri.-

statement from having be?n issued. Presumably, the Secretery d jd find 

that thf're had been a second ect of <liscrirninati.on or the Sccr.:::t< . .:ry 

would not have <lmended the ,~omplaint in this proceeding to alleg2 a 

second unlawful discharg(' (Finding Y!os. 31 and 39, supra). 

Ve.cation Pay -· ---

West claimed t!-iat when he wrcs hL·ed, he was prornisec thc;t he 

would be given 2 weeks of vacation pay. When he tried to collect the 

vacation pay at.:<. later ti.me, he was to.ld that no section f:orernan ua:} 

receiving aLy vacation pay (Tr. 77; 106). No one asked respo~dent's 

management to t:};plain its policy \Jitt1 r1""spect to vacation pay. Ther,, 

is nothing in tlH: record t() support a fi;:,0.ing th&t. West is ent.i!:c-·cl tt) 

vacation pay, but since he conti.nucrl to claim th~t he was encitled to 

vacation pay (Tr. 106), l :;'.1&11 hcndnafter oi:d<~r that West be pa.id 

2 1.;·eeks of v;:.cat.iC'2• pay ~·~ith intc-•rest from the date that he ~~hnuld 

have receiV€'<l it if he lvd not been discharged on April 4, 1973. i1y 

order: that Wc::;t be given vac.stion pay is, however, subject to the 

following condftion: l[ within 30 days after this decision is issued, 

Ridley Elkins files an aff~davit under oath stat~ng th&t nn section 

foreman at the No. 6 Mine received vacacion p&y in 1977 an~ 1978, 

then responctent shell be excused from the requirement 0£ giving West 

any vacation pay. 

(1) Respondent Elkins Energy Corporation discri~inatcd against 

co~plainant Rohert 1. West and violated section 105(c)(l) of the Act 

by laying hi~ off on April 4, 1978, without ever reemploying hira 

when vacancies for section foreman suhs~:quently bPcc:ine available at 

responde~t's No. 6 Min~. 

(2) Respondent did nc.t discri1:.iinate ag2-inst. complainant when 

it d:~sch.:irged him on September 28, 1978, becauoe suffkient reasons 

having no protection under section 105(c)(l) of Act were slto\m for 

such di8char;;;e. 

(3) Respondent should be required to provide the affi.rm<~tiv0 

relief provided for in section 105(c)(2) of the Act as hereinafter 

directed in paragraph (B) of the ord<"r accoinp:,_:1ying this decision. 

590 
WHEHEFORE, it is orderPrl: 

(A) MSH:'.':;; G.;;:enc~(:d discri 0 J:inatory co;;i;-_.l.qint filP.d iii this 

pn1<:f":><l·ing i.s grantc:d 1·1ith r;~:;~ect· t(• thP c1airn of discrininatory 

disdw1-r_;-~ dat0d !~1>-ri:l !;., 1Q78, and dronied wii:li respP.::t to the.allPgPd. 

di:::cri:ninator/ disc:t·;ar;;e diit:£'•l Septp;;1ber 28, 1978. 

( B) 

belc.n-1: 

Respond,·nt shall provide the c:ffirnative ., . ,. re11.c:c set forth 

(1) R(~spondcnt sho.11 reir;iburs0 compJair:..::int at the rate cf 

$2,100 pe~ month fr0~ ~pril 4, 1918, to S0ptcmGer 28, 1978, less any 

salary pc:tid to conpl:::;-tn.-rnt fron1 t.he time he \·ic<S ten,t1or.:.iri1 y r1~:i:ist.c;ted ou J1.i1y lG, 1978, to th':: clE.te cf his disc.liarg(• on S-eptc~·_,ter 28, 

1978, tog;-:>~hf.T with :i.f!.t1~rest 2t tile rate of 8 perC€i1t P'~r an;1:.-,J. 

(2) Re'"'.)c;n_d,::1)t shall p.::y cc.:nplDinr~nt $100 :~or Pach S"'rnnl2y 

complc:ci_n;rni: 1·10rh'tl fror1 July 10, lS'78, to Seru~::::;er 28, 1973, tc;gcLhf:.c 

with i~terest at th~ r3te of 8 percent pPr annum. 

(3) Rcspond(:1--..t shs.Jl pay respondeni': th!" same a:'wunt of v.Kat: },,,., 

p~y ·which \V3.k givt:on to ony oth~:r St~ctinn forcrnr.:n 5t tb2 Ne, .. 6 :.1inP 

in 1977 or 1978, to~_.0tiH~!." with interest rl: 8 perecLt; p.covi.d,~c., 

hc->-:ever, t.hc:.t ret,i:ond;::nf:. is not J""~qui.1.ecl to pro,1id2 CCi~crl.s·inant Kith 

va.cRt:·inn pn:· if Ridley Elkins sub::-:it.s wit:h:;_n 30 dc1yc aftl"r issu<::,-.c .. :• 

of this decision an affidavit btnting that Go section forem2n ~t the 

No. 6 Min2 was given 2ny vacat~on pay in 1977 or 1978. 

(!~) n,~ s p::n'!.deu t sh al 1 inc. 1 ucL~ c o~.1r 1 e in.;;:n ~:: under a~1y 

fits to \\:l1ic}1 he \J0~.1ld ha.Ve h2en C:n.i. l t1.e(~ [or the f- :··iod 

1978, to Septe1'!bcr: 28, 1978, to the s.::;ne d2gree lw •;-ould 

protected had he not been unla~fully di.schar~ed oa April 

fr ~_nge hr-n\~-

,.. . • .. I 

rrorn Lri~1.t q.} 

h<ive bee~· 

t,., 1970. 

(5) Respondent shalJ. exp'J.nge fro:a co:nplain::int 1 s e~:.p:.oyrnent 

records any references to his discharge of April 4, 1J78. 

, .. -~·(· · . .t. 

;._ ... <.·~-: .. ·: ~~~· .5'_·' 

Richard C. Steffey 

~ 

x:·:~: -~··: _! •• .r.:·_.-/ ·( < ... · - \.. 

Admirtistrative Law Judge 

591 
FEDERAL MINE SAFi::TY AND HEALTH REVD[\f/ COMl\rllSSION 

OFFICE Of ADMIPJISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

June 19, 1979 

CONSOLIDATION COAL COMPA1\1Y, 

Applicant 

INDUSTRIAL CONTRACTING OF 

FAIRMONT, INC . , 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

UNITED MINE WORKERS OF AMERICA, 

Respondent 

Application for Review 

Docket No. MORG 79-108 

Order No. 0804505 

February 6, 1979 

Loveridge Mine 

DECISION 

Appearances: Edgar F. Heiskell III, Esq., Haden and Heiskell, 

Morgantown, West Virginia, for Applicants; 

Barbara K. Kaufmann, Esq., and Sidney Salkin, Esq., 

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

Philadelphia, Pennsylvania, for Respondent MSHA. 

Before: Judge Merlin 

Statement of the Case 

This is a proceeding filed under section 107(e) of the Federal 

Mine Safety and Health Act of 1977 by Consolidation Coal Company 

and Industrial Contracting of Fairmont, Inc., an independent contractor, .to review an order of withdrawal issued by an inspector of the 

Mine Safety and Health Administration (MSHA) under section 107(a) of 

the Act for imminent danger. 

By notice of hearing dated April 6, 1979, this case was set for 

hearing on June 6, 1979, in Pittsburgh, Pennsylvania. The notice of 

hearing required the filing of preliminary statements on or before 

May 22, 1979. The applicants and MSHA filed preliminary statements, 

and the case was heard as scheduled. The applicants and MSHA 

appeared_ and presented evidence. 

592 
Applicable Statute 

Section 107(a) of the Act provides: 

If, upon any inspection or investigation of a coal 

or other mine which .is subject to this Act, an authorized 

representative of the Secretary finds that an imminent 

danger exists, such representative shall determine the 

extent ot the area of such mine throughout which the 

danger exists, and i~sue an order requiring the operator 

of such mine to cause all persons, except those referred 

to in section 104(c), to be withdrawn from, and to be 

prohibited from entering, such area until an authorized 

representative of the Secret&ry determines that such 

iunninent danger and the conditions or practices which 

caused such imminen.t danger no longer exist. The issuance of an order under this subsection shall not preclude 

the issuance of a citatibn under section 104 or the proposing of a penalty under section 110. 

Bench Decision 

At the conclusion of the taking of evidence, the parties waived 

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

a decision rendered from the bench. Upon consideration of all documentary evidence and testimony, and after listening to oral argument, 

I rendered the following decision from the bench: 

This case is an application filed by Consolidation 

Coal Company and Industrial Contracting of Fairmont, Inc. 

for review of an order of withdrawal issued by an inspector of the Mine Safety and Health Administration under 

section 107(a) of the Act for imminent danger. 

Section 3(j) of the Act defines imminent danger as 

the existence of any condition or practice in a coal or 

other mine which could reasonably be expected to cause 

death or serious physical harm before such condition or 

practice can be abated. 

The order in question recites that three people 

were observed working on steel structure catwalks and 

platfonas approximately 80 feet above the ground without safety belts or other devices to prevent them from 

falling; that travelways and platforms were not being 

kept clear of stumbling and slipping hazards; that a 

safety device was not provided at the top of the 

ladder and on one side of the ~latform where men were 

593 
walking; and finally, that on the slurry construction 

where a person could fall through or over the edge, 

safety belts or lines were not being used where there 

was a danger of falling. 

The evidence indicates that Industrial Contracting of Fairmont, Inc. was building a steel tower for 

Consolidation Coal Company. On the day in question, 

a platform w~s being constructed at the top of the 

tower, 80 feet from the ground. 

The inspector described the platform at the top of 

the tower in detail. He described how the platform was 

reached by walking through the large slurry pipe and 

that at the end of the pipe he had to jump down approximately 3 feet on the platform (Point A on Respondent's 

Exhibit No. 2). On the floor of the platform where he 

jumped down there was some loose grating. He further 

described the floor of the platform as coated with 

frost or ice which he said was slippery. According 

_to. the inspector there was an area of the platform 

52 inches long (Point Bon Re;~pondent' s Exhibit No. 2), 

which had no handrail and another area of the platform 

12 feet long (Point Con Respondent's Exhibit No. 2) 

which also had no handrail. The width of the walkways 

next to these areas were only 24 inches and 33 inches, 

respectively. Both the 52-inch span and the 12-foot 

span had cables strung across them, which the inspector 

did not believe would support a man's weight if he 

grabbed on to them while falling or if he fell on to 

them. The inspector's testimony is that the men working on the platform had to pass by these unguarded 

areas in order to reach their area of work (Point D 

on Respondent's Exhibit No. 2). The inspector also 

described a 60-foot area around the belt structure 

where only a handrail, 6 feet off the platform, 

existed. Finally, and perhaps most importantly, the 

inspector testified that the men he observed on the 

platform were not wearing safety belts. 

The inspector's assertion that the men were not 

wearing safety belts is uncontradicted. His description of the areas which had no handrails, but only 

cables, also is undisputed as is his statement that 

the men had to pass by these areas to reach the area 

they were working. His statement regarding the handrail also was not challenged. The applicant's foreman admitted that there was some frost on some of the 

grating, but he expressed the view that it was not 

slippery. I find more persuasive the inspector's 

594 
testimony that the floor of the plat form was slippery. 

I also accept the inspector's ~pinion that the cable 

strung across the 52-inch span and the cable strung 

across the 12-foot span would not be strong enough to 

hold a man if he slipped and fell. Otherwise, there 

would be no necessity to have handrails at all. I 

fur.ther accept the inspector's testimony that, with 

respect to the 60-foot area, a man could slip and 

fall beneath the high rail, which was the only handrail installed in that area. 

Based upon the foregoing, I conclude an imminent 

danger existed. At any moment, one or more of the 

men could have slipped and fallen at any of the places 

on the high platform described by the inspector with 

death or serious injury as the certain result. Regardless of how inconvenient safety belts may have been 

under the particular circumstances, as the applicant's 

foreman testified they were, these belts should have 

been worn. As it was" the men were totally unprotected 

either by safety belts or by adequate handrails at a 

time when weather conditions were very bad. 

Applicant's counsel has argued most diligently that 

the men working on the platform were experienced. I 

cannot, however, accept that as a defense to the order. 

The Act protects all who work in the mines. It is a sad 

but true fact of life that some of the worst fatalities 

have befallen the most experienced of miners. 

I also recognize that as applicant's counsel has 

painstakingly pointed out, the platform was in the 

process of being constructed and the men were bringing 

their equipment out on to the platform. It is not for 

me to tell the applicant how to do its work. However, 

what I cannot do is countenance the. applicant's discharge of its construction responsibilities in a manner 

which exposes its men, even though they may be experienced in their field, to imminent.danger. 

In light of the foregoing, I 

that ari innninent danger existed. 

and the application for review is 

find and conclude 

The order is upheld 

dismissed. 

I thank both counsel for a very helpful oral 

argument. 

595 
ORDER 

The bench decision is hereby AFFIRMED. Accordingly, it is 

ORDERED that Order No. 0804505 be UPHELD and that the application 

for review be DISMISSED. 

Assistant Chief Administrative Law Judge 

Issued: June l~ 1979 

Distribution: 

Edgar F. Heiskell III, Esq., Haden and Heiskell, Suite 222, 

Monongahela Building, Morgantown, WV 26505 (Certified Mail) 

Michel Nardi, Esq., and Karl T. Skrypak, Esq., Consolidation 

Coal Company, Consol Plaza, 1800 Washington Road, Pittsburgh, 

PA 15241 (Certified Mail) 

Barbara K. Kaufmann, Esq., and Sidney Salkin, Esq., Office of 

the Solicitor, U.S. Department of Labor, Room 14480-Gateway 

Building, 3535 Market Street, Philadelphia, PA 191.04 

(Certified Mail) 

Joyce A. Hanula, Legal Assistant, 'Jnited Mine Workers of America, 

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

Administrator for Coal Mine Safety and Health, U.S. Department 

of Labor 

Standard Distribution 

596 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

June 19, 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADM~NISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Civil Penalty Proceedings 

Docket No. MORG 79-63-P 

A.O. No. 46-01968-03011 

Docket No. MORG 79-72-P 

~ A.O. No. 46-01968-03009 

Docket No. MORG 79-86-P 

A.O. No. 46-01968-03017 

Docket No. MORG 79-92-P 

A.O. No. 46-01968-03018 

Docket No. MORG 79-97-P 

A.O. No. 46-01968-03004 

Docket No. MORG 79-98-P 

A.O. No. 46-01968-03006 

Blacksville No. 2 Mine 

Docket No. MORG 79-85-P 

A.O. No. 46-01867-03008 

Docket No. MORG 79-91-P 

A.O. No. 46-01867-03009 

Blacksville No. 1 Mine 

DECISION AND ORDER APPROVING SETTLEMENT 

The 32 violations charged in the captioned petitions carried 

proposed assessments totalling $8,011.00. By letter of June 12, 

1979, respondent confirmed an oral motion to settle these matters 

by payment of a total penalty not to exceed $15,000.00 as 

individually assessed and allocated by the Presiding Judge for 

each violation alleged. The Secretary concurred in this proposal. 

Based on my independent evaluation and de novo review of 

tlie circumstances involved as set forth in the parties prehearing 

submissions and statements, including the gravity and negligence 

indicated, as well as the other statutory' criteria, I find the 

597 
amount proposed for settlement should be assessed 

as set forth in Exhibit A, Schedule of Penalties. 

amount, $9,626.00, is approximately 20% more than 

originally assessed. 

and allocated 

The total 

the amount 

Accordingly, it is ORDERED that the motion to approve 

settlement be, and hereby is, GRANTED. It is further ordered 

that the operator pay the penalty assessed, $9,626.00 on or 

before Tuesday, July 3, 1979 and that, ubject to payment, 

the captioned petitions be DISMISSED. 

Administrative Law Ju 

Issued: June 19, 1979 

Distribution: 

Karl T. Skrypak, Esq., Consolidation Coal Company, Consol Plaza, 

Pittsburgh, PA 15241 (Certified Mail) 

John O'Donnell, Trial Attorney, Office of.the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

598 
DOCKET 

MO~'f 9-63 

79-72 

79-85 

79-86 

79-91 

79-92 

CITATION 

018771 

019886 

019889 

01.9888 

013713 

260101 

260109 

018706 

018662 

019266 

019268 

EXHIBIT A 

SCHEDULE OF PENALTIES 

STANDARD 

75.1725 

77.208 

77.1915 

75.500 

75.1722 

75.1713 

77.205 

75.200 

75.200 

77.400 

77.701 

GRAVITY 

non-serious 

serious 

serious 

serious 

serious 

non-serious 

non-serious 

serious 

non-serious 

serious 

serious 

NEGLIGENCE 

ordinary 

ordinary 

ordinary 

ordinary 

ordinary 

ordinary 

ordinary 

ordinary 

ordinary 

ordinary 

ordinary 
DOCKE'r 

Mo(~9-92 

79-97 

79-98 

CITATION 

019270 

019272 

019274 

259846 

259847 

259848 

014682 

016054 

016055 

016077 

016080 

019909 

016'057 

016060 

016063 

STANDARD 

77.701 

77.512 

77.516 

77.904 

77.1907 

77.208(d) 

75.517 

75.701 

75.1106-3 

75.1403 

75.lOO(b) 

75.1722 

75.503 

75.200 

75.517 

GRAVITY 

serious 

serious 

serious 

serious 

extremely 

serious 

non-serious 

-

serious 

non-serious 

extremely 

serious 

non-serious 

non-serious 

serious 

extremely 

serious 

serious 

NEGLIGENCE 

ordinary 

ordinary 

ordinary 

ordinary 

gross 

ordinary 

- 

high degree o

ordinary neg

ordinary 

ordinary 

ordinary 

ordinary 

ordinary 

high degree o

ordinary neg

ordinary 
DOCKET 

Y'o~~ 79-98 

I 

0\ 

0 

'i' 

CITATION STANDARD 

016066 75.604 

016068 75.1107-4 

016076 75.1403 

019904 75.1003 

019907 75.1403 

019861 75.503 

GRAVITY NEGLIGENCE 

serious ordinary 

serious ordinary 

sericn,1s ordinary 

non-serious ordinary 

extremely high degree of 

serious ordinary negligenc

non-serious ordinary 

TOTAL 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRG tNIA 22203 

June 21, 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EASTERN ASSOCIATED COAL CORP., 

Respondent: 

Docket No. HOPE 78-607-P 

Assessment Control 

No. 46-01271-02023V 

Harris No. 1 Mine 

DECISION 

Appearances: Edward H. Fitch IV, Esq., Office of the Solicitor, 

Department of Labor, for Petitioner; 

Robert C. Brady, Legal Assistant, Pittsburgh, 

Pennsylvania, for Respondent. 

Before: Administrative Law Judge Steffey 

A hearing was convened in the above-entitled proceeding on December 5, 

1978, in Charleston, West Virginia, pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977. At the hearing, petitioner's 

counsel and respondent's legal assistant moved that a settlement agreement 

with respect to an alleged violation of 30 CFR 75.603 be approved. Although USHA's Petition for Assessment of Civil Penalty in Docket No. HOPE 

78-607-P seeks assessment of civil penalties for two alleged violations, 

namely, a violation of 30 CFR 75.603 and a violation of 30 CFR 75.200, the 

parties asked that I approve a settlement only with respect to the alleged 

violation of section 75.603 because I had previously received evidence 

with respect to the alleged violation of section 75.200 in a proceeding involving an Application for Review filed by Eastern Associated Coal Corp. 

in Docket No. HOPE 78-109. In my decision issued May 30, 1978, in Docket 

No. HOPE 78-109, I stated that I would decide the civil penalty issues 

raised with respect to the alleged violation of section 75.200 when MSHA 

filed a Petition for Assessment of Civil Penalty with respect to the violation of section 75.200 alleged in the withdrawal order which was under 

review in Docket No. HOPE 78-109. 

This decision will first consider the settlement agreement reached by 

the parties with respect to the alleged violation of section 75.603 and 

thereafter wi).l dispose of the alle·ged violation of section 75. 200 on the 

basis of the record heretofore made in Docket No. HOPE 78-109. 

The Settled Penalty 

Order No. 1 BRB (7-150) 9/14/77 § 75.603 

602 
MSHA v. Eastern Associated, Docket No. HOPE 78-607-P (Contd.) 

The violation of section 75.603 involved in the parties' settlement 

agreement was alleged in Withdrawal Order No. 1 BRB (7-150) issued 

September 14, 1977, under section 104(c)(2) of the Federal Coal Mine 

Health and Safety Act of 1969. Order No. 1 BRB alleged that there were 

two temporary splices and one damaged place in the trailing cable to Joy 

Shuttle Car No. ET9864 and one temporary splice in the trailing cable to 

joy Shuttle Car No. ET9366. It was further alleged that the insulation 

on the temporary splices was inadequate and that. a bare wire showed in 

one of the splices. It was also alleged that the trailing cables were 

not properly secured by the strain clamp at the cable reels. 

The Assessment Office proposed that a penalty of $10,000 be assessed 

for the alleged violation of section 75.603. That proposed maximum penalty was based on a waiver of the normal assessment formula provided for 

in 30 CFR 100.3 and the making of findings which stressed that the order 

had been issued under the unwarrantable failure provisions of the 1969 

Act. MSHA's counsel agreed to accept respondent's offer of $5,000 on the 

basis of several considerations which indicate that, while a high degree 

of gravity was associated with existence of several inadequately insulated 

places in the trailing cables, the inadequate insulation did not expose 

the miners to a grave danger at the time the poor insulation was 0bserved. 

First, the likelihood of a shock or electrocution hazard was diminished by the fact that the poor insulation was observed during the maintenance shift at a time when the trailing cables were not energized. 

Second, the poor insulation was located at a point outby the working 

faces near the power center where it was not likely that miners would 

have to handle the cables. Third, there were no coal accumulations or 

other conditions which might have been likely to cause a fire or explosion if a spark had come from the exposed wire in the cable. Fourth, all 

of the wires in the splices had been connected, including the ground wire, 

so that it was improbable that a miner would have been exposed to a shock 

hazard if he had touched the frame of one of the shuttle cars at a time 

when its trailing cable was energized. Finally, since the poor insulation 

was discovered on a maintenance shift, there was at least a possibility 

that the poor insulation on the trailing cables would have been corrected 

before the shuttle cars were energized at the commencement of the next 

production shift. 

The mitigating circumstances descri'!Jed above warrant a finding that 

the violation of section 75.~Q3_was not so hazardous -as to justify- the-· 

assessment of the maximum penalty of $10 ,000 proposed by the AssessmentOffice. Therefore, I find that respondent's agreement to pay a penalty 

of $5,000 is reasonable and should be approved. 

The Contested Penalty 

Order No. 1 EW (7-183) 11/17/77 § 75.200 

603 
MSHA v. Eastern Associated, Docket No. HOPE 78-607-P (Contd.) 

Issues. The issues raised by the Petition for Assessment of Civil 

Penalty in the contested portion of this proceeding are whether respondent violated 30 CFR 75.200 and, if so, what civil penalty should be 

assessed, based on the six criteria set forth in section llO(i) of the 

1977 Act or section 109 of the 1969 Act. 

Occurrence of Violation. Section 75.200 requires each operator of 

a coal mine to prepare and file with MSHA a roof-control plan applicable 

to the conditions in his mine. After the plan has been approved by MSHA, 

the operator is required to follow its provisions. Respondent's roofcontrol plan requires that a total of four temporary supports shall be 

installed within 5 minutes after the loading machine is removed from the 

face of an entry. The placement of the temporary supports in accordance 

with respondent's roof-control pla~ requires that two supports shall be 

installed no more than 5 feet inby the last permanent supports with one 

temporary support located on the left side and the other on the right 

side of the entry. Two additional supports are required to be installed 

no more than 5 feet inby the first two temporary supports and in line 

with the first two supports (Drawing No. 2, Exh. 2; Tr. 19; 123. NOTE: 

All transcript and exhibit references are to the record in the Eastern 

Associated case in Docket No. HOPE 78-109.) 

Respondent violated section 75.200 because the inspector observed 

the operator of the roof-bolting machine and his helper installing roof 

bolts near the face of the No. 3 entry. The miners were in violation of 

the roof-control plan because only one of the four required temporary 

supports had been installed and the operator of the roof-bolting machine 

had already placed two headers against the roof with only a single bolt 

inserted in the center of each of the two headers. Both headers were 

located inby the last permanent roof support. 

Gravity. The installation of roof bolts with use of only one safety 

jack was a hazardous act, but there was no indication that the roof was 

in any immediate danger of falling because the inspector saw no visible 

cracks or breaks in the roof and he believed that respondent's Harris 

No. 1 Mine generally had fair roof conditions. Nevertheless, the inspector said that when miners work without using adequate supports, they 

are always exposed to a possible roof fall (Tr. 21-22). Therefore, I 

find that the violation was serious. 

Negligence. The operator of the roof-bolting machine and his helper 

were experienced miners and they said that they knew better th~n to install roof bolts without using the required number of temporary supports 

(Tr. 23). The section foreman had had a great deal of difficulty in getting the roof bolter and his helper to follow orders. The section foreman had caught them violating the provisions of the roof-control plan 

from time to time despite the fact that the section foreman explained the 

provisions of the roof-control plan to the miners on his shift every Wednesday morning (Tr. 148-151; 153). Although the section foreman knew 

604 
MSHA v. Eastern Associated, Docket No. HOPE 78-607-P (Contd.) 

that the roof bolter and his helper had a strong tendency to ignore the 

provisions of the roof-control plan, he had gone to check a sump pump in 

an adjacent entry at the time the inspector found the roof bolter and his 

helper violating the plan. The section foreman had seen the roof bolters 

ready to enter the No. 3 entry to begin roof bolting when he made his 

last inspection of the face areas, but he made a check of the pump instead of remaining in the vicinity of the roof bolters so as to assure 

that they would follow the provisions of the roof-control plan. Therefore, I find that respondent was negligent in failing to see that the 

provisions of the roof-control plan were followed. 

Although my decision in Docket No. HOPE 78-109 affirmed the inspector's order as having been properly issued under section 104(c)(2) of 

the 1969 Act, the parties agreed that the issue of unwarrantable failure 

was to be determined under the former Board of Mine Operations Appeals' 

holding in Zeigler Coal Co., 7 IB11A 280, 295 (1977). In the Zeigler 

case, the Board held that a high degree of negligence does not have to 

exist to support the issuance of an unwarrantable failure order. 

Size of Operator's Business. The evidence shows that in 1977, when 

Order No. 1 EW was issued, respondent employed 1,334 management persons 

and 5,731 contract laborers to produce 6.15 million tons of coal. The 

mine which is involved in this proceeding is respondent's Harris No. 1 

Mine which, in 1977, produced 625,441 tons of coal and employed 71 management persons and 334 contract laborers (Exh. B). The Harris No. 1 

Mine has eight working sections, three of which use conventional mining 

procedures, three of which produce coal with continuous-mining machines, 

and two of which use longwall methods to produce coal (Tr. 12). 

On the basis of the foregoing information, I find that respondent 

operates a large coal business and that the penalty to be assessed in 

this proceeding should be in an upper range of magnitude to the extent 

that the penalty is based on the size of re~pondent's business. 

Effect of Penalties on Operator's Ability To Continue in Business. 

Respondent's representative at the hearing in Docket No. HOPE 78-1.09 

stated that payment of penalties would not cause respondent to discontinue in business (Tr. 172). Therefore, I find that the assessment of 

the penalty herein imposed will not cause respondent to discontinue in 

the coal business. 

Good Faith Effort To Achieve Rapid Compliance. A period of only 

12 minutes was required for respondent to achieve compliance with its 

roof-control plan after Order No. 1 EW was issued. Therefore, I find 

that respondent demonstrated a good faith effort to achieve rapid compliance and that mitigating factor is hereinafter taken into consideration in assessing the penalty. 

Assessment of Penalty. As the above discussion of five of the six 

605 
MSHA v. Eastern Associated, Docket No. HOPE 78-607-P (Contd.) 

criteria has shown, the violation of section 75.200 exposed the miners 

to a possible roof fall, but there were no visible signs to indicate 

that a roof fall was any more than a potential hazard in the circumstances observed by the inspector. Sinc:e it is always possible for an 

unsupported roof to fall without warning, the violation was still serious and warrants a substantial penalty from the standpoint of gravity. 

Although respondent was-negligent in permitting the miners to install 

roof bolts without using the proper number of temporary supports, some 

consideration should be given in assessing a penalty to the fact that 

respondent was explaining the provisions of the roof-control plan to its 

miners on.a weekly basis. Moreover, consideration should be given for 

the fact that the two miners concerned were recalcitrant and were difficult to supervise. 

When the foregoing considerations are added to the fact that a 

large operator is involved and that respondent immediately achieved compliance, I conclude that a penalty of $2,000 is warranted in light of 

all the mitigating factors discussed above. The Assessment Office proposed that a penalty of $8,000 be assessed for this violation, but the 

Assessment Off ice reached that large amount primarily by placing an 

undue emphasis on the fact that the order was issued under the unwarrantable failure provisions of the Act. 

History of Previous Violations. Exhibit 13 indicates that there 

have been 36 prior violations of section 75.200 at respondent's Harris 

No. 1 Mine. Three violations occured in 1971, 2 in 1972, 4 in 1973, 2 

in 1974, 8 in 1975, 14 in 1976, and 3 in 1977 by July 13, 1977. The 

statistics show that an increasing number of violations of section 

75.200 have occurred during the past few years. It is encouraging to 

note that only three violations of section 75.200 had occurred by July 

of 1977 which may indicate that respondent is beginning to achieve a 

reduction in the number of violations of section 75.200. Nevertheless, 

I believe that respondent's history of previous violations is sufficiently 

unfavorable to require that the penalty otherwise assessable of $2,000 be 

increased by $250 to $2,250 under the criterion of respondent's history 

of previous violations. 

Summary of Assessments and Conclusions 

(1) The parties' settlement agreement under which respondent has 

agreed to pay a civil penalty of $5,000 for the violation of section 

75.603 cited in Order No. 1 BRB (7-150) dated September 14, 1977, should 

be approved and respondent will hereinafter be ordered to pay a penalty 

of $5,000 pursuant to the settlement agreement. 

(2) On the basis of all the evidence of record in the proceeding 

in Docket No. HOPE 78-109, and the foregoing findings of fact, respondent is assessed a civil penalty of $2,250 with respect to the violation 

of section 75.200 cited in Order No. 1 EW (7-183) dated November 17, 1977. 

606 
MSHA v. Eastern Associated, Docket No. HOPE 78-607-P (Contd.) 

(3) Respondent was the operator of the Harris No. 1 Mine at all 

pertinent times and as such is subject to the provisions of the Act and 

to the health and safety standards promulgated thereunder. 

WHEREFORE, it is ordered: 

(A) The settlement agreement described in paragraph (1) above is 

approved. 

(B) Respondent Eastern Associated Coal Corp. is assessed civil 

penalties totaling $7,250.00 for the violations described in paragraphs 

(1) and (2) above. The penalties shall be paid within 30 days from the 

cate of this decision. 

~1..a--h:f <3. yJ.til!;?.q_ Richard C. Steffey t

1 t• ?' 

Administrative Law Judge 

Distribution: 

Eoward H. Fitch IV, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

John H. O'Donnell, Trial Attorney in Docket No. HOPE 78-109, Office 

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

Arlington, VA 22203 

Robert C. Brady, Legal Assistant, Eastern Associated Coal Corp., 

1728 Koppers Building, Pittsburgh, PA 15219 (Certified Mail) 

607 
FEO!E;.;?AL W:1nNE SAFETY AND ~~E~~t:r~ !REVH':.:VJ co:'lJ~\JHSSSON OFFiCE Or ADMINISTRATIVE LAW JIJDGcS 

4015 WILSON bOULEVJ',i.{0 

ARLINGTON. ViRG INIA 22203. 

June 25; 197.9 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SHAMROCK COAL COMPANY, 

Respondent 

Civil Pen~lty Proceeding 

Docket No. BARB 78-636-P 

A.O. No. 15-02502-02023I 

No. 18 Mine 

DECISION 

Appearances: John II. O'Donnell, Attorney, Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Neville Smith, Attorney, Manchester, Kentucky, for 

Respondent. 

Before: Judge Littlefield 

Introduction 

This is a proceeding for assessment of a civil penalty against 

the Respondent and is governed by section llO(a) of the Federal Mine 

Safety and Health Act of 1977 (1977 Act), P.L. 95-164 (November 9, 

1977), and section 109(a)(l) of the Federal Coal Mine Health and 

Safety Act of 1969 (1969 Act), P.L. 91-173 (December 30, 1969). 

Section llO(a) provides as follows: 

The operator of a coal or other mine in which a violation occurs of a mandatory health or safety standard or who 

violates any other provision of this Act, shall be assessed 

a civil penalty by the Secretary which penalty shall not be 

more than $10,000 for each such violation. Each occurrence 

of a violation of a mandatory health or safety standard may 

constitute a separate offense. 

Section 109(a)(l) provides as follows: 

The operator of a coal mine in which a violation occurs 

of a mandatory health or safety standard or who violates 

any other provision of this Act, except the provisions of 

608 
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 separate offense. In determining the amount of the penalty, the Secretary shall conslder the operator's history of previous violations, the 

appropriateness of such penalty to the size of the business 

of the operator charged, whether the operator was negligent, 

the effect on the operator's ability to continue in business, the gravity of the violation, and the demonstrated 

good faith of the operator charged in attempting to achieve 

rapid compliance after notification of a violation. 

Petition 

On August 17, 1978, the Mine Safety and Health Administration 

(MSHA), 1/ through its attorney, filed a petition for assessment of 

a civil penalty charging one violation of the Act as follows: 

Order No. 

1 ARR 

Answer 

Date 

8/30/77 

30 CFR 

Standard 

75.200 

On September 14, 1978, Respondent, Shamrock Coal Company, filed 

an answer thereto, which denied the allegation and requested a hearing thereon. 

Tribunal 

A hearing was held on Wednesday, February 14, 1979, in Knoxville, 

Tennessee. Both MSHA and Shamrock Coal Company (Shamrock) were represented by counsel (Tr. 3). Posthearing briefs were filed by both 

parties. 

Evidence 

1. Stipulations 

The following stipulations were entered: 

(a) The proceeding is governed by the 1969 Act and 1977 Act 

(Tr. 5). 

(b) The Judge has jurisdiction (Tr. 5). 

1/ Successor-in-interest to the Mining Enforcement and Safety Administration (MESA). 

609 
( c) Shamrock is the operator of the No.· 18 Mine and is subject 

to the Acts' jurisdiction (Tr. 5)·. 

(d) The No. 18 Mine currently employs 262 people (Tr. 5-6). 

(e) The total production of Shamrock for 1977 was 1.3 million 

tons. The total production for the controlling interested party, 

Mr. B. Ray Thompson, was 1.4 million tons in 1977 and projected to 

be 1.5 million tons in 1978 (Tr. 6). 

(f) The ability of Respondent to stay in business will not be 

affected by any civil penalty assessed in this matter (Tr. 6). 

(g) The inspectors who issued the notices and orders herein at 

issue were duly authorized representatives of the Secretary (DAR) (Tr. 

6-7). 

(h) Copies of the notices and orders which are the subject of 

the hearing were properly served on a representative of the operator 

(Tr. 7). 

(i) The No. 18 Mine's previous history of violations is as 

follows: January 1, 1970, through April 8, 1974, 113 violations, 

$6,623 penalty paid; January 1, 1970, through May 1, 1977, 249 violations, $17,117 penalty paid (Tr. 7). 

2. Testimony 

A. Albert R. Helton 

MSHA initiated its case, exclusive of stipulations, through the 

testimony of Mr. Heiton, the duly authorized representative (DAR) 

who issued the 104(b) notice herein at issue (Tr. 10-11; Govt. Exh. 

No. 182). The inspector spent 10 weeks in Charleston, West Virginia, 

receiving specialized training in roof control, ventilation, permissibility and respirable dust (Tr. 12). He had been a DAR for about 

7 years, exclusive of a 6-month period when he worked as a certified 

mine foreman (Tr. 10-13). He testified that he had inspected the 

No. 18 Mine at least 10 times (Tr. 15-16). 

On August 30, 1977, he was investigating an accident at the mine 

(Tr. 16) as ordered by his supervisor, Mr. Charlie Samples (Tr. 16). 

When he arrived, he received an accident report from the foreman, 

Mr. John Henry Sizemore, and the safety director, Mr. Gordon Couch 

(Tr. 17-18; Govt. Exh. No. 182A). The report was signed by the foreman who was on the shift when the accident occurred, Mr. Charles 

Gilbert (Tr. 19-20). The injury report indicated that a miner had a 

fractured skull and a pelvis fracture (Tr. 20-21). The witness 

stated that the report says in the 19th paragraph that injury was 

caused by a rock fall from the top knocking the subject into a shuttle 

610 
car which was waiting to be loaded (Tr. 21-22; Govt. Exh. No. 182A). 

The witness did not actually view the accident (Tr. 22). He estimated 

that the side of the shuttle car was 3 feet high (Tr. 23). 

Page No. 1 of the memorandum report given the inspector by 

Mr. Gordon Couch stated: 

Cecil W. Hollen, had been operating the mine and had 

just returned to the area of the right crosscut when a 

piece of drawrock, five feet wide, six feet long anasix inches in thickness, fell, striking him in the lower 

part of the back, forcing him into the shuttle car. The 

·injured man was freed from the fallen rock immediately and 

brought to the surface. He was transported to Red Bird 

Hospital and later to St. Joseph Hospital in Lexington, 

Kentucky. 

(Tr. 24; Govt. Exh. No. 182A). 

The inspector went on to identify Government Exhibit No. 182, 

the section 104(b) notice at issue herein (Tr. 24-25). The inspector 

issued it because his supervisor told him to issue it (Tr. 25). 

By Mr. O'Donnell: 

Q. Did you personally see any -- or did you personally find any evidence of a violation of 30 CFR 75.200? 

A. Nothing other than what was in the report. 

(Tr. 26). He further concluded that the fault cited in the report 

constituted a violation of the roof control plan (Tr. 27; Govt. Exh. 

Nos. 183-184). The provision allegedly violated states: "No person 

shall proceed into an area where the space between roof support or 

between rib or face and support exceeds five feet for any purpose 

other than to set temporary support" (Tr. 28; Govt. Exh. Nos. 

183-184). 

The injury date was August 26, 1977 (Tr. 29). He examined the 

area on August 29, 1977 (Tr. 30). On August 29, 1977, he saw roof 

bolts (Tr. 30). The last page of the report says there was no roof 

support (Tr. 31). 

The inspector concluded that the victim was hurt by being under 

unsupported roof. 

THE WITNESS: Well, I figure he [the victim] got into 

the crosscut to avoid the shuttle car. 

611 
THE COURT: What led you to that conclusion of, 

"figure." I don't know what you mean by, "figured." 

How did you --

THE WITNESS: There was shuttle cars [sic] coming up 

the entry, and he had to get out of the ·:::h..uttle car's 

way. 

(Tr. 32). 

The entry was about 20 feet wide (Tr. 34). The crosscut was 

17 feet 6 inches wide, the shuttle car was 8 or LO feet wide (Tr. 

3S). The rock which fell was S feet by 6 feet wide, 0 to 6 inches 

thick (Tr. 36). 

The inspector was unable to tell how far the victim went inby 

permanent support (Tr. 36-37). The witness described the sketch at 

issue (Tr. 41-43). The document did not show roof support (Tr. 43). 

The condition described was considered serious because a man got 

injured (Tr. 44). The inspector terminated the notice because a 

safety meeting was held (Tr. 4S; Govt. Exh. No. 18S). Therein, the 

roof-control plan was explained (Tr. 46). The inspector believed 

that the operator showed good faith in abating the condition cited 

(Tr. 46-4 7). 

The inspector became aware of the accident on August 29, not 

August 26 (Tr. 48). The report was given voluntarily by Shamrock 

(Tr. 49). The day after he made his visual investigation, he issued 

the notice (Tr. SO). He did not issue the violation on the 29th 

because he was under the impression that he could not issue one 

unless he saw one (Tr. SO). He did not know whether the shuttle 

car was moving when the rock fell (Tr. SO-Sl). The sketch on which 

the violation was based did not indicate that the shuttle car was 

moving when the rock fell (Tr. S2-S3; Govt. Exh. No. l82A p. 3). 

Item No. 4 recommended that bolts be installed as required (Tr. 

56; Govt. Exh. No. 182A). The inspector understood the recommendation as being made to prevent similar accidents from happening (Tr. 

56-57). 

The sketch in Government Exhibit No. 182A indicates that the 

victim was not in the crosscut area (Tr. 57). The sketch does not 

attempt to show the location of roof bolting (Tr. 57). He had no 

reason to doubt that the main entry was roof bolted, No. 4 entry, 

I section (Tr. 57). 

On redirect, he stated that he never gave a date to a notice 

other than the date actually served (Tr. 122). 

612 
B. Gordon Couch 

Respondent initiated its case through the testimony of Gordon 

Couch,_ safety director for Shamrock (Tr. 59) • It was stipulated that 

he was qualified and experienced as a foreman, for MSHA inspectors 

and as an inspector/supervisor (Tr. 60). 

The first report of the injury was on August 27 (Tr. 60). It 

showed the injury occurring at 9:45 p.m. on August 26 (Tr. 60; Govt. 

Exh. No. 182A). When he arrived at the scene of he accid2nt at 7 a.m. 

on August 27, no equipment or anything had been moved (Tr. 61-62). 

The shuttle car had about 1,000 pounds of coal in the bucket 

(Tr. 62). It indicated to him that it had been unloading coal when 

it was shut down and thus stationary (Tr. 62-63). The sketch 

involved on page 4 of Government Exhibit No. 182A was his work (Tr. 

64-65). 

The roof control plan had been exceeded in that it called for 

bolts at 5-foot centers in a 20-foot entry and, in fact, they had 

been spaced 3 or 4 feet in an 18-foot entry (Ir. 66; Govt. Exh. 

Nos. 183, 184). 

He testified that there was blood on the bumper of the shuttle 

car (Tr. 67). The blood was on the right bumper as observed looking 

toward the face of the No. 4 entry (Tr. 68). 

From the row of roof bolts on the righthand side to the shuttle 

car was about 6 feet supported area (Tr. 69). He did not believe 

that Mr. Hollen was 6 feet tall (Tr. 70). 

Mr. Couch stated that he spoke with Mr. Collett who was there 

at the time of the accident (Tr. 20). Mr. Hollen was in the process 

of trying to learn the continuous miner, having been there about 

3 weeks (Tr. 70). The rock struck Mr. Hollen on the back and he 

was told that the rock was on his feet. His head had hit the shuttle 

car bumper (Tr. 70-71). His entire body wouldhave been under supported roof (Tr. 71-72). The roof rock fell from the left corner 

of the crosscut up to the edge of the roof bolt which remained intact 

(Tr. 74). 

The report at issue (Govt. Exh. No. 182A), written by Mr. Couch, 

was written to Orville Smith, to recom..~end what is to be done in case 

of a man's getting hurt or killed (Tr. 77). With respect to suggested 

Item No. 3, he was trying to show the importance of 6 inches as they 

were 6 inches of~ being 2 feet 6 inches from the right rib (Tr. 79). 

He concluded that the roof control plan had no bearing on this accident (Tr. 80). 

613 
The witness had an opportunity to interview the victim (Tr. 81). 

Mr. Hollen, the victim, stated that he was standing right around a 

roof bolt (Tr. 82). Mr. Hollen is still employed by Shamrock, but is 

laying carpet because his wife did not want him to go back into the 

mine (Tr • 83) • 

When the inspector came into the mine on August 29, the entry had 

been advanced nearly another full crosscut (Tr. 84-85). There was no 

known legal requirement to give the report to MSHA (Tr. 85). 

On cross-examination, Mr. Couch testified that he knew everything 

was the same because the foreman, Mr. Gilbert, told him so (Tr. 86). 

The rock was moved aside after the accident and before Mr. Couch's 

investigation (Tr~ 86-87). He conceded that the roof in the area was 

drummy and that was probably the reason that the bolts were placed 

more closely together (Tr. 87-88). 

The witness testified that the rock striking Mr. Hollen's back 

must have forced his head into the shuttle car (Tr. 90). 

The roof control plan required the bolts to be 2 feet from the 

rib when, in fact, the row of bolts was 2 feet 6 inches from the rib 

(Tr. 93). That was a violation of the plan (Tr. 93). 

Based upon his knowledge and report, he concluded that Mr. Hollen 

was in a place where he was entitled to be according to law and regulation (Tr. 101). He did not actually know whether the shuttle car 

had been moved (Tr. 103). The sketch showed the rock about 2 feet 

further into the crosscut than it actually had been when it fell (Tr. 

109). 

His memory of the time sequence is that he called the accident 

in on Monday, inspectors arrived on Tuesday, and the notice was 

brought back on Wednesday (Tr. 114). Thus, though the notice was 

dated the 30th, it was received on the 31st (Tr. 114). 

The rock cavity extended into the area of permissibility (Tr. 

120). 

Issues Presented 

1. Whether the conditions cited in Notice No. 1 ARR, August 30, 

1977, constituted a violation of 30 CFR 75.200? 

2. What is the appropriate penalty to be imposed under the Act 

if a violation is established? 

614 
Discussion 

30 CFR 75.200 states: 

§·75.200 Roof control programs and plans. 

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

of each coal mine and the means and measures to accomplish 

such system. The roof and ribs of all active underground 

roadways, travelways, and working places shall be supported 

or otherwise controlled adequately to protect persons from 

·falls of the roof or ribs. A roof control plan and revisions thereof suitable to the roof conditions and mining 

system of each coal mine and approved by the Secretary 

shall be adopted and set out in printed form on or before 

May 29, 1970. The plan shall show the type of support and 

spacing approved by the Secretary. Such plan shall be 

reviewed periodically, at least every 6 months by the Secretary, taking into consideration any falls of roof or 

ribs or inadequacy of support of roof or ribs. No person 

shall proceed beyond the last permanent support unless 

adequate temporary support is provided or unless such 

temporary is not required under the approved roof control 

plan and the absence of such support will not pose a hazard to the miners. A copy of the plan shall be furnished 

to the Secretary or his authorized representative ~nd 

shall be available to the miners and their representatives. 

The notice charges: 

Evidence indicated the approved roof control plan was 

not being followed in the crosscut turned right off No. 4 

entry on I-section (009) in that the mining machine operator's helper was injured Friday, August 26, 1977, at 

9:45 p.m. by a roof fall when he advanced inby permanent 

supports for reasons other than to install temporary 

support. 

(Govt. Exh. No. 182). 

The gravamen of this alleged offense is proof that Mr. Cecil W. 

Hol.len advanced inby permanent support for an impermissible reason 

(Tr. 26, 28). 

Demonstration of other violations of 30 CFR 75.200 would increase 

the overall degree of Respondent's culpability, but would not stand 

by themselves as violations here because they were not charged in the 

issued notice (Tr. 28; Govt. Exh. No. 182). 

615 
The notice here is based on ·a report signed by Mr. Charles 

Gilbert and drafted by Mr. Gordon Couch (Tr. 19-20, 50, 52-53; 64-

65; Govt. Exh. No. 182A). The inspector saw nothing to indicate a 

violation other than what was in the report (Tr. 26). The alleged 

violation is contained in the last paragraph of the report which says 

there was no roof support (Tr. 37). The insp~ctor did not see any 

violation (Tr. 50). 

In a nontechnical sense, MSHA has not introduced the "best evidence" of the occurrence of a violation. It has not shown why, at a 

minimum, it did not call the only eyewitness, the victim, Mr. Hollen, 

to at least corroborate the alleged evidence of a violation found in 

the report (Govt. Exh. No. 182A). According to Mr. Couch, Mr. Hollen 

is still employed by Respondent (Tr. 83) and thus it would appear that 

he could be found. Therefore, as the violation is based on evidence 

which is not firsthand, its reliability is suspect. 

Further, the report, according to its author, was intended to 

be a recommendation to Mr. Orville Smith as to what was to be <lone 

to avoid future accidents of this nature (Tr. 77). Using such a 

report as grounds for issuing a violation would appear to discourage honest appraisal of what should be done to provide further protection for the miner. Such a discouragement would fundamentally 

contradict the primary purpose of the Act, (section 2(d)), and would 

work against the operator's responsibility to prevent unsafe 

practices. (Section 2(e)). 

For the above reasons, the report (Govt. Exh. No. 182A) should 

be construed in light of its intended purpose and not as an admission 

by a party opponent, to be construed against the admitting party. 

The inspector's theory was that Mr. Hollen went into the crosscut to avoid an oncoming shuttle car (Tr. 32). He was not even able 

to speculate how far Mr. Hollen was supposed to have gone inby permanent support (Tr. 36-37). 

Direct contradiction of this speculation is found in the sketch 

which showed Mr. Hollen was not in the crosscut area (Tr. 57; Govt. 

Exh. 182A). Mr. Couch observed that the shuttle car had about 

1,000 pounds of coal in the bucket which led him to conclude that 

the shuttle car was unloading coal and thus stationary (Tr. 62-63). 

Further~ as Mr. Hollen had a cut on his forehead and a fractured 

skull, and as there was blood on the right bumper of the shuttle car 

(Tr. 68), it is reasonable to conclude that Mr. Hollen hit his head 

on the shuttle car (Tr. 21-22). As Mr. Hollen is less than 6 feet 

tall (Tr. 70), the rock hit his back (Tr. 24), knocked him into the 

shuttle car (Tr. 21-22), and landed on his fee_t (Tr. 70-71), he 

could not have been in the crosscut at all because the shuttle car 

was 6 feet from a row of entry roof bolts on the righthand side of 

the shuttle car which was supported area (Tr. 69). Therefore, 

616 
Mr. Hollen's entire body was under supported roof (Tr. 71-72). 

Mr. Couch also testified that Mr. Hollen stated during an interview 

that be was standing right around a roof bolt (Tr. 82). 

It is possible that the fact that the sketch made after the fall 

showed the rock was about 2 feet further into the crosscut (Tr. 109; 

Govt. Exh. No. 182A), misled the inspector in his conclusions 

related to locating Mr. Hollen. I therefore conclude that the inspector's theory, that Mr. Hollen was located inby permanent support in 

the crosscut1 is untenable. 

There is the admitted violation of the roof control plan in that 

the roof bolt line next to the rib was 6 inches out of line-being 

2 feet 6 inches rather than 2 feet from the rib (Tr. 79). However, 

this specification is not spelled out in the charge. 

Apparently, this fact played no part in the inspector's conclusion as to the cause of the accident. There was no testimony by the 

inspector that he saw such noncompliance (Tr. 50). Further, the 

inspector, when he visually invescigated the accident scene, would 

have seen this roof bolt line (Tr. 30) because it would not have 

moved. Nor could the inspector have relied on the sketch contained 

in the exhibit as it did not reveal the specific locations of the roof 

bolts (Tr. 57; Govt. Exh. No. 182A). Therefore, the inspector could 

not have viewed this accident as being caused by a 6-inch deviation 

from the plan. This conclusion, by the inspector, is also supported 

by the expert (Tr. 60) conclusion of Mr. Couch who found the violation 

(Tr. 79, 93) and stated specifically that it had no bearing on the 

accident (Tr. 80). 

As there is no affinity between the 6-inch bolt deviation and 

the accident which caused Mr •. Hollen' s injury, Notice No. 1 ARR, 

August 30, 1977, cannot be fairly construed as charging the violation. 

I therefore conclude that MSHA has failed to establish a violation 

of 30 CFR 75.200 in Notice No. 1 ARR, August 30, 1977, as alleged in 

that citation. 

Findings of Fact 

Upon consideration of the record as a whole, I find: 

1. The Judge has jurisdiction over the subject matter and the 

parties in this proceeding. 

2. An unintentional roof fall occurred on August 26, 1977, at 

the No. 4 entry of the I section of the No. 18 Mine (Govt. Exh. 

No. 182). 

3. As a result of the fall, Mr. Cecil W. Hollen was injured 

(Tr. 24; Govt. Exh. No. 182). 

617 
4. The inspector did not actually see any violations of 30 CFR 

75.200 during his investigation of August 29, 1977 (Tr. 26; 30; Govt. 

Exh. No. 182). 

5. Mr. Hollen was not in the crosscut when he was injured (Tr. 

57, 62~63, 69, 82; Govt. Exh. No. 182A). 

6. Mr. Hollen was under "supported" roof when he was injured 

(Tr. 71-72, 82). 

7. The evidence fails to establish the fact of violation of 

30 CFR 75.200 as alleged in 1 ARH, August 30, 1977. 

Conciusions of Law 

1. This case arises 'under the provisions of section llO(a) of 

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

(November 9, 1977), and section 109(a)(l) of the Federal Coal Mine 

Health and Safety Act of 1969, P.L. 91-173 (December 30, 1969). 

2. The procedural provisions of the above-cited statute have 

been complied with. 

3. Re.spondent has not violated the above-cited statute as 

charged in the notice. 

ORDER 

. WHEREFORE IT IS ORDERED that the petitwn for civil penalty 

filed on August 17, 1978, be and hereby is, DISMISSED. 

..... l"i ~ f 

' ,,.. I! () .1--: •. 1.C. ( . •.·;1 j 

·.{'.,~l;.-/~,.. /"': i-·.{,,;-Y....(f·t.;.,:.<_1 • ;. ,,,.. "' ¥', .~·/ 

Malcolm P. Littlefield, Judge 

Distribution: 

John H. O'Donnell, Trial Attorney, Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Blvd., Arlington, 

VA 22203 

Neville Smith, Attorney, P.O. Box 441, Manchester, KY 40962 

(Certified Mail) 

Shamrock Coal Company, P.O. Box 10388, Knoxville, TN 37919 

(Certified Mail) 

618 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON. VIRGINIA 22203 

June 25,. 1979 

SECRETARY OF LABOR, 

MINE.SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JEFFERSON COUNTY HWY. DEPT. , 

Respondent 

Civil Penalty Proceeding 

Docket No. BARB 79-146-PM 

A.O. No. 40-00056-05001 

County Quarry & Mill 

DECISION 

Appearances: Darryl A. Stewart, Attorney, U.S. Department of 

Labor, Nashville, Tennessee, for the Petitioner; 

Telford E. Forgety, Jr., Esquire, Dandridge, 

Tennessee, for the Respondent. · 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a petition for assessment of civil 

penalty filed by the petitioner against the respondent on 

December 12, 1978, pursuant to Section llO(a) of the Federal Mine 

Safety and Health Act of 1977, charging the respondent with one 

alleged violation of the provisions of 30 CFR 56.9-87, as set 

forth in Citation No. 108414 issued on May 3, 1978 by MSHA 

inspector William R. Tally. The citation reads as follows: 

The two EUCLID Pit haul trucks did not have audible 

reverse alarm warning devices that were operative. 

There was no observer to signal when it was safe to 

back up. 

Respondent filed an answer to the petition on December 20, 

1978, and a hearing was subsequently ~eld in Knoxville, Tennessee 

on May 24, 1979, and the parties appeared and were represented by 

counsel. By agreement of the parties, I issued a bench decision 

in this matter, and pursuant to Commission rule 29 CFR 2700.54 

that decision is herein reduced to writing and served on the parties. 

619 
Issues 

The issues presented in this proceeding are (1) whether 

respondent has violated the provisions of the Act and implementing 

regulations as alleged in the petition for assessment of civil 

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

civil penalty that should be assessed against the respondent 

for the alleged violations based upon the criteria set forth in 

section llO(i) of the Act. 

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

et~. 

2. Section llO(a) of the Act, 30 U.S.C. § 820(a). 

3. Part 2700, Title 29, Code of Federal Regulations, 43 

Fed. Reg. 10320 et seq. (March 10, 1978), the applicable rules 

and procedures concerning mine health and safety hearings. 

Stipulations 

The parties stipulated and agreed that the respondent is 

subject to the jurisdiction of the Act, the Secretary of Labor, 

and the Connnission and its Judges, that the failure of the respondent 

to provide operative audible back-up alarms on two of its pit 

haulage trucks constituted a violation of the cited safety 

standard in issue, that respondent's annual rock crushing quarry 

operation production is 18,871 tons, that the quarry employs 12 · 

individuals, that the conditions cited were timely abated, that 

respondent has no prior history of violations, and that a reasonable 

penalty will not adversely affect the respondent's ability to 

remain in business (Tr. 4-13). 

620 
Testimony and Evidence Adduced by the Parties 

Mr. J. C. Thomas, Superintendent of Roads, Jefferson County 

Highway Department, testified on behalf of the respondent. He 

explained the scope of the rock crushing quarry operations carried 

on by the respondent and confirmed the size and scope of that operation as stipulated to by the parties. He confirmed that the 

citation was issued against the two Euclid pit trucks operated 

at the quarry but could not recall whether he was present when 

the inspector cited the violation. He stated that neither he nor 

the foremen were aware of the inoperative back-up alarms prior to 

the time of the citation, that breakdowns do occur from time to 

time and they are repaired ilillllediately. Respondent's policy is to 

inspect the trucks each morning and the driver is required to 

conduct the inspection and to report any defects to the pit foreman. 

The alarms which were installed on the trucks in question were fuse 

types, and upon the recommendation of the inspector, new devices 

were ordered and installed to abate the citation. The older 

alarms would occasionally blow a fuse, but no such problems have 

been experienced since the new alarms have been installed. Men 

do not normally work on foot at or near the tipple area where 

the trucks are loaded and he knew of no one working in the area 

on the day of the citation, but he conceded he was not there at 

the time of the inspection. The defective alarms were repaired 

and when the new ones arrived they were installed (Tr. 14-22). 

Mr. Thomas described the crushing and loading operation and 

the routes that the trucks in question normally take during the 

day at the quarry. He indicated that the purpose of the ala.rm 

is to warn persons in the area that the truck is backing up, but 

in most cases the alarm in no louder than the vehicle being driven 

·(Tr. 23-33). 

MSHA Inspector William R. Talley confirmed that he issued 

the citation in question, and he indicated that he observed the 

trucks in operation after he cited them, and that they were operated 

in reverse and the alarms were inoperative. There was a problem 

with a relay and the parts were not readily available. He allowed 

the respondent two days to abate since that amount of time was 

required to obtain the necessary parts. The conditions were 

subsequently abated when he returned to the mine site, but did 

not know whether repairs were e~fected earlier or later on the day 

on which is issued the citation. He confirmed that there was a 

problem with the relays on the back-up alarms and the newer alarms 

have solved some of the problems which had been encountered within 

the industry at the time the citation issued (Tr. 33-39). 

621 
Inspector Talley testified that he saw no one around the 

trucks when they were in operation except for himself and the 

quarry foreman. However, the trucks were not backing up in their 

direction and they were out of the way. He described the loading 

operation and indicated that the trucks do not use the local highways 

but stay strictly on mine property (Tr. 40). 

Arguments Presented by the Parties 

At the close of the evidence and testimony, the parties were 

afforded an opportunity to make oral argument on the record with 

respect to the statutory criteria concerning civil penalty 

assessments as set forth in section llO(i) of the Act (Tr. 45-49). 

Upon consideration of the arguments presented and the evidence 

and testimony adduced on the record, findings and conclusions 

were rendered from the bench (Tr. 49-53) and they are as follows: 

Fact of Violation 

Petitioner has established a violation as cited in Citation 

No. 108414 and the respondent has so stipulated (Tr. 49). 

Prior History of Violations 

Respondent has no prior history of violations and that fact 

is reflected in the civil penalty assessed by me in this matter 

(Tr. 50). 

Size of Business and Effect of Penalty on Respondent's Ability to 

Remain in Business 

Respondent conducts a small quarry operation and the penalty 

assessed will not adversely affect its ability to remain in 

business (Tr. 50). 

Good Faith Compliance 

The conditions cited were timely abated, the defective alarms 

were repaired prior to the time fixed for abatement, and new 

alarms were subsequently installed on the trucks in question (Tr.50). 

Negligence 

Respondent had a duty to at least insure that the truck drivers 

or quarry foreman inspect the trucks in question before allowing 

them to be operated without workable alarms. Such an inspection 

622 
may have detected that they were inoperable. Under the circumstances, I find that respondent failed to exercise reasonable care 

to prevent the citation and its failure in this regard amounts to 

ordinary negligence (Tr. 51). 

Gravity 

The lack of operable back-up alarms would normally be a 

serious matter. However, on the facts and evidence adduced in 

this case I cannot conclude that any of the quarry personnel were 

in fact exposed to any hazard. There is no credible evidence that 

anyone was on foot in the area where the trucks were operating 

at the time of the citation, nor was there any evidence that anyone was exposed to a danger of being run over. As a matter of 

fact, respondent indicated that the noise of the trucks during 

their normal operation usually precludes the alarms from being 

heard. In the circumstances here presented I cannot conclude 

that the citation was serious and my finding is that it was not 

(Tr. 52). 

Order 

In view of the foregoing findings arid conclusions, respondent 

is ordered to pay a civil penalty in the amount of $35.00 for 

the violation cited in Citation No. 108414, issued on May 3, 1978, 

within thirty (30) days of the date of this decision. ~/ 

/I 

G~)All.K.outras <-~11 f2 K:i,,,~ · 

Administrative Law Judge 

~/ By letter dated June 15, 1978, a copy of which was filed 

with me, petitioner's counsel forwarded a check in the amount of 

$35.00 to MSHA's Collection Officer which was tendered by the 

respondent in full satisfaction of the civil penalty assessment made 

by me in this matter at the close of the hearing as part of my 

bench decision. 

623 
FEDERAL MINE SAFETY AND HEALTH REVBEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON. BOULEVARD 

ARLINGTON, VIRG tNIA 22203 

June 25, 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WILLIAMS INC., 

and/or MR. W.R. WILLIAMS, 

Respondent 

Civil Penalty Proceeding 

Docket No. DENV 79-39-PM 

A/O No. 05-03052-05001 

Last Chance 113 

DECISION 

Appearances: James Abrams, Attorney, Office of the Solicitor, 

Department of Labor, Denver, Colorado, for Petitioner; 

Andrew Melechinsky, Enfield, Connecticut, for 

Respondent. 

Before: Judge Littlefield 

Introduction 

This is a proceeding for assessment of a civil penalty against 

the Respondent and is governed by section llO(a) of the Federal 

Mine Safety and Health Act of 1977 (1977 Act), P.L. 95-164 

(November 9, 1977). Section llO(a) provides as follows: 

The operator of a coal or other mine in which a 

violation occurs of a mandatory health or safety standard 

or who violates any other provision of this Act, shall be 

assessed a civil penalty by the Secretary which penalty 

shall not be more than $10,000 for each such violation. 

Each occurrence of a violation of a mandatory health or 

safety standard may constitute 2 separate offense. 

Petition 

On October 26, 1978, the Mine Safety and Health Administration 

(MSHA), 1/ through its attorney, filed a petition for an assesment of 

civil penalty charging one alleged violation of the Act. 

1/ Successor-in-interest to the Mining Enforcement and Safety Administration (MSHA). 

624 
Answer 

On November 14, 1978, Respondent filed a detailed response to 

the all~gation and requested a hearing thereon. 

Tribunal 

A hearing was held in Denver, Colorado, on June 12, 1979. 

MSHA was represented by counsel. Williams, Inc., was represented 

by "its Contingency President," and entered a special appearance 

only. 

Preliminary Motion 

The representative of the Respondent at the Commencement of the 

hearing offered a written motion entitled "Special Appearance for 

Challenging Jurisdiction of this Court" on Constitutional grounds. 

The motion was opposed by the Petitioner and denied by the Judge. 

There is a strong presumption in favor of constitutionality of 

an Act of Congress, Lockport v. Citizens for Community Action, 430 

U.S. 259 (1977). An administrative agency, as a general proposition, 

does not have power to rule on constitutional challenges to the 

organic statute of the agency, Weinberger v. Salfi, 422 U.S. 749 

(1975); Johnson v. Robison, 415 U.S. 36-r-(1974). Thereafter, 

Respondent's representative participated fully in the hearing. 

Charge 

Order of Withdrawal Date 30 CFR Standard 

00326611 4/4/78 57.6-107 

"Miner was drilling rib at right drift within 5 feet of misfire." 

30 CFR 57.6-107 provides as follows: "Mandatory. Holes shall 

not be drilled where there is danger of intersecting a charged or 

misfired hole." 

Issues 

(1) Has there been a violation of the standard? 

(2) If so, what civil penalty should be assessed? 

Evidence 

MSHA presented the testimony of Porfy Tafoya, a Federal Mine 

Inspector for the U.S. Department of Labor. 

Respondent offered no evidence. 

625 
Findings of Fact 

(1) Inspector Tafoya inspected the Last Chance #3 mine of 

the respondent on April 4, 1978 (Tr. 21). 

(2) He has held his present position of mine inspector 

for 3 years and during that time has conducted over 400 inspect ions (Tr. 20) • 

(3) He had 22 years mining experience prior to working for 

MSHA (Tr. 20). 

(4) During the inspection he observed holes drilled on the 

right hand drift (Tr. 21). 

(5) The holes that had been drilled were found to be loaded 

and charged (Tr. 22). 

(6) He observed one hole that had not exploded from the previous round and it was still in the face (Tr. 22). 

(7) This hole would be categorized as misfired (Tr. 22). 

(8) The holes that were drilled were within 4-1/2 to 5 feet 

of the hole that was misfired (Tr. 23). 

(9) The misfired hole and the hole being drilled were in an 

area that was regularly being worked (Tr. 24). 

(10) The hazard presented would be one of explosion (Tr. 24). 

(11) If an explosion did occur an accident or injury to 

employees ranging from serious to fatal could result (Tr. 25). 

(12) Inspector Tafoya issued an Order of Withdrawal on 

April 4, 1978, citing therein Section 57.6-107. 

Conclusions of Law 

(1) The Judge has jurisdiciton over the subject matter and the 

parties in this proceeding. 

(2) All procedural prerequisites established in the statutes 

and regulations cited above have been complied with. 

" 

(3) Respondent was the operator of a mine and is subject to 

the provisions of the Mine Safety and Health Act of 1977. 

(4) An imminent danger existed at the Last Chance #3 mine on 

April 4, 1978. 

626 
(5) Williams, Inc., has violated 30 CFR 57.6-107 as charged. 

Penalty Criteria 

Ass·essment of a civil penalty, upon the finding of a violation, 

is mandatory (See section llO(i) of the Act). 

There is neither evidence concerning the operator's history 

of previous violations nor the size of his business. As to 

gr.avity, I find the violation to be serious and the result of 

negligence on his part. He did effect rapid compliance to abate 

the cited conditions. Although the operator is now out of business a reasonable civil penalty would be in order. 

Based on the testimony heard at the hearing, I conclude that 

a penalty of $225 is reasonable based upon the above criteria and 

particularly the fact that the operator is now out of business. 

The decision made from the BENCH at the hearing is hereby 

AFFIRMED (Tr. 44). 

ORDER 

WHEREFORE IT IS ORDERED that Williams, Inc., pay the aboveassessed civil penalty in the amount of $225 within 30 days from the 

date of this decision. 

Distribution: 

/? '""'--' " ll ,., ' . P. /.? Al./ . /~ .... /'1 . J -: ,~ .. : ...... ;:..-""'' (::~'./ ""71/v!l,-::(::~ l,.{.Z ..... t_-r-~ ·~I Malcolm P. Littlefield 

Administrative Law Judge 

Leo McGinn, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 

James Abrams, Office of the Solicitor, 1585 Federal Building, 

1961 Stout St. Denver, CO 80294 (Certified Mail) 

Williams, Inc., P.O. Dr 12, Naturita, CO 81422 

(Certified Mail) 

Gregory K. Hoskin, Attorney, P.O. Box 40, Grand Junction, 

CO 81501 (Certified Mail) 

Mr. W.R. Williams, P.O. Box 504, Marco Island, 

FL 33937 (Certified Mail) 

627 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

PEABODY COAL COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

DECISION 

Application for Review 

Docket No. VINC 78-386 

Citation No. 274635 

May 18, 1978 

Sunnyhill No. 9 South Underground 

Mine 

This case was remanded to me from the Commission on May 2, 1979. 

After reviewing the file I issued, on May 9, 1979, a notice to the 

parties, wherein each was required to attempt to stipulate the facts but 

if a stipulation could not be reached, to submit within 30 days, its 

contentions as to the facts and its argument concerning them. 

Peabody Coal Company filed a timely statement of facts and argument, but MSHA has not responded. I will therefore accept the facts as 

they appear in the statement filed by the Applicant and as corroborated 

by the material previously filed in the case. 

On October 17, 1977, an "accident" occurred at Applicant's mine. It 

was not the type of accident which the regulations in effect at that 

time required the operator to report to MSHA. 30 CFR 80.l(g) excludes 

injuries "requiring only first-aid treatment." The regulation which 

Applicant is accused of violating, 30 CFR 50.20 did not become effective 

until December 30, 1977, and the event which occurred 2 months earlier 

would have been reportable if it occurred after the effective date of 

30 CFR 50-20. MSHA's issuance of the citation on May 18, 1978, wa~ 

clearly an attempt to give ex post facto treatment to the new regulation 

and was for that reason invalid. 

The citation is vacated and the case is dismissed. 

~e?J?Wtt( Charles C. Moore, Jr. /' 

Administrative Law Judge 

Entered: June 26, 1979 

Distribution: 

Thomas R. Gallagher, Esq., Peabody Coal Company, P. 0. Box 235, St. 

Louis, MO 63166 (Certified Mail) 

Edward H. Fitch, Esq., MSHA, Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Harrison Combs, Esq., UMWA, 900-15th Street, NW., Washington, D.C. 

20005 (Certified Mail) 

~-
FEDERAL MINE SAFETY AND HEALTH REVIEW COMIVUSSION 

OFFICE OF ADMINISTRAllVi:: LAW JUDGES 

4015 WILSON BOUl.EVARD 

ARLINGTON.VIRGINIA 22203. 

JUN 2 6 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION- (MSHA), 

Petitioner 

v. 

BILL .w. STODDARD, W ~ J. OWENS, .. 

ELLERY KINGSTON, ELDEN 

KINGSTON, GERALD HANSEN, AND 

JOHN GUSTAFSON, d/b/a CO-OP 

MINING COMPANY, 

Respondents !/ 

Civil Penalty Proceeding 

Docket No. DENV 78-527-P 

A.C. No. 42-00081-02014V 

Co-op Mine 

DECISION 

Appearances: James L. Abrams, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

Carl E. Kingston, Esq., Salt Lake City, Utah, for 

Respondents. 

Before: Administrative Law Judge Michels 

The above-captioned civil penalty proceeding was brought pursuant 

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

30 U.S.C. § 820(a). The Mine Safety and Health Administration (MSHA) 

filed a petition for the assessment of a civil penalty on July 31, 

1978, alleging that Respondents committed a violation of 30 CFR 

75.400. On January 16, 1979, Respondents filed their answer contesting the violation. A hearing was held in Salt Lake City, Utah, on 

May 18, 1979, at which the parties were represented by counsel. 

1/ At the beginning of the hearing, Petitioner moved to amend the 

caption in this case, Secretary of Labor, Mine Safety and Health 

Administration (MSHA) v. Co-Op Mining Company, to reflect that the 

business was a partnership. Respondents did not object to this 

proposed change and agreed to submit a letter which would provide 

the names of the partners (Tr. 4-6). This letter was filed on 

May 25, 1979, and the caption has been amended accordingly. 

629 
Evidence was received regarding Citation No. 7-0045 (December 12, 

1977), which alleged a violation of 30 CFR 75.400. 2/ This regulation requires that •i[c]oal dust, including float coal dust deposited 

on rock-dusted surfaces, loose coal, and other combustible materials, 

shall be cleaned up and not be permitted to accumulate in active 

workings, or on electric equipment therein." 

On the basis of the evidence presented, and in light of the 

statutory critetia, a decision was made from the bench finding a violation and assessing a penalty of $100. The following is a summary 

of the findings made regarding the citation: 

(a) A violation did occur (Tr. 86). The finding of the 

existence of the accumulations was based on the uncontradicted 

testimony of Inspector Lawrence Ganser (Tr. 16-17, 25, 76, 85-86). 

The inspector's estimate that the accumulations had existed over a 

shift or two was accepted (Tr. 20; 86). 

(b) The operator is small to medium 1n size (Tr. 8, 87). 

(c) There is a history of prior violations. Some of these 

are of 30 CFR 75.400: although not a significant number. Petitioner's 

Exhibit No. 1 shows that there have been three violations of this 

standard assessed for $106, $375, and $125. They were settled for 

$106,$110, and $67, respectively (Tr. 7, 90). This was not a bad 

history (Tr. 87). 

(d) The penalty assessed will not affect the ability of the 

operators to continue in business (Tr. 87). 

(e) Good faith efforts were made to achieve rapid compliance 

(Tr. 88). 

(f) The violation was serious (Tr. 88). 

(g) There was some negligence on the operators' part (Tr. 88). 

Consideration has been given to the fact that the belt in this 

case was new and problems had occurred with its use (Tr. 40-42, 

. 52-54' 87). 

(h) Based on the circumstances which failed to show any exceptional factor requiring a more than normal penalty, the operator 

should be assessed $100 (Tr. 90-91). 

2/ . Lawrence J. Ganser, the inspector who issed the citation, testified as a witness for the Petitioner (Tr. 14-38, 77-81). Bill W. 

Stoddard (Tr. 39-64, 83-84) and Nathari Atwood (Tr. 65-79) testified 

for Respondents. 

630 
The decision made from the bench finding a violation of 30 CFR 

75.400 and assessing a penalty of $100 is hereby AFFIRMED. It is 

ORDERED that Respondents, within 30 days of the date of this dec-ision, pay the penalty of $100 assessed in this proceeding. 1_/ 

Distribution: 

d~J~~ Franklin P. Michels 

Administrative Law Judge 

James L. Abrams, Esq., Office of the Solicitor, U.S. Department 

of Labor, 15019 Federal Office Building, Denver, CO 80202 

(Certified Mail) 

Carl E. Kingston, Esq., 53 West Angelo Avenue, Salt Lake City, 

UT 84115 (Certified Mail) 

3/ A question was raised on the matter of scheduling the hearing 

(Tr. 92-98). Counsel for the Solicitor seemed to raise an issue on 

the matter of the number of times the hearing yyas rescheduled. This 

is all a matter of record and it remains a puzzle why counsel 

believed it should be further recorded in the transcript. 

The hearing was first scheduled for M8y 16 in Salt Lake City, 

Utah. It was later changed to Price, Utah, still for May 16. Subsequently it was rescheduled for Salt Lake City, first for May 16, 

1979, and later to May 18, a Friday. 

Such a number of changes is not the ordinary practice of the 

presiding Judge and, in fact, I know of no other case where this has 

happened. It was necessitated by the changes which occurred.with 

regard to the group of cases set for hearing at that time. Only a 

few days prior to the week of hearings, the presiding Jud3e learned 

that another scheduled case was to take a full two days, Tuesday and 

Wednesday, and· possibly another day in the week. There was no way, 

therefore, that all the cases could be heard, unless this case was 

rescheduled for Friday afternoon of that week of hearings. 

Counsel further complains that he was not orally notified of the 

change. My instructions to my law clerk have always been to notify 

the parties by telephone when a late change is made in scheduling, 

and I fully believed this had been done. If that was not done in 

this instance, it was a regrettable oversight, and I have taken steps 

to prevent such a happening in the future. In any event, the 

Solicitor was notified by certified mail by an order issued May 11, 

1979, and received on May 15, 1979. This was a full three days prior 

to the hearing and a day pri~r to the previously ·scheduied date. 

Counsel has given no facts showing he was in any way prejudiced by 

the change in dates. 

631 
FEDERAL MINE SAFETY AND M~:ALTM REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WIL.SON HOULEVARD 

ARLINGTON, VIRGINIA 22203 

June 27, 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LEECHBURG MINING COMPANY, 

Respondent 

Docket No. PITT 78-420-P 

A/O No. 36-00818-02013V 

Foster No. 65 Mine 

DECISION 

Appearances: 

Before: 

Anna Wolgast, Esq., Office of the Solicitor, 

Department of Labor, for Petitioner; 

Henry McC. Ingram, Esq., R. Henry Moore, Esq., 

Rose, Schmidt, Dixon, Hasley, White & Hardesty, 

Pittsburgh, Pennsylvania, for Respondent. 

Judge Cook 

I. Procedural Background 

On July 31, 1978, a petition was filed for assessment of civil 

penalty against Leechburg Mining Company for alleged violations of 

30 CFR 75.200, 75.202, 75.400, and 75.403. This petition was filed 

pursuant to section llO(a) of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 820 (a) (1977), hereinafter referred to as the 

Act. An answer was filed by the Respondent on August 18, 1978. 

A notice of hearing was issued on August 22, 1978, setting the 

hearing date for October 31, 1978. 

On October 18, 1978, a motion for continuance was filed by 

counsel for MSHA. An order granting the motion for continuance was 

issued on October 20, 1978, rescheduling the hearing for January 3, 

1979. An amended notice of hearing was issued on October 31, 1978, 

changing the hearing date from January 3, 1979, to December 5, 1978. 

On November 20, 1978, the Leechburg Mining Company filed a motion 

to remand. A response of the Secretary of Labor in opposition to the 

motion to remand was filed by MSHA on November 27, 1978. The motion 

to remand was denied by an order issued on December 1, 1978. 

6.32 
Leechburg and MSHA filed posthearing briefs on January 25, 1979, 

and January 26, 1979, respectively. Leechburg filed .a reply brief on 

February 9, l979. MSHA did not file a reply brief. 

II. Violations Charged 

Order No. Date CFR Section 

7-0032 (1 GFM) October 6, 1977 30 CFR 75.200 

7-0033 (1 JAB) October 3, 1977 30 CFR 75.403 

7-0035 (1 JAB) October 6, 1977 30 CFR 75.400 

7-0036 (1 JAB) October 11, 1977 30 CFR 75.400 

7-0038 (1 JAB) October 12, 1977 30 CFR 75.202 

7-0047 (1 JAB) November 30, 1977 30 CFR 75.200 

III. Evidence Contained in the Record 

A. Stipulations 

At the commencement of the hearing, counsel for both parties 

entered into stipulations which are set forth in the findings of fact, 

infra. ·· 

B. Witnesses 

MSHA called as its witnesses Jesse A. Bates, an MSHA inspector, 

and Gerald F. Moody, Jr., an MSHA inspector. 

Leechburg called as its witnesses Harold F. Dunmire, President of 

the Leechburg Mining Company; Donald A. Myers, a section boss employed 

by the Leechburg Mining Company; Joseph Arduino, a mine foreman 

employed by the Leechburg Mining Company; George E. Rittenberger, a 

mine superintendent employed by the Leechburg Mining Company; Walter 

Vakulick, an assistant mine foreman employed by the Leechburg Mining 

Company; and Joel C. Dunmire, the safety director employed by the 

Leechburg Mining Company. 

C. Exhibits 

1. MSHA introduced the following exhibits into evidence: 

a. M-1 is a computer printout listing past violations at Leechburg's Foster No. 65 Mine. 

b. M-2 is a computer printout providing the total 

production tonnage for 1976 through 1978. 

c. M-3 is a copy of the roof control plan in effect 

at the time of the subject violations. 

633 
d. M-9 is a copy of Order 1 GFM, October 6, 1977, 

30 CFR 75.200. 

e. M-10 is a termination of M-9. 

f. M-11 is a copy of the inspector's statement 

accompanying M-9. 

g. M-12 is a copy of Order No. 1 JAB, October 3, 1977, 

30 CFR 75.403. 

h. M-13 is a termiaation of M-12. 

i. M-14 is a dust analysis report. 

j. M-15 is the inspector's statement accompanying 

M-12. 

k. M-16 is a copy of Order No. 1 JAB, October 6, 

1977, 30 CFR 75.400. 

1. M-17 is a termination of M-16. 

m. M-18 is the inspector's statement accompanying 

M-16. 

n. M-19 is a copy of Order No. 1 JAB, October 11, 

1977, 30 CFR 75.400. 

o. M-20 is a termination of M-19. · 

p. M-21 is the inspector's statement accompanying 

M-19. 

q. M-22 is a copy of Order No. 1 JAB, October 12, 

1977, 30 CFR 75.202. 

r. M-23 is a modification of M-22. 

s. M-24 is a termination of M-22 and M-23. 

t. M-25 is the inspector's statement accompanying 

M-22. 

u. M-26 is a copy of Order No. 1 JAB, November 30, 

1977, 30 CFR 75.200. 

v. M-27 is a termination of M-26. 

w. M-28 is the inspector's statement accompanying 

M-26. 

634 
x. M-29a is a drawing made by Inspector Moody in 

Arlington, Virginia. 

y. M-29b is a drawing made by Inspector Moody. 

z. M-30 is a sketch of the violation cited in M-26. 

2. Leechburg introduced the following exhibits into evidence: 

a. OX-1 is a map of Kittanning Coal, Foster Mine 

No. 65. 

b. OX-2 is a copy of a MESA memorandum dated July 27, 

1977. 

c. OX-3 is a drawing representing the approximate 

face locations on October 6, 1977, in 6 right mains and 

3 butt left. 

d. OX-4 1s a copy of the ventilation plan of the 

Foster No. 65 Mine, in effect at the time of the subject 

orders. 

e. OX-5 is a map of a portion of the Foster No. 65 

Mine. 

f. OX-6 contains copies of mechanical loading 

reports. 

g. OX-7 is a copy of a purchase order, dated 

October 20, 1977, confirming the order of a "Big Sam" 

Spray Applicator. 

h. OX-8 is a summary of the cost of materials used 

in improving track haulage. 

i. OX-9 is a copy of a 104(c)(l) notice admitted 

into evidence to correct exhibit M-1. 

j. OX-10 1s a letter from the Solicitor's Office of 

the Department of Labor enclosing a copy of the 

modification. 

k. OX-12 is a drawing of the intersection cited 

in M-26. 

1. OX-13 contains financial statements of the 

Leechburg Mining Company. 

635 
3. OX-11 is a document relating to the history of violations 

at the Foster No. 65 Mine. It was marked for identification at the 

hearing, and received into evidence by a posthearing order dated · 

January 16, 1979. 

4. OX-14 is an affidavit, mentioned at the hearing (Tr. 450-54), 

and received in the Office of Administrative Law Judges on December 12, 

1978. The objection to its admission into evidence was sustained by 

an order dated January 16, 1979. The document has been ordered filed 

in a separate envelope and retained with the official file in this 

case in the event review is sought as to the decision in this case. 

5. OX-15 is a copy of Leechburg's corporate income tax return 

for the year ending June 30, 1978. It was admitted into evidence by 

an order dated January 9, 1979. 

IV. Issues 

Two basic issues are involved in the assessment of a civil penalty: (1) did a violation of the Act occur, and (2) what amount 

should be assessed as a penalty if a violation is found to have 

occurred? In determining the amount of civil penalty that should be 

assessed for a violation, the law requrires that six factors be considered: (1) history of previous violations; (2) appropriateness of 

the penalty to the size of the operator's business; (3) whether the 

operator was negligent; (4) effect of the penalty on the operator's 

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

(6) the operator's good faith in attempting rapid abatement of the 

violation. 

V. Opinion, Findings of Fact, and Conclusions of Law 

A. Stipulations 

The following stipulations were filed by the parties at 9:40 a.m. 

on December 5, 1978: 

1. This proceeding is governed by the Federal Coal Mine Health 

and Safety Act of 1969, the Federal Mine Safety and Health Act of 

1977, and the standards and regulations promulgated thereunder. 

2. The Administrative Law Judge has jurisdiction over this 

proceeding. 

3. Leechburg is the operator of the Foster No. 65 Mine and as 

such, is subject to the jurisdiction of the above~referenced Acts. 

4. The MSHA inspectors who issued notices and orders which are 

the subject of this hearing were, at the time the notices and orders 

636 
were issued, 1

duly authorized representatives of the Secretary of the 

Interior. 

5. Copies of the notices and orders which are the subject of 

this hearing are authentic. 

6. The computer printout listing past violations at Leechburg's 

Foster No. 65 Mine from January 1, 1970, to October 3, 1977, is an 

authentic copy of Office of Assessments' data contained in the 

computer at Denver, Colorado (Exh. M-1). 

The computer printout providing the total production tonnage for 

1976 through 1978 is an authentic copy of Office of Assessments data 

contained in the computer at'Denver, Colorado (Exh. M-2). 

The copy of the roof control plan is an authentic copy of the 

plan in effect at the time of the violations which are the subject 

of this case (Exh. M-3). 

Respondent reserves the right to challenge the content of the 

three documents listed immediately above. 

B. Occurrence of Violation, Gravity, Negligence and Good Faith 

(1) Order No. 7-0032 (1 GFM), October 6, 1977, 30 CFR 75.200 

(a) Occurrence· of Violation 

MSHA inspector Gerald F. Moody, Jr., arrived at Leechburg Mining 

Company's Foster No. 65 Mine at approximately 7:30 a.m. on October 6, 

1977, to conduct a regular roof control inspection (Tr. 5, 6). He 

was accompanied on the inspection tour by Mr. Donald A. Myers, 

Leechburg's section boss. The inspector examined the face areas in 

No. 23 and No. 24 rooms in 1 Left off 6 Right section, where he 

observed the conditions cited in the subject withdrawal order. The 

condition was described by Inspector Moody as follows: 

The approved roof control plan was not being complied 

with in the face area of No. 23 room in 1 Left off 6 Right 

Section approximately 200 feet from survey station 12+35 

in that the distance from the right rib to the adjacent 

row of temporary roof supports varied from six feet to six 

feet 10 inches for the entire length of the cut (20') 

(Exh. M-9, Tr. 19). 

The inspector also stated that: 

The approved roof control plan requires temporary 

roof supports to be installed not more than 5 feet from 

637 
the tib and to be installed within 30 minutes after the mining sequence is completed. This completed cut was mined on 

the 4 p.m. to 12 midnight shift on October 5, 1977, and evidence (time, date, initials and foot prints) indicated that 

this area was entered and examined by the preshift examiner 

at approximately 6:40 a.m. on October 6, 1977, the operator 

should have known the violation existed since a preshift 

examination was made in this section. 

(Exh. M-19, Tr. 19). 

After the section foreman had two workmen set additional posts on 

the righthand side of the working place to reduce the spacing, the 

inspector measured the distance between the right rib and the first 

row of temporary supports, and contemporaneously sketched the conditions (Tr. 23, 24, M-29b). The four temporary supports in question 

measured 6 feet 10 inches, 6 feet, 6 ~eet 6 inches and 6 feet 

10 inches, respectively from the right rib (Exhs. M-29a, M-29b). 

The Respondent did not dispute the accuracy of the inspector's 

mea·surements. 

Based on these observations, the inspector issued Withdrawal Order 

No. 1 GFM for a violation of the approved roof control plan and 30 CFR 

75.200. 1/ Minimum safety requirements for installing roof supports 

in 20-foot-wide cuts are described in Drawing N6. 1 of the roof control plan applicable on October 6, 1977 (Exh. M-3). According to the 

inspector, that plan provides for at least 12 temporary supports to be 

installed in a 20-foot cut so that no distance greater than 5 feet 

exists between any two s~pports or between a support and the mine rib 

(Tr. 19, 22, 45-47). 

1/ Section 75.200 Roof control programs and plans: 

"Each operator shall undertake to carry out on a continuing basis 

a program to improve the roof control system of each coal mine and the 

means and measures to accomplish such system. The roof and ribs of 

all active underground roadways, travelways, and working places shall 

be supported or otherwise controlled adequately to protect persons 

from falls of the roof or ribs. A roof control plan and revisions 

thereof suitable to the roof conditions and mining system of each coal 

mine and approved by the Secretary shall be adopted and set out in 

printed form on or before May 29, 1970. The plan shall show the type 

of support and spacing approved by the Secretary. Such plan shall 

be reviewed periodically, at least every 6 months by the Secretary, 

taking to consideration any falls of roof or ribs or inadequacy of 

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

permanent support unless adequate temporary support is provided or 

unless such temporary support is not required under the approved 

roof control plan and the absence of such support will not pose · 

a hazard to the miners. A copy of the plan shall be furnished to 

the Secretary or his authorized representative and shall be available to the miners and their representatives." 

638 
Respondent contends that no violation of the roof control plan 

exists, arguing that the plan does not require the temporary supports 

in question to be within 5 feet of.the right rib. The Respondent 

basis its argument on an analysis of the inspector's testimony, concluding that the portions of the roof control plan relied on by him 

do not support the 5-foot requirement. 

First, the Respondent argues, the inspectur's reliance on Safety 

Precaution 3(b) as a source of the 5-foot requirement is misplaced. 

Safety Precaution 3(b) states: 

Only those persons engaged in installing temporary 

supports shall be allowed to proceed beyond the last row 

of permanent supports until temporary supports are 

installed. Before any person proceeds inby permanently 

supported roof, a thorough visual examination of the 

unsupported roof and ribs shall be made. If the visual 

examination does not disclose any hazardous condition, 

persons proceeding inby permanent supports for the purpose of testing the roof by the sound and vibration 

method and installing supports shall do so with caution 

and shall be within 5 feet (less if indicated on drawings) 

of a temporary or permanent support. If hazardous conditions are detected, corrective action shall be taken to 

give adequate protection to the workmen in the area 

involved. 

The subject matter of Safety Precaution No. 3(b) does not 

encompass the spacing of temporary supports. The 5-foot reference 

in it refers to a person's position with relation to a temporary 

support. I therefore agree with Respondent's contention that Safety 

Precaution No. 3(b) does not require the spacing of temporary 

supports to within 5 feet of the right rib. 

Second, the Respondent argues that Drawing No. 1 of the plan 

(Exh. M-3) is not a source of the 5-foot requirement bec·ause it does 

not specifically require 5-foot centers for temporary supports. I 

disagree with the Respondent's argument. 

The inspector testified that "the spacing on the temporary roof 

supports in the scale indicate that they will be within five feet of 

the rib" (Tr. 46). The inspector explained this by stating: "It is 

fairly obvious that the place being 20 feet wide, then three temporary 

roof supports set across the work place are evenly spaced at approximately five feet apart" (Tr. 47). I agree with this interpretation 

of Diagram No. 1 of the roof control plan (Exh. M-3). Although it 

can be argued that the plan is ambiguous, the ambiguity is resolved 

by the testimony of Respondent's own witness. Mr. Harold F. Dunmire, 

the president of the Leechburg Mining Company, testified that he was 

familiar with the roof control plan relative to the installat.ion of 

639 
temporary roof supports. According to Mr. Dunmire, the minimum 

requirements require the installation of temporary supports on 5-foot 

centers, both laterally and inby (Tr. 72-73). 

I therefore conclude that the roof control plan's minimum 

requirements mandated that the row of supports in question be not 

greater than 5 feet from the right rib. I also conclude that the 

temporary supports in question were placed from 6 feet to 6 feet 

10 inches from the right rib, and that the requirements of the roof 

control plan (Exh. M-3) had not been fulfilled. 

(b) Gravity 

A sound vibration test revealed that the roof in the working 

place was not drummy (Tr. 11, 29). Sounding indicates the roof condition to a depth of approximately 4 feet (Tr. 54, 55, 388). There 

were no slips in the actual working place (Tr. 35, 43-44), although 

there were slips outby (Tr. 35, 36). Inspector Moody described the 

roof in the working place as "normal" (Tr. 35, 36), while the respondent's witnesses classified the roof conditions as ranging from "good" 

to ':excellent" (Tr. 52, 55). 

Mr. Dunmire and Mr. Myers testified that it was standard operating procedure to drill 6-foot test holes in the roof to determine 

whether the overlying strata was solid, or whether it contained any 

fissures or breaks (Tr. 56, 71). However, Mr. Myers admitted that 

test holes had not been drilled in the area between the right row of 

temporary supports.and the right rib (Tr. 56) .. Te~t holes had been 

drilled in the general vicinity of the violation, and no slips were 

reported within 50 feet of the face of 23 room on October 6, 1977 

(Tr. 58, 59). Additionally, the cut was less than 20 feet wide 

(Tr. 24). 

Mr. Myers testified that he was responsible for instructing his 

crew to install temporary supports (Tr. 49), and that he hsd been 

instructed by the company with respect to the installation of temporary supports (Tr. 50). Mr. Myers also testified that the company 

had instructed him to install 16 temporary supports instead of the 

12 posts required by the roof control plan (Tr. 51). He had been 

instructed to place the first row of posts 5 feet from the bolts, 

with the other rows of posts on 4-foot centers (Tr. 50). He had 

relayed these instructions to his crew (Tr. 51). He admitted that he 

had not counted the number of temporary supports in No. 23 room (Tr. 

61-62). Inspector Moody's testimony indicates that only 12 posts 

were present (Tr. 23). 

Mr. Myers testified that the presence of 16 temporary supports 

indicates added support (Tr. 59). However, both Mr. Myers and 

Mr. Moody testified that the spacing of the posts, not the number of 

posts, is the primary consideration in the roof support scheme 

envisioned by the roof control plan (Tr. 37, 60). 

640 
At least one worker, the preshift examiner, was exposed to the 

hazard (Tr. 21). Markings on the wall indicated that he had proceeded 

inby the permanent roof supports to examine the inadequately supported 

area at approximately 6:40 a.m. on October 6, 1977 (Tr. 15). 

Mr. Myers was aware that the preshift examiner had been in the area 

(Tr. 56, 57). The temporary supports had been installed prior to the 

preshift examiners entry into the area (Tr. 53). 

Inspector·Moody testified that he deemed the violation serious 

because all roof control violations are inherently serious (Tr. 16). 

He assumed that any resulting injury would be "disabling," not 

"permanently disabling" or "fatal" (Tr. 33-34). 

Based on the foregoing, I find the violation to be a serious one. 

(c) Negligence 

It was Mr. Myers' responsibility to check the area to assure 

proper installation of the temporary supports (Tr. 53). He testified 

that he was able to ascertain how the right hand row of temporary 

supports had been improperly placed. The row of posts on the left 

hand side had been placed too close to the left rib (Tr. 63); i.e., 

approximately 3 feet from the left rib. The workers measured over 

from that line and placed the remaining rows on 4-foot centers, but 

they did not measure the distance between the righthand row and the 

right rib (Tr. 51-52). Thus, the improper spacing of the lefthand 

row of posts threw the last row out of line (Tr. 63). 

Both Inspector Moody and Mr. Myers agreed that the condition was 

readily observable (Tr. 6, 54). This readily observable condition 

should have been observed by the preshift examiner and relayed to the 

operator (Tr. 15). The condition required only 12 minutes to correct 

(Tr. 12, 37, Exhs. M-9, M-10). 

Based on the foregoing, I conclude that the operator demonstrated 

ordinary negligence. 

(d) Abatement 

The violation was abated in 12 minutes (Tr. 12, 17, 37). I find 

that the operator displayed good faith in achieving rapid abatement. 

(2) Withdrawal Order No. 7-0033 (1 JAB), October 3, 1977, 30 CFR 75.403 

(a) Occurrence ~f Violation 

MSHA inspector Jesse Bates arrived at Leechburg's Foster No. 65 

Mine at 7:25 a.m. on October 3, 1977, to conduct a regular inspection 

(Tr. 80). He was accompanied on the inspection. by Mr. Joseph Arduino, 

the mine foreman (Tr. 80). The inspector traveled to the No. 27 room 

641 
off No. 1 entry 1 Left section off 6 Right Mains (Tr. 80-81, Exh. 

M-12). The inspector testified that he observed an area 40 feet long, 

extending from 40 feet outby the face of No. 27 room to 80 feet outby 

which was inadequately rock dusted (Tr. 80-81, 81-85, Exh. M-12)." He 

subsequently issued the subject withdrawal order. 

Mr. Bates testified that his initial determination of the extent 

of the inadequately rock dusted area was based on visual observation 

(Tr. 81~82). He stated that he observed the floor and the ribs, and 

that they were ndark" and "real dark," respectively (Tr. 81-82). 

Visual observation revealed very little rock dust on the floor and 

ribs (Tr. 82). The inspector testified that he caused samples to be 

taken from the floor and ribs, identified them, and sent them to the 

Dust Analysis Center in Mount Hope, West Virginia, to substantiate the 

•violation (Tr. 82, 85-95). The result of the dust sample analysis 

revealed 38.3 percent incombustible material contained in the floor 

sample, and 27.1 percent incombustible material contained in the rib 

sample (Exh. M-14). The regulations require that all areas within 

40 feet of all working faces be rock dusted so that the incombustible 

content of the combined coal dust, rock dust and other dust shall be 

not less than 65 percent. 30 CFR 75.402, 75.403. ~/ 

Inadequate rock dusting cannot be proven by visual observation 

alone; samples must be collected and subjected to laboratory analysis. 

Hall Coal Company, Inc., 1 IBMA,175, 178, 79 I.D. 668, 1971-1973 

CCH-OSHD par. 15,380 (1972). Respondent questions the validity of 

the test results contained in Exhibit M-14 (Tr .. 82-95, Respondent's 

Post-Trial Brief, pp. 9-10). According to the Respondent: 

2/ 30 CFR 75.402 states: 

"All underground areas of a coal mine, except those areas in 

which the dust is too wet or too high in incombustible content to 

propagate an explosion, shall be rock dusted to within 40 feet of all 

working faces, unless such areas are inaccessible or unsafe to enter 

or unless the Secretary or his authorized representative permits an 

exception upon h~s finding that such exception will not pose a hazard 

to the miners. All crosscuts that are less than 40 feet from a 

working face shall also be rock dusted." 

30 CFR 75.403 states: 

"Where rock dust is required to be applied, it shall be distributed upon the top, floor, and sides of all underground areas of a 

coal mine and maintained in such quantities that the incombustible 

content of the combined coal dust, rock dust, and other dust shall be 

not less th~n 65 per centum, but the incombustible content in the 

return aircourses shall be no less than 80 per centum. Where methane 

is present in any ventilating current, the percentum of incombustible 

content of such combined dusts shall be increased 1.0 and 0.4 per 

centum for each O.l per centum of methane where 65 and 80 per centum, 

respectively, of incombustibles are required." 

642 
No evidence was produced to established a complete 

chain of custody. See, McCormick on Evidence § 212, 

pp. 527-8 (2d ed. 1972). A rather precarious method of 

identification was used in that, at the time of che Order, 

the samples were marked as being from the Foster 65 Mine, 

dated, and the inspector's name was attached (Tr. 86-8). 

The location within the mine was put on a card, which was 

not attached to the samples, and included in the package 

to the Mt. Hope Dust Anaylsis Laboratory (Tr. 88). No 

identifying serial number or any other clear identification was attached to the samples (Tr. 86). Only the 

results of the tests were returned to the inspector, not 

the samples (Tr. 89). The inspector was unable to testify 

as to the methods of testing employed and their probable 

accuracy (Tr. 90). There is no indication on M-14 as to 

who, if anyone, tested these particular samples. No one 

from the Dust Analysis Laboratory testified as to the 

testing procedures or their accuracy. • 

After citing NLRB v. Remington, 94 F.2d 862, 873 (2d Cir. 1938), 

Respondent then stated that Exhibit M-14 should be given little, if 

any, weight (Respondent's Brief, pp. 9-10). 

Respondent's counsel had stipulated to the authenticity of the 

document (Tr. 92). 

The Respondent's criticisms of the dust analysis report can only 

be considered as challenges as to the probative weight of the evidence, not its admissibility. Co-op Mining Company, 3 IBMA 533, 

81 I.D. 780, 1974-1975 CCH-OSHD par. 19,162 (1974). According to the 

Interior Board of Mine Operations Appeals: 

[W]hen admitted into evidence, if such a report shows that 

the percentage of incombustible content does not meet the 

required standard, it est.ablishes a prima facie case of a 

violation. Of course, the operator may attack the accuracy 

and the reliability of the report itself, the regularity of 

the test procedure, and offer any other evidence it has in 

rebuttal. But where no such challenge is made, or where 

the Judge finds such challenge does not meet or overcome 

the presumption of verity which attaches to the report, 

the Judge is left with a prima facie showing that a violation did, in fact occur. 3 IBMA at 539. (Citations 

omitted.) 

Under the above decision of the Board of Mine Operations Appeals, 

the dust analysis report (Exh. ·M-14) is sufficient.to establish a 

prima facie case for a violation of 30 CFR 75.403 because the report 

shows that the percentage of incombustible content does not meet the 

required incombustible content standard. The Respondent offered no 

643 
evidence at the hearing attacking the accuracy and reliability of the 

test procedure, and offered no probative evidence to rebut the 

report's findings. 

The Respondent cannot claim prejudice from the decision to admit 

the report, or from a decision to accord it weight. The Respondent 

clearly knew of the report's existence because a copy of it was 

attached to the petition for assessment of civil penalty, filed on 

July 31, 1978, and received by the Respondent on August 7, 1978. The 

Respondent did not pursue the matter with a degree of diligence 

indicative of prejudice resulting from the report's receipt into evidence. The Respondent did not attempt to ascertain the identify of 

the person who prepared the analysis and report, and did not attempt 

·to subpoena him under 29 CFR 2700.47. 

In light of the foregoing, I find that MSHA has established a 

prima facie case for a violation of 30 CFR 75 .403, and that the 

violation has been established by a preponderance of the evidence. 

29 CFR 2700.48. It shotld be noted that Respondent in its brief did 

state that from the evidence elicited at the hearing there appeared 

to have been a nonserious violation of section 75.403 (RespondenL's 

Brief, p. 8). 

(b) Gravity 

Inspector Bates testified that the faces in rooms 21, 23, and 25 

were the working faces during the mining cycle (Tr. 105). He stated 

tht he saw at least six people working in the area at the time of the 

inspection (Tr. 97, 123), and that mining was going on in No. 21, 23, 

and 25 rooms (Tr. 103). He stated that, to the best of his knowledge, 

no one was working in No. 27 room at the time he issued the order 

(Tr. 124). 

The inspector identified trailing cables as a possible source of 

ignition (Tr. 98, 103, 123}. These cables were located in the outby 

crosscuts, and lead to the power center (Tr. 103). The source of 

ignition was at least 50 feet from the condition observed in No. 27 

room (Tr. 104, 106, 123). He stated that the cables were energized 

(Tr. 123). He stated that he knew there was electrical power in the 

section because they were running and operating the equipment (Tr. 

104). He admitted, under cross-examination, that an absence of 

electrical power on the section, if proven, would greatly reduce the 

hazard of fire and explosion (Tr. 107-08). 

Mr. Arduino stated that the mining equipment was located in 

Nos. 21, 22, 23, and 24 rooms because he had intended to mine in those 

rooms- (Tr. 150). However, his testimony conflicted with the testimony 

of Inspector Bates. Mr. Arduino testified that no mining activity 

was being conducted on the section at the time Inspector Bates issued 

the order because the power was shut off (Tr. 149). According to 

644 
Mr. Arduin.o, the "load center was down," meaning that the power would 

not stay on to distribute the power to the mining machinery (Tr. 149, 

155). The electrical power had been shut off to permit work on t·he 

mine load center (Tr. 149). · 

It appears that the inspector may have been mistaken about the 

question of energized equipment, 3/ however, this point is not 

significant for two reasons. First it would appear that the equipment would become energized just as soon as the power center was 

repaired. As a matter of fact it was as soon as the order was 

terminated at 1 p.m. (Tr. 152). Therefore, the potential power 

source was always possible during that shift. However, th~ second 

reason why the issue is not significant is that the energized cable, 

the potential source of ignition identified by the inspector, was 

50 feet from the area cited in the order (Tr. 104, 106, 123). 

Electrically energized equipment was not operating in No. 27 room 

(Tr. 124). Due to the remoteness of the potential ignition source 

from the inadequately rock dusted area, I conclude that the violation 

was of slight gravity. 

(c) Negligence 

The inadequate rock dusting was readily ob~ervable by visual 

observation. ·The floor was "dark" and the ribs were "real dark, 11 

with very little rock dust visible on the floor or ribs (Tr. 81-82). 

The preshift examination dates indicated that the face area of No. 27 

room had been examined at least 10 times prior to the date of the 

order (Tr. 96-97, 127, 131). Some of those dates were September 18, 

1977, September 20, 1977, September 21, 1977, September 22, 1977, 

September 23, 1977, September 26, 1977, September 27, 1977, October 2, 

1977, and October 3, 1977 (Tr. 127). The order was issued on . 

October 3, 1977. Some of the dates had initials associated with them 

(Tr. 131). Some of the initials were legible (Tr. 131). All of these 

initials were inby the last open crosscut (Tr. 132). 

The fact that the violation was readily observable, coupled with 

the presence of a preshift examiner in the area on the date of the 

order, indicates that the Respondent should have known of the inadequate rock dusting. 

I therefore conclude that the Respondent was guilty of ordinary 

negligence. 

~ One fact-Or which lends support to the statement that the power 

center was shut down is the circumstance under which the rock dust 

was hauled in to the site of the violation by hand· instead of shuttle 

car because of the lack of power (Tr. 155). This added almost an 

hour to the time of abatement (Tr. 151) and required considerable 

extra work by the miners which could have been expended elsewhere. 

645 
(d) Good Faith 

It took over 1 hour to abate the violation, even though the 

rock dust was kept approximately 150-200 feet away (Tr. 150-51, 

155-156). 

The Respondent's witnesses sought to explain why the abatement 

process required such an inordinate amount of time. According to the 

Respondent, the rock dust was stored at the feeder location, 150 to 

200 feet away from No. 27 room (Tr. 155). The.feeder is the place 

where the shuttle cars dump the coal into the belt (Tr. 155). 

Normally, rock dust is transported to a needed area by shuttle car 

(Tr. 155). According to the Respondent, the shuttle cars could not 

be employed to transport the rock.dust because the electrical power 

was off (Tr. 155). This necessitated hand carrying 10 or 20 

50~pound bags of rock dust through an area 4 feet high (Tr. 151, 

157). 

Accordingly, it is found that the Respondent demonstrated zood 

faith in securing rapid abatement. 

(3) Withdrawal Order No. 7-0035 (1 JAB), October 6, 1977, 30 CFR 75.400 

(a) Occurrence of Violation 

MSHA inspector Jesse Bates arrived at Leechburg's Foster No. 65 

Mine at approximately 7:25 a.m. on October 6 1977, to conduct a· 

regular inspection (Tr. 163, 164). Mr. Joseph Arduino, the mine 

foreman, was the inspector escort (Tr. 163). Upon entering the 

6 Right Mains section, they inspected the face areas and traveled 

outby to the return air course approximately 200 to 300 feet outby 

the loading point of 6 Right Mains section (Tr. 164). The inspector 

observed accumulations of loose coal and coal dust in No. 1 and No. 2 

rooms off No. 1 entry of 6 Right Mains at station No. 23+70 (Tr. 164). 

He also observed accumulations of loose coal and coal dust in the 

No. 1 and No. 2 entries in the 3 Left section off of 6 Right Mains 

(Tr. 164). 

The inspector measured these accumulations (Tr. 165). The accumulations in the No. 1 room measured ap.proximately 1 to 24 inches in 

depth, 3 to 10 feet in width, and 20 feet in length (Tr. 164, Exh. 

M-16). The accumulations in the No. 2 room measured approximately 

1 to 24 inches in depth, 4 feet in width, and 17 feet in length (Tr. 

164-165, Exh. M-16). The accumulations in the No. 1 entry measured 

approximately 1 to 42 inches in depth, approximately 5 to 7 feet in 

width, and 19 feet in length (Tr. 165, Exh. M-16). The accumulations 

in the No. 2 entry measured approximately 1 to 42 inches in depth, 

9 to 10 feet in width and 20 feet in length (Tr. 165, Exh. M-16). 

Inspector Bates then issued the subject order (Exh. M-16). 

646 
The inspector testified that the accumulations were not mixed 

with a visually observable amount of rock dust (Tr. 165). He did 

not take any samples 4/ (Tr. 166). · The. inspector testified that the 

area cited was in the-return air course of the 6 Right section, which 

is connected with one of the designated escapeways (Tr. 166, 170-171, 

Exh. M-18). Mining in the area had ceased for five working days 

(Tr. 169, Exh. M-16). There was no activity in the area (Tr. i66). 

The accumulations were not located near any ele.ctrical equipment 

(Tr. 166). The inspector testified that he· questioned the mine 

foreman to determine how long the accumulations had been stored in 

the subject areas (Tr. 166). The mine foreman estimated 3 to 5 days 

(Tr. 166). The inspector believed that the accumulations had been 

stored there for "at least five days" (Tr. 166). The mine foreman 

·told the inspector that the accumulations had been put in the subject 

areas during the weekend (Tr. 167). 

The subject order alleged a violation of 30 CFR 75.400. 30 CFR 

75 .400 states: "Coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal, and other combustible materials 

shall be cleaned up and not be permitted to accumulate in active 

workings, or on electric equipment therein." 

"Active workings" means any place in a coal mine where miners 

are normally required to work or travel. 30 CFR 75.2(g)(4). 

It is found that the four areas involved were "active workings" 

(Tr. 166, 171). 

The elements of proof required to establish a prima facie case 

for a 30 CFR 75.400 violation are: (1) that an accumulation of combustible material existed in the active workings, or on electrical 

equipment in active workings, of a coal mine; (2) that the coal mine 

operator was aware, or, by the exercise of due diligence and concern 

for the safety of the miners, should have been aware of the existence 

of such accumulation; and (3) that the operator failed to clean up 

such accumulation, or failed to undertake to clean it up, within a 

reasonable time after discovery, or, within a reasonable time after 

discovery should have been made. Old Ben Coal Company, 8 IBMA 98, 

114-115, 84 I.D. 459, 1977-1978 CCH-OSHD par. 22,088 (1977). Proof 

of the mere presence or existence of an accumulation of combustible 

materials in active workings of the mine is not, by itself, sufficient 

to establish a violation. Old Ben Coal Company, 8 IBMA 98, 112, 

84 I.D. 459, 1977-1978 CCH-OSHD par. 22,088 (1977). Proof of negligence on the part of the operator is not one of the elements of proof 

4/ See, Coal Processing Corpo-ration 2 IBMA 336, 345, 80 I.D. 748, 

l973-1974 CCH-OSHD par. 16,978 (1973) (a violation of 30 CFR 75.400 

may be based upon visual observation without nee.d of measurements or 

samples). 

647 
of a violation of 30 CFR 75.400. The operator's negligence becomes 

involved only in determining, when necessary, the constructive 

knowledge of the operator as to the accumulation's existence. Old 

Ben Coal Company, 8 IBMA 196, 197-98, 1977-1978 CCH-OSHD par. 22,328 

(1977). 

Respondent contends that the issue presented is "whether the 

operator failed to clean up the accumulation, or failed to undertake 

to clean it up within a reasonable time after discovery" (Respondent's Post-Trial Brief, pp. 14-15). He does not contend that MSHA 

has failed to establish the first two elements of its prima facie 

case with respect to the subject violation. Therefore, the question 

which must be resolved before a violation of 30 CFR 75.400 can be 

found to have occurred is whether the Respondent failed to undertake 

clean up procedures within a reasonable time after discovering the 

accumulations. 

Two Board decisions establish the standards by which "reasonable 

time" is measured. In Old Ben Coal Company, 8 IBMA 98, 84 I.D. 459, 

459, 1977-1978 CCH-OSHD par. 22,088 (1977), the Board stated that: 

[W]hat constitutes a "reasonable time" must be determined 

on a case-by-case evaluation of the urgency in terms of 

likelihood of the accumulation to contribute to a mine 

fire or to propagate an explosion. This evaluation may 

well depend upon such factors as the mass, extent combustibility, and volatility of the accumulation as well 

as its proximity to an ignition source. 

8 IBMA at 115. 

In promulgating this standard, the Board observed that: 

The longer the accumulation remains without cleanup, 

the greater the threat of a mine fire or explosion. 

Likewise, the greater the mass .and extent of the accumulation, the greater the chance it may contribute to a 

disaster because of the increased surface area of combustible material exposed to possible ignition sources. 

8 IBMA at 110. 

Having stated 

forth some general 

was in compliance. 

cleanup program." 

the standard of "reasonableness," the Board set 

guidelines for determining whether the operator 

The key phrase is "maintenance of a regular 

The Board stated that: 

With respect to the small, but inevitable aggregations of combustible materials that accompany the ordinary, routine, or normal mining operation, it is our view 

648 
that the. maintenance of a regular cleanup program, which 

would i~corporate from one cleanup after two or three 

production shifts to several cleanups per production 

shift, depending on the volume of production involved, 

might well satisfy the requirements of the standard. 

8 IBMA at 111. 

The Board gave a more elaborate statement of the cleanup duties 

imposed on operators by the Act in Old Ben Coal Company, 8 IBMA 196, 

198, 1977-1978 CCH-OSHD par. 22,328 (1977) (on MSHA' s motion for 

reconsideration of the Board's decision in Old Ben Coal C~mpany, 

8 IBMA 98), stating: 

A small accumulation is most probably suitable for 

elimination in the course of the operator's regular 

cleanup program. Proof of the absence of such a program, 

together with the presence of any accumulation might well 

alone support a citation for the violation of [30 CFR 

75.400]. If the accumulation is of such size or combustibility as to present the possibility of a serious safety 

hazard, then,•of course, the operator is required to take 

more urgent steps, other than the regular cleanup, in 

eliminating the hazard. (Emphasis added). 

8 IBMA at 198. 

The question presented is whether Leechburg's actions complied 

with the Board's criteria. 

Inspector Bates testified that the accumulations involved were 

outby the loading point (Tr. 173, 178-81). However, Respondent's 

witnesses, Mr. George Rittenberger, Mr. Joseph Arduino, and 

Mr. Harold Dunmire, gave testimony indicating that the accumulations 

were inby the loading point, and thus within the ambit of the Respondent's cleanup program (Tr. 188-9, 195, 226-7, 240-3). ·This cleanup 

program is contained in the Respondent's ventilation plan (Exh. OX-4, 

at p. 5(a)), which states: 

Fine and loose coal is loaded by the continuous 

miner after each cut of coal is mined. The continuous 

miner is trammed along each rib to the face to load coal 

into shuttle car. Fine and loose coal that cannot be 

cleaned up by the continuous miner is shoveled or pushed 

to the face or toward the center of the working place 

after roof supports are provided.' This coal is then 

loaded during the next mining cycle in the working place. 

Respondent defines a "mining cycle!' as the .extraction of the 

coal, the installation of temporary and permanent supports, clean up 

649 
through the number of faces being developed, and the installation of 

crosscuts to establish the return air (Tr. 237). A "mining cycle" 

on one side of a section can consist of nine face areas wherever butt 

sections are being turned off main entries (Tr~ 242-43). 

Mr. Rittenberger testified that, at the time the subject order 

was written, mining was being conducted in entries 4, 5, and 6 of 

6 Right Mains section (Tr. 198). Mining would have continued in 

those entries until the necessary crosscuts had been developed (Tr. 

198) before moving back to the entries on the other side of the 

section. The development of each of these three entries required the 

operator to recycle through four "lifts of coal" in order to develop 

the crosscuts needed to establish the air for the intake (Tr. 228, 

229). A "lift of coal" was defined by the Respondent as the extraction of coal from an entry for a distance of approximately 20 feet. 

In doing thus, the miner makes two passes at the coal, i_.~., one on 

each side of the entry (Tr .. 242). 

After the establishment of the crosscuts, the feeder and the 

power center would have been moved up to advance the No. 3 and No. 4 

entries of 3 Butt Le~t. After the advancement of the No. 3 and 

No. 4 entries of 3 Butt Left, .the accumulations. would have been 

removed from rock rooms No. 1 and No. 2, and the No. 1 and No. 2 

entries of 3 Butt would have been advanced because the area would 

have been within reach of the cables (Tr. 198). 

Mr. George Rittenberger illustrated the operation of the 

cleanup program in areas where entries are being developed (Tr. 202-

203). After the completed advancement of the first three entries 

on a main (Nos. 1, 2, and 3) and the installation of crosscuts~ the 

miner is moved to advance the remaining entries (Nos. 4, 5, and 6). 

While the miner is operating in Nos. 4, 5, and 6 entries, permanent 

roof supports are installed in the last recycled portions of Nos. 1, 

2, arid 3 entries (Tr. 202). The coal dust is then shoveled to the 

center of the entires (Tr. 202) and either lays in the last 20 or 

30 feet of the center of the entry, or is pushed to the face by the 

scoop (Tr. 203). The accumulations are then removed by the miner 

during the next cycle of those entries (Tr. 202), which, according 

to Mr. Rittenberger, occurs not more than a week later (Tr. 201). 

However, he went on to state that it could, in a case such as this, 

be a maximum of a couple of weeks (Tr. 201). 

Although the scoop can remove the accumulations instead of 

piling them at the face, the Respondent's normal cleanup procedure 

does not provide for removal in such a fashion (Tr. 203, 204). The 

Respondent c·ontends that lo'gistical considerations bar removal of 

accumulations with the scoop (Tr. 203-04), problems which would "slow 

down our coal production" (Tr. 204). 

The turning off of butt sections from main entries adds a third 

part to the mining cycle as set up by the operator, extending the 

650 
amount of time required to complete one cycle·(Tr. 206). The company 

president pointed out that you could have nine working faces on that 

side of the section (Tr. 243). 'This, of course, is in addition to 

faces in entries 4, 5, and 6 on the other side of the section. 

A question then arises as to whether the cleanup program as contemplated in the ventilation plan was followed by the Respondent in 

the present case. The accumulations cited in the subject order were 

located in en~ries 1 and 2 of 3 Butt Left section off 6 Right Mains, 

and in the No. 1 and No. 2 rock rooms off No. 1 entry of 6 Right Mains 

at station 23+70. These locations are identified on Exhibits OX-3 

and OX-5. 

The pertinent language in the accumulations cleanup program 

(Exh. OX-4 at p. 5(a)), states that the fine and loose coal incapable 

of being cleaned up by the continuous miner is pushed to the face and 

"loaded during the next mining cycle in the working place." The 

program does not contemplate or authorize the prolonged storage of 

accumulations. It apparently refers to the "small~ but inevitable 

aggregations of combustible materials that accompany the ordinary, 

routine, or normal mining operation." Old Ben Coal Company, 8 TUMA 

98, 111, 84 I.D. 459, 1977-1978 CCH-OSHD par. 22,088 (1977). And 

further, it must necessarily contemplate a reasonable lapse of time 

for the return of the cleanup equipment to the area of accumulation. 

It is apparent from all evidence presented that the time lapse 

between the date of development of the accumulat"ion and the time it 

was expected to be removed was unreasonable. 

There are actually two different premises for this conclusion. 

First, it appears that the mining cycle had actually been completed 

in all four accumulation areas and therefore should have been fully 

cleaned up when the last mining had been completed during the prior 

weekend or shortly thereafter. Second, even if mining had not been 

finished in such areas the lapse of time involved here caused by the 

unusually large number of faces being developed in two separate 

groups, would have been unreasonable. 

As relates to the first premise a review of the evidence reveals 

that the combustible accumulations would not have been removed in the 

course of the next mining cycle because mining for all practical 

purposes had been terminated in the subject areas. The rock rooms 

had been advanced to the desired depth "{Tr. 252, 258), a conclusion 

which is confirmed by two of the Respondent's exhibits. Exhibit OX-3 

represents the development of the mine in the vicinity of the intersection of 6 Right Mains and 3 Butt Left on October 6, 1977 (Tr. 187), 

the date of the subject order.. Exhibit OX-5 represents the development· of the mine as of June 1978 (Tr. 191), approximately 8 months 

after the issuance of the subject orde~. The areas cited are circled 

651 
in green on Exhib.it OX-5 (Tr. 172). 

reveals that the two rock rooms were 

than they were on October 6, 1977. 

A comparison of the two exhibits 

no farther advanced in June 1978, 

The same conclusion applies to the development of the No. 1 and 

No. 2 entries of 3 Butt Left section. A comparison of the two 

exhibits reveals that they had not been advanced between October 6, 

1977, and June 1978. Therefore, the mining cycle had terminated in 

the subject areas on the date of the order. 

The combustible accumulations cleanup program in effect at the 

mine on the date of the order contemplated the removal of the 

accumulations during the next mining cycle (Tr. 202-04, 206). The 

termination of mining activity in an area takes that area out of the 

mining cycle, and thus outside the regular cleanup program's reach. 

Since the mining cycle had terminated in the subject areas, the 

accumulations cited in the order would not have been removed in the 

course of regular mining activity (Tr. 222). The loose coal and coal 

dust should have been removed upon the termination of the mining 

cycle in the subject areas, a feat which could have been accomplished 

with the scoop (Tr. 255). If the scoop was inoperable, as Respondent 

contends (Tr. 217), removal could have been accomplished with the 

continuous miner. 

As relates to the second premise, even if mining had not been 

finished in such four areas, the lapse of time involved here was 

unreasonable. Testimony of Mr. Rittenberger, the mine superintendent, 

Mr. Arduino, the mine foreman, and Mr. Dunmire, the company president, 

particularly at pages 198, 201, 223, 237-240, 243-246, and 257-258 of 

the transcript, shows the unusual amount of time that would lapse in 

this case. 

Part of the reason for the long lapse of time was the manner in 

which a group of three entries were advanced for some distance before 

moving back across.the section to another group of entries which also 

involved many different faces. 

One of the statements which showed the long period of time 

involved was that of the mine superintendent at page 198 of the 

transcript as follows: 

Q. So, it could have been a later mining cycle that 

it was actually cleaned up? 

A. It would have been completed in the mining cycle 

of that area, yes, which would have been within a couple 

of weeks, not a longer period than that. 

Q. But, you are saying that it was cleaned up within 

the next mining cycle? 

652 
A. It was cleaned up due to the order out of cycle. 

Q. Could you explain that further for us? 

A. When we were doing our mining, we were working 

in 4, 5 and 6. We would have continued those entries up 

until we made the necessary crosscuts and advanced them 

to the limit that we could reach with our cables. 

At that point, we would have moved the feeder and 

the power center up, advanced No. 3 and No. 4 entry of 

3 butt left, at which point in time we would have gone 

over to clean up rock rooms 1 and 2, and advance No. 1 

entry and No. 2 entry further. in for another crosscut, 

oecause then we could reach it with the cable. 

At the point in time we were setting here, we could 

not reach any further. We could not advance those faces 

any further. 

The fact that the circumstances of this case were not normal was 

evident in the testimony of the company president as follows: "[B]ut 

what you are looking at here is not the norm for Leechburg Mining. 

It is a series of events that took place. It was unfortunate, but 

they led into this" (Tr. 257). 

The evidence thus establishes that the Respondent permitted 

large volumes of combustible material (Tr. 164-65, Exh. M-16) to 

accumulate in the active workings of the mine for approximately 

5 days (Tr. 166). Even a review of the testimony in a light most 

favorable to the Respondent reveals that the combustible material 

might not have been removed for "a couple of weeks" (Tr. 198). 

I therefore conclude that the Respondent did not undertake to 

clean up the accumulation within a reasonable time after discovery, 

and that MSHA has established a violation of 30 CFR 75.400 by a 

preponderance of the evidence. 

(b) Gravity 

Little, if any, rock dust could be visibly detected in the 

accumulations (Tr. 165). Part of the depth of coal was dry to damp, 

the remaining depth of coal was dry (Tr. 168). Inspector Bates 

testified that he did not observe any mining machinery in the area 

(Tr. 175). 

Inspector Bates testified that accumulations of coal dust in a 

coal mine pose a hazard because its presence can intensify an explosion (Tr. 168). He classified the occurrence of an event as 

653 
"probable," and contemplated that the resulting injury would be "disabling" (Tr. ·170, Exh. M-18). He t.1as unable to determine whether 

the workers were exposed to the hazard (Tr. 170). 

The area was connected to a designated escapeway (Tr. 171). The 

accumulations were not in close proximity to any electrical equipment 

('.fr. 166). 

Therefore, I find the violation to be of moderate gravity. 

(c) Negligence 

The mine foreman told Inspector Bates that the accumulations had 

been present for about 3 to 5 days (Tr. 166). The inspector estimated that the accumulations had been present for at. least 5 days 

(Tr. 166). The operator should have known of the presence of the 

accumulations because the mine foreman was aware of their presence 

(Tr. 167). 

Therefore, I find the Respondent demonstrated gross negligence. 

(d) Good Faith 

Mr. Arduino testified that the accumulations were removed on 

October 6, 1977, the date of the order. Abatement was achieved in 

the No. 1 and No 2 entries of 3 Left, using the miner and the shuttle 

car. It was accomplished in the No. 1 and No. 2 rock rooms by hand 

shoveling the accumulations onto a shuttle car. The continuous miner 

was not brought into the No. 1 and No. 2 rock rooms because the 

number of curves which the miner would have had to negotiate would 

have destroyed the miner cable (Tr. 219). Mr. Arduino testified that 

the scoop was not used in the abatement process because it was not 

functioning (Tr. 217, 233). 

Inspector Bates was not notified of the abatement until 

October 11, 1977, 5 days after the issuance of the subject order 

(Tr. 219-220, Exh. M-17). Mr. Arduino testified that he was unable 

to explain the time lag between the abatement of the order and the 

notification of Inspector Bates (Tr. 219). 

I find that the Respondent demonstrated good faith in achieving 

rapid abatement of the violation. 

(4) Order No. 7-0036 (1 JAB), October 11, 1977, 30 CFR 75.400 

(a) Occurrence of Violation 

MSHA inspector Jesse Bates conduct.ed a regular inspection at 

Leechburg's Foster No. 65 Mine on October 11, 1977 (Tr.' 260, 261). 

He arrived at approximately 7:30 a.m. (Tr. 260). Mr. Joseph Arduino, 

654 
the mine foreman, accompanied the inspector during the inspection' 

tour (Tr. 260). At approximately 12:15 p.m.; he observed the continuou~ miner withdraw from the face area prior to the work crew's 

dinner break (Tr. 261). He observed accumulations of loose coal and 

oil soaked coal dust on the top and sides of the machine (Tr. 261, 

262, 271, Exh. M-19). The area covered encompassed the conveyor 

reverse control switch and the left side of the electric motor (Tr. 

261). The inspector made measurements (Tr. 264-5) showing that the 

accumulations of oil and coal dust covered a 54-square foot area on 

the machine's top, and 32 square feet on the sides (Exh. M-19, Tr. 

264). It was impractical to measure the depth of the accumulation 

on top of the machine due to th~ low mining height (Tr. 261-62, 271). 

-pie inspector estimated that the accumulations had existed for 

at least two shifts, based on the abnormal amount of accumulations 

on the machine (Tr. 262-63, 273). Mr. Arduino disagreed, stating 

that the accumulations were not an abnormal amount (Tr. 283-84). 

Inspector Bates believed the normal cleaning procedure for the 

machine required the operator to clean it at the beginning of each 

shift (Tr. 276-77). Mr. George E. Rittenberger mentioned the existence of a continuous mining machine cleanup program (Tr. 292, 293), 

although the Respondent neither produced nor mentioned a writing 

embodying the plan. According to Mr. Rittenberger, the mechanics on 

the night shift are largely responsible for cleaning the equipment 

(Tr. 293). Section foremen are charged with supervising the removal 

of excessive accumulations (Tr. 293-94). 

Mr. Arduino testified that the miner is normally cleaned once 

daily, on the 12 midnight to 8 a.m. shift (Tr. 284). It would have 

been clean at the beginning of the 8 a.m. shift' if normal procedures 

had been followed (Tr. 285). 

However, according to Mr. Arduino and Mr. Rittenberger, the 

continuous miner cited in the subject order had not been in operation 

prior to the order's issuance. They testified that the machine had 

been undergoing repairs (Tr. 282, 283, 285, 294-95, 296). According 

to Mr. Arduino, the midnight to 8 a.m. shift had not cleaned the 

machine because they were subjecting it to repair work (Tr. 295). 

Mr. Rittenberger testified that the maintenance crew had not washed 

the machine because their repair work required opening a permissible 

electrical box (Tr. 296). He further testified that his records 

revealed the machine was not returned to service until after 1 p.m. 

on the date of the order. However, the Respondent did not introduce 

those records into evidence to corroborate Mr. Rittenberger's claim. 

The mechanics who allegedly performed the repair work were not called 

as witnesses. 

Inspector Bates' testimony reveals that the machine was in operation between the time he arrived on the section at 9 a.m. and the 

655 
time he issued the order at 12:15 p.m. (Tr. 261, 266, 267). He 

specifically testified that he saw. the machine withdrawing from the 

face area at approximately 12:15 p.m. (Tr. 261). He specifically 

asked the operator when the machine had been washed, and got no 

response (Tr. 269, 270). He testified that no one was performing 

maintenance on it (Tr. 266, 268). No one told him that maintenance 

work had been performed on the reverse control switch during the 

morning (Tr. 270). 

Having been afforded the opportunity at the hearing to assess 

the credibility of the witnesses, I conclude that Inspector Bates' 

testimony accurately reflects the events of October 11, 1977. I 

therefore find that the continuous mining machine cited in tbe order 

had been in operation between 9 a.m. and 12:15 p.m. on October 11, 

1977, and that excessive accumulations of oil and coal dust had been 

permitted to accumulate on the machine. 

The accumulations had been present on the machine for a long 

period of time while it was in operation. Mr. Arduino testified that 

his men had to scrape some of the oil from the machine (Tr. 283). 

Inspector Bates' testimony reveals that scraping is required only when 

the accumulations have been permitted to remain on the machine for 

such a prolonged period of time that the heat from the equipment has 

caused it to harden (Tr. 277-78). 

MSHA's prima facie case consists of three elements. The elements 

for establishing a violation of 30 CFR 75.400 are: (1) the existence 

of an accumulation on electrical equipment in the active workings of 

a mine; (2) that the operator knew, or through the exercise of due 

diligence should have known, of their existence; and, (3) that the 

operator failed to clean up the accumulation within a reasonable time 

after discovery. Old Ben Coal Company, 8 IBMA 98, 114-15, 84 I.D. 

459, 1977-78 CCH-OSHD par. 22,088 (1977). 

The testimony of Inspector Bates and Exhibits M-19 and M-21 

establish, by a preponderance of the evidence, the existence of accumulations on the continuo~s miner, a piece of electrical equipment in 

the active workings of the Foster No. 65 Mine. Loose coal and oil 

soaked coal dust had been permitted to accumulate on the machine (Tr. 

261-6"2, 271, Exhs. M-19, M-21), covering 54 square feet on the top of 

the machine and 32 square feet on the sides (Tr. 264, Exh. M-19). 

Accumulations were present on both the conveyor reverse control switch 

and the left side of the electric motor (Tr. 261). 

The Respondent should have known of the accumulations existence. 

Section foremen are charged with the duty of assuring the removal of 

excessive accumulations from electrical equipment (Tr. 293-94). The 

section foreman was on the section between 9 a.m. and 12:15 p.m. on 

October 11, 1977 (Tr. 262). In the exercise of his company imposed 

duty to inspect electrical equipment for accumulations, a duty of 

656 
which he should have been aware (Tr. 294), he should have known of 

the condition. The men had to scrape some of the oil and loose coal 

from the machine (Tr. 283), indicating that the accumulations haQ 

been present long enough for the heat from the machine to cause 

hardening (Tr. 277-78). Additionally, Mr. Arduino testified that the 

machine had probably last been cleaned on the 4-to-12 shift the previous day (Tr. 285-86). Therefore, the Respondent, through the 

exercise of due diligence, should have known of the existence of the 

accumulations on the miner. 

The Respondent failed to remove the accumulations from the miner 

within a reasonable time after he should have known of the·Lr existence. 11Reasonable time" is determined on a case-by-case evaluation 

of urgency in terms of the likelihood of the accumulation to contribute to a mine fire or an explosion. Mass, extent of combustibility 

and proximity to an ignition source are factors used to assess the 11 reasonable time" factor. Old Ben Coal Company, 8 IBMA 98, 115, 

84 I.D. 459, 1977-78 CCH-OSHD par. 22,088 (1977). Accumulations were 

present around the conveyor reverse control switch and the electric 

motor on the left side of the machine (Tr. 261), potential sources of 

ignition ('.rr. 263). A measurable ~.epth of accumulations was present 

on the miner's top (Tr. 261-62). It covered 54 square feet on the 

top, and 32 square feet on the sides (Tr. 264, ~xh. M-19). 

The presence of these large accumulations, in close proximity 

to potential sources of ignition, on a machine operating in the face 

area (Tr. 261), coupled with the fact that the machine had not been 

cleaned for one and a half shifts (Tr. 262, 285-86), indicates a 

failure to remove the accumulations within a reasonable time after 

the operator should have known of their presence. 

I therefore conclude that a violation of 30 CFR 75.400 was 

established by a preponderance of the evidence. 

(b) Gravity 

The inspector testified that the trailing cables and the motor 

could short circuit, causing the machine to catch fire (Tr. 263). 

Running over the cable can also produce a short circuit, resulting 

in a mine fire (Tr. 263). Six or more workers were exposed to the 

hazard, one of whom was the miner operator (Tr. 263-64, Exh. M-21). 

The miner was equipped with operable fire suppression sprays (Tr. 

271). 

I find the violation to be a serious one. 

(c) Negligence 

The Respondent demonstrated ordinary negligence in failing to 

comply with its unwritten program for cleaning accumulations from the 

657 
continuous miner. The machine was cleaned at least once daily under 

the plan, usually on the 12 midnight-to-8 a .m. shift (Tr .. 284, 293). 

This responsibility was shared by the section foremen (Tr. 293-94). 

The machine in question had been operating since at least 9 a.m. 

on October 11, 1977. It had not been cleaned by the midnight-to8 a.m. shift, and had not been cleaned on the 8 a.m. shift as attested 

to by the abnormal amount of loose coal and oil-soaked coal dust on it 

at the time the order was written (Tr. 262, 285, 286). The extent of 

the accumulations exceeded the ordinary amount which would have been 

present had the plan been followed (Tr. 262). 

I conclude that Respondent demonstrated ordinary negligence. 

(d) Good Faith 

The operator corrected the condition while the inspector was on 

the section (Tr. 272). Abatement was accomplished within about 

30 minutes after the order's issuance (Tr. 273, Exhs. M-19, M-20). 

I find that Respondent demonstrated good faith in securing rapid 

abatement of the violation. 

(5) Order No. 7-0038 (1 JAB), October 12, 1977, 30 CFR 75.202 

(a) Occurrence of Violation 

MSHA inspector Jesse Bates arrived at Leechburg's Foster No. 65 

Mine on October 12, 1977, between 7 a.m. and 7:30 a.m. to conduct a 

regular inspection (Tr. 299). He was accompanied on the inspection 

by Mr. Joel Dunmire, Leechburg's safety director (Tr. 299). He 

inspected the northeast mains track switch, the track haulage road 

and the roof above the track haulage road (Tr. 299). He observed 

loose, falling roof material between the previously installed roof 

bolts over the track haulage road from the northeast mains track 

switch to a point 200 feet inby the supply base (Tr. 300). In other 

words, rock had fallen from the roof onto the track haulage road 

(Tr. 300). The condition was present in a section of the track 

haulage road measuring a distance of approximately 3,500 feet (Tr. 

300). The inspector, afber administering a sounding test, noted that 

"the roof over the track haulage road in various locations needed to 

be scaled down from the northeast mains track switch to 200 feet inby 

the supply base at 5 Right, a total distance of approximately 

3,500 feet" (Tr. 301, 305, 317-18, Exh. M-22). 

The condition observed by the inspector was described as 11 spa1ling," which he defined as small "particles of roofing material 

becoming loose between the installed supports and falling loose or 

falling to the mine floor on the track haulage road" (Tr. 300, 319). 

Spalling is produced by thermal shock, or weathering, and occurs 

658 
when mo{sture laden warm air comes in contact with the cooler surfaces 

within the mine (Tr. 307, 308, 323). The Foster No. 65 Mine frequently 

experienced this problem during the hot summer months (Tr. 323). 

Mr. George Rittenberger- testified that the roof of the track 

haulage is comprised of dark shale over the Lower Kittanning coal 

seam, a material that often spalls during the hot summer months 

(Tr. 323). He testified that when spalling is observed, the affected 

area is scaled (Tr. 324), and that the day shift constantly examines 

the area for loose rock (Tr. 334). Experienced coal miners customarily check the roof, but scaling was noted only occasionally in 

reports filed prior to the order's issuance (Tr. 336-37, Exh. OX-6). 

Although he expressed the opinion that visual observation from an 

open track jeep was sufficient to determine the roof's status (Tr. 

343) , he pointed out a more regular inspection and removal procedure 

systematically conducted in some areas. He testified that more 

detailed inspections were carried out weekly or daily by the general 

foremen in areas of the track haulage where the danger of injury was 

greatest (Tr. 346-47). According to his testimony, the area of 

regular inspection extended from the mantrip unloading point to the 

supply station, a distance of approximately 600 feet encompassing 

none of the 3,500 feet cited by the inspector (Tr. 346-49). According 

to his testimony, there was no regular inspection procedure for the 

3,500 feet cited in the order (Tr. 347, 348-49). 

The inefficiency of scaling as a tool in 

highlighted by Mr. Rittenberger's testimony. 

problem would persist until full implemention 

be completed (Tr. 345-46). 

spalling control was 

He stated that the 

of a new program could 

Mr. Joel Dunmire, Respondent's safety director, attempted to 

explain the absence of recorded references to spalling. He testified 

that since spalling is a normal condition, the fire boss would not 

have noted it in his book (Tr. 353-54). The fire boss usually makes 

notations in his book of roof conditions adversely affecting safety 

(Tr. 353) • 

Assistant mine foreman Walter Vakulick, testified that this crew 

scaled the track haulage on the 600-foot section running between the 

supply base and the end of the track (Tr. 357). This was done almost 

daily (Tr. 355). But the 600-foot stketch in question did not 

encompass the entire 3,500 feet cited in the subject order (Tr. 357, 

346-49). The 3,500-foot section ran from the northeast mains track 

switch to a point 200 feet inby the supply base. 

The testimony of Mr. Rittenberger and Mr. Vakulick reveals an 

ambiguity regarding how much, if any, of the 600-foot section, which 

was subject to regular inspection, was encompassed by the 3,500 feet 

cited in the order. 

659 
The history of spalling, and the attempts to alleviate it, at 

the Foster No. 65_Mine was recounted in the testimony of Mr. Harold 

Dunmire. Mr. Dunmire had served as mine superintendent of the Foster 

No. 65 Mine between June 5, 1975, and June 1, 1977. He became president 

of Leechburg on June 1, 1977. Mr. Dunmire testified that spalling was 

a problem at the mine when he arrived in 1975 (Tr. 362). His first 

attempts to control the condition involved removal·of the loose 

material, an expensive procedure that was ultimately discarded in 

favor of resupporting the roof (Tr. 362). These methods also proved 

inefficient (Tr. 362-63). 

In 1976, the Respondent learned of a guniting procedure. 

Guniting involves the high-pressure spray application of Fiber-crete, 

a mixture of cement and 1-inch steel fibers of minute size, to the 

spalling surfaces (Tr. 365). The Fiber-crete forms a seal insulating 

the roof from moist air (Tr. 365). According to Mr. Dunmire, the 

guniting procedure was not implemented by the Respondena in 1976 

because 11 we were in no shape to enter into a program like that" (Tr. 

363). The Respondent reconsidered purchasing guniting equipment in 

the summer of 1977, and ultimately purchased a machine on October 20, 

1977 (Tr. 363, Exh. OX-7). Respondent uses the machine only on the 

track haulage (Tr. 365), and it has proved successful in combatting 

spalling (Tr. 367-68). 

The question presented is whether the above facts establish a 

violation of 30 CFR 75.202, which reads in pertinent part: "Loose 

roof and overhanging or loose faces and ribs shall be taken down or 

supported. 11 

The Respondent argues that this language is similar to the 

language of 30 CFR 75.400 which requires that the condition has 

existed and that the operator has failed to correct it in a reasonable time before a violation can be found. Thus, the Respondent 

argues, the crux of a violation under 30 CFR 75.202 is the failure 

to promptly take down or support, or undertake to take down or 

support, loose roof which is already in existence. The Respondent 

casts the critical issue a~ whether remedial action was taken 

promptly when the operator knew or should have known of the violation 

(Respondent's Post-Trial Brief, pp. 25-26). 

Even assuming the accuracy of the Respondent's theory, I find 

the evidence sufficient to establish a violation of 30 CFR 75.202. 

The evidence establishes (1) the existence of loose roof material in 

various locations in the 3,500 feet of track haulage, (2) reason to 

know of the ·condition's existence, and (3) failure to take prompt and 

appropriate remedial measures within a reasonable time after the 

Respondent should have known of the existence of loose roof material. 

The Respondent does not dispute the existence of loose roof 

material in various locations along the 3,500 feet of track haulage 

660 
cited in the subject order. The Respondent contends th.at remedial 

action was taken promptly after he.knew or should have known of the 

conditions existence. The evidence does not support such contention. 

The testimony establishes the presence of loose roof material in 

the track haulage area for a considerable time period prior to the 

order's issuance (Tr. 315). A preshift examination of the area had 

been made (Tr. _303) . 

The Foster No. 65 Mine had a history of spalling (Tr. 323, 362), 

with the safety director classifying it as 11 normal 11 (Tr. 353-54). Yet, 

in spite of a known history of spalling conditions at the mine, none 

. of the employees charged with making inspections were required to 

note the condition in their reports. The fire boss was charged with 

the duty of conducting daily roof inspections (Tr. 353-54), but he 

was not required to note spalling in his record book (Tr. 353-54). 

In general, mine employees were not required to note spalling in. 

their daily reports, although they occasionally noted the condition 

(Tr. 334, 336-37, Ex~. OX-6). 

The Respondent was aware of possible injuries resulting from 

falling roof material, but formulated and implemented a specific 

loose roof material inspection and removal procedure for only that 

portion of the track haulage presenting, in the Respondent's judgment, 

the greatest possibility of injury (Tr. 346-47, 348-49). A 600-foot 

stretch running from the supply base to the mantrip unloading point 

was regularly inspected (Tr. 346-49, 357). Conditions in the 600-foot 

section were so bad that scaling was required almost daily (Tr. 355). 

Yet in spite of this knowledge of the problem's extent, no reguiar 

spalling inspection and removal procedure was provided for the 

remaining portion of the track area cited in the order, except visual 

observations from open equipment traveling the track, even though 

the area served as the means of ingress for workers riding to the 

workplace in uncovered personnel carriers (Tr. 302-03). 

Based on the Respondent's knowledge of both the history and 

extent of spalling problems at the Foster No. 65 Mine, and the 

Respondent's knowledge of the possibility of resulting injury from 

falling roof material, it cannot be said that the limited inspection 

and removal procedures employed at the mine were adequate. 

The evidence also establishes the use of spalling control 

measures whose inadequacy was known to the Respondent (Tr. 345-46, 

362-63) for at least 28 months prior to the order's issuance (Tr. 

362). The inadequacy of scaling was known in 1975 (Tr. 362), yet it 

was still used in 1977. The Respondent learned of a potentially more 

effi~ient means of spalling control in 1976, but did not take serious 

steps to procure the more ·efficient system until the sUIIllller of 1977 

(Tr. 363). The equipment had not been purchased on October 12, 1977 

(Exh. OX-7), the date of the subject order. Therefore, the record 

661 
establishes the Respondent's knowing use of an inefficient spalling 

control procedures when a more efficient means was in existence. 

I therefore conclude that the Respondent failed to take prompt 

and effective remedial action after he should have known of the 

spalling roof conditions in the 3,500 feet of track haulage. 

(b) Gravity 

Inspector Bates was unable to determine, at the time of the 

order's issuance, the precise number of workers exposed to the hazard 

of loose, spalling rock falling between the supports in th~ 3,500 feet 

of the track haulage area (Tr. 312, Exh. M-25). However, he estimated 

that at least two full crews per shift passed through the area (Tr. 

303). Normally, there would be eight workmen per crew, making a total 

of 16 workers per shift who were exposed to the hazard (Tr. 303). 

Although these workers would normally travel in covered personnel 

carriers, the Respondent also used several open-type personnel 

carriers (Tr. 302-03). The passengers in the open equipment would 

have been exposed to loose roof material spalling between the supports 

(Tr. 303). 

The inspector's personal knowledge of the mining industry led 

him to conclude that the condition was serious because he had known 

of several people receiving eye injuries from falling roof material 

in haulage areas (Tr. 304, 311). He was not referring to specific 

injuries at the Foster No. 65 Mine (Tr. 311). 

I conclude that the violation was serious because workers could 

have received eye injuries from falling roof material while riding in 

open personnel carriers. I therefore find the violation to be of 

considerable gravity. 

(c) Negligence 

Mr. Rittenberger testified that workers had scaled the haulage 

area during the week previous to the order's issuance, but he had no 

written record of it (Tr. 331). He also testified that the day shift 

workers constantly scan the area for loose rock (Tr. 334), and that 

the area was checked more regularly than usual in high humidity 

(Tr. 335). This was done generally in open equipment traveling the 

track. 

Inspector Bates testified that a preshift examination of the area 

had been made (Tr. 303). He expressed the opinion that the condition 

had developed over a period of time based on the amount of loose roof 

material that had fallen through the supports along the 3,500 feet of 

haulage road (Tr. 315). The inspector saw no one scaling prior to the 

order's issuance (Tr. 320). . 

662 
Therefore, the Respondent demonstrated ordinary negligence in 

failing to discover and correct the loose ro~f material at various 

subject order. 

(d) Good Faith 

MSHA 1 s exhibits establish that 1,300 feet of the cited track 

haulage area had been scaled within 24 hours of the order's issuance 

(Exhs. M-22, M-23). The order was terminated at 12:45 p.m. on 

October 17, 1977, after an inspection disclosed full abatement 

(Tr. M-24). The testimony of Mr. Rittenberger establishes that 

abatement was completed on Monday, October 17, 1977 (Tr. 339-40). 

He was unable to determine the precise number of manhours required 

to abate the order because much o~ the work performed between 

October 12 and October 17, 1977, went for the abatement of a notice 

written for clearance (Tr. 343-44). In addition to scaling, the 

Respondent installed approximately 200 additional roof bolts in the 

subject area (Tr. 344). 

I therefore conclude that the Respondent demonstrated good faith 

in rapidly abating the violation. 

Additionally, since the issuance of the order, the Respondent 

has purchased new spalling control equipment and is currently implementing a new spalling control plan (Exhs. OX-7, OX-8, Tr. 345-46, 

364-68). A 11 Big Sam11 Spray Applicator was purchased for $1~060. 70_._ 

on October 20, 1977 (Exh. OX-7). The machine is used to apply Fibercrete to roof surfaces, sealing out moisture (Tr. 365). Between 

November 3, 1977, and August 3, 1978, the Respondent purchased 

324,500 pounds of Fiber~crete at a total cost of $16,937,26 (Tr. 366, 

Exh. OX-8). The application of Fiber-crete has· proved successful in 

spalling control efforts in the track haulage areas of the Foster 

No. 65 Mine (Tr. 366-68). 

(6) Order No. 7-0047 (1 JAB), November 30, 1977, 30 CFR 75.200 

(a) Occurrence of Violation 

MSHA inspector Jesse Bates arrived at Leechburg 1 s Foster No. 65 

Mine at approximately 7:30 a.m. on November 30, 1977, to conduct a 

spot health and safety inspection (Tr: 372). Mr. Joel Dunmire, 

Leechburg's safety director, and Mr. George Rittenberger, the mine 

superintendent, accompanied the inspector on his investigation (Tr. 

372). The inspector issued the subject order, alleging a violation 

of 30 CFR 75.200. 

The order was issued for the alleged failure to comply with 

Drawing No. 1 of the approved. roof control plan (Exh. M-3) in an 

intersection in No. 4 entry, 1 Right section off 6 Right Mains in 

663 
that one diagonal of the intersection measured 37.5 feet and additional roof support had not been installed (Tr. 372-73, Exh. M-26, 

Exh. M-30). 

The inspector testified that one diagonal measured 37.5 feet and 

the other measured 25.5 feet (Tr. 372-73). The intersection was in a 

20-foot-wide place (Tr. 373-74). Drawing No. 1 of the approved roof 

control plan requires both diagonals of an intersection in a 20-foot 

wide-place to measure 32 feet or less (Exh. M-3). If either diagonal 

exceeds 32 feet, the approved roof control plan requires the installation of additional support in the form of either posts or cribs 

(Exh. M-3). 

The Respondent offered no evidence negating the existence of a 

violaton, and concedes in his post-trial brief that a violation 

occurred (Respondent's Post-Trial Brief, pp. 31, 32). 

I therefore find that a preponderance of the evidence establishes 

the Respondent's failure to install posts or cribs to reduce the 

diagonal length of a 20-foot-wide place to 32 feet in accordance with 

the approved roof control plan, and that such failure constitutes a 

violation of 30 CFR 75.200. 

(b) Gravity 

The inspector's visual observation and sounding of the roof 

revealed no defects. The roof did not sound drurilmy and there were 

no visual slips in the intersection (Tr. 381). The absence of visual 

slips and the sounding test indicated that the roof was satisfactory 

for at least 4 feet (Tr. 388). The inspector did not observe signs 

of stress on the roof or ribs, and observed no signs that the ribs 

were taking any weight (Tr. 383). Although he testified that he found 

no indications of possible roof fall developing (Tr. 383), he elected 

to classify the violation as serious (Tr. 380). Inspector Bates views 

all roof control violations as serious (Tr. 380, 384), but he admits 

to varying degrees of seriousness (Tr. 384-85). 

The inspector did not test the torque of the roof bolts in the 

intersection because he did not deem it necessary (Tr. 386-87). The 

intersection in question was slightly staggered (Tr. 385-86). 

Although staggering often indicates poor mining practices (Tr. 386, 

428), slight staggering can improve the roof's strength or stability 

(Tr. 385-86). 

Mr. Rittenberger classified the roof conditions as "good" (Tr. 

430). Inspector Bates refused to classify the roof conditions as 

"good" at the hearing, but he did so term it in his response to 

Interrogatory No. 83 (Tr. 381). 

At least seven men were working on the section (Tr. 380, Exh. 

M-28). 

664 
The inspector testified that the 32-foot requirement in Diagram 

No. 1 of the approved roof control plan represents the maximum safe 

diagonal length, taking into account the stress of the overlying 

strata (Tr. 376). 

Mr. George Rittenberger, the mine superintendent and a m1n1ng 

engineer (Tr. 185-86), testified that the intersection was as safe 

as one in full compliance with the roof control plan (Tr. 420). He 

testified that according to his calculations, embodied in Exhibit 

OX-12, the area of the cited intersection was less than the area of 

an intersection which fully complied with the roof control plan 

(Tr. 420-22). According to M~. Rittenberger, the critical figure in 

roof support is the area to be supported (Tr. 420). Mr. Rittenbe.rger 

calculated the area of the cited intersection as 956.25 square feet 

(Exh. ·ox-12, Tr. 420). He calculated that an intersection in full 

compliance would cover an area of 1,024 square feet (Exh. OX-12, 

Tr. 421). He testified that a comparison of the two figures revealed 

no perceptible difference in the area to be supported (Tr. 421-2i). 

I therefore conciude that the violation was of slight gravity. 

(c) Negligence 

Inspector Bates testified that the violation could be detected 

by visual observation (Tr. 383). The preshift examiner's dated 

initials were observed in the face areas of each working place in the 

section (Tr. 377). The inspector testified that he thought a current 

date was present on the face closest to the violation (Tr. 377). 

The inspector estimated that the condition cited in the order 

had existed for at least one shift, and possibly longer (Tr. 377). 

Mr. George Rittenberger, the mine superintendent, testified that the 

violation probab]y occurred between 8 p.m., November 29, 1977, and 

9:30 a.m., November 30, 1977 (Tr. 430-31). (See also, Exh. M-26). 

It was not a normal mine procedure to measure-t'he diagonal distance 

at the intersections encompassed by Drawing No. 1 of the approved 

roof control plan (Tr. 427, Exh. M-3). Mr. Rittenberger stated that, 

to his knowledge, no one had measured the dia·gonal lengths at the 

intersection (Tr. 429). Temporary supports had not been placed on the 

previous shift to correct the condition because no one suspected that 

the diagonal length exceeded 32 feet (Tr. 429). 

I find that the Respondent should have known of the violation 

existing in the intersection of No. 4 entry, 1 Right section off 

6 Right Mains. The Respondent demonstrated ordinary negligence. 

(d) Good Faith 

The operator took immediate steps to abate the violation (Tr. 

379, Exh. M-28). Three posts were installed to reduce the diagonal 

665 
width to j2 feet. It iequired approximately 5 minutes to correct 

(Tr. 387, 429). 

I find that the Respondent demonstrated good faith in securing 

a rapid abatement of the violation. 

C. History of Previous Violations 

The history of violations at Respondent's Foster No. 65 Mine 

during the 2-year period preceding the issuance of the subject orders 

is summarized as follows (Exhs. M-1, OX-9, OX-10): 

Year 1 Year 2 

Violations 10/29/75-10/30/76 10/31/76-10/31/77 Totals 

All Sections 62 45 107 

Section 75.200 7 6 13 

Section 75.202 2 1 3 

Section 75.400 6 4 10 

Section 75.403 5 10 15 

(Note: All figures are approximations.) 

The history reviewed below relates only to those violations for 

which a penalty has been paid. 

One hundred seven violations of all sections were cited during 

the 2-year period prior to October 31, 1977, with 62 cited in year 1. 

and 45 cited in year 2. Thirteen violations of 30 CFR 75.200 were 

cited during the 2-year period preceding November 13, 1977, with 

seven cited in year 1 'and six cited in year 2. Three violations of 

30 CFR 75.202 were cited during the 2-year period preceding October 31, 

1977, with two cited in year 1 and one cited in year 2. Ten violations of 30 CFR ·75.400 were cited during the 2-year period preceding 

October 31, 1977, with six cited in year 1 and four cited in year 2. 

Fifteen violations of 30 CFR 75.403 were cited during the 2-year 

period preceding October 31, 1977, with five violations cited in 

year 1 and 10 cited in year 2. 

D. Size of Operator's Business 

The Leechburg Mining Company operates only one mine, the Foster 

No. 65 Mine (Tr. 440). Leechburg produced 255,758 tons of coal in 

1975, 169,761 tons in 1977, and 142,140 tons in 1978 (Exh. M~2, 

Stipulation No. 6). 

E. Effect of the Assessment of a Civil Penalty on the Operator's 

Ability to Continue in Business 

The Respondent is subject t9 a maximum aggregate penalty assessment of $60,000 for the six subject violations. The Respondent, 

666 
through the testimony of company president Harold Dunmire, contends 

that a $60,000 penalty would jeoparize the Respondent's survival, 

considering the Respondents other financial obligations (Tr. 435-36). 

The Respondent anticipates difficulty in raising $60,000 within 

30 days because the company's current financial posture renders 

doubtful the provision of the requisite monies by a lending institution (Tr. 445-46). 

In addition to the testimony of company president Harold Dunmire, 

the Respondent offered a copy of the Respondent's tax return for the 

year ending June 30, 1978, and financial statements for the year 

ending June 30, 1978, in support of its position. The Respondent did 

not call an expert witness to assist in interpreting the tax return 

and the financial statements. Bearing in mind the limitations imposed 

by the lack of expert testimony, the following picture of the 

Respondent's financial condition was established by the evidence. 

Leechburg Mining Company is owned by a small group of shareholders and is not part of a larger business entity (Tr. 437, 440). 

Eighty-two percent of the company:s stock is held by the Mellon Bank 

on behalf of the Hick's estate (Tr. 438). The Bank administers the 

trust for the estate (Tr. 439). The beneficial interest in the trust 

is held by Lewis and Harry Hicks, the heirs of the Hick's estate 

(Tr. 438-39). 

The company has approximately 80 employees (Tr. 432). It operates only one mine, the Foster No. 65 Mine (Tr. 440). The mine has 

two sections operating (Tr. 432). The company's coal production was 

lower during the year ending June 30, 1978 than during the year ending June 30, 1977, because of the United Mine Worker's strike in 1978 

(Tr. 432-33). The company produces approximaely 900 to 1,000 tons of 

coal per day (Tr. 441). It is sold to Penelec at a price of $26.60 

per ton, F.O.B. (Tr. 433, 441). The contract with Penelec expires 

on April 22, 1979. The company anticipates receiving a reduced price 

per ton after April 22 because the current prevailing market rate for 

coal is $22 to $25 per ton (Tr. 441). 

The company has large obligations based on a settlement agreement 

with the Pennsylvania Department of Environmental Resources for 

reclamation of 130 acres of refuse area- (Tr. 434). This reclamation 

is proceeding at the present time (Tr. 434). It costs $20,000 to 

$25,000 per month, and is projected to cost $1.3 million upon completion in 1981 (Tr. 435, 441-3, Exh. OX-13). According to Mr. Dunmire, 

the company lacks sufficient assets to fund this liability and must 

pay for it on a day-to-day, month-to-month basis out of net operating 

revenues (Tr. 434-35). 

At a recent board of directors meeting, one director proposed 

closing the company, primarily in consideration Qf the obligations 

667 
to the Pennsylvania Department of Environmental Resources (Tr. 436). 

It was decided at that time to continue in business as long as 

sufficient revenue could be generated (Tr. 436). 

Leechburg's U.S. Corporation Income Tax Return for the year 

ending June 30, 1978, shows a $257 ,236 loss for. tax purposes (Exh. 

OX-15). The $257,236 loss was computed as follows: 

Gross Income 

Gross receipts or Gross Sales 

Less: Cost of Goods Sold 

Gross Profit 

Interest 

Gross Rents 

Gross Royalties 

Other Income 

Tot.al Income 

Deductions 

Compensation to Officers 

Salaries & wages (not deducted elsewhere) 

Rents 

Taxes 

Interest 

Depreciation 

Depletion 

Pension, Profit Sharing, etc. plans 

Other Deductions 

Total Deductions 

Taxable Income 

Tax 

Refunded 

$3,883,699 

3,534,850 

348,849 

55,735 

5,810 

5,082 

4,086 

419,562 

79,605 

9,901 

690 

157,349 

2,785 

241,857 

662 

73,107 

110 '842 

676,798 

(257,236) 

25' 714 

The financial statement for the year ending June 30, 1978 

(Exh. OX-13), reveals the following information: 

Balance Sheet 

Assets 

Total current assets 

Mortgage Receivable 

Annuity Contract 

fixed Asset-At Cost 

June 30, 1978 

668 

1,760,592 

10,932 

72,000 

1,948,592 

3,792,116 

June 30, 1977 

2,002,797 

12 '777 

72,000 

1,762,846 

3,850,420 
Liabilities 

Total Current Liabilities 

Deferred Compensation 

Committments and Contingencies 

(note c) 

Stockholders Equity 

Capital stock par value 

$5 per share20, 000 shares authorized 

& issued ,. 

649,903 

72,000 

100,000 

Capital contributed in 

excess of par value 

Retained Earnings 

38,675 

2,931,538 

3,070,213 

3,792,116 

StaLement of Earnings and Retained Earnings 

Revenues 

Costs and Expenses 

(Loss) earnings before income taxes 

Income Taxes 

(Loss) Earnings for Year 

Retained earnings-beginning of year 

Cash dividends paid 

Retained earnings-end of year 

(Loss) Earnings per share 

Statement of Changes in Financial Position 

Working capital at beginning of year 

Working capital at end of year 

(Decrease) Increase in working capital 

Cost of Operations (Years ended June 30) 

446,694 

72,000 

100,000 

38,675 

3,193,051 

3,331,726 

3,850,420 

1978 

3,954,413 

. 4,217 ,634 

(263,221) 

(1,708) 

(261,513) 

3,193,051 

2,931,538 

($13.08) 

1978 

1,556,103 

1,110,689 

(445,414) 

1978 

3,737,349 

1977 

5,484,939 

4,790,494 

694,445 

88,243 

606,202 

2 '686, 8Li 9 

(100,000) 

3,193,051 

$30.31 

1977 

971,440 

1,556,103 

584,663 

1977 

4,335,249 

Fixed Assets & Accumulated Depletion & Depreciation 

Balance Balance 

July 1, 1977 Additions Deductions June 30, 1978 

Fixed Assets 4,659,000 433,546 24,263 5,068,283 

Accumulated 

Depletion & 

Depreciation 2,896,154 246,365 22,828 3,119,691 

669 
The land reclamation expenses are not covered in the financial 

statements (Tr. 443). Reclamation expenses currently run between 

$20,000 to $25,000 per month (Tr. 435). This translates into yearly 

expenses ranging between $240,000 and $300,000. 

The financial statement (Exh. OX-13) reveals assets valued at 

$3, 792, 116 for the year ending June 30, 1978, a $58, 308 decline from 

the $3,850,420 figure for the year ending June 30, 1977. Total 

current liabilities increased from $446,694 to.$649,903 during the 

same time period, while retained earnings declined from $3,331,726 

to $3,070,213 (Exh. OX-13). 

Revenues declined from $5,484,939 in the year ending June 30, 

1977 to $3,954,413 in the year ending June 30, 1978 (Exh. OX-13), 

·while costs and expenses failed to decline at the same rate (Exh. 

OX-13). This resulted in a $261,513 loss for the year ending June 30, 

1978, as opposed to the $606,202 profit for the year ending June 30, 

1977. 

It is impossible to determine, on the basis of the information 

supplied, whether the loss experienced in the year ending June 30, 

1978, is attributable to such unforeseen and nonrecurring activities 

as the 1978 United Mine Workers' strike (Tr. 432-3), or whether it 

indicates long term financial problems. The Respondent offered no 

evidence, other than the deleterious effects of the strike, which 

would have explained the decline in revenues reflected in the financial statements, a decline responsible for the loss experienced during 

the year ending June 30, 1978 .. It appears, however, that the Respondent's financial posture, when viewed in light of total assets and 

retained earnings, is sufficiently secure to withstand the assessment 

of mod~rately appropriate civil penalties. 

F. Conclusions of Law 

1. The Leechburg Mining Company and its Foster No. 65 Mine have 

been subject to the provisions of the 1969 and 1977 Acts during the 

respective periods involved in this proceeding. 

2. Under the Acts, this Administrative Law Judge has jurisdiction over the subject matter of, and the parties to this proceeding. 

3. The violations charged in the six subject orders are found 

to have occurred as alleged. 

4. All of the conclusions of law set forth in Part V, A through 

E of this decision are reaffirmed and incorporated herein. 

VI. Proposed Findings of Fact and Conclusions of Law 

Both MSHA and Leechburg submitted postheari.ng briefs. Leechburg 

also submitted a reply brief; Such briefs insofar as they can be 

67-0 
considered to have contained proposed findings and conclusions have 

been considered fully, and expect to the extent that such findings 

and conclusions have been expressly or impliedly affirmed in this 

decision, they are rejected on the ground that they are, in whole or 

in part, contrary to the facts and law or because they are immaterial 

to the decision in this case. 

VII. Penalty Assessed 

Upon consideration of the entire record in this case and the 

foregoing findings of fact and conclusions of law, I find that the 

assessment of a penalty is warranted as follows: 

Order No. Date 30 CFR Standard Assessment 

7-0032 (1 GFM) 10/06/77 75.200 $ 600.00 

7-0033 ( 1 JAB) 10/03/77 75.403 400.00 

7-0035 (1 JAB) 10/06/77 75.400 850.00 

7-0036 (1 JAB) 10/11/77 75.400 500.00 

7-0038 (1 JAB) 10/12/77 75.202 700.00 

7-0047 (1 JAB) 10/30/77 75.200 300.00 

$3,350.00 

ORDER 

The Respondent is ordered to pay the penalty assessed in the 

amount of $3,350.00 within 30 days of the date of this decision. 

4.-:a 

n F. Cook 

Judge 

Issued: June 27, 1979 

Distribution: 

Anna Wolgast, Esq., Mine Safety and Health Administration, 

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

4015 Wilson Blvd., Arlington, YA 22203 

Henry McC. Ingram, Esq., R. Henry Moore, Esq., Rose, Schmidt, 

Dixon, Hasley, Whyte & Hardesty, 900 Oliver Building, 

Pittsburgh, PA 15222 (Certified Mail) 

Administrator for Coal Mine Safety and Health, U.S. Department 

of Labor 

Standard Distribution 

671 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

June 27, 1979 

C F & I STEEL C.ORPORATION, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

C F & I STEEL CORPORATION, 

Respondent 

Application for Review 

Docket No. DENV 78-417 

Maxwe 11 Mine 

Civil Penalty Proceeding 

Docket No. DENV 79-127-P 

A/C No. 05-02820-03001 

DECISION 

Appearances: Richard L. Fanya, Esq., Welborn, Dufford, Cook and 

Brown, Denver, Colorado, for Applicant/Respondent; 

Robert A. Cohen, Trial Attorney, Office of the 

Solicitor, U.S. Department of Labor, for 

Respondent/Petitioner. 

Before: Judge Littlefield 

Introduction 

This is a combined application for review and proceeding for 

assessment of civil penalty which is governed by sections 107(e)(l) 

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

30 U.S.C. § 801 ~~· (1977 Act). Section 107(e)(l) provides 

in relevant part: 

Any operator notified of an order under this section 

or any representative of miners notified of the issuance, 

672 
mod.ification, or termination of such an order may apply to 

the Commission within 30 days of such notification for 

reinstatement, modification or vacation of such order. The 

Commission shall forthwith afford an opportunity for a 

hearing (in accordance with section 554 of title 5, United 

States Code, but without regard to subsection (a)(3) oi such 

section) and thereafter shall issue an order, based upon 

findings of fact, vacating, affirming, modifying, or terminating the Secretary's order. The Commission and the courts 

may not grant temporary relief from the issuance of any 

order under subsection (a). 

Section llO(a) provides: 

The operator of a coal or other mine in which a violation occurs of a mandatory health or safety standard or who 

violates any other provision of this Act, shall be assessed 

a civil penalty by the Secretary which penalty shall not be 

more than $10,000 for each such violation. Each occurrence 

of a violation of a mandatory health or safety standard may 

constitute a separate offense. 

Alleged Violation 

On May 8, 1978, Applicant/Respondent, C F & I Steel Corporation 

(CF&I), filed for review of Order of Withdrawal No. 387923 dated 

April 26, 1978. On January 8, 1979, the Mine Safety and Health 

Administration (MSHA), through its attorney, filed a petition for 

assessment of a civil penalty charging one violation of the Act. 

Said were consolidated for hearing. · 

Tribunal 

Hearings were held in Denver, Colorado, on February 28, 1979, at 

which both MSHA and CF&I were represented by counsel. Thereinafter, 

posthearing briefs were submitted. 

Evidence 

1. Stieulations: Testimony 

A. The Maxwell Mine is subject to the 1977 Act (Tr. 3). 

B. The Judge has jurisdiction to hear this matter (Tr. 3-4). 

C. The mine employed between 25 and 28 miners (Tr. 9). 

673 
D. Daily production was about 300 tons (Tr. 9). 

E. Payment of a reasonable penalty would not put the company 

out of business (Tr. 9). 

F. There was a good faith abatement of the cited conditions 

(Tr. 9). 

2. Stipulations: Exhibits 

A. Government Exhibit No. 1, a copy of Order of Withdrawal 

No. 387928, issued April 26, 1978, at 1:40 p.m. and terminated at 

3:20 p.m. (Tr. 7; Govt. Exh. No. 1). 

B. Government Exhibit No. 2, a copy of a map of the Maxwell 

Mine, dated January 4, 1979, received by MESA 1/ at the Denver Office 

on February 8, 1979 (Tr. 7; Govt. Exh. No. 2) .-

C. Government Exhibit No. 3, a copy of a dust sarr~ling 

report, received from the MESA lab from a sample taken at the time 

the order was issued (Tr. 7; Govt. Exh. No. 3). 

D. Government Exhibit No. 4, a computer printout frorc~ ._tie 

Office of Assessments, showing the operator, the mine and the previous history of violations for the 24-month period prior to the 

issued order (Tr. 7; Govt~ Exh. No. 4). 

E. CF&I Exhibit No. 1, a map showing the area which is subject to the withdrawal order (Tr. 7; CFI Exh. No. 1). 

3. Exhibits on Testimony 

A. Government Exhibit No. 5, the inspector's statement (Tr. 

98-99; Govt. Exh. No. 5). 

B. CF&I Exhibit No. 2, a report from graveyard foreman of 

duties and reply by Mr. George Argurello identified by Mr. Massarotti 

(Tr. 163-170; CF&I Exh. No. 2). 

4. Testimony 

A. Inspector Lawrence Rivera 

Exclusive of stipulations, the Government initiated its case 

through the testimony of inspector Lawrence Rivera, a duly authorized 

representative of the Secretary (DAR) for 7-1/2 years (Tr. 10). 

'};../ Statutory predecessor-in-interest to MSHA. 

674 
Therein, he testified, in relevant part, that he was on a regular 

health and safety inspection at the Maxwell Mine (Tr. 11-12). He 

stated that he had completed an investigation of the face area at 

Unit No. 1, approximately 3,000 feet from the portal (Tr. 14). He 

determined to return along the belt entry. Approximately 300 feet 

from the coal pocket, a point which transfers coal from one belt to 

another (Tr. 14-16), he encountered a substantial amount of float coal 

dust (Tr. 17-18). After proceeding approximately 50 more feet, he 

concluded that he would not go on (Tr. 17-18). The area had gotten 

darker and darker, such that he was unable to see more than 4 or 

5 feet ahead (Tr. 18). There was some dust sticking to the roof and 

ribs and some on top of the water in the entry (Tr. 19). He was' 

unable to tell whether the area had been rock dusted as it was too 

dark·fo see (Tr. 19). 

After he asked a CF&I employee to shut the belt off so that he 

could determine what action was appropriate (Tr. 19-20), he waited 

about 15 minutes before proceeding to the pocket area (Tr. 20). 

He described the belt pocket conditions as consisting of a 

12-foot accumulation at the end of the tail of the belt. The material 

measured 24 inches in depth, approximately uniform for the 12-foot 

distance (Tr. 21). The roof and ribs were black. There was a little 

float coal dust in suspension (Tr. 21). 

The belt rollers were running in the fine coal dust and the belt 

was warm to the touch and, in fact, the belt was starting to get hot 

(Tr. 22). 

The inspector did not observe any water sprays at the coal pocket 

(Tr. 22-23). The belt was in good shape (Tr. 23). The only thing 

that he was told about how the problem was started was that the accumulation had started to build up 3 hours prior to the incident (Tr. 

23). 

The inspector took a sample from under the belt because he felt 

it was creating the float coal dust (Tr. 24). Government Exhibit 

No. 3 was identified as a report on the above-noted sample (Tr. 

24-27; Govt. Exh. No. 3). 

There was water in the coal pocket, but not where the coal dust 

was accumulating (Tr. 27). The condition of the material was dry 

and black (Tr. 28). The mine regularly emits methane (Tr. 28). 

Sources of ignition included the rollers and the possibility 

of flaws in the electrical cables (Tr. 29). He issued the order 

because he was concerned for a possible explosion (Tr. 29). With 

any little spark or hot roller or belt roller with float coal dust 

in the area, an explosion could have occurred which would have 

gone to the face area (Tr. 29). There were men who regularly 

worked in the ·face area (Tr. 30) • 

675 
A Mr. Pugnetti told Inspector Rivera that he had known of the 

condition for about 3 hours, but that he did not realize that it had 

built up so fast (Tr. 31). 

He characterized the float coal dust as the worst he had seen 

(Tr. 32). He believed that adequate dust to constitute an imminent 

danger, existed when he could not walk through and see with his light 

(Tr. 32). 

Though he considered the conditions collectively prior to 

issuance of the order (Tr. 34), he did not know whether the operator 

had a cleanup program, nor whether rock dusting was regularly done 

(Tr. 34). 

He was told that the operator intended to take care of this at 

the beginning of the afternoon shift, but the inspector believed that 

an imminent danger already existed (Tr. 35). He characterized the 

condition cited as very serious (Tr. 35). The operator knew of the 

condition based on the statements made. 

There was no evidence that the operator had done any cleanup 1n 

that particular area (Tr. 37). 

With respect to abatement, there was the following colloquy: 

(By Inspector Rivera): 

A. They immediately started some·men on it to clean 

up the area, and when the day shift went out~ they brought 

the day shift in and they immediately took steps towards 

correcting the condition. 

(By MSHA counsel, Mr. Cohen): 

Q. How did they abate the condition of spillage along 

the belt? 

A. They removed all the fine coal dust from under the 

belt and put it on one side, and they rock dusted the area 

approximately 300 feet, and then loaded the fine coal dust 

on the belt after it was removed from under the belt. 

Q. How many men did it take? 

A. They took twp men immediately, and after that, I 

counted four there at all times, and at times I believe 

there was more there because they were all trying to work 

together. 

676 
Q. How about along the· main belt entry inby from the 

coal pocket, what did they do to abate the conditions in 

that area? 

A. They applied some additional rock dust on to it. 

Q. Did your' observe them doing this? 

A. Yes. 

(Tr. 38). 

Q. (By Mr. Cohen) Just tell us what the operator did 

to abate the condition in the main belt outby from the coal 

hopper or inby from the coal hopper? 

A. Like I said, they removed all the fine coal and 

coal dust from under the belt and moved it over to a site, 

because they asked me if they could use a belt and load 

directly into the belt, and I said no. They would have to 

remove it over to the side and then they could load it onto 

the belt. 

Q. And this was in the belt entry itself? 

A. Under the pocket. That is where the condition 

existed for the fine coal and coal dust. 

(Tr. 39). 

Q. But the float coal dust was in the belt entry? 

A. Yes. 

Q. And in that area, I think you previously said they 

basically rock dusted? 

A. Rock dusted the whole area. 

Q. After they went through this abatement procedure, 

did you walk through the entire area? 

A. That's right. 

Q. Did you decide the conditions were abated? 

A. Yes. 

(Tr. 40). 

677 
Inspector Rivera further testified on cross~examination that he 

did order the belt shut off, but did not issue the withdrawal order 

at issue at that time (Tr. 47). 

The inspector reiterated his conclusion, that some time had 

passef,~ecause the coal had been pulverized (Tr. 55, 57). He made 

no checks of the electrical equipment in the pocket to see if there 

were faults (Tr. 59). He was aware of instances where there have 

been friction-caused explosions (Tr. 61). The area was not wet next 

to the belt, despite sloping of the floor (Tr. 62). There was no 

methane present when the inspector did his methane check (Tr. 66). 

The inspector was unsure whether he was going to issue an order 

or notice when he told the company to turn off the belt (Tr. 70). He 

reiterated that he went into the pocket to see what was creating the 

dust ( Tr • 71) • 

At the point when he ordered the belts stopped, he was aware that 

there were electrical sources in the pocket, including a pump (Tr. 71-

72). The inspector did not believe that his original order to turn 

off the belt was the.imminent danger order herein at issue (Tr. 73). 

During the cleanup, which took about 55 minutes (Tr. 75-80), he 

was in the general vicinity of the pocket (Tr. 80). 

The inspector further testified that a ventilation door was 

closed rather than opened, thus affecting the flow of air (Tr. 84-

85). Had the door been open, the explosion would have taken the 

shortest way, out of the exhaust shaft, and thus not encountered any 

people (Tr. 87). 

The inspector believed that the dust had only traveled 300 feet 

because there is less ventilation on the belt than in the intake 

entries (Tr. 91). 

The inspector again testified on redirect examination that his 

imminent danger order was not issued until he had gathered further 

information from the pocket (Tr. 97). He asked management to shut 

off the belt so that he could see what he was doing (Tr. 98). He 

believed that the alleged violation was significant and substantial 

and marked it as such on Exhibit No. 1 (Tr. 103; Govt. Exh. No. 1). 

B. Robert D. Vigil 

MSHA's second witness was Robert David Vigil, a coal miner who 

worked at he Maxwell Mine and served as a safety and pit committee 

representative (Tr. 104). He testified that the belt area had to be 

ventilated and bled to prevent a methane buildup (Tr. 107). The 

company did not have a man assign~ ~o be just a belt cleaner (Tr. 

109). 

678 
He also previously observed float coal dust during the time in 

question (Tr. 109-110). The color of the area was black (Tr. 110). 

He observed between four and six people working on the cleanup (Tr. 

110). He had previously observed black entry conditions and 

brought them to management's attention (Tr. 111-112). 

When he arrived at the pocket 10 or 15 minutes after 3 o'clock, 

he did not ob.serve float coal dust in the atmosphere (Tr. 113). The 

operator hauled a lot of rock dust to pursue the abatement (Tr. 115). 

He did not know whether the door in question was open or shut (Tr. 

117-118). 

c. Frank Perko 

CF&I initiated its case through the testimony of Mr. Frank Perko, 

who served as a mine safety inspector at the CF&I mine (Tr. 121). He 

had served in that capacity for 1-1/2 years with 7 years prior to 

that as an engineer's helper (Tr. 121). 

He provided detailed testimony as to the nature of the belt 

system in the mine (Tr. 122-126). At the pocket in question at 

about 10:30-11 o'clock (Tr. 126), he found coal spillage, two piles 

at the tail of the roller, approximately a foot in diameter by 

6 inches deep (Tr. 127). Otherwise, every thing looked all right in 

the pocket area (Tr. 127-128). He informed the general mine foreman of the stated condition (Tr. 128). Apparently, nothing was done 

to remedy the condition (Tr. 127-128). 

He attended Mr. Rivera at the pocket wher~ he observed another 

pile of coal which was not previously there. l;.t appeared to have 

been caused by a side rubber becoming unfastened (Tr. 130). 

He did not see any dust in the atmosphere (Tr. 132). He 

observed water generally flowing under the belt with a slight slope 

in the concrete floor toward the pump in the pocket (Tr. 132-133). 

The cleanup was initiated through the use of a 1-inch hose and 

shoveling (Tr. 135-136). As it was mixed with water, he was unable 

to tell how much coal there was when they finished piling it up (Tr. 

136). 

On cross-examination, Mr. Perko conceded that the absence of 

water sprays in the pocket could create a dust control problem if 

it was not watched by the fire boss (Tr. 143). He conceded as well 

that there had been a change in the color of the roof and ribs from 

a grayish color when he had been through in the morning (Tr. 145-

146). 

The coal that was on the rollers was a fine coal (Tr. 149-150). 

He was not present when rock dusting was done (Tr. 153). 

679 
A discussion ensued between counsel on the admissibility of 

testimony with reference to the extent of the area of belts shut 

down (Tr. 156-158). The Judge ruled that testimony with respect 

to the entire belt was admissible (Tr. 158), considering that it 

was all shut down (Tr. 157) and the fact that there was an imminent 

danger order issued (Tr. 158). 

D. Fl9rie Massarotti 

CF&I's final witness was Florie Massarotti, general mine foreman 

at the Maxwell Mine (Tr. 163). He had previously served as dust mine 

inspector for CF&I for 3 years (Tr. 163-164). He testified as to the 

contents of Respondent's Exhibit No. 2 (Tr. 164-170), which was 

admitted (Tr. 170; CF&I Exh. No. 2). 1:./ 

On the day in question, the witness was called by Mr. Richard 

Oxford, who was the person who was conducting the preshift examination 

for the second shift which was due at 3 o'clock (Tr. 171). Mr. Oxford 

stated on the phone to Mr~ Massarotti that Mr. Rivera wanted the belt 

turned off. Mr. Rivera spoke to the witness and stated that coal had 

spilled into the pocket (Tr. 171). 

The witness stated that he believed, based on the spacing of 

phone calls, that it took two men 7-1/2 minutes to shovel all the 

spilled coal onto the belt (Tr. 175-176). 

With reference to the door being opened, he stated that the door 

must have been open because there were no accumulations of methane 

which there would have been had the door been closed (Tr. 177-179). 

On cross-ex"'amination, the witness admitted that there were times 

when loose coal or float coal or dust did accumulate on the framework 

of the belt, but such was washed off (Tr. 181-182). 

He was not sure whether they had water sprays at the pocket 

because they had only been in operation 30 days (Tr. 183). He 

believed the first shift foreman would have begun the cleanup, however, he was not sure. If he intended to clean it up, he would 

have been there ~t the time the inspector wrote the order (Tr. 184). 

Mr. Oxford mentioned to the witness that the dust in the 

atmosphere was not bad enough to require a belt shut down (Tr. 187). 

1:./ Said exhibit purports to show in relevant part that the area in 

question was rock dusted on the graveyard shift the night before the 

order (Tr. 165). 

680 
Issues Presented 

1. Whether the conditions observed and known by Inspector 

Rivera on April 26, 1978, at the Maxwell Mine were such as to support the issuance of a section 107(a) withdrawal order. 

2. Whether the aforementioned conditions constitute a violation 

of 30 CFR 75.400. 

3. Assuming a violation of 30 CFR 75.400 is established, what 

is the appropriate civil p~nalty? 

Discussion 

A. Imminent Danger; Time and Place 

Section 107(a) of the 1977 Act provides: 

If, upon ·any inspection or investigation of a coal or 

other mine which is subject to this Act, an authorized representative of the Secretary finds that an imminent danger 

exists, such representative shall determine the extent of 

the area of such mine throughout which the danger exists, 

and issue an order requiring the operator of such mine to 

cause all persons, except those referred to in section 

104(c) to be withdrawn from, and to be prohibited from 

entering, such area until an authorized representative of 

the Secretary determines that such imminent danger and 

the conditions or practices which caused such imminent 

danger no longer exist. The issuance of an order under 

this subsection shall ·not preclude the issuance of a 

citation under section 104 or the proposing of a penalty 

under section 110. 

The cognate provision of the Federal Coal Mine Health and Safety 

Act of 1969, P.L. 91-173 (December 30, 1969) (1969 Act), section 

104(a), provides: 

If, upon any inspection of a coal mine, an authorized 

representative of the Secretary finds that an imminent 

danger exists, such representative shall determine the 

area throughout which such danger exists, and thereupon 

shall.issue forthwith an order requiring the operator of 

the mine or his agent to cause immediately all persons, 

except those referred to in subsection ( d) o·f this section, 

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

such area until an authorized representative of the Secretary determines that such imminent danger no longer exists. 

There are no substantive distinctions in the causes for issuance 

of orders on the face of the two statutory sections, nor are there 

681 
differences in the definitions of "imminent danger" provided by the 

two Acts. Compare section 3(j) (1969 Act), with section 3(j) (i977 

Act). Therefore, previous judicial construction of the concept of 

imminent danger under the 1969.Act controls the construction of the 

same concept under the 1977 Act, exclusive of the carry-over provision, section 301, of the 1977 Act. 

The purpose of the imminent danger withdrawal order is to assure 

that miners will not carry on routine mining operations in the face 

of imminent danger. Freeman Coal Mining Company v. Interior Board of 

Mine Operations Appeals, 504 F.2d 741 (7th Cir. 1974). Imminent 

danger also requires that the condition or practice observed could 

reasonably be expected to cause death or serious physical injury. 

Eastern Associated Coal Corporation v. Interior Board of Mine Operations Appeals, 491 F.2d 277 (4th Cir. 1974). However, the term is 

not confined to situations of immediate danger. Old Ben Coal Corporation v. Interior Board of Mine Operations Appeals, 523 F.2d 25 

(7th Cir. 1975). Finally, it has been held that situations involving 

accumulations may rise to the level of an imminent danger justifying 

a withdrawal order. l!!_.; Freeman, supra. 

In assessing the existence of such a danger, it is also noted 

that Respondent must prove the absence of an "imminent danger." Old 

~' supra. 

One aspect of Respondent's attack on the order, is alleged confusion on the. part of the inspector as to when the 107(a) order was 

issued (Brief of CF&I at 5-6). As asserted by CF&I, the inspector 

allegedly concedes that he did issue his order when he initially 

required that the belt be stopped (Tr. 46-47). 

I conclude that the evidence does not support the assertion. The inspector stated specifically that he did not issue his 

"withdrawal order" at the time of the belt stoppage' (Tr. 47, 97), 

and that he was not sure what enforcement action was warranted, if 

any, at the time of the stoppage (Tr. 70-71). The alleged ambiguity 

found by CF&I (Brief of CF&I at 5), is purely linguistic, not 

conceptual, and substantially reflects the clever phrasing of the 

question on cross-examination (Tr. 46-47). 

Lurking behind or&I.~··sargument is the theory that every instructional action of the inspector is an enforcement action cognizable 

under the Act, 3/ at least when an order follows. Thus, the focus 

on propriety wo~ld be limited to what the inspector knew at the time 

37 It is doubtful that CF&I would really like to see such a construction as civil penalties are mandatory for violations of any provision 

of the Act and mandatory safety or health standard. Section llO(a), 

supra. 

682 
of the belt stoppage. Such an analysis would tie the inspector's 

hands as he were. caug:l..i: :,etweenScyJ.la and Charybdis--the rock and· the 

hard place. He would either issue the order too soon and lack 

supporting evidence, or wait too long until he could be sure of 

factual and legal foundations, running the risk of injury to himself 

or others. 

Undoubtedly, there has to be some authority on the part of the 

inspector to order reasonable actions which are not enforcement 

actions. Such an area of discretionary power is the rough equivalent 

of a "Terry stop." See Terry v. Ohio, 392 U.S. 1 (1968). Such 

residual authority to issue-a fundamentally nonrestrictive request/ 

order must be an implied authority of the inspector for him to perform his inspection function. Clearly, an inspector has the inherent 

authority to request/order an operator to turn off the power on. a 

cutting machine to inspect a trailing cable, pursuant to 30 CFR 

75.600 et seq., or to check other electrical equipment. 30 CFR 75.500 

et seq.~In the instant case, the inspector had to request that the 

belt be turned off so that he could contrive to inspect it (Tr. 17-20, 

98). Certainly, CF°&I would not e:tpect the inspector to check the 

temperature of the belt rollers when the belt was running. 

That it took 15 more minutes for the inspector to continue his 

inspection is indicative of the seriousness of the dust problem. It 

does not change the point of issuance of the withdrawal order. 

I conclude that the request/order to stop the belt was an order 

based on the residual power of the inspector to issue orders pursuant 

to the many necessary steps in the conducting of his investigation. 

See Terry, supra. I further conclude the proper factual focus is 

the cumulation_ of information which the inspector had prior to the 

issuance of the withdrawal order. 

B. Adequacy of the Notice Provided by the Order 

CF&I also argues that the evidence of dust down entry No. 8 

(belt No. 2) must be disregarded as such was not referred to on the 

face of the order (Brief of CF&I at 3-4). The essence of the argument is that CF&I lacks adequate notice of the conditions charged 

and that other interested parties, miners' representatives, state 

officials, and others, were also deprived of that notice (Tr. 38-40; 

Govt. Exh. No. 1). 

In support of its argument, on the required notice, CF&I cites 

Armco Steel Corporation, 8 IBMA 88 (1977 ) (Armco I). I conclude 

that Armco I is factually di~tinguished in that the order cited 

therein provided no description of the conditions or practices constituting imminent"-danger. Id. at 96. Here, we have such a 

description, "coal, coal dust:' and float coal dust were present at 

the h~pper * * * Such a ~escription notir1es both CF&I and others 

683 
interested, that float coal dust is involved. One of the characteristics of "float" coal dust ·is that it floats with the direction 

of the ventilation. As the intent of Armco I and II was to give 

notice of the generalized problem to miners' representatives, 

state officials and others, and as float coal dust is not static, 

the order is reasonably construed as giving adequate notice of the 

general extent of the problem to third parties. 

Further, CF&I states that there is a due process notice problem 

in the order and that such problem was the concern of Armco I (Brief 

of CF&I at 4). Assuming, arguendo, that CF&I was right in that it 

real~y did not know that the order which shut down the whole main 

belt would involve consideration of dust on the whole main belt (Tr. 

156-158; Govt. Exh. No. 1), CF&I still has not demonstrated a due 

process problem with the notice received. The order is not a pleading in the case, it was not drafted for the purpose of defining the 

full and complete extent of MSHA's case at a hearing. As CF&I has 

argued, supra, that the order was issued when the belt was first 

stopped, it is clearly on actual notice of the presence of dust in 

the No. 8 entry (belt No. 2). If CF&I had a question as to the 

extent of the issues to be addressed by its application in this 

case, it had only to file for a bill of particulars or pursue discovery. Failure to so act constitutes a waiver of its argument on 

lack of notice. See Mathies Coal Company, PITT 77-39-P (May 5, 

1978) at 8-10. 

C. Factual Support for the Order 

Prior to the issuance of the order, the inspector knew that 

300 feet or so from the belt pocket there was a sufficient accumulation of float coal dust to lower vision to 4 or 5 feet (Tr. 14-18). 

There was dust sticking to the roof and ribs and some on top of 

water in the entry (Tr. 19). The belt pocket revealed a 12-foot 

long accumulation of coal at the end of the tailpiece approximately 

24 inches deep (Tr. 21). The roof and ribs were black and there was 

a little float coal dust in suspension (Tr. 21). The belt rollers 

were running in fine coal dust and the belt was warm to the touch 

and, in fact, getting hot (Tr. 22). There were no water sprayers in 

the pocket (Tr. 22-23). 

The inspector believed ignition was possible from the roller 

belts or flaws in the electrical cables (Tr. 29). The inspector 

was aware of men regularly working in the face area (Tr. 30). 

The inspector was told by Mr. Pugnetti that Mr. Pugnetti had 

been aware of the condition for about 3 hours, but did not realize 

it had built up so fast (Tr. 31). The inspector was not aware of 

any defects in the electrical equipment nor was methane found to 

be present (Tr .• 59, 66). · 

684 
He was also aware that a ventilation door was closed which 

would have prevented an explosion from taking the shortest way out 

of the mine, which way would have avoided the men at the face (Tr. 

84-85, 87). Mr. Vigil supported the inspector's testimony as to 

the black color of the area (Tr. 110). 

Mr. Perko stated that he was aware of the coal spillage between 

10:30 and 11 o'clock (Tr. 127), thus supporting the inspector's testimony as to knowledge of the operator. He did not, however, see 

dust in the atmosphere (Tr. 132). He did see a blacker area than 

when he had passed through in the morning (Tr. 145-146) and also 

saw fine dust on the rollers (Tr. 149-150). 

Mr. Massarotti indirectly supported the inspector's testimony 

as to atmospheric dust when he related Mr. Oxford's conclusion that 

there was not enough dust in the atmosphere to warrant a shut down 

(Tr. 187). 

The only testimony of the inspector which was controverted by 

eyewitness accounts, is his statement that there was float coal dust 

in the pocket. Mr. Perko did not see dust (Tr. 132). However, the 

fact that the color of the area was black proves that there had been 

float coal dust. I conclude that the weight of the evidence establishes the presence of float coal dust in the atmosphere when the 

order was issued. Had the belt been turned on befor~ cleanup, more 

would have been added. As .there was accmulated coal 24 inches deep 

for 12 feet, and as the belt was hot and would have gotten hotter if 

the belt were reactivated prior to cleanup, there was a substantial 

potential for an explosion. Zeigler Coal Company, 6 IBMA 132, 136 

(1976). I further conclude that the existence of apparently permissible electrical equipment (Tr. 59) was not a source of potential ignition. 

I conclude that the likely direction of an explosion was toward 

the face area, due to the ventilation door being closed. I conclude 

that the door was closed due to the uncontradicted, positive testimony of the inspector. The inspector's testimony was corroborated 

by the drifting of float coal dust 300 feet up toward the face area 

from the pocket. The contrary, fully rational, speculation of 

Mr. Massarotti is not persuasive (Tr. 177-179) in light of the above. 

As explosions can cause death or serious physical injury and 

as there was a reasonable possibility that an explosion could have 

occurred due to the presence of loose coal, dust and a hot belt, I 

conclude that CF&I has failed to prove the absence of an imminent 

danger. The order is upheld. 

D. Existence of a Violation of 3-0 CFR 75~400 

The violation charged, 30 CFR 75.400, provides: 

685 
§ 75.400 Accumulat'ion of combustible materials. 

Coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on electric equipment 

therein. 

Under section 301 of the 1977 Act, the interpretation of the 

regulation is controlled by Old Ben Coal.Company, 8 IBMA 98 (1977). 

As noted by MSHA, the case is currently being addressed by the 

Federal Mine Safty and Health Review Commission (Brief of MSHA 

at 5). 

At a minimum, there mu~t be an accumulation of coal to warrant a 

finding of a violation. Such has been found. ~' supra. 

Further, it is argued that MSHA must show notice of the accumulation. Mr. Perko testified that he had seen two piles of coal at 

the pocket, each 1 'foot in diameter, and 6 inches deep (Tr. 127). 

While such might not be substantial enough to be considered an 

imminent danger, it still constitutes an accumulation of which CF&I 

-~ notice for purposes of the mandatory standard (Brief of CF&I at 

10). As this inspection by Mr. Perko revealed the presence of an 

accumulation, CF&I had actual knowledge of its existence for 2-1/2 

to 3 hour& (Tr. 127-128). As Old Ben, supra, requires an effective 

cleanup program, it is difficult to see how CF&I can demonstrate 

that effectiveness with the passage of time involved here and the 

knowledge available. 

Further, CF&I shows knowledge of the limitations of its cleanup 

system when Mr~ Perko conceded that absence of water sprays could 

create a dust control problem if the area was not watched by the 

fire boss (Tr. 143). 

As accumulations are more dangerous when they are fine and dry, 

and as CF&I knew that these small piles existed, CF&I had a higher 

standard of care for cleaning up small piles of dust than it would 

have if it was providing a sprayer. 

The requirement of a more immediate response to even small 

accumulations is further supported by the fact that no one was 

assigned as a designated belt cleaner who would have had the 

specific job to look for accumulations (Tr. 109). The weak~ess 

of the cleanup system is shown by the failure to respond to an 

identified accumulation which later rose to the level of an 

imminent danger. 

686 
I conclude that MSHA has demonstrated CF&I's' failure to conform 

with 30 CFR 75.400 as construed by Old Ben, supra. !.!:./ 

E. Penalty Criteria 

Assessment of a civil penalty, upon the finding of a violation, 

is mandatory. Section llO(i) of the Act provides the following criteria for de novo 2./ review: 

The Commission shall have authority to assess aU 

civil penalties provided in this Act. In assessing 

civil monetary penalties, the Commission shall consider 

the operator's history of previous violations, the appropriateness of such penalty to the size of the business 

of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in 

business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to 

achieve rapid compliance after notification of a violation. 

1. History of Previous Violations 

Respondent has been shown to have violated 30 CFR 75.400 only 

once in the 2 years preceding the order (Govt. Exh. No. 4). However, such violation also involved an imminent.danger withdrawal 

order. The relative seriousness of such an order, combined with 

the 124 total violations for the period (Govt. Exh. No. 4), leads 

me to conclude that CF&I does have a history of violations sufficient 

to increase the size of a penaltye 

2. Size of Business 

The mine employed between 25 and 28 workers and produced approximately 300 tons daily (Tr. 9). I conclude, therefrom, that the mine 

was medium in size. 

3. Ability to Stay in Business 

A stipulation was entered that a Yeasonable penalty would not 

put the operator out of business (Tr. 9). As the operator introduced nothing to demonstrate that the imposition of a maximum penalty for a single violation would affect the operator's ability to 

stay in bus_iness, and as the mine is of medium size, I conclude.· that 

4/ Pursuant to this conclusion, it is not necessary to address the 

issue of whether a penalty could be imposed for a violation of section 107(a) absent a finding of a violation of 30 CFR 75.400. 

5/ See ·Shamrock Coal Company, Docket Ne. BARB 78-82-F et~· 

(FMSH'RC, June 7, 1979). -

687 
a maximum penalty is a reasonable penalty and would not affect the 

operator's ability to continue in business. See Hall Coal Company, 

1 IBMA 175, 179-182 (1972). 

4. Good Faith 

It was also stipulated that the operator acted in good faith 

in abating the cited conditions (Tr. 9). Such is accepted (Tr. 38-

40). 

5. Gravity 

By virtue of the affirmance of the order charging imminent 

danger, the condition cited must be and is construed as inherently 

grave. 

Further significant in terms of gravity, is the very real 

likelihood of an explosion. The inspector testified that the bel't 

was running in fine coal dust and was warm and starting to get hot 

(Tr. 22). It appears that the inspector misspoke himself. As the 

belt had been off for 15 minutes or more prior to his touching the 

roller and belt (Tr. 20), they both had had that amount of time to 

dissipate heat. Thus, the condition was even more serious than the 

inspector stated because the belt and rollers would have been hot, 

thus increasing dramatically the likelihood of a spark which could 

have created an explosion. As the float coal dust in the atmosphere 

was extremely heavy as far as 300 feet down the belt (Tr. 18, 32), 

and the coal in which the belt was running was dry (Tr. 22-23, 28), 

and black (Tr. 28), and fine (Tr. 22, 149-150), the likelihood of 

an actual explosion was much greater than in the normal accumulation situation where relatively large chunks of damp coal might be 

found. 

I conclude that the situation would have been extremely grave, 

due to the nature of the threat (explosion), the possible victims 

(men at the face), and the likelihood of occurrence (dry fine coal 

dust in suspension accumulate.d for 12 feet, 2 feet deep exposed to 

a hot belt). 

6. Negligence 

The problem of negligence is first addressed in terms of the 

knowledge of the two small accmulation piles (Tr. 127). The fire 

boss' knowledge is clearly imputed to the operator. Pocahontas 

Fuel Company, 8 IBMA 136 (1977), aff'd ~~·Pocahontas Fuel 

Company v. Andrus, 77-2239 (4th Cir., filed Janua.ry 8, 1979). 

Further, this problem was known to the general mine foreman for 

2-1/2 to 3 hours (Tr. 127-128). Mr. Massoratti testified that if 

the shift foreman had intended to clean up the accumulation, he 

would have been in the pocket when the inspector arrived (Tr. 189). 

688 
There is no evidence that the shift foreman was there when Inspector Rivera arrived. Therefore, it is not possible to infer that the 

accumulations would have been discovered if there were no Federal 

inspection. Given the fact that dust had accumulated slowly down 

300 feet of the belt way, the belt and/or rollers must have been 

running in coal sometime. The operator knew of the dry coal conditions (Tr. 14.3), knew of two piles of coal being formed (see, supra), 

had 3 hour~ to act on the piles (Tr. 127), failed to find"""O'r act 

upon 300 feet of heavy, suspended coal dust during the period when 

such conditions developed, which must have taken some time, perhaps 

almost 3 hours, as the coal was pulverized (Tr. 91), and failed to 

find or act upon the accumulation which caused the coal dust during 

that same time (Tr. 21). The conditions of which the operator was 

specifically aware, dry coal and two small piles of loose coal, 

should have put it on inquiry notice to at least pass through 

the area within the 3 hours and keep a check on the accumulations. 

I therefore find that the operator was grossly negligent, even though 

it was not aware of the alleged specific cause of the spilling coal, 

to wit, a side rubber unfastening (Tr. 130). 

Findings of Fact 

Upon consideration of the entire record, I find: 

1. The Judge has jurisdiction over the subject matter and parties in this proceeding; 

2. The preponderance of the evidence establishes the fact of 

violation of 30 CFR 75.400; 

3. CF&l has failed to rebut the inspector's finding of imminent 

danger. Therefore, an imminent danger existed on April 26, 1978, 

at CF&I's Maxwell Mine as cited in Order No. 387928; 

4. CF&I has once previously violated 30 CFR 75.400 and had 123 

other previous violations (Govt. Exh. No. 4); 

5. CF&I is a medium-sized operator (Tr. 9); 

6. The penalty imposed will not affect the operator's ability 

to remain in business; 

7. The operator showed good faith in remedying the cited violation (Tr. 9); 

8. The violation was extremely serious; 

9. The operator was grossly negligent in allowing the cited 

condition to continue to develop for the time period in question. 

689 
Conclusions of Law 

1. This case arose under sections 107(e)(l) and llO(a) of 

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

(November 9, 1977); 

2. All procedural prerequisites established by the above-cited 

statute have been complied with; 

3. An imminent danger existed at the Maxwell Mine on April 26, 

1978; 

4. CF&I has violated 30 CFR 75.400, a mandatory health and 

safety provision of the above-cited statute. 

5. A civil penalty must be assessed in accordance with the provisions of the above-cited statute. 

Application of Penaltx 

All evidence in the record bearing on the criteria and mitigating 

and aggravating circumstances have been considered fully. 

Accordingly, Respondent is assessed the following civil penalty: 

Order No. Date Section Penalty 

387928 4/26/78 30 CFR 75.400 $2,000 

ORDER 

WHEREFORE IT IS ORDERED that CF&I Steel Corporation pay the 

above-assessed civil penalty in the amount of $2,000 within 30 days 

from the date of this decision. 

~f:6~d . r~Ji~olm P. Littlefield lij';-& 

Administrative Law Jud ~ 

Distribution: 

Richard Fo Fanyo, Esq., Welborn, Dufford, Cook and Brown, 

1100 United Bank Center, Denver, CO 80290 (Certified Mail) 

Robert A. Cohen, Trial Attorney, Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 

22203 

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

St., NW., Washington, DC 20005 (Certified Mail) 

690 
FEOIEHAL UUNE SAFETY ANO H:EtllTt~ REV!~W COMfv~&S5BON OFFICE Of ADMINISTRATIVE LAW JUOGES 

4015 WILSON BOULEVA~D 

ARLINGTON, VIRGINIA 22203 

June 27, 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SEWELL COAL COMPANY, 

· Respondent 

Docket No. HOPE 78-679-P 1/ 

(Assessment Control No. -

46-03467-02069V) 

Meadow River No. 1 Mine 

DECISION 

Appearances: John H. O'Donnell, Esq., Office of the Solicitor, 

Department of Labor, for Petitioner; 

Robert C. Kota, Esq., Lebanon, Virginia, for 

Respondent. 

Before: Administrative Law Judge Steffey 

The Petition for Assessment of Civil Penalty filed in Docket No. 

HOPE 78-679-P seeks assessment of civil penalties for 11 alleged violations of the mandatory health and safety standards. Three of the 

11 alleged violations pertain to three withdrawal orders which were 

the subject of Applications for Review filed in Docket Nos. HOPE 

78-44, HOPE 78-71, and HOPE 78-73. When the hearing in the consolidated review proceeding in Docket Nos. HOPE 78-44, et al., was held, 

evidence was received with respect to.any civil penaltY-issues which 

thereafter might be raised if MSHA should subsequently file a petition for assessment of civil penalty with respect to the violations 

-alleged. in the th.r.ee order.s which were the subject of the ·review proceeding. A decision with respect to the issues raised by the Applications for Review in Docket Nos. HOPE 78-4l~, et al., was issued on 

March 30, 1978. That decision deferred all rulings on the civil 

penalty issues until such time as a petition for assessment of civil 

penalty might be filed by MSHA requesting that civil penalties be 

assessed for the violations alleged in the three withdrawal orders 

which were under review in Docket Nos. HOPE 78-44, et al. 

The Petition for Assessment of Civil Penalty in Docket No. HOPE 

78-679-P asks that civil penalties be assessed with respect to the 

violations alleged in the three withdrawal orders involved in the 

1./ The civil penalty issues in this decision have been decided on 

the basis of the record previously made in Docket Nos. HOPE 78-44, 

et al. --

691 
review cases in Docket Nos. HOPE 78-44, et al. This decision, 

therefore, will dispose of the civil penaltyissues which were 

deferred at the t.ime my decision in Docket Nos• HOPE 78-44, et al., 

was issued. This decision will, of course, be based on the record 

made in Docket Nos. HOPE 78-44, ~!!!_. 

The order accompanying this decision will sever from the Petition 

for Assessment of Civil Penalty filed in Docket No. HOPE 78-679-P all 

civil penalty issues with respect to the three withdrawal orders which 

were involved in the proceeding in Docket Nos. HOPE 78-44, et al., so 

tha.t a hearing can hereafter be scheduled for the purpose ofmaking a 

record to resolve the issues which remain to be decided with respect 

to the violations alleged in the other eight withdrawal orders which 

are the subject of MSHA.1 s Petition for Assessment of Civil Penalty 

filed in Docket No. HOPE 78-679-P. 

Issues 

The issues to be considered with respect to each of the three 

orders are whether a violation of a mandatory health or safety standard occurred and, if so, what civil penalty should be assessed, 

based on the six criteria set forth in section llO(i) of the Act. 

General Considerations 

Section llO(i) of the Act provides that civil penalties shall be 

assessed after giving consideration to the six criteria. Four of 

those six factors may usually be given a general evaluation, while 

the remaining two, namely, the gravity of the violation and whether 

the operator was negligent, should be considered specifically in 

reviewing the evidence introduced with respect to each violation. 

The criteria which may be given a general review will be evaluated 

first. 

History of Previous Violations 

Exhibit 13 is a computer printout of 26 pages which was introduced by counsel for MSHA for the purpose of showing respondent's 

history of previous violations. Exhibit 13 shows that respondent 

has previously violated the three mandatory safety standards here 

under consideration. Therefore, when penalties are hereinafter 

assessed, I shall give specific consideration to respondent's history of previous violations and the penalty otherwise assessable 

under the other five criteria will be increased if the facts warrant an increase under the criterion of respondent's history of 

previous violations. 

Appropriateness of Penalty to Size of Operator's Business 

Respondent operates five underground mines and four preparation 

plants. The mine which is involved in this proceeding is the Meadow 

692 
River No. 1 Mine which employs 191 men·underground and 38 on the surface to produce 750 tons of coal per day. The mine has six sections 

or units which utilize continuous-mining machines. All six units are 

operated on two shifts per day and two units are additionally operated on the midnight-to-8 a.m. shift. the Meadow River No. 1 Mine 

is entered by means of two shafts and one slope. Part of the coal 

produced from the mine is shipped overseas and part of it is used for 

blending with other coal. Respondent is a Division of the Pittston 

Company. 

On the basis of the facts given above, I find that respondent 

operates a large.coal business and that any penalties which are hereinafter assessed should be in the upper range of magnitude to the 

exte~t that the penalties are based on the size of respondent's 

business. 

Effect of Penalties on Operator's Ability to Continue in Business 

Counsel for respondent in the proceedings in Docket Nos. HOPE 

78-44, et al., stated that payment of penalties would not cause 

resp.:mdentto discontinue in business (Tr. 256). On the basis of 

counsel's statement, I find that payment of penalties will not cause 

respondent to discontinue in the coal business. 

Good Faith Effort to Achieve Rapid Compliance 

As to Order No. 3 HSG issued October 17, 1977, it will hereinafter be necessary for me to discuss the criterion of good faith 

effort to achieve rapid compliance in the part of this decision 

which assesses a penalty for the violation of section 75.316 because 

the circumstances surrounding that violation require a specific 

explanation to show why the criterion of respondent's good faith 

effort to achieve rapid compliance is not applicable to Order No. 3 

HSG. 

The inspector testified that respondent demonstrated a good faith 

effort to achieve rapid compliance with respect to the violation of 

section 75.200 alleged in Order No. 1 HSG issued October 26, 1977 

(Tr. 177). Respondent will hereinafter be given full credit for having shown a normal effort to achieve r~pid compliance when a penalty 

is assessed for the violation of section 75.200. 

The inspector said that respondent's cleaning up the loose coal 

and coal dust accumulations cited in Order No. 1 HSG issued 

October 27, 1977, by 10: 10 a .m. of the following day was so rapid 

that it surprised him. Therefore, he rated respondent's abatement of 

Order No. 1 HSG as being better than average (Tr. 201). It is rare 

for me to find that an operator has abated a given violation with 

greater speed than an inspector had anticipated. Therefore, when a 

693 
penalty is hereinafter assessed with respect to the violation of section 75.400 alleged in Order No. 1 HSG, I shall reduce the penalty by 

10 percent because of the operator's unusual effort to achieve rapid 

compliance. . 

Consideration of Remaining Factors 

As indicated above, two of the six criteria set forth in section 

llO(i) of the Act, that is, gravity of the violations and whether the 

operator was negligent, must be specifically considered in reviewing 

the evidence presented by MSHA and respondent with respect to each 

violation. When violations are hereinafter found to have occurred, 

findings as to gravity and negligence will be made and penalties 

will be assessed accordingly. 

Order No. 3 HSG (7-499) 10/17/77 § 75.316 

Findings. Section 75.316 requires that each operator of a coal 

mine shall file with MSHA and adopt an approved ventilation system 

arid methane and dust control plan. Respondent violated section 

75.316 because it failed to comply with paragraph 13 on page 3 of 

its ventilation plan which requires that a crosscut shall be provided 

at the face of each entry or room before the place is abandoned. 2/ 

The crosscuts in the No. 2 Unit at the face between Nos. 2 and 3 and 

5 and 6 entries had been developed for a distance of approximately 

40 feet without completing them. All equipment had been removed from 

the No. 2 Unit in order to start development of a left panel. 

The violation was serious. Respondent intended to return to the 

No. 2 Unit within a period of about 2 months. The evidence showed 

that respondent was not properly ventilating the abandoned unit during the interim period. The inspector had never found anything other 

than a zero quantity of methane in the mine when he tested for methane 

at a distance of 12 inches from the face or rib, or when an air sample 

was taken in the returns or at the fan (Tr. 23-25). Nevertheless, 

the inspector believed that failure to complete the crosscuts was 

hazardous. He said that a buildup of methane could have occurred in 

the "dead-ended" areas because respondent's mine is below the water 

table and the No. 2 Unit is 2,500 feet from the intake air shaft (Tr. 

57; 69-70). 

2/ There are some technical aspects as to whether respondent had 

actually abandoned the No. 2 Unit. Those matters are considered in 

my decision in Docket No. HOPE 78-44 on pages 5 to 9 and need not 

be reconsidered here. As explained in that decision, respondent 

ha~ violated section 75.316 by failing to complete the crosscuts 

as alleged in Order No. 3 HSG. 

694 
Respondent was negligent in failing to complete the crosscuts 

because respondent is required to know the provisions of its ventilation plan and the mine foreman agreed with the inspector that the 

crosscut should have been completed before equipment was moved from 

the No. 2 Unit to the left panel (Tr. 62). 

Assessment ' of Penalty. I find that the criterion of good faith 

effort to achieve rapid compliance is not applicable in assessing 

a penalty in this instance. The reason for that conclusion is that 

inspectors normally base their evaluation of good faith abatement 

on the question of whether respondent corrected the condition cited 

in the notice of violation within the period of time given by the 

inspector for abatement. In this instance, a withdrawal order was 

issued after the equipment had been removed from the No. 2 Unit. 

Under respondent's mining method, its equipment would normally have 

been moved back to the No. 2 Unit and the crosscut would have been 

completed before the hearing in the review proceeding was held, but 

a major strike by UMWA occurred on December 6, 1977, and did not end 

until March 26, 1978. Therefore, respondent had not abated the 

violation at the time the hearing was held in January 1978, because 

the strike was still in progress. If normal operations had been in 

effect, the crosscuts wo~ld have been completed by approximately 

December 14, 1977 (Tr. 84-85). 

It has already been found that respondent is a large operator and 

that assessment of penalties will not cause respondent to discontinue 

in business. The violation of section 75.316 was serious because 

respondent was not ventilating the No. 2 Unit properly at the time 

the order was written. The inspector returned to the No. 2 Unit on 

January 19, 1978, or about 6 days before the hearing was held, and 

found that respondent had installed a line curtain, but the required 

check curtains were still missing. Respondent's failure to ventilate 

the No. 2 Unit properly increased the possibility of a dangerous 

methane accumulation in the "dead-ended" crosscuts .between the time 

that equipment was removed and the time that mining was reinstated in 

the No • 2 Unit • 

There was some merit for respondent's claim that it had not 

actually abandoned the No. 2 Unit in the dictionary sense of the 

word, as compared with the technical definition of "abandoned areas" 

contained in 30 CFR 75.2(h). Therefore, in assessing a penalty for 

the violation of section 75.316, I do not believe that a large amount 

should be attributed to the criterion of negligence. 

In view of the mitigating circumstances discussed above, I conclude that a penalty of $2,000 is warranted. The Assessment Office 

based its proposed penalty of $10,000 on a waiver of the assessment 

for.mula provided for in 30 CFR 100.3 and on giving an excessive 

amount of weight to the fact that the.order was issued under the 

unwarrantable failure provisions of the 1969 Act. The Assessment 

695 
Office did not have the benefit of the extensive testimony presented 

by the parties in Docket No. HOPE 78-44. That testimony does not 

show the magnitude of seriousness and the degree of negligence which 

I think are necessary to justify assessment of a maximum penalty of 

$10,000. 

Exhibit 13 indicates that there have been 3f!prior violations of 

section 75.316 at respondent's Meadow River No. 1 Mine. One violation occurred in 1974, 7 occurred in 1975, 17 occurred in 1976, and 

9 had occurred in 1977 by June 14, 1977. The statistics show, therefore, that respondent is continuing to violate section 75.316 to an 

increasing extent each year. In such circumstances, the penalty of 

$2,000 will be increased by $500 to $2,500 because of respondent's 

unfavorable history of previous violations. 

Order No. 1 HSG (7-527) 10/26/77 § 75.200 

Findings and Conclusions. Section 75.200 requires each operator 

of a coal mine to prepare and file with MSHA a roof-control plan 

applicable to the.conditions in his mine. After the plan has been 

approved by MSHA, the operator is required to follow its provisions. 

Respondent's roof-control plan requires that temporary supports be 

installed on 5-foot maximum centers to within 5 feet of the ribs and 

the face or the nearest permanent support. Tne plan also requires 

that the temporary supports be installed within 1 hour after the completion of the mining cyle and prior to roof bolting (Tr. 104-105). 

Respondent violated section 75.200 because the distance from the permanent supports to temporary supports was 8 feet (Exh. 7; Tr. 103). 

The violation was serious for several reasons. The Meadow River 

No. 1 Mine has hazardous roof conditions, especially in the No. 4 Unit 

where the violation occurred. The longer that a roof is allowed to 

remain in an unsupported condition, the more fragile and adverse it 

will become. Several falls of rock 3 or 4 feet thick have occurred 

in the No. 4 Unit. Additionally, with no supports in the No. 4 entry 

of the No. 4 Unit, no miner could lawfully go inby the 8 feet of 

unsupported rocif for the purpose of installing line curtains used for 

controlling ventilation at the face of the No. 4 entry (Tr. 106; 110). 

Respondent was negligent in permitting the violation to occur 

because the hazardous condition had been reported in the preshift 

examiner's record book. The section foreman on the day shift had 

read the preshift report before going to the No. 4 Unit to work, 

but he assigned other work to the men on his section without giving 

priority to installation of the required temporary supports (Tr. 

133-134; 1°72). 

Assessment of Penalty. Although the violation was serious and 

respondent was negligent in failing to install the required temporary supports, the facts show that several mitigating factors were 

696 
associated with the occurrence of the violation. Respondent's section foreman on the 4 p.m.-to-midnight shift on October 25, 1977, 

had had temporary supports properly installed, but the continuousmining machine had become inoperable on his shift. A maint~nance 

crew came to the No. 4 Unit and repaired the machine on the midnightto-8 a.m. shif~. After they had completed their repairs, they pulled 

the machine away from the face, and in doing so, knocked down some 

temporary supports. When the preshift examiner saw the timbers 

lying on the mine floor, he posted a danger board outby the unsupported area and reported the existence of the unsupported roof to 

the oncomiag section foreman for entry in the preshift book. Therefore, the unsupported roof existed for a period of from 4-1/2 to 

5 hours before the temporary supports were replaced (Tr. 184). 

Respondent correctly claimed that the preshift examiner could not 

have been expected to replace the temporary supports which had been 

knocked down by the maintenance crew. There was some merit to respondent's claim that the young men on the maintenance crew could not have 

been expected to replace the temporary supports since they are not 

trained in that type of work, but I cannot condone the maintenance 

crew's failure to report to the mine foreman or some other responsible 

person the fact that they had knocked down the supports and had not 

replaced them. 

The primary hazard which resulted from the failure to reset the 

temporary supports immediately lay in the fact that respondent's roofcontrol plan requires the supports to be installed within 1 hour after 

the coal is removed. The posting 'of a danger board by the preshift 

examiner, while very helpful, did not assure that a miner would not 

go inby the board and be injured or killed by a roof fall. 

Even though there wer.e several mitigating factors which contributed to the occurrence of the violation, the fact remains that only 

one area of unsupported roof is needed for a fatality to occur. 

Therefore, I believe that a substantial penalty is required in order 

that respondent will be encouraged to insist that maintenance crews 

report any occurrence which might decrease safety to their superiors 

so that corrective action may be taken immediately. For the foregoing reason, a penalty of $4,000 will be assessed for this violation of section 75.200. I believe the Assessment Office's proposed 

penalty of $8,000 was excessive because of its undue emphasis on the 

fact that the violation was cited in an order issued under the unwarrantable failure provisions of the 1969 Act. Additionally, the 

Assessment Office did not have the extensive testimony showing the 

mitigating factors discussed above when it proposed a penalty of 

$8,000. 

Exhibit 13 indicates that there have been 110 prior violations 

of section 75.200 at respondent's Meadow River No. 1 Mine. Nine 

violations occurred in 1974, 27 in 1975, 54 in 1976, and 20 had 

697 
occurred tn 1977 by June 15, 1977. Viol•tions of section 75.200 are 

increasing to a substantial degree each year. I believe that the 

criterion of history of previous violations is intended to act as a 

deterrent for operators who do not appear to be making a sufficient 

effort to reduce repetitious violations. Therefore, the penalty of 

$4,000 will be increased by $2,000 to $6,QOO because of respondent's 

extremely unfavorable history of previous violations. 

Order No. 1 HSG (7-539) 10/27/77 § 75.400 

Findings and Conclusions. Section 75.400 requires that coal 

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

loose coal, and other combustibles be cleaned up and not be permitted to accumulate in active workings or on electrical equipment. 

Respondent violated section 75.400 because it had permitted two 

different and distinct accumulations to occur. The first one was 

located beneath the conveyor belt drive and extended 65 feet inby 

under the belt conveyor. It ranged from 0 to 15 inches in depth. 

The shallowest accumulation was at the belt drive and the accumulations had become sufficiently compacted in places to force the 

bottom of the conveyor belt up off the rollers so that the bottom 

belt moved across the accumulations. About 50 percent of the coal 

was very wet, but the wet coal was located at the belt drive and 

the belt was dragging at the place where the coal was dry (Tr. 190; 

218-219). The second accumulation was along and under the No. 4 

crossbelt from the dumping point inby for a distance of 25 feet to 

the tail pulley of the No. 4 crossbel t. The accumulation was from 

8 to 10 feet wide and from 0 to 7 inches in depth. Spillage at the 

dumping point caused the bottom belt to carry the coal back so as to 

be ground between the tail pulley and the belt. The majority of the 

second accumulation was made up of float coal dust and was all dry 

(Tr. 193-194; 218). 

The accumulations were serious because they exposed the miners 

to the possibility of a mine fire as there was a source of ignition 

in the form of friction of the belt running in dry coal dust and 

there were electrical wires carrying from 440 to 550 volts and some 

of the wires were not suspended on insulators. If the float coal 

dust had been thrown into suspension at the time of an ignition, it 

would have exposed the miners to the possibility of an explosion as 

the float coal dust was very dry. The loose coal and coal dust accumulations were located within 50 to 75 feet of each other (Tr. 194-

195; 214-215). 

In my decision in Docket No. HOPE 78-73 (pp. 21-24), I explained 

in detail why I believed that MSHA had proven a violation of section 

75.400 under the criteria set forth by the former Board of Mine 

Operations Appeals in Old Ben Coal Co., 8 IBMA 98 (1977). I do not 

think it is necessary for me to repeat in this decision the extensive 

698 
discussion which is available in that decision. I upheld the inspector's citation of a violation of section 75.400 in the prior decision 

primarily on the inspector's belief that respondent knew, or should 

have known, that the accumulations existed because the loose coal and 

coal dust had been permitted to accumulate for 2 or 3 weeks. He based 

his conclusion as to the length of time that the accumulations had 

been allowed to form on the fact that the coal dust had become very 

compacted to the point that it caused the belt to be pushed up off 

the rollers so as to ride on the coal accumulation. He also based 

his opinion as to the length of time of accrual of the accumulation 

on the fact that a large amount of rust had formed around some of the 

rollers (Tr. 192; 202-203; 248). If the loose coal accumulation had 

been cleaned up during a recent period prior to the inspection, the 

rust would, of course, have been removed along with the loose coal. 

Respondent was negligent in permitting the violation to occur 

because its belt examiner checked the belts daily and should have made 

certain that the accumulations were cleaned up. One of the primary 

reasons for the belt cleaners' failure to remove the loose coal and 

coal dust from under the belt was attributable to the fact that when 

the belt conveyor was installed, its frame was placed on a 2-inch 

support, instead of a preferable 6-to-8-inch support, so that it 

was difficult to clean under the belt. In fact, it was dangerous to 

clean under the belt drive while it was moving and the coal was 

removed after being cited in the inspector's order by washing the 

accumulation away with a water hose (Tr. 213; 237). 

Assessment of Penalty. The inspector stated that he issued an 

unwarrantable failure order instead of an imminent danger order because 

a part of one of the accumulations was so wet that water could have 

been squeezed from the coal (Tr. 215; 218). Coal with that much water 

in it would be noncombustible. The second accumulation, however, was 

dry and consisted largely of float coal dust. The accumulations were 

not in suspension and no methane existed along the beltline, but there 

were high voltage wires in the area and some were not on insulators. 

Respondent had several kinds of firefighting equipment in the vicinity 

of the accumulations, including a fire extinguisher, a water hose, and 

a water line. Additionally, there were water sprays at the belt 

feeder. Of course, no type of firefighting equipment can prevent an 

explosion of float coal dust if the dust should bec_ome suspended at a 

time when an ignition occurs (Tr. 208; 222-223; 228). The fact that 

the belt was running in dry coal and the existence of the wires without insulators support a conclusion that the violation was serious. 

It should be borne in mind that the wires without insulators had no 

bare places on them which would have been a serious ignition hazard. 

In addition to the negligence involved in respondent's having 

constructed the belt in such a manner as to make it difficult to clean 

under the belt, respondent was using only three miners to clean along 

nine sections of belt conveyor. The assistant mine superintendent did 

699 
not realize, until the inspector's order was written, that respondent 

was using only three belt cleaners (Tr. 198; 203). Respondent's 

safety director stated that additional workers were assigned to cleaning along the belt if any special problems arose (Tr. 226-227; 244-

247). Regardless of respondent's intention about use of additional 

miners to clean along the belt, the fact remains that the accumulations occurred. Consequently, either the three cleaners were not 

able to keep up with the rate of spillage from the belts, or respondent had failed to assign additional men to assist in belt cleaning 

at the time the order was written. 

When all the facts surrounding the violation are considered, I 

believe that a penalty of $2,500 is warranted. As indicated, supra, 

under the heading of "Good Faith Effort to Achieve Rapid Compliance", 

the penalty of $2,500 will be reduced by 10 percent, or $250, to. 

$2,250 because of respondent's unusually rapid achievement of 

compliance. 

I believe that the penalty of $7,500 proposed by the Assessment 

Office was based on an excessive reliance on the fact that the order 

was issued under the unwarrantable failure provisions of the Act. 

The coal accumulations were not serious enough and respondent's 

negligence was not great enough to justify assessment of a penalty 

of $7,500. 

Exhibit 13 indicates that there have been 157 prior violations of 

section 75.400 at respondent's Meadow River No. 1 Mine. One violation occurred in 1974, 33 in 1975, 77 in 1976, and 46 had occurred in 

1977 by June 15, 1977. The statistics here again show an alarming 

annual increase in the number of violations of section 75.400. Therefore, the penalty of $2,250 will be increased by $2,500 to $4,750 

because of respondent's extremely unfavorable history of previous 

violations. 

Summary of Assessments and Conclusions 

(1) On the basis of the evidence of record in the consolidated 

proceeding in Docket Nos. HOPE 78-44, HOPE 78-71, and HOPE 78-73, 

respondent is assessed the following civil penalties: 

Order No. 3 HSG (7-499) 10/17/77 § 75.316 .......... $ 2,500.00 

Order No. 1 HSG (7-527) 10/26/77 § 75.200 6,000.00 

Order No. 1 HSG (7-539) 10/27/77 § 75.400 4,750.00 

Total Assessments in This Severed Proceeding •••• $13,250.00 

(2) Respondent was the operator of the Meadow River No. 1 Mine 

at all pertinent times and as such is subject to the provisions of 

the Act and to the health and safety standards promulgated thereunder. 

700 
(3) The orders listed in paragraph (1) above should be severed 

from the proceeding in Docket No. HOPE 78-679-P so that the remaining eight violations alleged by MSHA's Petition for Assessment of 

Civil Penalty may be disposed of on the basis of a hearing to be 

scheduled in the near future. 

WHEREFORE, it is ordered: 

(A) Sewell Coal Company is assessed civil penalties totaling 

$13,250.00 which it shall pay within 30 days from the date of this 

decision. 

(B) The orders listed in paragraph (1) above are severed from 

further consideration with respect to MSHA's Petition for Assessment 

of Civil Penalty filed in Docket No. HOPE 78-679-P. 

Distribution: 

fJt:ckvJ-rf( C. ~ tifh;- Richard C. Steffey P~ 

Administrative Law Judge 

John H. O'Donnell, Trial Attorney, Office of the Solicitor, 

U.S. Department of Labor> 4015 Wilson Boulevard, Arlington, 

VA 22203 

David F. Barbour, Trial Attorney in Docket No. HOPE 78-679-P, 

Office of the Solicitor, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 

Gary W. Callahan, Esq., Attorney for Sewell Coal Company, 

Lebanon, VA 24266 (Certified Mail) 

70i 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE Of ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

June 28, 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

STANDARD BUILDING MATERIAL CO., 

Respondent 

Civil Penalty Proceeding 

Docket No. DENV 79-60-PM 

A.C. No. 21-00620-05001 

Sand & Gravel Mine 

DECISION 

Appearances: Rafael Alvarez, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Roger N. Knutson, Esq., Grannis & Grannis, 

St. Paul, Minnesota, for Respondent. 

Be.fore: Judge Moore 

The above case came on for hearing in Minneapolis, Minnesota, on 

June 7, 1979. The evidence shows that while the company was substantial, employing 45 to 80 workers, only eight or nine usually worked 

in.the mining part of the company's operation. The inspector testified that all of the five citations involved in this case were abated 

promptly and in good faith. No prior history of violations of the 

1977 Act was introduced and I will assume in the absence of evidence 

to the contrary that no penalty assesBed by me would affect Respondent 1 s ability to continue in business. 

Citation No. 289403 charges that a berm was not provided on the 

outer edge of the elevated sand pile where the front-end loader was 

moving materials away from the discharge conveyor. Although it was 

not mentioned in the testimony, there is a notation on the bottom of 

Government Exhibit No. 1 (the citation) stating 11 --was working to put 

berms." I cannot read the first word of the notation, but the testimony indicates that the sand and gravel operation had. just been working for 2-1/2 weeks after an all-winter shut down and that the 

front-end loader had just been sent on to the sand pile to move the 

higher portions of the sand away from the discharge conveyor mechanism. 

He was moving sand off of the edge of the pile and building berms, but 

at the time the inspector observed the operation there were areas 

where there were no berms and where the front-end loader was backing. 

702 
The evidence adduced did not present a clear picture of the operation being conducted. I am satisified that there were no berms in 

a particular hazardous area at the time the inspector issued the 

citation, but what was not made clear was exactly when, in the type 

of operation being conducted, berms should be constructed. There 

was testimony that there were berms in some areas and wort! down or 

weathered berms in others and that b~rms ~re constantly changing. 

There was uncontradicted evidence that the berms had to be made of 

the same material as the stockpile in order to avoid contaminating 

the pile and obviously you would have to construct some kind of 

flat area before you can put berms around it. It may be that the 

sequence followed by the front-end loader operator was erroneous 

and that he should have spent more of his effort in building berms 

rather than flattening out any area to put the berms around. But I 

am not sufficiently convinced of that to find that as a fact. I 

therefore find that MSHA has failed to carry its burden of proof 

with respect to this violation and the citati~n is accordingly 

VACATED. ]:_/ 

Citation No. 289404 alleges a guard was not provided on the 

drive shaft on the pan feeder. Inasmuch as the standard 30 CFR 

56.14-1 only requires a guard where a drive shaft of this type 

might cause injury, the inspector stated that the existence of a 

proper stop cord would have so minimized the possibility of injury 

as to eliminate the violation. This same inspector had previously approved the emergency stop cord at this particular location. 

The inspector was perfectly candid about the fact that he simply 

changed his mind about the safety of the arrangement. At the time 

of the hearing, he did not think the stop cord was close enough 

to the area where the miner might get caught in the drive shaft. 

In my opinion, an inspector has a right to change his mind concerning a hazardous situation. But, in the absence of imminent 

danger, I do not think MSHA has a right to issue a citation for 

which a penalty must be sought without first informing the respondent or operator that there has been a change of opinion. This 

is not a matter of estoppel. The Government is not estopped from 

changing its mind and forcing a new policy, but issuing a citation 

1/ In approximately 7 years, of hearing cases under both the 1969 

and 1977 Mine Acts, I have never heard a case involving the lack of 

berms at a surface coal mine or in the surface area of any underground coal mine even though the surface coal mine standard is 

identical to the metal/nonmetal standard. · And in all of the cases 

where modification of the berm standard was sought by a coal mine 

operator, modification was granted so that berms were not required 

as long as certain conditions were met. These modifications 

were all with the consent of MESA, the predecessor of MSHA. With 

one exception, however, every noncoal mine case that I have heard 

has involved an alleged violation of the berm standard. 

703 
and seeking a penalty for a condition which the Government has 

caused by its advice approaches harassment and that is not what 

the Act was designed to do. The citation is VACATED. 

Citation No. 289405 alleges that the compressed gas cylinders 

were standing in the shop area unsecured in violation of 30 CFR 

56.16-5. There is no question but what the inspector found the 

acetylene and oxygen cylinders standing unsecured in an area where 

they were normally stored and where securing devices were readily 

available. I can readily see how it was a clear violation in his 

eyes. The fact of the matter, however, is Mr. Leaf, the watch 

plant operator foreman, was responsible for securing oxygen and 

acetylene tanks when they were delivered by a private seller. The 

tanks were delivered to the appropriate place by the seller and in 

ordinary circumstances Mr. Leaf would have secured them immediately. 

In this case, however, Mr. Leaf was a part of the inspection team 

at the time of the delivery and was with the inspector. As stated 

before, there are only a few miners in this operation and as soon 

as·the inspection party reached the area of the unsecured cylinders, 

they were secured by Mr. Leaf. The testimony did not disclose 

whether or not the inspector was informed of the circumstances, 

but in my opinion, i"f he had known all the facts and still issued 

the citation, he would have been acting in an arbitrary manner. 

The citation is VACATED. 

Citation No. 289406 alleges "the handrailing on the stairway to 

the grizzly does not project 3 feet above the landing for safe 

access." The standard alleged to 'have been violated, 30 CFR 56.ll-6, 

states: Mandatory. Fixed ladders shall project at least 3 feet above 

landings, or substantial handholds shall be provided above the landings." Inasmuch as the standard requires that the ladder itself 

project above the landing or that handholds be provided, the citation which charges that the handrailing did not project 3 feet above 

the landing does not allege a violation of the standard. I think 

the standard was intended for vertical ladders where, unless they 

project above the landing surface, it is very difficult to get off 

at the landing surface, but it is even more difficult to get back 

on the ladder going down. The ladder in this case was more like 

a stairway and it did have a handrailing which could be held on to 

when the climber was on the top rung of the steps. From the best 

description I could get after lengthy questions by both the attorneys 

and me, I conclude that a violation did not exist when the citation 

was issued. The citation is accordingly VACATED. "' 

Citation 

backing under 

signal alarm. 

area numerous 

No. 289407 alleges that haul truck No. 208 was 

the bins and was not provided with an audible reverse 

The inspector noticed the truck backing into the 

times while he was at the mine-and stated there was 

704 
no helper guiding the driver and that there was no audible backup 

alarm. It may well have been, as suggested by Respondent, that 

the backup alarm went out immediately before the inspection. And 

I accept the testimony that the drivers were required and instructed to report malfunctions such as a nonworking backup alarm. 

But when the inspector observed that the backup alarm was not 

working and issued a citation, it was somebody's duty to inquire 

as to how long that backup alarm had been malfunctioning. In my 

opinion, it was the duty of the operator to obtain that evidence 

if be intended to rely on the fact that the alarm had just broken 

prior to the inspection. The Respondent did establish that it 

could have been that the malfunction occurred just prior to the 

inspection, but he had no positive evidence to offer that it, 

in fact, did occur at that time. In the absence of such evidence, 

I think the inspector was perfectly justified in issuing the citation. 

Also, in the absence of such evidence, I think I can assume negligence because unless it occurred just prior to the inspection, 

Respondent should have known of the condition of the backup alarm. 

The gravity is moderate and I consider that a penalty of $120 is 

appropriate. 

ORDER 

It is therefore ORDERED that Respondent pay to MSHA, within 

30 days of the entry of this decision, a civil penalty in the 

amount of $120. 

Issued: June 28, 1979 

Distribution: 

·~ef0~(~. Charles C. Moore, Jr. 

Administrative Law Judge 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department 

of Labor, 230 South Dearborn Street, Chicago, Il 60604 

(Certified Mail) 

Roger N. Knutson, Esq., Grannis & Grannis, 403 Northwestern 

National Bank Building, 161 North Concord Street, South 

St. Paul, MN 55075 (Certified Mail) 

Administrative for Metal and Non-Metal Mine Safety and Health, 

U.S. Department of Labor 

S.tandard Distribution 

705 
FEDERAL rVUNE SAFETY Ai~O Mr::J.'tL"'{i;,z REVUEW co:Jrn~~$$lON OFFICE OF ADMINISTRATIVO:: LAW JUDGES 

4015 WILSON E>ouu:VAf~D 

ARLINGION, VIRG tr~IA 22203 

JUN 2 9 1979 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

~ocket No. DENV 78-537-P 

A/O No. 41-01900-02007 V 

v. 

TEXAS UTILITIES GENERATING CO., 

Respondent 

Docket No. DENV 78-82-P 

A/O No. 41-01900-02009 F 

Monticello Fuel Facilities Strip 

Mine 

Docket No. DENV 79-80-P 

A/O No. 41-02632-02004 V 

Docket No. DENV 79-81-r 

A/O No. 41-02632-03001 

Martin Lake Strip Mine 

DECISION 

Appearances: Eloise Vellucci, Esq., and Douglas White, Esq., U.S. 

Before: 

Department of Labor, for Petitioner; 

Richard L. Adams, Esq., Worsham, Forsythe & Sampels, 

for Respondent. 

judge Forrest E. Stewart 

PROCEDURAL BACKGROUND 

The above-captioned cases are civil penalty proceedings brought 

pursuant either to section 109 of the Federal Coal Mine Health and 

Safety Act of 1969, 30 U.S.C. § 819 (1970), or to section llO(a) of 

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

(1977). 

On August 9, 1978, Petitioner filed with the Federal Mine Safety 

and Health Review Commission a petition for assessment of a ci·.ril 

penalty for the violation included under Docket No. DENV 78-153-P. 

Respondent filed its answer to this petition on·January 3, 1979. 

Petitions for assessment of civil penalty in Docket Nos. DENV 

706 
78-80-P, DENV 78-81-P and DENV 78-82-P, were filed on November 22, 

1978. Respondent's answers were filed on January 2, 1979. The hearing in thes~ matters was held on February 21, 1979, in Dallas, Texas. 

Posthearing briefs were filed by the parties on April 9, 1979. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

At the hearing, the parties stipulated to the following: 

(a) The computer printouts of Respondent's prior violation history at the Martin Lake Strip Mine and the Monticello Fuel Facilities 

Strip Mine offered in evidence at the hearing were authentic and 

admissible. 

(b) Respondent's company had produced 16,653,961 tons of coal in 

1978. 

(c) Respondent produced 3,072,199 tons of coal in 1978 at its 

Martin Lake Strip Mine. 

(d) Respondent produced 6,278,289 tons of coal in 1978 at its 

Monticello Fuel Facilities Strip Mine. 

There is no indication on the record that any penalty assessed in 

these proceedings would have an adverse effect on Respondent's ability 

to remain in business. 

DOCKET NO. DENV 78-537-P 

A single violation was alleged within Docket No. DENV 78-537-P. 

On June 22, 1977, Inspector Maloney cited a violation of 30 CFR 

77.410 at Respondent's Monticello Fuel Facility Strip Mine. At the 

hearing, Respondent admitted the existence of the violation, contesting only the amount of the proposed penalty. 

Inspector Maloney discovered that a troubleshooter's truck was 

not equipped with the required operative automatic backup alarm. The 

truck was equipped with a toggle switch which had to be tripped manually whenever the vehicle was placed in reverse. This warning system 

was not automatic and at the time, it was inoperative. 

The inspector did not know how long the toggle switch had been in 

use or whether the condition was known to supervisory personnel. He 

was of the opinion that a supervisor should examine the cab of the 

truck at least once a shift. Albert Schwarzer, one of Respondent's 

fuel superintendents, testified that the operator of each vehicle 

had been designated as the party responsible for inspection of his 

vehicle during each shift. He asserted that there was not enough 

time for supervisory personnel to inspect daily each of the 

100 vehicles used at the mine on a pr~shift ba~is. 

707 
From zero to seven employees usually work in the area. Visibility 

behind the truck was obstructed, but the area was not noisy. 

An automatic backup alarm was installed on the truck within an 

hour. 

DOCKET NO~ DENV 78-80-P 

A single violation was alleged within Docket No. DENV 78-80-P. 

Inspector Maloney issued Notice of Violation No. 3-LGM on February 15, 

1978, at Respondent's Martin Lake Strip Mine. He cited a violation 

of 30 CFR 77.1401 after observing that a crane which was not provided 

with overspeed and overwind devides was being used to hoist personnel. 

Two men were suspended 35 to 40 feet above the ground in a cage. This 

condition was in violation of secti6n 77.1401. 

The condition or practice was known to mine management. Inspector Maloney had informed them of the requirement in October of the 

previous year. A member of mine management admitted knowledge of the 

crane's use at the time the notice was issued. 

It is improbable that the condition would result in an accident. 

The capacity of the crane was 200 tons. The inspector testified that 

it was safe to use the crane to hoist men and that a modification 

would have been granted Respondent if it had applied for one. 

The violation was abated by the posting o.f signs prohibiting use 

of the machine for hoisting men. 

DOCKET NO. DENV 79-81-P 

Nine violations were alleged within Docket No. DENV 79-81-P. 

These alleged violations are discussed below in the order in which 

the corresponding citations were issued. 

1. Citation No. 00391705 

On March 21, 1978, Inspector Maloney issued 104(a) Citation No. 

003-91705,citing a violation of section 103(f) of the Act. Section 

103(f) reads in pertinent part as follows: 

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 

708 
authorized miner representative, the Secretary or his authorized representative shall consult with a reasonable number 

of min~rs concerning matters-of health ~nd safety in such 

mine. 

Inspector Maloney,.his immediate supervisor, and a trainee 

inspector arrived at the mine office at approximately 7:30 a.m. The 

shift change at Martin Lake Strip Mine occurs at 8 a.m. Just prior 

to the shift change,· the inspectors chose Thori1as Hopkins, a union 

steward on the day shift, to accompany them during the course of the 

inspection as the authorized miner representative. Inspector Maloney 

testified that permission for Mr. Hopkins to accompany the inspectors 

was given by an assistant maintenance foreman on the midnight shift. 

At approximately 8:15 a.m., Mr. Hopkins was approached by his 

immediate supervisor, Fred Overton, who ordered Mr. Hopkins back to 

work. Thereafter, the opportunity for Mr. Hopkins to accompany the 

inspectors was also refused by Mr. Reedy, Respondent's fuel superintendent. Mr. Hopkins was permitted to continue with the party of 

inspectors only after a citation was issued. The failure to give 

Mr. Hopkins an opportunity to accompany the inspectors was in violation of section 103(f) of the Act. 

The inspector did not find that the violation was significant and 

substantial and there is no indication that it could have led to an 

accident or injury. Immediately after the citation was issued, mine 

management pennitted Mr. Hopkins to accompany the inspectors. 

2. Citation No. 00391708 

On March 21, 1978, Inspector Maloney issued 104(a) Citation No. 

00391708, citing a violation of 30 CFR 77.208(e). He observed three 

oxygen cylinders and four acetylene cylinders stored in two racks at 

the dragline erection site. The valves on these cylinders were not 

provided with protective covers. The inspector was of the opinion 

that the violation was of such a nature as could significantly and 

substantially contribute to the cause and effect of a mine safety 

hazard. Because the cylinders could easily be seen, the condition 

should have been known to the operator. The condition was corrected 

10 minutes after the citation was issued. 

At the hearing, the parties proposed a settlement of this case 

for $150, the amount originally proposed by MSHA's Office of Assessments. The Administrative Law Judge approved the settlement at that 

time, and this approval is affirmed here. 

3. Citation No. 00391709 

On March 21, 1978, Inspector Maloney issued 104(a) Citation No. 

00391709, citing a violation of 30 CFR 77.208(a). He observed that 

709 
a cable sheave which was stored at the dragline erection site was not 

blocked to prevent it from being accidentally tipped over. In addition, the gantry sheave was resting on a center shaft approximately 

20 inches in diameter and the bottom circumference of thesheave was 

approximately 10 inches above the ground. The inspector found that 

this condition was of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety 

hazard. The condition was abated 25 minutes after the citation was 

issued. 

At the hearing, the parties proposed a settlement of this case 

for $210, the amount assessed by MSHA's Office of Assessments. The 

Administrative Law Judge approved the settlement at that time. This 

approval is affirmed here. 

4. Citation No. 00391711 

On March 21, 1978, Inspector Maloney issued section 104(a) Citation No~ 00391711, citing a violation of 30 CFR 7j.408. Section 

77.408 requires that welding operations shall be shielded. At the 

dragline construction site, the inspector observed three welding 

operations which did not have the required shielding. The operator 

quickly abated this condition by placing portable canvas shields 

around each welding operation. 

The -operator was negligent in its failure to shield the welding 

operations. The failure to shield was visually obvious. The inspector was of the opinion that the welding had been ongoing at least 

from the beginning of the shift. 

The hazard presented by this condition was flashburn. If such 

an accident were to occur,· the probable result would be lost workdays 

or restricted duty. 

There were approximately eight people in the area. Two of the 

welders were within 20 feet of each other. Leroy Churchill, Respondent's technical engineer who was in charge of the welding operations at issue, testified that the welders might operate as close as 

4 or 5 feet to one another. Each of the welders was experienced and 

each wore a personal shield. Although the normal path of the construction workers was approximately 100 to 150 away, the area was not 

fenced off to prevent someone from approaching. Given the nature of 

the hazard and the number of people subjected to it, the occurrence 

of an accident was probable,, 

The operator made a good faith effort to abate the condition 

once the citation was issued. Portable shields were immediately 

placed around the welding operators. 

710 
5. Citation No. 00391712 

On Mar~h 21, 1978, lnspecto~Maloney isiued 104(a) ciitatioc No. 

00391712, citing a violation of 30 CFR 77.208(d). The inspector 

observed that an oxygen cylinder and an acetylene cylinder in a tool 

room area for the dragline erection site were not secuted in a safi 

manner. A rope had been tied around the cylinders and their wooden 

frame supports, but it had slipped down to within 6 inches of the 

base of the cylinder~. The inspector found i~ improbable that an 

accident would occur. He remained of the opinion that the condition 

w~s of such a nature ns could siznificantly and substantially contribute to the cause and effect of a mine safety hazard. However, 

he also found that the condition either could not have been known 

or predicted, or occurred due to circumstances beyond the operator's 

control. The condition was abated 10 minutes after the citation 

was issued. 

At the hearing, the parties proposed a settlement of this case 

for $122., the amount assessed by MSHA's Office of Assessments. The 

settlement was approved by the Administrative Law Judge at that time. 

This approval is affirmed here. 

6. Citation Nos. 391719 and 391720 

Inspector Maloney issued fo4(a) Citation Nos. 391719 and 391720 on 

March 23, .1978, after observing a badly burned front-end loader which 

was parked on the access road to the main office. Upon investigation, 

it was determined that the vehicle had caught fire and burned for 

1-1/2 to 2 hours. Thereafter, it had been removed from the accident 

site to the mine office. The operator of the vehicle suffered second 

degree burns and a broken nose in the incident. Respondent did not 

report the fire to MSHA officials. 

An accident is defined in 30 CFR 50.2(h) as being "an unplanned 

mine fire not extinguished within 30 minutes of discovery." Because 

this fire may be characterized as an accident, the failure to report 

it to MSHA was in violation of section 50.10 and removal of the 

vehicle from the site of the fire was in viol~tion of section 50.12. 

Mine management was unaware of the requirement to notify MSHA 

immediately of the accident. It is improbable that these violations of 

50 .• 12 and 50.10 would result in an accident. The injury to the 

employee was reported promptly, and an etfort had been made to 

preserve the equipment to help determine the cause of the fire. 

7. Citation No. 00391724 

Inspector Maloney issued Citation No. 00391724 on March 27~ 

1978, citing a violation of 30 CFR 77.1605(b). · Section 77.1605(b) 

711_ 
requires that all trucks be equipped with parking brakes. The 

inspector observed an Ardco "Kanda" vehicle with an inoperative 

parking brake. This vehicle had four-wheel drive and five seats, 

a~ well as a bed used to transport tools, supplies and other materials. It may be characterized as a truck within the meaning of 

section 77.1605(b). The absence of an operative parking brake on 

the Kanda vehicle was in violation of that section. 

The inspector did not know if the employees who were using the 

vehicle knew that the parking brake was inoperative, and there is no 

indication that mine management was aware of the fact. 

At the time the citation was issued, the vehicle was parked on 

level ground and it was unoccupi~d. It had been left in gear to prevent .it from rolling. The inspector testified that there was no real 

danger unless the vehicle was left out of gear on an incline. Repair 

efforts were undertaken immediately and the condition was corrected 

within the time set by the inspector for abatement. 

8. Citation No. 00391726 

On March 28, 1978, Inspector Maloney issued 104(a) Citation No. 

00391726, citing a violation of 30 CFR 77.404(a). He observed. that 

the passenger-side door on one of Respondent's boom trucks was badly 

bent and would not latch. A nylon rope and rubber strap were used 

.to tie the door shut. The inspector found that the condition was of 

such a nature as could significantly and substantially contribute to 

the cause and effect of a mine safety hazard. The condition could 

have interferred with emergency escape from the vehicle. Alternatively, the door could open unexpectedly. The defect should have 

been known to the operator because it was visually obvious. A 

replacement was found in a local town .and the condition was corrected within the time set for abatement. 

At the hearing, the parties proposed a settlement of the case 

for $305, the amount assessed by MSHA's Office of Assessments. The 

settlement was approved at that time by the Administrative Law Judge 

and the approval is affirmed here • 

. DOCKET NO. DENV 78-82-P 

The single violation alleged within Docket No. DENV 78-82-P 

arose out of an incident which occurred at Respondent's Monticello 

Fuel Facilities Strip Mine on the morning of December 31, 1977. 

A fatal inJury was sustained by one of Respondent's employees after 

he fell into a coal hopper. 

The hopper in question was being used as a dump site for bottom 

dump trucks. There were two openings in the hopper about L~-1/2 feet 

wide. Tracks had been placed across the opening to allow trucks to 

712 
drive over the hopper and dump coal into it. During the shift on 

which the· accident occurred, trucks had been dumping coal into the 

northernmost opening. A bulldozer was being used to push a stockpiled 

coal into the second opening. At the time of the accident, the . 

northernmost of these two openings was covered by a large coal hauling truck. The building which housed the dump station operators was 

adjacent to this side of" the dump site 

On the morning of December 31, 1977, Charles White, a pumper 

operator, was working in the control room at the coal crusher at the 

Monticello Fuel Facilities Strip Mine of Respondent. At approximately 

4 or 5 o'clock that morning, one of Respondent's foremen called the 

control room and asked that a certain coal hauling truck be stopped 

and the operator told to bring the truck to the shop for maintenance. 

White failed to stop the coal hauler before it reached the dump site. 

He then apparently walked around behind the control room building to 

meet the hauler. He entered the dump site, walked up beside the left 

front wheel of the coal hauling truck and began to speak to the 

driver of the truck. White then took a step backward and fell into 

the open coal dump. 

Notice of Violation No. 1-JDf:, January 1, 1978, was issued in 

the course of the ensuing accident investigation. The inspector 

cited a violation of 30 CFR 77. 204 and alleged. that "openings in 

the haulage truck dumping facilities'*** were not protected by 

railings, barriers, covers, or other protective devices." 

Section 77.204, in pertinent part, provides the following: 

"Openings in surface installations through which men or material 

may fall shall be protected by railings, barriers, covers or other 

protective devices." 

There were no permanent protective or warning devices in the 

area other than a low concrete wall which ran between the hopper 

and the control room building, and which extended 3 feet heyond 

each side of the hopper, and two unilluminated signs located on 

each end of the wall which stated "Danger Open Pit". A barrier 

was pl~ced across the roadway when the hopper was n9t being used. 

This comprised approximately 15 percent of the time during which 

the mine was operating. The barrier was not in place when the 

accident occurred. 

The absence of protection over or around the opening at the 

time of the accident was in violation of section 77.204. 

The operator evinced a small degree of negligence in its failure 

to protect the hopper opening. A barrier was erected when the site 

was not in use. It was in fact, the pumper's responsibililty to 

erect this barrier. In addition, signs had been posted warning 

against the danger presented by the open hopper. Respondent's safety 

713 
manual prohibits entry into the area when the dump site is in use. 

Two of Respondent's witnesses testified that they had never seen a 

person in the dump site area other than for maintenance purposes. 

Finally, 22 inspections had been conducted by MSHA at Respondent's 

Monticello Mine prior to the accident. The condition in question was 

not found by MSHA inspectors to be a violation in the course of any 

of these inspections. Even so, the hazard presented by the open pit 

was obvious and sho.uld have been known to the operator. · · 

Respondent demonstrated good faith in rapidly complying with section 77.204 and indicates its continued good faith in attempting to 

find the most workable and affective means of protection. 

ASSESSMENTS 

In consideration of the findings of fact and conclusions of 

law in this decision based on stipulations and evidence of record, 

the following assessments are appropriate: 

DOCKET NO. DENV 78-537~P 

Notice of Violation No. 1-LGM (June 22, 1977) $500 

DOCKET NO. DENV 79-80-P 

Notice of Violation No. 3-LGM (February 15, 1978) $300 

DOCKET NO. DENV 79-81-P 

Citation No. 00391705 $ 200 

Citation No. 00381708 150 

Citation No. 00391709 210 

Citation No. 00391711 195 

Citation No. 00391712 122 

Citation No. 00391719 130 

Citation No. 00391720 130 

Citation No. 00391724 200 

Citation No. 00391726 305 

DOCKET NO. DENV 79-82-P 

Notice of Violation No. 1-JDC (January 1, 1978) $800 

All proposed findings of fact and conclusions of law inconsistent 

with this decision are rejected. 

714 
ORDER 

It is ORDERED that the settlement negotiated between Petitioner 

and Respondent with respect to Citation Nos. 00391708 ·(March 21, 

1978), 00391709 (March 21, 1978), 00391712 (March 21, 1978), and 

00391726 (March 28, 1978), is hereby APPROVED. 

It is further ORDERED that the Respondent pay the sum of $3,242 

within 30 days of the date of this decision. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Eloise Vellucci, Esq., and Douglas White, Esq., Office of the 

Regional Solicitor, U.S. Department of. Labor, 555 Griffin 

Square Building, Suite 501, Griffin and Young Streets, Dallas, 

TX 75202 (Certified Mail) 

Richard L. Adams, Esq., Worsham, Forsythe & Sampels, 2500-2001 

Bryan Tower, Dallas, TX 75201 (Certified Mail) 

715 
FEDERAL MINE SAFETY AND HEALTH REVIEW COl\liMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRG !NIA 22203 

June 29·, 1979 

PEABODY COAL COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY _AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

and 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SENECA COALS LIMITED, 

Respondent 

Application for Review 

Docket No.· DENV 78-557 

Order No. 390240; 8-1-78 

Seneca Surface Mine 

Civil Penalty Proceeding 

Docket No. DENV 79-286-P 

A/O No. 05-003.04-03001 

Seneca Strip Mine 

DECISION 

Appearances: 

Before: 

Thomas F. Linn, Esq., Peabody Coal Co., Denver, 

Colorado, for Applicant/Respondent; 

Robert A. Cohen Esq., Office of the Solicitor, U.S. 

Department of Labor, for Respondent/Petitioner. 

Judge Chares c. Moore, Jr. 

The two above-captioned cases involve, one order of withdrawal 

and a review thereof, plus a penalty case involving the same order. 

The fact that the names of the operator's of the mines in the two 

cases are different is a technicality which is unimportant to this 

decision. It was agreed at the hearing that Peabody Coal Company is 

the operator and is therefore both the applicant in the review case 

and the respondent in the penalty case. 

On August 1, 1978, Inspector Padgett issued order of withdrawal 

No. 390240 because a bulldozer was observed building a road in the 

middle of a blasting area on the high wall within 3 to 5 feet of 

charged holes. The order was issued under 107(a) of the Act as an 

imminent danger, but also charged a violation of 30 CFR 77.1303(g). 

The .inspector later modified his order at the instructions of his 

superior to state that the blasting holes were, "loaded holes" rather 

than "charged holes" as he had stated :ln the original order. 

716 
Government's Exhibit No. 2 is a sketch of the area involved in 

the violation. The exhibit shows the blasting pattern and indicates 

each hole that was included in that pattern as well as which holes 

were completely packed with explosives, which holes had booster type 

primers stored near them and which had merely been drilled but not 

further prepared for blasting. The exhibit shows and the testimony 

supports the fact that the bulldozer operator did build a road between 

rows of holes and that there were nine loaded holes on his right-hand 

side and three loaded holes on his left-hand side. At this point in 

this decision, I am using the term "loaded hole" to describe a hole 

in which detonating cord (Primacord) has been secured to a booster 

primer and lowered to the bottom of the hole, ammonium nitrate slurry 

or ANFO has been added on top of the primer, the hole has been tamped 

and a short length of the primaccird is sticking out of the top of the 

hole. 

In view of the fact that the columns of holes where 25 feet apart 

and the bulldozer blade was approximately 14 feet across, if the dozer 

operator stayed exactly in the middle, his blade would have been 

within 5-1/2 feet of the loaded holes on each side of the blade. When 

the order was issued, the bulldozer operator was backing between the 

loaded holes towards 2 cases of primacord that he had not noticed when 

he came into the area but boxes .which he might or might have not seen 

if he had continued to back out between the loaded blasting holes. 

The question is whether or not this situation constituted.an imminent 

danger and whether or not it involved a violation of 30 CFR 77.1303(g). 

The regulation alleged to have been violated states: "Areas in 

which charged holes are awaiting firing shall be guarded, or barricaded and posted, or flagged against unauthorized entry." While there 

is a dispute about whether holes which have been loaded with explosives but not fitted with a detonating device are charged holes 

awaiting firing, there's no question hut that this particular area 

was posted and flagged againGt unauthorized entry. The inspector and 

the other witnesses so testified. The posting against unauthorized 

entry, regardless of whether an unauthorized vehicle actually enters, 

prohibits the finding of a violation of this section. The section 

requires posting and the area was posted. It was the inspector's 

position that a violation occurred because the bulldozer operator 

was unauthorized to enter the area, but he was in fact clearly authorized and ordered to enter the area by an assistant supervisor at 

the mine. Whether he should have been authorized is another question 

but there is no doubt but that he was in fact authorized. 

I am furthermore convinced that a charged hole awaiting firing is 

a hole which has not only been loaded with explosives but is also 

equipped with some sort of firing device, meaning either a blasting 

cap or a similar device with a time delay mechanism contained therein. 

This view is supported by the recommended decision of Judge Switzer 

promulgated on November 16, 1977, involving proposed amendments to 

717 
rules for metal and nonmetal.mining encompassed in 30 CFR 55, 56, and 

57 •. It is also supported by the memorandum of September 9, 1974, from 

the Assistant Administrator of Coal Mine Health and Safety which. contains the following paragraph: "For the present, we will define a 

"loaded hole" as one that contains explosives or blasting agents with 

a primer and that it does not become a "charged hole" until a detonator is introduced into the system." (See p. 2 of Petitioner's 

Exhibit No. 1). That same exhibit states that public hearings were 

scheduled in November 1974, for the purpose of amending 30 CFR 77.1300 

to include a definition of "charged hole" to mean any hole containing 

explosives or blasting agents with a primer. If the rule had been 

promulgated, as proposed, it would be clear that MSHA was correct and 

that a hole with everything but the detonator could be considered a 

charged hole. The rule was not amended, however. 

MSHA did place in its inspector's manual published March 9, 1978, 

(Govt. Exh. 3) on page 321, the following sentence: "Holes containing 

explosives or blasting agents, tamped and ready for firing are defined 

as charged holes." Obviously inspector Padgett was following the 

manual when he deemed the holes as charged, and insofar as MSHA is 

concerned he was correct in his decision. But MSHA cannot change the 

law by adding words to its manual. 1/ It had the opportunity to 

change the code of Federal regulations and did not do so. I find the 

holes were not "charged" and I think it is equ.ally obvious that until 

the blasting cap is added they are not "ready for firing." The civi'l 

penalty portion of the above action is accordingly decided in 

Peabody's favor and the complaint is dismissed .• 

This leaves the question of whether or not there was an inuninent 

danger. Obviously the inspector who appeared to be a dedicated and 

sincere law enforcement official believed there was an innninent danger, or he wou.ld not have issued the order. He had been taught at 

the Bureau of Mines school in Beckley that primacord could be detonated by being run over by a bulldozer. Although he thought the 

chance of the bulldozer operator detonating any of the pieces of 

primacord sticking out of the blasting holes was rather remote, he 

thought there was a definite possibility of an explosion should the 

bulldozer run over the 2 cases of coiled primacord. He had been 

taught at Beckley that a coil of primacord would explode if crushed. 

The operator of the bulldozer, Mr. Cobb was equally concerned about 

his own safety and was very nervous about operating between loaded 

blasting holes. He said "no powder is safe." 

Despite the sincerity of the inspector, and the operator of the 

bulldozer, however, the other testimony in the case convinces me 

that primacord and cast primers are extremely safe explosives. The 

main explosive used in the mine, ANFO (meaning ammonium nitrate and 

1/ The letter from MSHA 1 s attorney dated June 11, 1979, indicates 

that MSHA no longer supports the statement in the manual. 

718 
fuel oil) and ammonium nitrate slurry are extremely insensitive 

explosives. 2/ They cannot be exploded with a blasting cap except 

under unusual circumstances and an efficient explosion cannot be 

obtained with primacord alone. For an efficient explosion, the 

primacord must be attached to the cast primer or booster before 

either the slurry or the ANFO can be efficiently detonated. But in 

the entire explosive train, the least sensitive element is the 

primacord. Mr. Hynes a professional engineer.with a degree in mining gave convincing testimony as to the safety of primacord. If it 

is placed against a steel wall and impacted with the army equivalent 

of the french 75 cannon, detonation can occur. Short of that, however, and nothing in the mine even approaches that degree of heat 

and pressure, primacord or detonating cord will not explode. While 

it will burn, the burning will not cause detonation. It takes a 

blasting cap, another explosion such as a dynamite explosion next to 

it or the impact of a French 75 to set it off. I cannot find that 

there was an imminent danger because of the possibility of the bulldozer running over the primacord. I make a similar finding regarding 

the cast primers but point out that there was no evidence that the 

bulldozer operator operated near those charges. 

I find that no imminent danger existed and accordingly vacate 

Order of Withdrawal 390240. 

Issued: June 29, 1979 

Distribution: 

Charles 

~eR;~?- C. Moore, Jr. 

Administrative Law Judge 

Thomas F. Linn, Esq., Peabody Coal Company, Suite 600, 

12015 East 46th Avenue, Denver, CO 80239 (Certified Mail) 

Robert A. Cohen, Esq., MSHA, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 

Administrator for Coal Mine Safe.ty and Health, U.S. Department 

of Labor 

Standard Distribution 

2/ It was, however, ammonium nitrate fertilizer mixed with diesel 

fuel oil which blew up Texas.city in 1947. 

719 
FEDERAL MINE SAFETY AND HEALTH REVl!Et.V COf~'1MISSION OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSOtJ BOULEVARD 

ARLINGTON, VIRGINIA 22203 

June 29, 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SEWELL COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. HOPE 78-330-P 

A.C. No. 46-03467-02057-V 

Meadow River No. 1 Mine 

DECISION 

Appearances: John H. O'Donnell, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Gary W. Callahan, Esq., The Pittston Company Coal 

Group, Lebanon, Virginia, for Respondent. 

Before: Judge Cook 

I. Procedural Background 

On April 18, 1978, a petition for assessment of civil penalties 

was filed by the Mine Safety and Health Administration (HSHA) against 

Sewell Coal Company for alleged violations of various sections of the 

Code of Federal Regulations. The petition was filed pursuant to 

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

30 U.S.C. § 820(a) (1977 Mine Act). An answer was filed on May 4, 

1978. 

A notice of hearing was issued on May 17, 1978, setting the hearing for September 19, 1978. An amended notice of hearing was issued 

·on July 21, 1978, changing the hearing date to August 29, 1978. On 

August 3, 1978, the Respondent moved to change the hearing date to 

October 24, 1978. The motion was granted by an order .issued 

August 14, 1978. The hearings commenced on October 24, 1978, in 

Charleston, West Virginia, and began with the taking of testimony 

in a companion case. 

The hearing in the present case commenced on October 26, 1978, 

at which time the parties proposed settlements relating to Order Nos. 

7-0012 (1 HRB), January 27, 1977, 30 CFR 75.400, and 7-0024 (1 SEV), 

January 28, 1977, 30 CFR 75.400. Testimony was taken respecting 

720 
Order Nos. 7-0041 (1 SEV), February 1, 1977, 30 CFR 75.1100-3, 7-0042 

(2 SEV), February 1, 1977, 30 CFR 75.1100-3, and 7-0140 (1 HRB), 

February 15, 1977, 30 CFR 75.200. At the conclusion of the proceedings on October 26, 1978, the hearing was continued pending ~ 

telephone conference between counsel for the parties and the Administrative Law Judge to determine the date for the conclusion of the 

hearing. As a result of an agreement reached during the telephone 

conference, the proceeding was continued until November 20, 1978. 

At the commencement of the proceedings on November 20, 1978, 

counsel for the parties proposed settlements pertaining to two of 

the remaining three orders. Testimony was taken respecting the 

remaining contested order. 

The decision approving the settlements is included in this 

decision. 

During the hearings on October 26, 1978, and November 20, 1978, 

counsel for the Respondent made various oral motions. Rulings on 

these motions are contained herein. 

A briefing schedule was arranged at the conclusion of the proceedings on November 20, 1978. Briefs were due on or before February 1, 

1979, and reply briefs were due on or before February 15, 1979. MSHA 

filed a posthearing brief on February 1, 1979. · The transcript of the 

first portion of the case was filed on January 30, 1979, such delay 

having been due to the illness of the reporter. Consequently, a motion 

for late filing of briefs was filed on February 1, 1979, which motion 

was granted. Respondent filed its posthearing brief on February 26, 

1979. On March 22, 1979, MSHA filed its second posthearing brief and 

a response to the proposed findings of fact and conclusions of law 

contained in the Respondent's posthearing brief. 

II. Violations· Charged 

Order No. 

7-0012 (1 HRB) 

7-0024 (1 SEV) 

7-0041 (1 SEV) 

7-0042 (2 SEV) 

7-0045 (2 HRB) 

7-0140 (1 HRB) 

7-0187 (1 HRB) 

7-0209 (1 FLD) 

Date 

January 27, 1977 

January 28, 1977 

February 1, 1977 

February 1, 1977 

February 1, 1977 

February 15, 1977 

February 17, 1977 

March 7, 1977 

III. Evidence Contained in the Record 

A. Stipulations 

30 CFR Standard 

75.400 

75.400 

75 .1100-3 

75 .1100-3 

75.400 

75.200 

75.400 

75.400 

At the commencement of the hearing and in their posthearing submissions, the parties entered into stipulations and reached agreement 

721 
on proposed findings of fact and conclusions of law which are set 

forth in the findings of fact, infra. 

B. Witnesses 

MSHA called as its witnesses Sidney E. Valentine and Henry R. 

Baker, MSHA inspectors. 

Sewell called as its witnesses Sidney E. Valentine, the abovementioned MSHA inspector; Fred D. Copen, the maintenance superintendent at the Respondent's Meadow River No. 1 Mine; Randolph R. Skaggs, 

a miner operator at the Respo~dent's Meadow River No. 1 Mine on the 

date of the order and currently the dispatcher at the mine; Darrell 

Pomeroy, the union conveyor belt examiner for Sewell Coal Company; 

and, Terry Casto, Sewell's safety inspector. 

C. Exhibits 

1) MSHA introduced the following exhibits into evidence: 

~.) M-1 is a computer printout of the history of violations for 

which penalties have been paid for the Respondent's Meadow River No. 1 

Mine for the period beginning January 1, 1970, and ending February 17, 

1977. 

b) M-2 is a a copy of Order No. 7-0012 (1 HRB), January 27, 

1977, 30 CFR 75.400. 

c) M-3 is a termination of M-2. 

d) M-3A is a special assessment information sheet. 

e) M-4 is a copy of Order No. 7-0024 (1 SEV), January 28, 1977, 

30 CFR 75.400. 

f) M-5 is a termination of M-4. 

g) M-5A is the inspector's statement relating to M-2. 

h) M-5B l. s the inspector's statement relating t·o M-4. 

i) M-6 is a copy of Order No. 7-0041 (1 SEV), February 1, 1977' 

30 CFR 75 .1100-3. 

j) M-7 ~s a termination of M-6. 

k) M-8 is a copy of Order No. 7-0042 (2 SEV), February 1, 1977, 

30 CFR 75.1100-3. 

1) M-9 is a termination.of M-8. 

722 
m) M-10 is a copy of Order No. 7-0045 (2 HRB), February 1, 1977, 

30 CFR 75.400. 

n) M-lOA is a copy of the inspector's statement accompanying 

M-10. 

o) M-11 is a termination of M-10. 

p) M-12 is a copy of Order No. 7-0140 (1-HRB), February 15, 

1977, 30 CFR 75.200. 

q) M-13 is the roof control plan for the Respondent's Meadow 

River No. 1 Mine, in effect on February 15, 1977. 

r) M-13A is a termination of M-12. 

s) M-14 is a copy of Order No. 7-0187 (1 HRB), February 17, 

1977, 30 CFR 75.400. 

t) M-15 is a termination of M-14. 

u) M-16 is a copy of Order No. 7-0209 (1 FLD), March 7, 1977, 

30 CFR 75.400. 

v) M-16A is a form filled out by the Pittston Company. 

w) M-16B is an inspector's statement accompanying M-16. 

x) M-17 is a termination of M-16. 

2) The Respondent introduced the following exhibits into 

evidence: 

a) 0-1 is a statement prepared by the Pittston Company outlining 

their defense for Order No. 7-0045 (2 HRB), and submitted in conjunction with the proposed settlement of that order. 

b) 0-2 is a statement, similar to 0-1, submitted in conjunction 

with the proposed settlement of Order No. 7-0209 (1 FLD). 

c) 0-3 is a copy of the cleanup program at the Respondent's 

Meadow River No. 1 Mine. 

d) 0-4 is a copy of a form filled out by a belt examiner at the 

conclusion of a shift. 

e) 0-4A 1S a copy of a form filled out by a belt examiner at the 

end of a shift. 

f) 0-4B is a copy of a form filled out by.a belt exami.ner at the 

end of a shift. 

723 
IV. Issues· 

Two basic issues are involved in the assessment of a civil penalty: (1) did a violation of the Act occur, and (2) what amount 

should be assessed as a penalty if a violation is found to have 

occurred? In determining the amount of civil penalty that should 

be assessed for a violation, the law requires that six factors be 

considered: (1) history of previous violations; (2) appropriateness 

of the penalty to the size of the operator's business; (3) whether 

the operator was negligent; (4) effect of the penalty on the operator's ability to continue in business; (5) gravity of the violation; 

and (6) the operator's good faith in attempting rapid abatement of 

the violation. 1/ 

V. Opinion and Findings of Fact 

A. Stipulations 

1) At the COIIll~encement of the hearing, the parties entered into 

the following stipulations: 

a) The Pittston Company produces approximately 12,036,974 tons 

of coal per year (Tr. 14). 

];) On February 26, 1979, the Respondent filed a posthearing brief as 

to the violations alleged in Order Nos. 7-0041 (1 SEV) and 7-0042 

( 2 SEV). In its post hearing brief, the Respond·ent phrases the issue 

in this civil penalty proceeding as:. whether th~ issuance of the 

orders of withdrawal was valid. Specifically, the Respondent contends that the orders are invalid in that the violations were not 

caused by an "unwarrantable failure" to comply with the mandatory 

safety standard embodied in 30 CFR 75.1100-3, as required by section 

104(c)(l) of the Federal Coal Mine Health and Safety A~t of 1969 

(1969 Coal Act). An order issued under section 104(c)(2) of the 

1969 Act must be based on the criteria set forth in section 104(c)(l) 

of the 1969 Act. 

However, the decisions of the Interior Board of Mine Operations 

App~als establish that the propriety of the issuance of a withdrawal 

order is not an issue in a civil penalty proceeding. Jewell Ridge 

Coal Corp., 3 IBMA 376, 81 I.D. 624, 1974-1975 OSHD par:-18,901 

(1974); Coal Processing Corporation, 2 IBMA 336, 342 80 I.D. 748, 

1973-1974 OSHD par. 17,978 (1973); Eastern Associated Coal Corp., 

1 IBMA 233, 236, 79 I.D. 723, 1972-1973 OSHD par. 15,388 (1972). 

However, evidence bearing upon whether the violation was caused by 

an "unwarra.ntable failure" to comply with the mandatory safety standard is also material to the negligence issue which must be addressed 

in a civil penalty proceeding. See Zeigler Coal Company, 7 IBMA 280, 

84.I.D. 127, 1977-1978 OSHD par.ll,676 (1977). 

724 
b) The Meadow River No. 1 Mine produces approximately 

154,797 tons of coal per year (Tr. 14). 

c) At the Meadow River No. 1 Mine, there are approximately 

181 miners underground and approximately 20 on the surface (Tr. 15). 

2) In the posthearing brief filed on February 26, 1979, the 

Respondent submitted 24 proposed findings of fact. In a response to 

the proposed findings filed by MSHA on March 22, 1979, MSHA stated 

that it had no ~bjection to 16 of the 24 proposed findings of fact. 

The 16 proposed findings of fact to which MSHA had no objection are 

as follows: 

a) The Meadow River No. 1 Mine is operated by Sewell Coal 

Company. 

b) The Meadow River No. 1 Mine is subject to the provisions 

of the 1969 Act under which the hearing was held. 

c) The Administrative Law Judge has jurisdiction over this 

proceeding. 

d) That Sidney E. Valentine was a duly authorized representative of the Secretary at all times relevant to the issuance of 

Order Nos. 7-0041 (1 SEV) and 7-0042 (2 SEV). True and correct 

copies of the orders were served on Sewell Coal Company. 

e) The following proposed findings of fact, to which MSHA had 

no objection, relate to Order Nos. 7-0041 (1 SEV) and 7-0042 (2 SEV): 

i) The water supply line that froze supplied water to 

both sprinkler systems in the form of a 11T11 unit (Tr. 41-42). 

ii) The main line was 6-8 inches in diameter (Tr. 46). 

iii) The temperature was -25 degrees Fahrenheit on the day 

of the violation (Tr. 69). 

iv) On the day of the violation, about 50 percent of the 

mines in the area were closed because of cold weather (Tr. 73). 

v) The water supply line had a drip valve to help prevent freezing (Tr. 72-73). 

vi) On the day of the order, no mining was being performed 

in the mine (Tr. 35-36). 

vii) No coal was being transported on the conveyor belt (Tr. 

36, 70, 77). 

725 
viii) It is company policy not to mine coal when there is 

no water supply in the mine (Tr. 75). 

ix) The violation was abated as quickly as possible (Tr. 

29). 

x) The inspector's concern centered on his perceived 

problem of a possible fire at the belt head (Tr. 38, 48-49). 

xi) The· belts had slippage rollers (Tr. 44-45, 67). 

xii) The belts were not running continuously (Tr. 70). 

B. Order No. 7-0041 (1 SEV), February 1, 1977' 30 CFR 75.ll00-3; 

Order No. 7-0042 (2 SEV), February 1, 1977' 30 CFR 75. ll00-3 

1) Motions to Dismiss 

During the course of the hearings, counsel for the Respondent 

made two oral motions to dismiss. First, the Respondent argued that 

the case should be dismissed because the inspector cited the wrong 

mandatory safety standard (Tr. 55-60). The Respondent contends that 

since the conveyor belt drive units were equipped with sprinklers 

pursuant to 30 CFR 75.llOl-6, the violation, if any, would have to 

be for failure to comply with 30 CFR 75.1101-7 through 75.1101-11. 

According to the Respondent's theory, the inspector erred in citing 

30 CFR 75.1100-3 because sections 75.1100-3 and 75.1101-6 are mutually 

exclusive (Tr. 55). I disagree with the Respondent's theory. The 

pertinent language in 30 CFR 75.1100-3 states that: ''All firefighting 

equipment shall be maintained in a usable and. operativecondition. 11 

(Emphasis added.) The all-encompassing phrase "All firefighting equipment" identifies the section as a general provision applicable to all 

firefighting equipment, including the sprinkler system at issue in the 

present case. Sections 75.1101-7 through 75.1101-11 are not incompatible with section 75.1100-3. Although those sections set forth particularized requirements for the installation and maintenance of water 

sprinkler systems, the requirements merely supplement, not supplant, 

the general requirement of section 75.1100-3 that all systems be maintained in a usable and operative condition. The Respondent's motion 

to dismiss for failure to cite the appropriate standard in the Code of 

Federal Regulations is, therefore, DENIED. 

In his second oral motion, counsel for Respondent sought dismissal of one of the orders because, according to the Respondent, only 

one violation existed (Tr. 63). In support of this motion, the Respondent argues that the frozen water pipe is the sole alleged violation. 

I disagree. The two withdrawal orders allege separate violations. 

The alleged violation is not the mere existence of the frozen water 

pipe, but operating two separate belt drives in the absence of workable automatic fire suppressiqn devices at each drive unit. The 

726 
motion is-, therefore, DENIED. The fact that the frozen water pipe 

was related to both alleged violations will be considered in the 

assessment of an appropriate civil penalty if the violations are 

found to have occurred as alleged. Additionally,· the validity 0£ the 

order of withdrawal is not at issue in this civil penalty proceeding. 

See Jewell Ridge Coal Corp., 3 IBMA 376, 81 I.D. 624, 1974-1975 OSHD 

par. 18,901 0974); Eastern Associated Coal Corp., 1 IBMA 233, 79 I.D. 

723, 1972 OSHD par. 15,388 (1972). 

2) Occurrence of Violations 

On February 1, 1977, MSHA inspector Sidney E. Valentine conducted an inspection at the Respondent's Meadow River No. l Mine. 

He issued two 104(c)(2) orders citing violations of 30 CFR 

75.1100-3 as to inoperable water spr~nkler systems for the No. 1 

and No. 2 belt drives 2/ (Exhs. M-6, M-8). The orders stated that 

the water sprinkler system, installed as automatic firefighting 

equipment, for the two belt drive units were "not maintained in 

operating condition in that, the main water supply for the mine was 

frozen and water was not provided for the system" (Exhs. M-6, M-8). 

The orders also stated that "Mine management knew this condition 

existed and was trying to thaw the water supply," but continued to 

operate the belt conveyors in spite of the lack of water for the 

automatic firefighting equipment (Exhs. M-6, M-8). 

The water supply line, a 6- to 8-inch diameter pipe (Tr. 46), 

was frozen where the pipe enters the mine (Tr. 27). The frozen line 

supplied water to both sprinkler systems in the form of a "T" unit 

(Tr. 41, 42). Although the supply line was equipped with a drip 

valve to help prevent freezing (Tr. 72, 73), it was unable to prevent freezing on February 1, 1977, as the temperature was -25 degrees 

Fahrenheit. On the day of the orders, approximately 50 percent of 

the mines in the vicinity were closed due to cold weather (Tr. 73). 

The belt conveyor drives for the No. 1 and No. 2 belts are 

approximately 3 to 6 feet apart (Tr. 30). Two orders were issued 

because: 1) each belt drive is a separate piece of equipment, even 

though both sprinkler systems were rendered inoperable by the same 

frozen pipe (Tr. 30, 31, 41), and, 2) both belts were moving (Tr. 

26, 36). Coal had not been mined that day, and coal was not being 

transported on the conveyor belts (Tr: 35, 36, 74). 

The No. 1 and No. 2 conveyor belts dump onto a third belt, known 

as the slope belt (Tr. 79). All three belts operate on an automatic 

sequence st.art system (Tr. 70). Engaging the slope belt automatically 

starts a sequence, thereby starting the No. 1 and No. 2 conveyor belts 

2/ 30 CFR 75.1100-3 states in pertinent part: "All firefighting 

equipment shall be maintained in usable and operative condition." 

727 
(Tr. 70). At the time the orders were written, the system was not 

equipped with either a switch or other device that would have enabled 

the operator to use the slope belt-without activating the No. 1 and 

No. 2 conveyor belts (Tr. 80). The operator was using the slope belt 

at intermittent intervals to transport ice chips from inside the mine 

(Tr. 70). The transported ice had been chipped from frozen waterlines 

in order to provide the necessary access to the lines to thaw them 

out (Tr. 70). 

The evidence in the record establishes that the No. 1 belt drive 

unit and the No. 2 belt drive unit were separate pieces of equipment 

(Tr. 29-30). Both pieces of equipment were operating at a time when 

the automatic fire suppression devices were inoperable (Tr. 34). I 

therefore conclude that the violations alleged in Order Nos. 7-0041 

(1 SEV) and 7-0042 (2 SEV) have been established by a preponderance 

of the evidence. 29 CFR 2700.48. 

3. Gravity of the Violations 

The inspector testified that if a fire occurred while the fire 

suppression equipment was inoperable, the miners would have been 

subjected to a smoke inhalation hazard (Tr. 26). The area was on 

intake air, but he did not know whether the air went to the face 

area (Tr. 26). He classified death or injury as "probable" (Tr. 

28). At first, he estimated that approximately 30 miners were 

exposed to the hazard (Tr. 28). However, he admitted under crossexamination that he did not count them, and that the number could 

have been much lower than 30 (Tr. 42-43). 

However, the inspector's testimony reveals that a fire hazard 

would have been present only if coal had been transported on the 

belt conveyors (Tr. 38). He stated that no fire hazard was present 

when the orders were issued (Tr. 38). 

The evidence in the record confirms the inspector's opinion 

that no hazard was present. Coal was not being mined w~en the 

orders were issued, and coal was not being transported on the conveyor belts (Tr. 35, 36, 74). 

According to the inspector, the problem was not something along 

the belt catching fire, but something at the belt dri~e catching fire 

due to friction (Tr. 37). Friction could have ignited both coal on 

the belt aμd any accumulations that happened to be present near the 

belt heads (Tr. 37-38). Although no coal was on the belts when the 

orders were issued, there was some coal beneath the belt drives (Tr. 

37). It was not touching the belt drive (Tr. 37). However, the 

probability of friction was minimized by the presence of operable 

slippage rollers (Tr. 44, 69), devices which prevent ignition by 

preventing friction (Tr. 69). In addition, the belts were made of 

flame-resistant material (Tr. 51). The inspector found no problem 

728 
with the motor or with the wires leading to the motor (Tr. 50). 

Two fire extinguishers and 10 packs of rock dust were located at 

the belt heads (Tr. 71, 72). The fire extinguishers were operable 

(Tr. 46-47). 

Based on the foregoing, I conclude that no gravity was associated 

with the two violations. 

4. Negligence of the Operator 

The No. 1 and No. 2 conveyor belts automatically engaged when the 

slope helt was activated (Tr. 70). The only way to stop the two subject belts while the slope belt was working was to unhook some wires 

(Tr. 80). The slope belt was used only intermittently on February 1, 

1977, and only to transport ice out of the mine (Tr. 70, 79). 

The assistant mine foreman knew that water was not available for 

fire protection at the belt head (Tr. 24, 28, 31). The belts should 

not have been operated while the waterline was frozen (Tr. 28). The 

operator should have known of the condition's existence because the 

mine foreman knew the waterline was frozen and that the belts were 

operating (Tr. 24-26). . 

Additionally, the fact that the operator was using the belts only 

to remove ice from the mine on an abnormally cold day, and the fact 

that the abnormally cold weather rendered the automatic fire suppression system inoperable, indicates a low degree of negligence. This 

is so because such conditions were not experienced routinely in the 

ordinary course of the operator's mining activity. 

Based on the foregoing, I conclude that Respondent demonstrated 

ordinary negligence. 

5. Good Faith in Securing Rapid Abatement 

Order No. 7-0041 (1 SEV) (Exh. M-6) was issued at 9:15 a.m. 

and terminated at 4:05 p.m. (Exh. M-7). Order No. 7-0042 (2 SEV) 

(Exh. M-8) was issued at 9:20 a.m. and terminated at 4 p.m. (Exh. 

M-9). The inspector testified that the operator abated the violation as quickly as possible (Tr. 29). 

Mr. Fred Copen, the Respondent's maintenance superintendent at 

the mine, testified that his men were working on the condition when 

the inspector arrived (Tr. 74). After they had chipped through the 

ice and reached the waterline, they used electric·heaters to thaw 

the pipes (Tr. 74, 78). 

I therefore conclude that the Respondent demonstrated the utmost 

good faith in securing a rapid abatement of the violation. 

729 
C. Order No. 7-0140 (1 HRB), February 15, 1977, 30 CFR 75.200 

On February 15, 1977, MSHA inspector Henry R. Baker inspected the 

Respondent's Meadow River No. 1 Mine. At 9:25 a.m., he issued th~ 

subject withdrawal order for an alleged violation of the mandatory 

safety standard embodied in 30 CFR 75.200 3/ (Tr. 97, Exh. M-12). 

The Petitioner contends that the approved roof control plan for the 

Respondent's Meadow River No. 1 Mine (Exh. M-13), .in effect on 

February 15, 1977, was not being observed in that the temporary roof 

supports had not been installed properly. The Respondent's affirmative defense asserts that installation of the temporary supports, 

spaced according to Diagram No. 1 of the roof control plan, would 

have required the Respondent to violate that provision of the plan 

which requires all posts to be installed on solid footing, 4/ and, 

since the area had been "dangered off," no violation can be-found. 

The question presented is whether the parties have met their respective burdens of proof under the rule set forth by the Interior Board 

of Mine Operations Appeals in Zeigler Coal Company, 4 IBMA 88, 82 I.D. 

111, 1974-1975 OSHD par. 19,478 (1975), reaffirmed on reconsideration, 

4 IBMA 139, 82 I.D. 221, 1974-1975 OSHD par. 19,638 (1975). Accordin~'to the Board: · 

[S]ince [MSHA] has the burden of proof where the violation 

of a mandatory health or safety standard is in issue, it 

3/ 30 CFR 75.200 states: 

"Each operator shall undertake to carry out on a continuing basis 

a program to improve the roof control system of each coal mine and 

the means and measures to accomplish such system. The roof and ribs 

of all active underground roadways, travelways, and working places 

shall be supported or otherwise controlled adequately to protect persons from falls of the roof or ribs. A roof control plan and revisions thereof suitable to the roof conditions and mining system of 

each coal mine and approved by the Secretary shall be adopted and 

set out in printed form on or before May 29, 1970. The plan shall 

show the type of support and spacing approved by the Secretary. Such 

plan shall be reviewed periodically, at least every 6 months by the 

Secretary, taking into consideration any falls of roof or ribs or 

inadequacy of support of roof or ribs. No person shall proceed 

beyond the last permanent support unless adequate temporary support 

is provided or unless such temporary support is not required under 

the approved roof control plan and the absence of such support will 

not pose a hazard to the miners. A copy of the plan shall be furnished to the Secretary or his authorized representative and shall 

be available to the miners and their representatives." 

4/ Safety Precaution No. 10 of the approved roof control plan (Exh. 

M-13 at p. 8), states: "All posts shall be installed tight and on 

solid footing and not more than two wooden wedges shall be used to 

install a post." (Emphasis added.) 

730 
must not only establish a prima facie case under [Section 

7(d) of the Administrative Procedure Act, 5 u.s.c. § 556(d)] 

in a penalty proceeding, but under the regulation, it must 

also preponderate over any rebutting evidence adduced by 

the operator in order to prevail. 

4 IBMA at 101, 102. ~_/ 

In a foo~note to the above-quoted passage, the Board further 

stated: 

In penalty cases, the Government's statutory obligation to establish a prima facie case is limited only to 

establishing the existence or a violation. Such obligation does not relate to affirmative defenses, especially 

as they concern claims of mitigation based upon the criteria for assessing a penalty once it is determined that 

a violation occurred. 

4 IBMA at 10 2 , n. 4 • 

5/ Section 7(d) of the Administrative Procedure Act, 5 u.s.c. 

§ 556(d), states, in pertinent part: "A sanction may not be 

imposed or rule or order issued except on consideration of the whole 

record or those parts thereof cited by a party and supported by and 

in accordance with reliable, probative, and substantial evidence." 

According to the Board, a withdrawal order issued or penalty 

assessed is a governmental action imposing a sanction of a kind contemplated by the above-quoted language. The Board interpreted the 

above-quoted language as requiring MSHA to establish a prima facie 

case in a proceeding involving a withdrawal order or a violation of 

a mandatory health or safety standard for which a civil penalty is 

sought to be assessed. Zeigler Coal Company, 4 IBMA 88, 99-100, 

82 I.D. 111, 1974-1975 OSHD par. 19,478. 0975), reaffirmed on reconsideration, 4 IBMA 139, 82 I.D. 221, 1974-1975 OSHD par. 19,638 

(1975). 

The Board noted that the duty of establishing a prima facie case 

is not the same as bearing the burden of proof. Zeigler Coal Company, 

4 IBMA 88, 100, 82 I.D. 111, 1974-1975 OSHD par. 19,478 (1975), 

reaffirmed on reconsideration, 4 IBMA 139, 82 I.D. 221, 1974-1975 

OSHD par. 19,638 (1975). Burden of proof is governed by Rule 48 of 

the Interim Procedural Rules, 29 CFR 2700.48, which states: 

"In proceedings brought under these rules, the applicant, petitioner or other party initiating the proceedings shall have the 

burden of proving his case by a preponderance of the evidence: Provided, That, whenever the vioiation of a mandatory health or safety 

standard is at issue, the Secretary shall have the burden of proving 

the violation by a preponderance of the evidence." 

731 
The evidence adduced at the hearing, to which the above-quoted 

standards must be applied, reveals the following: Inspector Baker 

testified that in the northwest mains section, the second open 

crosscut right outby the face off No. 6 entry had been holed into 

the No. 7 entry (Tr. 90-91, Exh. M-12). The inspector stated that 

the approved roof control plan (Exh. M-13) was not being complied 

with in that the first temporary roof supports, which had been 

installed after the completion of the continuous miner runs (Exh. 

M-12), were located 12 feet inby the last permanent roof support 

(Tr. 90-91, 94, 99, Exh. M-12). According to the inspector, this 

did not comply with Drawing No. 1 of the approved roof control plan, 

which indicates that the first temporary support should be installed 

not greater than 5 feet inby the last permanent support (Tr. 91, 92, 

Exh. ~-13). The source of the spacing and timing requirements is 

paragraph No. 2, located adjacent to the scale drawing (Tr. 92), 

which states, in pertinent part: 

Temporary supports in row (A) shall be installed after 

the first run is completed and prior to the commencement 

of the second run. Temporary supports in rows (B) and (C) 

shall be installed within one hour after completion of the 

run and prior to bolting. Temporary supports shall be 

installed, on 5-foot maximum centers, to within five feet 

of the ribs and face or the nearest permanent support. 

See also (Tr. 92, 93-94). The 12 feet was measured from the small 

blocks in the drawing, which indicate permanent supports, to the 

circles, which indicate the first row of temporary supports (Tr. 

95, Exh. M-13, Drawing No. 1). The inspector obtained an accurate 

measurement of the distance by tying his cloth measuring tape to 

a hammer, and throwing the hammer into the first temporary support 

(Tr. 143-144). 

The inspector noticed a slope in the floor of the No. 7 entry 

adjacent to the area where it had been cut through from the crosscut. He characterized this slope as a "slight offset," i.e., there 

was an offset from a high point in the No. 7 entry to a Tow point in 

the crosscut (Tr. 132, 148). 

Although no one explained to the inspector why the temporary supports had not been installed (Tr. 95), he speculated that the presence 

of water in the subject area might have been the reason (Tr. 95). The 

water was located in the crosscut near the area where it had been holed 

through into the No. 7 entry (Tr. 96). Additional water was not 

running into the area at the time the violation was observed, but the 

inspector admitted.that additional water could have been seeping in 

from the bottom of the mine (Tr. 135). He did not know the source of 

the water (Tr. 96). The inspector did not know the depth of the 

water (Tr. 96), as he had no way of accurately measuring the depth (Tr. 

133). He further testified that the area had not been 11 dangered off" 

732 
(Tr. 95), ·but admitted that he could have missed the danger sign (Tr. 

152). 

Acco.rding to the inspector, the presence of water would have· had 

no bearing on the installation of temporary supports except that the 

person installing them would have had to wade into the water (Tr. 96). 

However, he admitted under cross-examination, that gob could have 

been present at the bottom of the slope underneath the water, and that 

such gob would be very loose (Tr. 133). A man wading into the water, 

not knowing either whether gob was present or the precipitousness of 

the slope, could have been exposed to danger (Tr. 134). Of major 

significance to the Respondent is the inspector's testimony, under 

cross-examination, that gob is not solid footing (Tr. 134). According to the inspector, the roof control plan requires posts to be 

set on solid footing. Attempting to place the temporary supports 

above anything other than solid footing would have violated the 

roof control plan (Tr. 134). The gob would have to be cleaned out 

before setting the posts into place (Tr. 134). 

Mr. Randolph R. Skaggs testified as the Respondent's defense 

witness. Mr. Skaggs.was the continuous miner operator who had holed 

through the crosscut from the No. 6 entry into the No. 7 entry (Tr. 

154-155). However, he did not recall whether he had made the cut on 

the day the order of withdrawal was issued (Tr.· 166-167). The continuous miner operator, on the shift previous to Mr. Skaggs' cut, had 

cut approximately 3 feet below the coal seam into the floor of the 

crosscut (Tr. 154, 170). A stream of water was coming from the face 

of the No. 6 entry. The water flowed into the subject crosscut, 

collecting in th~ depression in the mine floor caused by the operator 

on the previous shift (Tr. 170). The water prevented a person from 

seeing the bottom of the depression (Tr. 155). 

According to Mr. Skaggs, he made one run, establishing a cut 

for air purposes (Tr. 155). He described the cut as 10-1/2 feet wide 

and approximately 13 feet deep (Tr. 155, 161-162, 169). 6/ He thereupon backed the miner out of the crosscut, bringing it to rest in 

6/ The testimony of both Inspector Baker and Mr. Skaggs reveal sharp 

differences as to the width of the cut in the inadequately supported 

area. Mr. Skaggs' statement that the cut was 10-1/2 feet wide is 

based on his assertion that he made only one run (Tr. 155). The continuous miner, a 120-L Jeffrey, makes a 10-1/2-foot cut (Tr. 154). 

Inspector Baker testified that the entry could not have been a 

single run in width, instead characterizing it as two runs in width 

(Tr. 137, 146-147). At one point, he stated that he did not know the 

width of the cut (Tr. 137), and that he did not measure the width of 

the cut ,(Tr. 142). However, he approximated its width as 18 to 

20 feet at one point in his testimony (Tr. 142), while at another 

point, he admitted that the width could have measured 15 feet (Tr. 

146). 

733 
the No. 6 entry (Tr. 155, 170). The depth of the water prevented him 

from proceeding inby the last permanent support to install the temporary supports (Tr. 155-156) for the following reasons: The miner acts 

as a dam causing the water to collect at the lefthand rear portion of 

the machine (Tr. 155). While backing the miner out of the area, water 

flowing downhill will rush to the face area (Tr. 155). As the muddy 

water prevents one from seeing the bottom, it would have been dangerous to attempt installation of the temporary supports (Tr. 156). The 

muddy water prevents one from determining the condition of the bottom, 

i.e., whether it· is uneven or whether loose material is present (Tr. 

156). 

He testified that after backing the miner out of the crosscut 

(Tr. 155), he dangered off the area. This was accomplished by using 

a piece of chalk to write the word "Danger" on a half-header and subseque~tly propping it at the mouth of the place using a rock (Tr. 157-

159). A half-header measures approximately 18 inches by 7 inches (Tr. 

158). This makeshift sign was intended as a temporary measure. However, Inspector Baker testified that he did not think that the makeshift danger sign could not have been in the location described by 

Mr .. Skaggs without the inspector seeing it (Tr. 179-180). Mr. Skaggs 

had testified previously that the sign could have been removed by 

someone (Tr. 161). Additionally, the inspector read the preshift 

report before entering the mine, and did not see anything about the 

dangered-off area. He stated that it was possible that he could 

have overlooked it (Tr. 138). 

According to Hr. Skaggs, the area could not have been timbered 

because the timbers could not have been placed on a firm foundation--

there was too much gob in the face (Tr. 156-157). Mr. Skaggs did 

not know when the condition was abated (Tr. 165). However, when 

he returned to the area during his next working· shift, the water 

had been pumped out, the area had been ·cleaned, and temporary supports had been installed (Tr. 165). 

After having backed the continuous miner out of the crosscut 

and into the No. 6 entry, Mr. Skaggs and his helper proceeded to the 

No. 7 entry where the helper placed temporary supports at the mouth 

of the crosscut (Tr. 171-175). It is the Respondent's contention 

that these supports were the ones mentioned by Inspector Baker in 

fn. 6 (continued) 

In this instance of conflict in the testimony, I conclude that 

the testimony of the Respondent's witness is more credible and 

entitled to acceptance. This conclusion is warranted for two reasons: First, the inspector neither measured the width of the cut 

nor affirmatively ascertained that more than one run had been made. 

Secondly, Mr. Skaggs had an objective reference point for his 

statement, i.e., that one run had been made and that the miner made 

a 10-1/2-foot-cut on each run. 

734 
his order of withdrawal. The inspector had testified that the temporary supports could have been set from the No. 7 entry side of the 

crosscut (Tr. 132). 

The foregoing evidence reveals that the Petitioner has not established a violation of the roof control plan in accordance with the 

description in the subject order of withdrawal and thus has not met 

the burden of proof rule set forth in the above-quoted passages from 

Zeigler Coal Company, supra. 

The order of withdrawal essentially alleges that the roof control 

plan was not followed in that the crosscut had been holed into the 

No. 7 entry and the temporary roof supports had been installed 12 feet 

inby permanent roof supports (Exh. M-12). Thus, the order indicates 

that the alleged violation relates to the location of the temporary 

supports rather than to the lapse of time since the area had been last 

cut. The order, on its face, seems to infer that the person setting 

the temporary supports may have gone more than 5 feet out from under 

the permanent supports to set the temporary supports, which would have 

been a violation of the plan (Exh. M-13, p. 7, par. 5). The evidence 

presented by the miner operator clearly showed that such was not the 

case since those supports were set from the other end of the crosscut 

from a permanently supported area in the No. 7 e.ntry. 

After presentation of all of the evidence, it appeared that the 

only violation that could have occurred related to the question as to 

whether there was too much time that elapsed be~ween the last cut of 

coal,and the time the inspector arrived at the area, without supports. 

However, such an alleged violation was not described in the 

order. This order was written under the Federal Coal Mine Health 

and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1970). Section 

104(e) of that Act required, inter alia,~hat orders shall contain 

a detailed description of the condition or practice which constituted a violation of any mandatory safety standard. The detailed 

description is particularly important so that the operator will 

know what the actual violation is and what must be done to correct 

the problem· and not repeat the violation again. The actual wording of the order would not inform the operator that the time lapse 

was the actual alleged violation. 

Since the evidence now shows that there was no violation as 

relates to the position of the temporary supports, it must be held 

that a violation of 30 CFR 75.200 has not been proved under this 

order. 

Even if it were argued that the order can be-interpreted to 

allege a violation of some time requirement as to the installation 

of temporary supports, it cannot be held that a violation has been 

proved. 

735 
As to the time requirements, Drawing No. 1 of the roof control 

plan requires, in pertinent part, that: 

Temporary supports in row (A) shall be installed after 

the first run is completed and prior to the commencement of 

the second run. Temporary supports in rows (B) and (C) 

shall be installed within one hour after completion of the 

run prior to bolting. Temporary supports shall be installed 

on 5-foot maximum centers, to within 5 feet of the ribs and 

face or the nearest permanent support. [Emphasis added.] 

The above-quoted passage states that the temporary supports in 

row (A) must be installed after the completion of the first run and 

prior to commencing the second run. It is arguable that this language 

can be interpreted as excusing the installation of temporary supports 

after the completion of the first run as long as those supports are 

installed prior to beginning the second run. As only·one run had 

been completed in the present case, it could be argued that the 

temporary supports did not have to be installed immediately following the completion of the first run as long as they were installed 

prior to the commencement of the zecond run, regardless of the 

amount of time elapsing between runs. However, this interpretation 

is contrary to the tenor of 30 CFR 75.200, which seeks to protect 

persons from roof and rib falls. 

An interpretation of the roof control plan would require the 

installation of temporary supports, under the facts presented herein, 

within a reasonable time after completion of the run. The abovequoted passage from Drawing No. 1 reveals that the plan's minimum 

requirements envision the normal mining sequence in entries, rooms or 

crosscuts as consisting of two runs. In the course of normal mining 

operations, the temporary supports in row (A) would be installed 

immediately after completion of the first run so that the second run 

could be commenced as quickly as possible. Under such ci~cumstances, 

it is readily apparent why the requirement that temporary supports be 

installed within 1 hour after completion of the run,is mentioned only 

in connection with the installation of temporary supports in rows (B) 

and (C). This warrants the conclusion that, where only one run is 

made, the row of temporary supports must be installed within a 

reasonable time .after its completion. 

The key question, for purposes of the present case, is what 

constitutes a reasonable time. Inferences drawn from the testimony 

of the witnesses reveal that the conditions existed at 4 p.m., 

February 14, 1977, 17 hours and 25 minutes prior to issuance of the 

order of withdrawal. Mr. Skaggs' testimony establishes that he made 

the subject run in the crosscut and had installed the temporary supports (Tr. 154, 156, 171-175), but he could not recall the day on 

which he made the run (Tr. 166-167). He could not recall whether 

he made the run in the morning or during the afternoon (Tr. 167-168). 

736 
He was working straight day shift around February 15, 1977 (Tr. 166), 

beginning work at 8 a.m. (Tr. 167). Inspector Baker testified that 

the area in question had not been cut on the morning of February 15, 

1977, because it would have·required 45 minutes to 1 hour to make 

the cut (Tr. 136). He had followed the day crew into the mine, and 

they "certainly didn't have time to make this particular mine site" 

(Tr. 136). Since the run could not have been made on the February 15, 

1977, day shift, and since the miner operator who had made the run 

was working straight day shift, it can be inferred that the condition 

had existed for at least 17 hours and 25 minutes prior to the issuance 

of the order. 

Whether it was unreasonable to permit the condition to exist for 

17 hours and 25 minutes cannot be determined from the record. The 

plan does not specifically set forth a time within which the first 

row of temporary supports is required to be installed, and considering the general provisions of 30 CFR 75.200, there is no evidenc~ 

to show that the conditions of the roof here indicated any particular time limit within which the temporary supports needed to be 

installed. The alleged inadequately su~ported area was 10-1/2 feet 

wide and approximately 13 feet deep (Tr. 155, 161), yielding an 

area of approximately 136.5 square feet. The record contains no 

evidence as to roof conditions in the crosscut. The record does 

show that the condition of the bottom of the area where the temporary supports had to be installed presented a precarious situation 

for any miners to make the required installation. It is clear that 

the water had to be removed first and the gob in the bottom had to 

be cleaned so that firm footing would result. Faced with this problem, the miner operator did place a danger sign in the area when the 

run was completed. This danger sign may have disappeared subsequently. 

In view of the fact that the roof control plan had no specific time 

limit for the installation of the supports in question, since we must 

apply a test of reasonableness of time., all of these surrounding circumstances must be considered. Under all of these circumstances, it 

cannot be inferred that the area remained without temporary supports 

for an unreasonable time after completion of the first run. 

Therefore, I conclude that MSHA has failed to establish a violation of 30 CFR 75 .200 by a pr.eponderance of the evidence. 

D. Order No. 7-0187 (1 HRB), February 17, 1977, 30 CFR 75.400 

1. Motion to Dismiss 

At the conclusion of MSHA's case-in-chief, the Respondent moved 

to dismiss on the grounds that MSHA had failed to establish a prima 

facie case for a violation of 30 CFR 75.400 within the ~eaning of 

Old Ben Coal Company, 8 IBMA 98, 84 I.D. 459, 1977-1978 OSHD par. 

22,088 (1977), motion for reconsideration denied, 8 IBMA 196, 1977-

1978 OSHD par. 22,328 (1977). A ruling will be made based upon the 

evidence in the record at the time the motion was made. 

737 
The Commission's Interim Procedural Rules do not set forth 

.standards governing the disposition of motions to dismiss. However, 

standards are set forth in Rule 4l(b) of the Federal Rules of Civil 

Procedure. Although Rule 4l(b) is not applicable specifically to 

administrative proceedings, it provides a useful reference point in 

ruling upon the Respondent's motion. The rule reflects the most 

recent statement of the courts' collective experience in deciding 

such motions. 

The Respondent contends that on the facts and the law, the 

Petitioner has not established a claim for relief. See generally, 

5 J. Moore, Federal Practice, par. 41.13[1] at 41-170:-41-17r-Tf978). 

The motion must be denied if, upon the facts and the law in the record 

at that time, the existence of a violation is shown. See generally, 

5 J. Moore, Federal Practice, par. 41.13[1] at 41-172,""-LiT-173 (1978). 

In light of the remedial purposes of the Act, the motion should be 

granted only in "unusually clear" cases. See generally, Riegel Fiber 

Corp. v. Anderson Gin Co., 512 F.2d 784, 793, n. 19 (5th Cir. 1975); 

White v. Rimrock Tidelands, Inc., 414 F.2d 1336, 1340 (5th Cir. 1969). 

The evidence in the record at the conclusion of the Petitioner's 

case-in-chief. reveals the following: On February 17, 1977, MSHA 

inspector Henry R. Baker conducted an inspectiofi at the Responden"·'s 

Meadow River No. 1 Mine. He observed accumulations of float coal c '"':- · (Tr. 318-319, 369, Exh. M-14), and thereupon issued Order of Withdrawal 

No. 7-0187 (1 HRB) for a violation of the mandatory safety standard 

embodied in 30 CFR 75.400 (Exh. M-14). He ascertained the substance 

was float coal dust by its texture and color (Tr. 320). He ran his 

hannner through the substance and observed that it was powdery (Tr. 

320). The float coal dust was located primarily along the No. 1 

belt conveyor and aroun·d the belt drive (Tr. 324). There was no 

problem along the No. 2 conveyor belt. 

The No. 1 belt conveyor was on the left side of the mine slope 

bottom, and the No. 3 belt conveyor was at a right angle to the No. 1 

belt conveyor and dumped coal onto the No. 1 belt conveyor. Both 

the No. 1 belt conveyor and the No. 2 belt conveyor dumped coal into 

a surge bin (Tr. 341). The No. 1 belt was on the left side of the 

bin, and the No. 2 belt was on the right side of the bin (Tr. 323). 

The bin was approximately 30 feet deep (Tr. 323). A feeder, located 

at the bottom of the bin, relayed the coal to the slope belt for 

transportation to the preparation plant on the surface (Tr. 319, 321-

322). The coal on the No. 1 and No. 2- conveyor belts dropped 

vertically into the bin (Tr. 323). At least part of the float coal 

dust arose as coal falling into the bin struck the coal already 

stored there (Tr. 324). The inspector testified that Mr. Dennis 

Kyle, a mine foreman, mentioned during the inspection tour that due 

to. the high velocity air currents coming up through the surge bin, 

a float coal dust problem existed in the subject area of the mine 

(Tr. 333). This conversation took place after the order was issued, 

,. 

738 
but before it was terminated, i.e., between 11 a.m. and 1:30 p.m. 

(Tr. 330-331). The inspector did not observe float coal dust rising 

from the bin (Tr. 326). He conducted no air velocity tests (Tr. 

333). The mine was producing coal and the No. 1 belt drive was 

operating when the inspector observed the condition (Tr. 325-326). 

Directly adjacent to the bin around the No. 1 belt drive, the 

float coal dust was 3 inches deep, and the farther away one went from 

the bin, the Less in depth the float coal dust became until it was 

too shallow to measure (Tr. 319, 325-326, 333). It ran the entire 

length of the No. 1 belt and extended as far as the No. i belt conveyor drive, a distance of 300 feet (Tr. 325, Exh. M-14). It was 

under the belt and along the sides (Tr. 325). Accumulations were 

present also on the water pipes installed around the surge bin belt 

drive, and on the frame of the bin (Tr. 319). He did not measure the 

width -of the accumulations, but th.ey extended from rib to rib in 

places. He stated that with regard to the type of mining used, the 

entry is approximately 20 feet wide (Tr. 333-334). The area had been 

rock dusted at some point in time, but the float coal dust accumulations were atop the rock dust (Tr. 319-320, 337, 368). The condition 

was readily observable (Tr. 335). The accumulations were at least 

1, 000 feet from the face (Tr. 33 7) . 

A certain amount of float coal dust would accumulate during normal operations (Tr. 320, 326, 374-375). However, the accumulations 

were described by the inspector as abnormal (Tr. 374-375). According to the inspector, the condition should have been known to the 

operator because it could not have developed during one shift (Tr. 

33~, 342-343). The primary factor was the depth (Tr. 338-339). He 

expressed the view that it would have required two shifts for the 

condition to develop (Tr. 371). It should have been observed during 

the required examinations (Tr. 342-343), but it -was not noted on the 

preshift examiner's report (Tr. 339). 

The inspector identified the belt drive and the mine track 

system's trolley wire as potential ignition sources (Tr. 334, 339, 

380-381). The mine track was described as a potential source of 

ignition at the surge bin (Tr. 339). Although the track system was 

relatively close to the No. 1 belt conveyor, it did not run parallel 

to it (Tr. 380). It ran in the opposite direction (Tr. 380). He 

stated that the trolley wire came to within approxima_tely 35 to 

50 feet of the No. 1 belt drive (Tr. 381). He stated that a remote 

possibility existed that arcing could have an effect upon the float 

coal dust at the No. 1 belt drive, even though it was 35 to 50 feet 

away from the possible ignition source (Tr. 381). 

An explosion could have affected the entire mine. If an explosion had blown out the permanent stoppings, the ventilation system 

could have been interrupted, causing smoke and flames which could 

have scattered (Tr. 358-360). The mine did not have a history of 

739 
methane liberation· (Tr. 335). The inspector did not detect any 

methane (Tr. 367). Float coal dust would have to be suspended in 

the air before an explosion could have ·occurred (Tr. 367). There 

was not a high quantity of dust in the air, a fact attributable to 

the ventilation (Tr. 367-368). A 10-pound fire extinguisher and a 

sprinkler-type fire suppression system were located at the belt head 

(Tr. 372). Part of it was operable and part of it was not (Tr. 372). 

There was at least one fire hose outlet present in this area (Tr. 

377). 

The inspector did not remember whether the coal falling into the 

surge bin was wet (Tr. 324). To the best of his recollection, the 

area in which the accumulations were observed was not wet in any 

places (Tr. 36~). 

The area had been rock dusted at some point in time (Tr. 319-

320, 339). Float dust or coal dust was atop the rock dust (Tr. 319-

320, 368). Based on the depth and extent of the float coal dust, 

the inspector expressed the opinipn that no rock dusting had been 

done in the area during the day shift prior to his arrival on the 

scene (Tr. 379, 382). However, he had no personal, firsthand knowledge as to whether cleaning or rock dusting had occurred (Tr. 382). 

He did not know how often the belt areas were rock dusted at the 

Meadow River No. 1 Mine (Tr. 379). 

The inspector did not recall any written procedure in effect at 

the mine for dealing with float coal dust (Tr. 378-379). He testified 

that the operator's cleanup program pertains to cleanup and rock dusting primarily on the section. The only written cleanup program he 

had seen pertained to the face area. He thought the belts were 

cleaned .as needed (Tr. 339-340). He was certain that beltmen were 

assigned to maintain the belt areas, a duty which included cleanup 

as necessary (Tr. 340). 

In his opinion, the belt area was an active working place in 

the mine. People worked in the area examining the· belts and making 

repairs (Tr. 336). 

The foregoing is a summary of the testimony in the record when 

the Respondent moved to dismiss. 

30 CFR 75.400 states: "Coal dust, including float coal dust 

deposited on rock-dusted surfaces, loose coal~and other combustible 

materials, shall be cleaned up and not be permitted to accumulate in 

active workings, or on electric equipment therein." 

. The term "active workings" is defined as "any place in a coal 

mine where miners are normally required to work or travel." 30 CFR 

75.2(g)(4). 

740 
In Old Ben Coal Company, 8 IBMA 98, 84 I.D. 459, 1977-1978 OSHD 

par. 22,088 (1977), motion for reconsideration denied, 8 IBMA 196, 

1977-1978 OSHD par. 22,328 (1977), the Board of Mine Operations 

Appeals held that the mere presence of a deposit or accumulation of 

coal dust or other combustible materials in active workings of a coal 

mine is not, by itself, a violation. 

The elements of MSHA's prima facie case, as set forth in Old 

Ben, are: 

(1) that an accumulation of combustible material 

existed in the active workings, or on electrical equipment 

in active workings of a coal mine; 

(2) that the coal mine operator was aware, or by the 

exercise of due diligence and concern for the safety Of the 

miners, should have been aware of the existence of such 

accumulation; and 

(3) that the operator failed to clean up such accumulation, or failed to undertake to clean it up, within a 

reasonable time after discovery, or, within a reasonable 

time after discovery should have been made. 

8 IBMA at 114-115. 

The Respondent argues that Old Ben imposes upon Federal coal mine 

inspectors a specific duty to make inquiries as to the cleanup program 

in effect at.the mine, and a duty to determine when the regular cleanup 

would occur (Tr. 384). The Respondent further contends that inspectors must determine that the accumulation is unusual, that the operator willfully failed to record the accumulations in the preshift books, 

that the mine operator has been negligent in failing to clean up the 

area, and must establish that the lack of cleanup is unusual (Tr. 

384). I disagree. 

The key elements for establishing a prima facie case are that 

the operator failed to undertake cleanup operations within a reasonable time after he either knew or should have known of the accumulations' existence. According to the Board: 

Application of this time factor necessarily imposes a 

responsibility upon the coal mine inspectors to ascertain, 

before issuing a citation under 30 CFR 75.400, the time 

when the operator or its agents discovered, actually or 

constructively, the existence of the accumulation of combustibles. This may be done by the use of logical conclusions drawn from the circumstantial evidence. An 

easier method might be, however, simply asking the miners 

and foremen familiar wi.th the mining operations in the 

741 
active workings when and how the accumulation occurred and 

when and how, if at all, it was discovered. It is, of 

course, also important that the inspectors further ascertain what was done by the operator, if anything, after 

discovery of the accumulation. Did the operator immediately undertake to clean up the accumulation? Was it 

ignored completely? Was the operator aware of the accumulation, but, rightly or wrongly, decided that it should 

be handled routinely through the regular cleanup program? 

All of these questions need due consideration and resolution before deciding to issue a citation charging a violation of the subject standard. If the inspector does 

decide to issue such a citation, his determinations with 

:i;.egard to time of discovery a·nd time of inauguration of 

cleanup by the operator, it seems to us, are key elements 

of, and should be included in, the factual description of 

the conditions and practices which are alleged to consti·-

tute a violation. In making these detailed factual evaluations, the inspectors, hopefully, will not lose sight of 

the controlling inquiry under section 304(a) of the Act -

whether the operator is making every reasonable effort to 

minimizing the accumulations of combustible material. 

8 IBMA at 113-114. 

A cursory reading of this passage from the Board's decision' in 

Old Ben could lead to the conclusion that it imposes upon the inspector the unqualified duty to direct specific inquiries to mine 

employees as to these areas before issuing a "citation." 7/ This 

question was resolved subsequently by the Board.. On September 23, 

1977, MSHA filed a motion for reconsideration of the Board's decision in Old Ben. In the course of its memorandum opinion denying 

the motion, the Board stated: 

[W]e refer counsel to our decision (8 IBMA 113-14) which 

sets out in very elementary terms the manner in which an 

inspector might go about collecting his evidence. We do 

not feel that this direction to the inspectors is unreasonable or that it will render the inspectors' job impossible. On the contrary, we strongly feel that t.his 

7/ The use of the term "citation" in Old Ben can be misleading. Old 

Ben was decided under the Federal Coal Mine Health and Safety Act Of 

1969. The term "citation" had no specific meaning, as the 1969 Act 

referred to "notices" and "orders." However, under section 104 of 

the Federal Mine Safety and Health Act of 1977, the term "citation" 

is used to describe what had been referred to previously as a 

"notice." 

742 
simply provides a useful guideline for the MESA [MSHA] 

inspector and, if properly utilized, would go a long way 

toward making the mines safer and the operators more aware 

of their obligations under the standard set forth in Section 304(a) of the Act. [Emphasis added.] 

8 IBMA at 199. 

The underlined portions of this passage indicate that the statements made at 8 IBMA 113-114 were merely suggested guidelines, not 

commands. Additionally, the Board had stated that inspectors could 

base their determinations of the operator's actual or constructive 

knowledge of the presence of ~ombustible accumulations in active 

workings on logical conclusions drawn from circumstanti-al evidence. 

The evidence set forth above reveals a logical basis for the inspector's conclusion that the operator had constructive knowledge of the 

accumulations' presence. The evidence also reveals that the inspector gave an opinion as an expert that the accumulations, which were 

extensive, had existed for more than one shift. Based upon this, it 

appeared at that stage of the case that the operator had failed to 

clean up the accumulations within a reasonable time after it should 

have known of them. 

Accordingly, on the facts and the law as set forth herein, the 

motion to dismiss is DENIED. 

2. Occurrence of Violation 

At the conclusion of Inspector Baker's testimony, which is set 

forth in Part V(D)(l), supra, Mr. Darrell Pomeroy, the union conveyor 

belt examiner for Sewell Coal Company, appeared.as a witness for the 

Respondent. Although Mr. Pomeroy was not charged by the Respondent 

with the duty of removing accumulations, he-was required to conduct 

examinations and report problems. 

Mr. Pomeroy had examined the preshift books on the surface to 

determine whether any areas needed checking (Tr. 395, 405). He 

examined the belt examiner's report filled out by the belt examiner 

on duty during the prior shift (Tr. 395, Exh. 0-4A). It noted spillage at the No. 2 tailpiece and noted the need for rock dusting at 

the No. 3 belt head (Tr. 405, Exh. 0-4A). The report did not note 

any problems in the areas cited by the order of withdrawal. The 

belt examiner's report filed at the conclusion of the 4 p.m.-12 midnight shift, February 16, 1977 (Exh. 0-4 also indicates the absence 

of problems in the area in question). 

He viewed the area in question at approximately 8:10 a.m. on 

February 17, 1977 (Tr. 390-391'). The slope bottom was well rock 

dusted (Tr. 391). The pipes in the area had been sprayed with 

water, but had not been rock dusted (Tr. 391). He testified that 

143 
the area adjacent to the surge bin was dry, but that the area was 

wet from 40 feet behind belt drive No. 1 "on up" (Tr. 392). 

Mr. Pomeroy testified that the accumulations cited by the inspector had to have occurred between 8 and 11 a.m. because they were not 

present when he examined the area at 8:10 a.m. (Tr. 391, 407). 

According to Mr. Pomeroy, the Respondent had a cleanup program 

in effect on February 17, 1977 (Exh. 0-3). The cleanup program 

stated, in pertinent part, as follows: 

2. Program for cleaning mine belts: 

On day shift we will have one man examining belts, three 

men will clean belts where needed now. After we get the 

belts fairly cleaned throughout the mine we will assign 

certain belts to certain belt cleaners each day. 

1 belt examiner on evening shift 

2 belt cleaners on evening shift 

2 belt cleaners on owl shift 

Same prodedure [sic] will be followed on the evening and 

owl shift as is being done on the day shift. 

According to Mr. Pomeroy, float coal dust is handled according 

to the severity of the problem. If the accumulation was such as to 

pose an immediate danger, either the safety director or the mine 

foreman would be contacted and the problem would be corrected as 

quickly as possible. If the problem did not pose an immediate 

danger, it would be noted in the belt book and alleviated during 

the next shift (Tr. 406-407). In short, the area was cleaned as 

often as conditions warranted (Tr. 415). 

The cleanup man assigned to the area automatically carried out 

the cleanup procedure (Tr. 416). The area for which he was responsible covered the slope bottom, the area around the surge bin, the 

No. 1 and No. 2 belt heads, the area adjacent to the No. 1 and No. 2 

belts, and the point at which the No. 3 belt dumped onto the No. 1 

belt. The entire area encompasses not greater than 300 feet (Tr. 

416). Rock dusting was used to handle float coal dust along the 

conveyor belt (Tr. 417-418). 

The elements of MSHA's prima facie case have.been set forth previously in this decision. In brief, Old Ben Coal Co, 8 IBMA 98, 

84 I.D. 495, 1977-1978 OSHD par. 22,088 (1977), motion for reconsideration denied, 8 IBMA 196, 1977-1978 OSHD par. 22,328 (1977), held 

that the mere presence of a deposit or accumulation of coal dust or 

744 
other combustible materials in active workings of a mine is not, by 

itself, a violation. MSHA must also establish that the operator 

knew or should have known of the presence of the accumulation, and 

that the operator failed to clean up, or undertake to clean up, the 

accumulation within a reasonable time after discovery was or· 

should have been made. 

There can be no doubt as to the presence 6f an accumulation of 

combustible material in the active workings as described in the testimony of Inspector Baker. 

A question is presented as to whether the Respondent can be 

charged with knowledge of the accumulations' presence. The belt 

examiner's reports filed at the conclusion of the two previous 

shifts indicated an absence of problems in the subject area. The 

area was free of accumulations when it was inspected by the union 

belt examiner at 8:10 .a.m. on February 17, 1977, pursuant to the 

cleanup plan. 

However, there can be no doubt that a substantial accumulation 

of float coal dust developed in the subject area between 8:10 a.m. 

and 11 a.m., an accumulation sufficient in both depth and extent 

for the inspector to opine that it had existed for approximately 

two shifts (Tr. 371). 

The testimony of both Inspector Baker and Mr. Pomeroy reveals 

that the bin area posed problems as to float coal dust (Tr. 333, 

410). During the course of his conversation with mine foreman 

Dennis Kyle, the inspector learned that the high velocity air 

coming up through the bin itself was presenting a problem in the 

subject area (Tr. 333, 338). The air came from a leakage in the 

airlock doors between the bin and the entrance to the slope (Tr. 

338). There was a high velocity of air in the subject area during 

the course of the inspector's examination (Tr. 368). 

The testimony reveals that Respondent had been experiencing 

ongolng problems with float coal dust accumulations in the subject 

area of the mine as a direct consequence of high velocity air currents moving through the bin. Excessive float coal dust accumulations were a foreseeable consequence of this problem, and, as such, 

the Respondent must be charged with constructive knowledge of the 

presence of the float coal dust accumulation cited by the inspector 

in the subject order of withdrawal. This conclusion results partly 

from the fact that the extent and depth of the float coal dust was 

extreme and since the management personnel knew that an unusual 

problem existed at this place, it should have employed unusual 

methods to combat the problem. 

745 
As to the issue of reasonable time, the Board stated: 

As mentioned in out discussion of the responsibilities 

imposed upon the coal mine operators, what constitutes a 

"reasonable time" must be determined on a case-by-case 

evaluation of the urgency in terms of likelihood of the 

accumulation to contribute to a mine fire or to propagate 

an explosion, This evaluation may well depend upon such 

factors as-the mass, extent, combustibility, and volatility 

of the accumulation as well as its proximity to an ignition 

source. 

8 IBMA at 115. 

The Board further stated: 

With respect to the small, but inevitable aggregations 

of combustible materials that accompany the ordinary, routine 

or-normal mining operation, it is our view that the maintenance of a regular cleanup program, which would incorporate 

from one cleanup after two or three production shifts to 

several cleanups per production shift, depending upon the 

volume of production involved, might well satisfy the 

requirements of the standard. On the other hand, where an 

operator encounters roof falls, or other out-of-the-ordinary 

spills, we believe the operator is obliged to clean up the 

combustibles promptly upon discovery. Prompt cleanup 

response to the unusual occurrences of excessive accumulations of combustibles in a coal mine may well be one of the 

most crucial of all the obligations ,imposed by the Act upon 

a coal mine operator to protect the safety of the miners. 

8 IBMA at 111. 

In a subsequent opinion, Old Ben Coal Company, 8 IBMA 196, 1977-

1978 OSHD par. 22,328 (1977) (denying Government's motion for reconsideration), the Board stated; 

A small accumulation is most probably suitable for 

elimination in the course of the operator's regular cleanup 

program, Proof of the absence of such a program, together 

with the presence of any accumulation might well alone support a citation for violation of Section 304(a)', If the 

accumulation is of such size or combustibility as to 

present the possibility of a serious safety hazard, then, 

of course, the operator is required to take more urgent 

steps, other than by regular cleanup, in eliminating the 

hazard. [Emphasis in original.] 

8 IBMA at 198. 

746 
The foreseeability of the problem, coupled with the testimony 

describing the operation of the cleanup plan, reveal that the 

cleanup plan in effect on February 17, 1977, was inadequate to deal 

with float coal dust accumulations in the subject area of the mine. 

The fact that a cleanup man had been assigned to a territory which 

encompassed the subject area does not, by itself, indicate that the 

plan was adequate (Tr. 416). In fact, the testimony of Mr. Pomeroy 

reveals that the cleanup man's activities were not adequately supervised. According to Mr. Pomeroy: 

Q. And who is it that does the cleanup on your 

shift? 

A. John McClung. He's a belt cleaner. 

Q. And the foreman directs him to do this? 

A. He don't have to direct him. It's just our 

procedure. He knows what he's supposed to do. That's 

his area. 

(Tr. 415-416). 

The inadequacy of the cleanup plan, the depth and extent of the 

accumulation, the explosive potential of float coal dust, and the 

proximity of the accumulation to potential sources of ignition, all 

indicate that the float coal dust accumulation cited by the inspector was present for more than a reasonable time. 

Accordingly, it is found that the occurrence of the violation 

described in Order No. 7-0187 (1 HRB), has been. established by a 

preponderance of the evidence. 29 CFR 2700.48. 

3. Gravity of the Violation 

During the course of the hearing, official notice was taken of 

the fact that float coal dust in underground coal mines is recognized as a serious problem because of the potential for explosions 

(Tr. 357). 'The evidence reveals that the accumulations were heaviest 

near the bin, tapering to a virtually unmeasurable depth the farther 

one proceeded from the bin. The area.was dry up to a point 40 feet 

from the bin, the remainder of the area cited in the order of withdrawal was wet (Tr. 392). The accumulations were sitting atop rockdusted surfaces (Tr. 319-320, 337, 368). It was at least 1,000 feet 

to the nearest working face (Tr. 337). The belt conveyor drive was 

identified as a possible ignition source (Tr. 334). The track trolley 

wire also was identified as a possible ignition source (Tr. 339, 380-

381), but it was 35.to 50 feet away from the accumulations (Tr. 381). 

The inspector classified the probability of ignition from the trolley 

wire as remote (Tr. 381). There was not a great quantity of float 

747 
coal dust in the air, a fact attributable to the ventilation (Tr. 

367-368). The mine did not have a history of methane liberation 

(Tr. 335), and the inspector did not detect any methane (Tr. 367). 

A 10-pound fire extinguisher and a sprinkler-type fire suppression 

system were located at the belt head (Tr. 372). Part of it was 

operable and part of it was not (Tr. 372). There was at least 

one fire hose outlet present in the area (Tr. 377). 

The belt was in operation when the inspection was made (Tr. 

326), and coal production was underway (Tr. 326). The inspector 

could not recall whether any miners were working in the general 

area (Tr. 335). However, he stated that an explosion would have 

endangered anyone in the immediate area (Tr. 343). 

According to the inspector, a serious mine explosion could have 

affected the entire mine. The stoppings could have been blown out 

thus interrupting the ventilation. A major interruption of the 

ventilation system is very serious because it can scatter both smoke 

and flames (Tr. 358, 360). 

On the basis of the foregoing, it is found that the violation 

was serious. 

4. Negligence of the Operator 

It is found, as set forth in Part V(D)(2), supra, that the 

Respondent had constructive knowledge of the accumulations' presence. 

This fact, coupled with the inadequacy of the cleanup plan, and the 

fact that management knew that the area in question posed a real 

problem, but obviously didn't use sufficient means to solve the 

problem quickly enough, reveals that the Respondent demonstrated 

considerably more than ordinary negligence. 

5. Good Faith in Securing Rapid Abatement 

The order of withdrawal was issued at 11 a.m. and terminated at 

1:30 p.m. on November 17, 1977 (Exhs. M-14,-M-15, Tr. 331). The 

Respondent commenced abatement procedures immediately, and assigned 

two section crews to the task (Tr. 365). 

Accordingly, it is found that the Respondent demonstrated good 

faith in securing rapid abatement of the violation. 

VI. Size of Operator's Business 

The Pittston Company produces approximately 12,036,974 tons 

of coal per year (Tr. 14). The Meadow River No. 1 Mine produces 

approximately 154,797 tons of coal per year (Tr. 14). The Meadow 

River No. 1 Mine is operated by the Sewell Coal Company (Part 

(V)(A)(2)(a)), a member of the Pittston group. 

748 
VII. Effect on Operator's Ability to Continue in Business 

The Respondent introduced no evidence indicating that an assessment in this case would adversely affect the Respondent's ability to 

continue in business. The Interior Board of Mine Operations Appeals 

has held that evidence relating to whether a penalty will affect the 

ability of the operator to remain in business is within the opera~ 

tor's control, and therefore, there is a presumption that the operator will not be so affected. Hall Coal Company, 1 IBMA 175, 79 I.D. 

668, 1971-1973 OSHD par. 15,380 (1972). I find, therefore, that penalties otherwise properly assessed in this proceeding will not impair 

the operator's ability to continue in business. 

VIII. History of Previous Violations 

30 CFR 

Standard 

All sections 

75.200 

75.400 

75.1100-3 

Year 1 

2/17/75 - 2/16/76 

411 

41 

44 

7 

(Note: All figures are approximations.) 

Year 2 

2/17/76 - 2/17/77 

62& 

49 

101 

11 

Total 

1,039 

90 

145 

18 

As relates to the Meadow River No. 1 Mine, the opera~or had paid 

assessments for approximately 1,039 violations of regulations in the 

24 months preceding February 17, 1977. Approximately 411 of these 

paid assessments were for violations cited between February 17, 1975, 

and February 16, 1976. Approximately 628 or these paid assessments 

were for violations cited between February 17, 1976, and February 17, 

1977. 

The operator paid assessments for approximately 90 viclations of 

30 CFR 75.200 in the 24 months preceding February 17, 1977. Approximately 41 of these paid assessments were for violations cited between 

February 17, 1975, and February 16, 1976. Approximately 49 of these 

paid assessments were for violations cited between February 17, 1976, 

and February 17, 1977. 

The operator paid assessments for approximately 145 violations 

of 30 CFR 75.400 in the 24 months preceding February 17, 1977. 

Approximately 44 of these paid assessments were for violations cited 

between February 17, 1975, and February 16, 1976. Approximately 

· 101 of these· paid assessments were for violations cited between 

February 17, 1976, and February 17, 1977. 

The operator paid assessments for approximately 18 violations of 

30 CFR 75.1100-3 during the 24 months preceding February 17, 1977. 

Approximately seven of these paid assessments were for violations cited 

749 
between February 17, 1975, and February 16, 1976. Approximately 11 of 

these paid assessments were for violations cited between February 17, 

1976, and February 17, 1977. · 

In accordance with the ruling in Peggs Run Coal Company, 5 IBHA 

144, 150, 82 I.D. 445, 1975-1976 OSHD par. 20,001 (1975), no consideration will be given to any violations occurring subsequent to the 

respective dates of violations involved in this case. 

IX. Conclusions of Law 

1. Sewell Coal Company and its Meadow River No. 1 Mine have been 

subject to the provisions of the 1969 Coal Act and 1977 Mine Act during the respective periods involved in this proceeding. 

2. Under the Acts, this Administrative Law Judge has jurisdiction over the subject matter of, and the partie-s to, this proceeding. 

3. MSHA inspectors Sidney E. Valentine and Henry R. Baker were 

duly authorized representatives of the Secretary of Labor at all 

times relevant to the issuance of the orders of withdrawal which are 

the subject matter of this proceeding. 

4. The violations charged in Order No. 7-0041 (1 SEV), 

February 1, 1977, 30 CFR 75.1100-3, Order No. 7-0042 (2 SEV), 

February 1, 1977, 30 CFR 75.1100-3 and Order No. 7-0187 (1 HRB), 

February 17, 1977, 30 CFR 75.400 are found to have occurred. 

5. Petitioner has failed to establish a violation of 30 CFR 

75.200 as relates to Order No. 7-0140 (1 HRB), February 15, 1977. 

6. The oral motions made by the Respondent during the course 

of the hearing are denied as contrary to the law or the facts. 

7. All of the conclusions of law set forth in Part V of this 

decision are reaffirmed and incorporated herein. 

X. Proposed Findings of Fact and Conclusions of La.w 

MSHA and Sewell submitted posthearing briefs. MSHA submitted a 

response to the proposed findings of fact and conclusions of law 

advanced by Sewell in its posthearing briefs. Such briefs, insofar 

as they can be considered to have contained proposed findings and 

conclusions, have been considered fully, and except to the extent 

that such findings and conclusions have been expressJy or impliedly 

affirmed in this decision, they are rejected on the ground that they 

are, in whole or in part, contrary to the facts and law or because 

they are immaterial to the decision in this case. 

750 
XI. Penalties Assessed 

Upon consideration of the entire record in this case and the 

foregoing findings of fact and conclusions of law, I find that 

assessment of penalties is warranted as follows: 

Order No. 

7-0041 (1 SEV) 

7-001~2 ( 2 SEV) 

7-0187 (1 HRB) 

Date 

02/01/77 

02/01/77 

02/17 /77 

XII. Approval of Settlement 

30 CFR 

Standard · 

75 .1100-3 

7 5 .1100-3 

75.400 

Penalty 

$ 300 

300 

5,000 

$5,600 

As mentioned in Part I, supra, the Mine Safety and Health Administration (MSHA) filed a petition for assessment of civil penalties 

pursuant to section llO(a) of the· Federal Mine Safety and Health Act 

of 1977 (Act) in the -above-captioned proceeding in April of 1978. 

Su.bsequent thereto, the proceeding was set for hearing. At the time 

of the hearing, counsel for both parties proposed settlements as to 

penalty assessments to be paid by Respondent as to the four alleged 

violations involved. 

During the hearing, stipulations were entered into as to the 

annual tonnage of the Respondent and the individual mine. These 

stipulations are contained in the transcript. Exhibit No. M-1 contains a history of violations for which the Respondent had paid 

penalty assessments relating to the Meadow River· No. 1 Mine. 

Exhibit Nos. M-2, M-3, M-3A, M-4, M-5, M-5A, M-5B, M-10, M-lOA, 

M-11, M-16, M-16A, M-16B, M-7, 0-1, and 0-2, were filed in the case 

file in conjunction with the proposed settlements. These documents 

include orders issued by inspectors and Office of Assessments' narrative statements describing the alleged violations and the reasons 

given by that office for the special assessments recommended in each 

case. In addition, these exhibits contain statements by the inspectors as to the negligence of the operator, the gravity of the alleged 

violations, and the good faith of the Respondent relating to abatement 

of the alleged violations. These exhibits also contain a form filled 

out by the Pittston Company, similar to an inspector's statement, and 

two statements outlining the Respondent's defenses with respect to 

two of the orders. 

During the course of the hearing-,· counsel ·for both parties set 

forth reasons on the record as to why the penalty assessments should 

be in the amounts agreed to rather than the amounts set forth 

originally by the Office of Assessments. Each {ndividual order of 

withdrawal will be set forth separately below. 

751 
Order .No. 7-0012 (1 HRB) , January 2 7, 19 77, 30 CFR 7 5 .400 

Proposed assessment: $6,000. Proposed settlement: $4,500. 

Of significant consideration to a settlement, are the following 

statements of counsel made at the hearing: 

MR. O'DONNELL: All right. The first one is Section 

104(c)(2) Order of Withdrawal No. 1 HRB, which has been given 

by the Assessments Office the number of 7-12 and issued 

January 27, 1977. It cites 30 CFR 75.400. The Office of 

Assessments proposed a penalty for this of six thousand 

dollars. The primary reason that the Office of the Solicitor is recommending that the penalty be reduced or a penalty 

be accepted of four thousand ·five hundred dollars is because 

we consider the six thousand dollar penalty to be excessive 

for the facts. 

Pittston has also suggested and would offer testimony, 

if there were a hearing, that the accumulations resulted 

from normal operations and that the thirty inches of accumulations were mostly in isolated locations and that there 

was a scoop that would go down on charge from continuous 

running and as a result it could not be used in the 

clean-up program as planned. 

We would point out that the ventilation was good and 

that the area was provided with operable fire suppression 

devices. There was a water hose and there were fire 

extinguishers and rock dust present. There were no permissible violations found by the inspector.on that day 

and the section does provide two smokefree escapeways. 

The accumulations were mostly loose coal rather than float 

coal dust and no analysis was taken by the inspector and 

we are of the opinion that the four thousand five hundred 

dollars is a reasonable penalty for this alleged violation. 

(Tr. 4-5). 

Also of significant consideration to a settlement, are the 

following statements contained in MSHA's second posthearing brief, 

filed March 22, 1979: 

§ 104(c) (2) Order of Withdrawal No. 1 HRB .(7-12) which 

issued on January 27, 1977, citing 30 CFR 75.400 (Government 

Exhibit No. M-2), the parties agreed to settle, subject to 

the approval of the Administrative Law Judge ("Judge") for 

a civil penalty in the amount of $4,500.00 (Tr. 4-1). The 

Assessment Office had proposed a civil penalty of $6,000.00, 

752 
which the Office of the Solicitor deems excessive considering that the ventilation was adequate and the area was provided with operable fire suppression devices and a water 

hose, fire extinguishers and rock dust. There were no permissible violations found by the issuing Inspector, who was 

in the hearing room when the settlement offer was submitted 

by both counsels to the Judge. The Mine Operator would, if 

a hearing were held, offer sworn testimony that the accumulation was the result of normal mining operations, and much 

of it was in isolated areas of the mine. The accumulation 

resulted when the battery on a mine scoop discharged after 

continuous operation, so the scoop could not then be used 

in the manner provided by the clean-up program. The accumulation was loose coal and not float coal dust. Government 

Exhibit No. M-1 was offered and received in evidence and it 

is a computer printout showing paid violations issued against 

the Meadow River No. 1 Mine from January 1, 1970, until 

February 17, 1977. The document shows 1, 134 v_iolat ions during that period, including at pages 12 through 15 thereof a 

total of 148 violations of 30 CFR 75.400. The Office of the 

Solicitor considers the violation serious, the result of 

normal negligence, that the Mine Operator is a large company 

and can afford to pay the penalty without having its business adversely affected, that there were a substantial number of prior similar violations, and abatement was done with 

a normal degree of good faith. The Office of the Solicitor 

deems a $4,500.00 civil penalty to be an adequate and reasonable penalty under the facts shown. 

Order No. 7-0024 (1 SEV), January 28, 1977, 30 CFR 75.400 

Proposed assessment: ~7,500. Proposed settlement: $4,500. 

Of significant consideration to a settlement, are the following 

statements by counsel: 

MR. O'DONNELL: The original assessment in that proceeding, Your Honor, was seven thousand five hundred dollars 

and Mr. Callahan and I have agreed to settle this for four 

thousand five hundred dollars. My primary reason in that 

one is the same as before, that I consider seven thousand 

five hundred dollars to be excessively high concerning the 

facts that there were no injuries whatsoever and so on. 

Pittston has offered this information which they 

consider to be mitigating circumstances, that-the 

fourteen inches of accumulation was mostly in isolated 

places along the coal ribs, whereas the roadways were not 

excessively dirty. The roadways had been scooped and 

processed, but the coal hadn't built up along the ribs. 

753 
The entry would have been cleaned up on cycle, but the 

loader had been mechanically down prior to this time. 

The section is relatively new in development and was 

clean. The clean-up is done mostly with a loader and with 

a shovel. However, the scoop was removed from the No. 3 

and No. 1 units for clean-up when that scoop was operable. 

The section again provides two smokefree e·scapeways. The 

roadways and ribs are rock dusted and a water hose and 

other fire fighting equipment are provided. All the 

equipment except the loader was provided with operable 

fire suppression devices and they are of the opinion that 

the loose coal consisted mostly of material which was 

pushed into the face of the No. 3 entry. We would agree 

about the fire fighting equipment, and when I say "we" I 

mean MSHA, of course. 

So we are of the opinion that four thousand five 

hundred dollars is a substantial penalty and that it is a 

reasonable penalty for this violation. 

JUDGE COOK: is there anything you wish to add, 

Mr. Callahan? 

MR. CALLAHAN: No, Your Honor. 

JUDGE COOK: I notice, Mr. O'Donnell, just as a matter 

of information, on the second sheet of Exhibit M-4 there's 

mention of some hydraulic oil. 

MR. O'DONNELL: Yes, there was an accumulation of 

hydraulic oil from a mechanical failure and repairs were 

made on the equipment. The hydraulic oil had been 

deposited on the mine bottom a short time prior to the 

issuance of the order of withdrawal. 

MR. CALLAHAN: Your Honor, if I may add to that. 

There was a breakdown of a piece of equipment at that 

precise point and that's what had happened. It lost some 

hydraulic oil due to the breakdown. 

JUDGE COOK: All right. So considering all these 

facts, Mr. O'Donnell, you feel that a penalty of fortyfive hundred dollars is proper in this case? 

~..R. O'DONNELL: I do, Your Honor. 

754 
Order No. 7-0045 (2 HRB), February 1, 1977, 30 CFR 75.400 

Proposed assessment: $8,000. Proposed settlement: $5,000. 

Of significant consideration to a settlement, are the following 

statements by counsel: 

MR. O'DONNELL: This would be the same day, February 1, 

1977. And at this time Inspector Baker observed loose coal 

and coal dust ranging in the depths indicated in this Order 

of Withdrawal -- and he is here in the hearing room today, 

I might add, prepared to testify -- and the gravity would 

be lessened because of the lack of production in the mine. 

~owever, there ~ere miners in the mine at that time. 

(Tr. 305). 

* * * * * * * 

MR. O'DONNELL: It is often the Solicitor's primary 

position in entering into this settlement that the eight 

thousand dollars proposed by the office of assessments is 

excessive, and we have agreed to accept five thousand 

dollars as the proposed assessment for this. 

We do consider it to be a serious violation, but we 

do feel that the fact the mine was not producing is important. And we recognize that there was, from a negligence 

point of view, a problem. They had these pipes and the 

men were working on them and they had this excessively 

cold weather. I believe the testimony was· it was way, 

way below zero on this day. In fact, colder than I 

realized West Virginia got. And this, of course, caused 

them a problem as to manpower and on the whole, for these 

reasons, we feel five thousand dollars would be ·a reasonable settlement. 

JUDGE COOK: All right. 

Mr. Callahan, what is your position? 

MR. CALLAHAN: Your Honor, we have discussed this 

thoroughly with the Solicitor, and we have come to the 

agreement that that would be a fair and acceptable settlement for this violation. 

JUDGE COOK: Very well. 

(Tr. 307-308). 

755 
Order No.· 7-0209 (1 FLD), March 7, 1977, 30 CFR 75 .400 

Proposed assessment: $5,000. Proposed settlement: $3,000. 

Of significant consideration to a settlement, are the following 

statements by counsel: 

MR. O'DONNELL: Now, concerning this alleged violation, 

the assessment office suggested a civil penalty of five 

thousand dollars for it. 

Pittston would show that it does a section cleanup on 

a regular basis, the loose coal being pushed into the face 

area and loaded out on cycle. If the face areas are not 

permanently supported with roof bolts, the cleanup cannot 

be done until the areas are supported. And that is their 

position in this case, that they had done all that they 

could until the roof was supported. 

It will be Mr. Dickerson's position they did not need 

to push it into .the face. They could have cleaned it up 

without doing that. Pittston has offered a suggested penalty of three thousand dollars for that in lieu of the 

five thousand dollars suggested by the assessment office. 

Our primary position -- when I say our, I mean the 

Office of the Solicitor -- is that three thousand dollars 

is a reasonable penalty for that considering the quantity 

of coal involved and the fact that there was no, what we 

would consider to be a. serious violation. And we feel, 

as we say, the chief difference I believe in the testimony 

between Pittston and ourselves would be in the manner of 

cleanup there; did they have to push it into the face or 

could they clean it up previously. 

(Tr. 311). 

* * * * 

JUDGE COOK: All right. 

have anything else to offer, 

say concerning this proposed 

* * * 

Now, Mr. Callahan, did you 

or do you have anything to 

settlement? 

MR. CAT,LAHAN: No, Your Honor, I have nothing further. 

I believe the record is f.airly complete on this matter. 

JUDGE COOK: What is your position as to .the 

settlement? 

756 
MR. CALLAHAN: As I stated, with both settlements, 

Your Honor, we believe the Solicitor and I have arrived 

at a fair arid reasonable settlement. 

We both agree the original proposed penalties were 

excessive due to the nature of the violation and that, 

although there may be conflict as to whether the violation occurred and as to the seriousness of the violation, 

given the amount we have agreed upon, we believe it is a 

fair and reasonable settlement. 

(Tr. 316). 

This information set forth in the record, along with the information provided as to the statutory criteria contain€i in section 110 

of the 1977 Act, has provided a full disclosure of the nature of the 

settlements and the basis for the original determinations. Thus, the 

parties have complied with the intent of the law that settlements be 

a matter of public record. 

In view of the reasons given above by counsel for the proposed 

settlements, and in view of the disclosure as to the elements constituting the foundation for the statutory criteria, it appears that 

a disposition approving the settlements will adequately protect the 

public interest. 

ORDER 

Accordingly, IT IS ORDERED that the settlement, as outlined in 

Part XII of this decision, be, and hereby is, APPROVED. 

IT IS FURTHER ORDERED that Respondent pay the penalties assessed 

in the amount of $22,600, within 30 days of the date of this decision, 

which figure .represents the sume of the agreed-upon penalty of $17,000 

assessed pursuant to the settlement agreement, and the $5,600 penalty 

assessed in the contested portion of this proceeding. 

IT IS FURTHER ORDERED that the petition herein is DISMISSED as 

it relates to an alleged violation of 30 CFR 75.200, Order No. 7-0140 

(1 HRB), February 15, 1977. - · 

J:;J;n ~ F. Cook c:..___ 

Administrative Law Judge 

Issued: June 29, 1979 

757 
FEDERAL MINE SAFETY AND HEALT&-t REV!EW COMMISSION 

OFFICE Of ADMINISTt~ATiVE LAW ,llJDGES 

4015 WILSON BOIJLEVAF~O 

ARLINGTON, VIRG !NIA 22203 

June 29, 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioenr 

Docket No. DENV 78-525~P 

A.O. No. 42-00121-02042V 

v. 

Deer Creek Mine 

AMERICAN COAL COMPANY, 

Respondent 

Appearances: 

Before: 

Introduction 

DECISION 

James H. Barkley and Phyllis K. Caldwell, Trial 

Attorneys, Regional Office of the Solicitor, 

Department of Labor; for Petitioner; 

Patrick Garver and James B. Lee, Parsons, Behle 

& Latimer, Salt Lake City, Utah, for Respondent. 

Judge Littlefield 

This is a proceeding for assessment of a civil penalty against 

the Respondent and is governed by section llO(a) of the Federal Mine 

Safety and Health Act of 1977 (1977 Act), P.L. 95-164 (November 9, 

1977), and section 109(a)(l) of the Federal Coal Mine Health and 

Safety Act of 1969 (1969 Act), P.L. 91-173 (December 30, 1969). 

Section llO(a) provides as follows: 

The operator of a coal or other mine in which a violation occurs of a mandatory health or safety standard or 

who violates any other provision of this Act, shall be 

assessed a civil penalty by the Secretary which penalty 

shall not be more than $10,000 for each such violation. 

Each occurrence of a violat;_ion of a____m_andamr~he.altb or. 

safety standard may consititute a separate offense. 

Section 109(a)(l) provides as follows: 

The operator of a coal mine in which a violation 

occurs of a mandatory health or safety standard or who 

758 
violates any other provision of thi~ 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 

sc;arate offense. In determining the amount of the 

penalty, the Setretary shall consider th~ operator's 

histoLy of previous violations, the appropriateness of 

such penalty to the size of the business of the operator 

charged, whether the operator was negligent, the effect 

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

gravity of the violation, and the demonstrated good 

faith of the operator charged in attempting to achieve 

rapid compliance after notification of a violation. 

Petition 

On August 2, 1978, the Mine Safety and Health Administration 

(MSHA), 1/ through its attorney, filed petitions for assessment of 

civil penalties charging 2 violations of the Act. 

Response 

On August 17, 1978, Respondent filed a detailed answer denying 

the allegations and requesting hearing thereon. 

Tribunal 

Hearings were held in Salt Lake City, Utah, on April 11, 1979. 

Both Petitioner and Respondent were represented by counsel (Tr. 3). 

Posthearing briefs were submitted by both counsel. 3/ 

Issues Presented 

1. Whether the conditions observed in Respondent's Deer Creek 

Mine on August 31, 1977, and October 27, 1977, constituted violations 

of 30 CFR 75.200. 

2. Assuming a violation of 30 CFR 75.200 is established in either 

or both notices, what is the appropriate penalty to be imposed? 

1/ Statutory successor-in-interest to the Mining Enforcement and 

Safety Administration (MESA). 

2/ The briefs of Petitioner and Respondent are sufficiently well 

det~iled and specific in transcript citation support to preclude the 

necessity of a general presentation of evidence here. It should be 

noted that Respondent actually filed two separate briefs one on each 

violation. 

759 
Discussion 

A. 1 LJG, August 31, 1979 

The first ~otice charges a violation of the roof control plan 

in that: 

The approved roof control plan was not being complied 

with in the right entry in the 4 East Section in that 

temporary supports were not installed to within 5 feet of 

the face to provide protection to the miners making 

required tests. The roof bolting machine was present in 

the working place and roof-bolting had been performed. 

The roof control plan is incorporated as a mandatory standard 

through 30 CFR 75.200 which provides: 

Each operator shall undertake to carry out on a 

continuing basis a program to improve the roof control 

system of each coal mine and the means and measures to 

accomplish such system. The roof and ribs of all 

active underground roadways, travelways, and working 

places shall be supported or otherwise controlled 

adequately to protect persons from falls of the roof 

or ribs. A roof control plan and revisions thereof 

suitable to the roof conditions and mining system of 

each coal mine and approved by the Secretary shall be 

adopted and set out in printed form on or before May 29, 

1970. The plan shall show the type of support and 

spacing approved by the Secretary. Such plan shall be 

reviewed periodically, at least every 6 months by the 

Secretary, taking to into consideration any falls of 

roof or ribs or inadequacy of support of roof or ribs. 

No person shall proceed beyond the last permanent 

support unless adequate temporary support is provided 

or unless such temporary support is not required under 

the approved roof control plan and the absence of such 

support will not pose a hazard to the miners. A copy 

of the plan shall be furnished to the Secretary or his 

authorized.representative and shall be availabie to the 

miners and their representatives. 

The relevant portion of the plan is-Exhibit fr (eovt. Exh. G-1; 

Brief of MSHA at 1). The thrust of Petitioner's argument is that a 

man must have entered inby permanent support to make required methane 

tests (Brief of MSHA at 2-3). MSHA has no eyewitnesses who testified 

that anyone went inby support. Instead MSHA draws an inference that 

because methane testing is required, before electrical equipment is 

energized, that the tester must have entered inby permanent support 

to make the test. (Brief of MSHA at 3). 

760 
The prov1s1on which MSHA believed requ~red testing in an area 

that was unsupported is 30 CFR 75.307-1 which states: 

Methane examination at face. An examination for 

methane shall be made at the face of each working place 

during each shift and innnediately prior to the entry of 

such electrical equipment into any.working place. Until 

December 31, 1970, a permissible flame safety lamp may 

be used to make tests for methane required by the regulations in this part. On and after December 31, 1970, a 

methane detector approved by the Secretary shall be used 

for such tests and a permissible flame safety lamp may 

be used as a supplementary testing device. 

Respondent introduced Respondent's exhibit No. 3 a policy 

directive received by the Price Office of MESA on December 10, 1976, 

and received by the Respondent on October 7, 1974 (Tr. 151-152f. 

There was no evidence that such directive was not in force at the 

mine. The directive provides: 

Tests for methane in working places shall be made 

as near the face as possible, but without.exposing the 

examiner beyond permanent roof support or temporary roof 

support that was set for another purpose. If it is 

determined that the potential for face ignitions or 

explosions in a mine require that such tests be made 

closer to the face than described above, the gas testing 

procedure will be described in the approved ventilation 

plan, and the roof control plan will provide for special 

support to protect the examiner. [Emphasis supplied.] 

(Respondent's Exh. 3). 

As the directive states that the methane tester is not required 

to go inby support, no inference will be drawn that he did go inby 

support. Therefore, MSHA must show that what would appear to a 

reasonable tester to be supported roof was in fact unsupported roof. 

The question, in effect, is whether the hydraulic system of 

support is or was approved by ~SHA (Brief of Respondent 8-10). The 

initial question is what type~approval was given the Lee-Norse bolter 

(see Brief of Respondent at 12). The issue with reference to this 

approval assumed by Petitioner, is whether each individual roof 

bolter, ATS, (Automated Temporary Support System) must be approved 

for the purposes of being used for tem,forary roof support and/or 

whether it must show such approval o~attached plate. (Brief of 

Respondent at 12-15). · 

MSHA asserts that the machine was not approved (Brief of 

Petitioner 3-4). In its brief MSHA quotes M~. Winder, the former 

761 
inspector superviso1

r

9 as saying that he would not question as policy 

a requirement that a plate or label had to be attached to the machine 

(Tr. 120). However, he specifically stated that it was not necessary 

on this machine (Tr. 121). 

MSHA's brief argues the wrong point. The question is not whether 

MSHA had a policy of 'requiring stamps or plates marking ATS approval. 

The issue is whether the roof control plan,approved by MSHA~required 

such individual plated approvals. See 30 CFR 75.200-7 through 

75.200-14 (Brief of Respondent at 3-14). The answer to this question 

is specifically contained in letter of September 12, 1975. It states 

in relevant part: 

We also request permission to change our procedure 

of installing temporary supports before the roof bolt 

cycle is started, and to include the hydraulic safety 

booms of the bolters as a means of temporary support. 

It is understood that if the hydraulic boom is not used 

that a timber or jack would have to be installed. Your 

assistant in the approval of this supplement is greatly 

appreciated. 

(Respondent Exh. No. 1). 

On January 9, 1976, after a period of review which ran 4 months, 

MSHA approved the requested change in the following letter: 

Dear Mr. Crawford: 

Your requests to change the procedure of installing 

temporary supports and to install resin bolts have been 

reviewed. and are approved. Both procedures are appended 

to the approved roof control plan for the mine. 

[Emphasis added.] 

(Respondent's Exh. No. 2). 

If MSHA had wished to require Respondent to get approval for each 

machine,it had only to tell Respondent in the above letter. 

The above discussion of hydraulic safety booms makes no mention 

of individual machine approval. As MSHA specifically approved the 

proposed change (Respondent's Exh. No. 2), and as it could only be 

implemented by using a bolter machine, and as there was no reference 

to plate approval, it can not be concluded that such a plate was 

necessary. In fact the opposite anaylsis is requisite. As the only 

way the hydraulic temporary support system could be implemented was 

by using a machine, and as no machine has been_demonstated as approved 

- plrrsuc°int to tbe MSHA theory of ATS plates on individual bolters (but 

~' Tr. 71-72), the District Manager, Mr. Barton, would have been in 

762 
the ridiculous position pf approving a nullity. Therefore, as of 

January 9, 1976, the bolter syste~ was generally approved. As MSHA 

has not shown any other policy decision made subsequent to that date 

to have been communicated to Respondent and made a part of its roof 

control plan, the policy directives within MSHA can not be made binding on the operator. Thus the presence or absence of a MSHA policy 

of individual bolter approval is not relevant. 

MSHA's argument that the bolters needed to be approved as stated 

in Government Exhibit G-2 is of little momment. On its face the 

exhibit is merely on internal memorandum between Mr. Winder and the 

District Manager. It is not part of the roof control plan and it 

does not even appear to have been transmitted to Respondent (Govt. 

Exh. G-2; But see, Brief of MSHA at 3-4). Thus it is not binding. 

Further, the approval letter of January 9, 1976 (Respondent's Exh. 

No. 3), can easily be viewed as over-ruling an internal objection of 

Mr. Winder. Finally, the exhibit does not specify the type of 

approval envisioned (Govt. Exh. G-2). Therefore, even if the letter 

were viewed as modifying the approval, a view which I specifically 

reject, MSHA has still not demonstrated a requirement of placing the 

plates on the bolter. 

As there is no evidence that the methane tester advanced beyond 

the area supported by the hydraulic system of temporary support (See 

supra), and as that system was approved MESA (see Respondent's Ex~ 

No. 3), I conclude that MSHA has failed to demonstrate a violation of 

the roof control plan on August 31, 1977. Therefore, that part of the 

petitfon regarding 1 LJG, August 31, 1977, is hereby DISMISSED. 

B. 6 JODL, October 27, 1977 

The 104(c)(l) notice herein at issue1 alleges a violation of 

30 CFR 75.200 in that: 

The approved roof control plan was not being complied 

within the 4th East section in the belt and track.entry 

from the feeder breaker into the face in that, approximately 13 timber were missing at spot locations on the 

right side of the entry looking in the direction of the 

face. The entry width averaged approximately 24 feet. 

There were 2 timbers out between crosscut No. 12 and 13, 

and there were 5 timbers out between crosscut No. 13 and 

No. 14, 4 timbers out between crosscut No. 14 and No~ 15, 

and 2 timbers out between crosscut No. 15 and the face. 

The approved roof control plan calls for timbers to be 

set 4 foot from the rib and on 5 foot centers in a combination belt and track entry that has a 24 feet eritry 

width in order to bring the entry wi'<it-h into the recommended 20 foot width roadway. 

(Govt. Exh. G-3). 

763 
Initially respondent argues that the roof control plan (Govt. 

Exh. G-1) is not in evidence. (See Brief of Respondent note at 

10-11). 3/ As the above alleged violations are charged in a single 

petition~ Respondent's argument is without merit and rejected. 

The issue presented is whether Respondent complied with the 

roof control plan, not whether a safer system rhight arguably exist. 

Respondent's argument, that the roof control plan does not logically 

require replacement of knocked out support, (Brief of Respondent 

at 13) is not supported. Under Respondent's theory, there would be 

no way that the mine could be inspected to determine whether the plan 

had been complied with. Further, under Respondent's theory, a roof 

control plan would never constitute a standard by which control of 

the roof could be evaluated. It is rejected. Therefore, if the plan 

required timbers, and such were not maintained, a violation is 

established. 

For purposes of compliance with the roof control plan, the most 

important factor is whether the entry was cut 24 feet or 20 feet wide. 

It is conceded by Respondent's witness Mr. Johnson that the area may 

have measured 24 feet (Tr. 230). However, such width is asserted to 

have been the result of permissible sloughage (Tr. 230; Brief of 

Respondent at 12). 

There is testimony as to the width of an entry being cut 24 feet, 

found in the following colloquy: 

BY MS. CALDWELL: 

Q. Mr. Lemon, with regard to the cut that we are 

referring to in the August 31 notice, how wide was that 

cut? 

A. The cut was 24 feet wide, and I measured the 

cuts from the bit marks in the top, and it was not rib 

sloughage. Your Honor, the measurement from the bit 

marks on the left rib in the top to the bit marks on the 

right side was 24 feet wide, and I measured this entry 

in four places up to the place that was cut 20 feet wide, 

which was inby the last open cross-cut in the face of 

this entry. That's where they starting narrowing this 

entry down to, and this had been heave [sic] sloughed to 

24 feet wide. ~-

(Tr. 242). 

(See Brief of MSHA at 6). 

]./ As referred at note 2, supra, references here are to brief of 

Respondent on October 27, 1977, notice of violation. 

764 
In a letter dated June 20, 1979, counsel for MSHA states that 

she misspoke herself by referring to the August 31, 1977, notice, 

in the above quoted colloquy. 4/ 

MSHA counsel refers to a letter of May 30, 1979, written by 

counsel for Respondent, which pointed out that no "cut to cut" 

reference was made on the page cited in her brief. There in counsel 

for MSHA attacks counsel for Respondent, for a failure to have "* * * 

understood the intent of that testimony." As counsel for MSHA failed 

to cite the proper transcript page, Tr. 167 vs. Tr. 242, it is not 

surprising that counsel for Respondent did not understand the intent 

of the testimony. 

As this testimony is the only cited testimony on the issue of a 

measured "bit mark to bit mark" width, the issue of whether it applies 

to the August 31 or October 27 notice must be resolved. 

Supporting a determination that it applies to the August 31, 

notice, are the facts, that: (1) MSHA counsel refers to the 

August 31 notice in the question (Tr. 242); and that (2) there 

followed, in order, a general evidential summary for both notices 

(Tr. 242-et seq.). 

Supporting the conclusion that it applied to the October 27 

notice are the facts that (1) the August 31, notice did not involve 

entry width directly; (2) the testimony came at the end of the testimonial evidence on the October 27 notice and (3) the witness 

referred to a specific narrowing down of entry width inby the measured 

area. I conclude that the above-referenced testimony referred to the 

October 27 notice. 

Therefore, Respondent needed to meet the requirement~ of Exhibits 

G, figures 1-3, not merely the requirement of Exhibit B (Govt. Exh. 

G-1). 

The unrebutted evidence establishes that timbers which should 

have been in place pursuant to Exhibit G were not in place (Tr. 163, 

195). It follows that Respondent violated the roof control plan and 

30 CFR 75.200 (see, supra). That part of the petition pertaining to 

notice 6 JODL, October 27, 1977, and asserting a violation is hereby 

upheld. l../ 

4/ Counsel's above-reference letter also refers to an "October 31 

citation." No such citation is at issue. 

5/ As there is no .evidence tfrat Respondent filed an Application for 

Review, the due process issue~moot,~. Energy Fuels Corp., FMSHRC 

No. DENV 78-410 (May 1, 1979). 

765 
C. Penalty Criteria 

Subsection llO(i) provides, in relevant part: 

In assessing civil penalties, the Commission shall 

consider the operator's history of previous violations, 

the appropriateness of such penalty to the size of the 

business of the operator charged, whether the operator 

was negligent, the effect on the operator's ability to 

continue in business, the gravity of the violation, and 

the demonstrated good faith of the person charged in 

attempting to achieve rapid compliance after notification 

of a violation. 

The primary criteria issues argued by Respondent are gravity, 

negligence, and prior history. (Brief of Respondent at 13-16). 

1. Size of Business 

Deer Creek mirie produced about 1,205,576 tons annually and 

American Coal Company, about 1,521,238 tons annually (Tr. 246). I 

conclude that the company is medium to large. 

2. Ability to Stay in Business 

A penalty will not affect the operators ability to remain in 

business (Tr. 246). 

3. Good Faith 

The operator abated the condition with in about 45 minutes to 

an hour (Tr. 225). The operator demonstrated exceptional good faith 

by unnecessarily shutting down production to remedy the violation 

(Tr. 223-224). 

4. Negligence 

Both Mr. Lemon and Mr. O'Brien stated that the foreman knew of 

the problem '(Tr. 170; 223-224). However, as the entire theory of 

Respondent was that it did not believe that it was required to maintain the timbering in the entry (see supra.),and as this argument 

appears, on its face, to be made in good faith, the operator can not 

be found to have been negligent. 

5. Gravity 

The gravity of the violation is reduced by the following factors: 

extra roof bolts had been installed (Tr. 228' and the entry averaged 

24 feet (Tr. 166-167). The fact that the entry averaged 24 feet 

indicates that even without ·timbering and extra roof bolts the entry 

766 
was very close to meeting the requirements of the plan as no significant sloughage appears to have occurred (Govt. Exh. G-1, Exh. B). The 

MSHA arguments on significant gravity are unpersuasive (see Brief of 

MSHA at 7). 

I conclude that the violation was nonserious. 

6. History of Prior Violations 

The mine has a substantial history of prior violations including 

10 prior violations of this section. (See Submission of MSHA, May 7, 

1979). This history aggravates the size of the penalty to be assessed. 

Findings of fact 

All proposed findings of fact not adopted herein are specifically 

rejected. Upon consideration of the record as a whole, I find: 

1. The Judge has jurisdiction over the subject matter and the 

parties in this proceeding; 

2. A system of temporary hydraulic support using a hydraulic 

boom was approved pursuant to th~ roof control plan of the mine for 

use prior to August 31, 1977. (Respondent Exh. No. 1 and No. 2); 

3. The evidence does not show that methane testing was done 

under unsupported roof (Respondent's Exh. No. 3); 

4. MSHA failed to establish the fact a violation of 30 CFR 

75.200 with respect to Notice No. 1 LJG, August 31, 1977; 

5. A preponderance of the evidence does establish the fact of 

a violation of 30 CFR 75.200 with respect to notice No. 6 JODL, 

October 27, 1977; 

6. Respondent has a substantial history of previous violations; 

7. The mine in medium to large in size; 

8. Respondent was not negligent; 

9. A penalty will not affect Respondent's ability to continue 

in business; 

10. The violation found"was nonserious. 

11. Respondent exercised exceptional good faith in abating 

the condition.· 

767 
Conclusions of Law 

All proposed conclusions of law not adopted herein are specifically rejected. 

1. This case arises under the provisions of section llO(a) of 

the 1977 Act and 109(a)(l) of the 1969 Act. 

2. All procedural prerequisites established in the statutes 

cited above have been complied with • 

. 3. Respondent· has violated "the provisions of the statute noted 

above. 

4. A civil penalty must be assessed in accordance with the 

provisions of the statutes cited above. 

Application of Penalty 

Assessment of a penalty in accordance with the criteria shown 

in section llO(a) of the Act is mandatory. That section of the law 

as well as all the evidence in the record bearing on the criteria and 

mitigating circumstances have been considered fully. 

Accordingly, Respondent is assessed the following penalty: 

Notice No. Date 

6 JODL 10/27 /77 

Section 

30 CFR 75.200 

Total 

ORDER 

Penalty 

$ 250 

$ 250 

WHEREFORE IT IS ORDERED that Respondent pay the above-assessed 

civil penalty in the amount of $250 within 30 days from the date of 

this decision. 

WHEREFORE IT IS FURTHER ORDERED that Notice No. 1 LJG, August 31, 

1977, be and hereby is, DISMISSED. 

~I/) A t.u -/.? /J ;!1~4 -rf~t!:AJC..~ /l.tZC<:,,;('""'tA4 

Malcolm P. Littlefield:/ 

Administrative Law Judge 

768 
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OFFICE OF ADMINISTi<ATlVC. LAW JUDGES 

4015 WILSON HOUL<=VARD 

ARLiNGTON, VIRGINIA 22203 

JUN 2 9 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SCOTIA COAL COMPANY, 

Respondent 

Docket No. BARB 79-122-P 

A/O No. 15-03746-02037V 

Upper Taggart Mine 

DECISION AND ORDER APPROVING 

SETTLEMENT OF CIVIL PENALTY PROCEEDING 

On May 1, 1979, Petitioner filed a motion to approve settlement 

in the above-captioned proceeding. Attached to and made part of this 

motion were the order of assessment, the inspector's comment sheets 

and the Assessed Violations History Report. The 14 violations alleged 

in this case were originally assessed a penalty of $94,500. The petitions for assessment of civil penalty for two of these violations were 

withdrawn due to the fact that no violation existed. As to the 

remaining 12 violation the parties proposed to settle for the su~ of 

$42,000. The violations and proposed penalties are as follows: 

Number Date Assessment Settlement 

1-RDS (6-0201) 04/14/76 $ 5,000 $ 1,000 

2-RDS (6-0202) 04/14/76 5,000 1,000 

3-RDS (6-0203) 04/14/76 5,000 0 

4-RDS (6-0204.) 04/14/76 5,000 1,000 

2-RDS (6-0224) 05/04/76 5,000 0 

1-JRC (6-0271) 05/05/76 10,000 8,000 

1-RDS (6-0282) 05/10/76 7,500 5,000 

1-RDS (6-0295) 05/25/76 5,000 1,200 

2-RDS (6-0297) 05/25/76 5,000 1,200 

1-RDS (6-0298) 05/26/76 10,000 5,500 

2-RDS (6-0299) 05/26/76 7,000 4,100 

1-LG (6-0339) 07/30/76 5,000 1,500 

1-LG (6-0364) 08/27/76 10,000 6,000 

1-LG (6-0399) 10/07/76 10,000 6,500 

There were eight alleged violations of 30 CFR 75.1403-6 cited in 

this case. In each instance, an inspector found that a vehicle used 

for transportation of personnel had inoperative sanding devices. Section 75.1403-6(b)(3) requires that each track-mounted self-propelled 

personnel carrier be equipped with properly ins'talled and wellmaintainecl sanding devices. Petitioner moved to withdraw two of the 

alleged violations from thi°s petition. In support of this motion, 

769 
Petitioner asserted that Order No. 3-RDS (April 14, 1976) and Order 

No. 2-RDS (May 4, 1976), involved vehicles which had been removed 

from service. The sanding devices on these vehicles would have been 

repaired before they were placed back in service. Accordingly, no 

violation of section 75.1403-6 can be found with respect to these 

two vehicles. The remaining six violation as as follows: Order 

Nos. 1-RDS (April 14, 1976), No. 2-RDS (April 14, 1976), No. 4-RDS 

(April 14, 1979), No. 1-RDS (May 25 1976), No. 2-RDS (May 25, 1976), 

and No. 1-LG (August 30, 1976." The inspectors found that these condition should have been known to the operator because each was under 

the direct observation of management. In addition, a safeguard 

notice was issued at Upper Taggart on February 12, 1976, which noted 

the need for operative and well-maintained sanding devices. The 

Upper Taggart Mine has a record of collision between carriers resulting in injury to employees. The occurrence of the event against 

which the cited standard is directed was probable and the injury 

contemplated by the occurrence of the event was disabling. Between 

18 and 36 workers most probably would have been injured if a collision 

were to occur. The conditions were corrected after the closure orders 

issued. Management took extraordinary steps to gain compliance by 

assigning extra men in most instances to correct the condition. 

In support of the contention that the amount of the proposed 

assessment should be reduced with regards to these violations, counsel 

for Petitioner asserted the following: 

It should be noted that this is a very wet mine and 

it is extremely difficult to keep these sanding ·devices 

operative. Each alleged violation was cited while the 

vehicles were on the surface and it is the Respondent's 

contention that the devices would have been made operative before returning underground. Respondent has paid 

penalties for six other violations of this standard 

between 1970 and the dates of these violations. The 

payments have ranged from $70 to $140. The settlements 

in this case range from $1,000 to $1,500. Increases 

were made for violations cited at each later date. 

Four of the alleged violations contained herein cited a violation of 30 CFR 75.400. That section requires that combustible 

materials not be permitted to accumulate.in active workings. 

Order of Withdrawal No. 1-RDS (May 10, 1976), was issued after 

the inspector observed excessive amounts of float coal dust in the 

Nos. 5, 6 and 7 entries and connecting crosscuts. This condition was 

the result of a failure to act on the part of mine personnel and 

should have been known to the operator. It was improbable that the 

event against which section 75.400 is directed would happen because 

770 
the coal dust was wet and the mine had no history of methane liberation. Twenty-two workers were exposed to the hazard. Management took 

extraordinary steps to gain compliance by assigning extra men to 

correct the condition. 

Order of Withdrawal No. 1-RDS (May 26, 1976), was issued because 

an excessive amount of float coal dust and coal was present the entire 

length of the No. 1 outside belt and the connecting crosscuts 

beginning at the portal and extending a distance of 1,500 feet to the 

No. 2 belt drive. The condition cited resulted from the act or failure to act. of mine personnel and occurred under the direct observation 

of management. The occurrence of the event against which section 

75.400 is directed was probable. However, the mine does not have a 

history of methane liberation. The expected result of the occurrence 

of this event was disabling injury. Four miners most likely would 

have been injured were the event to occur. Management took extraordinary steps to gain compliance by assigning extra men to correct 

the condition. 

Order No. 1-LG (August 27, 1976), was issued because float coal 

dust had been deposited on rock dusted surface along the No. 3 belt 

a distance of 2,000 feet and 2 to 3 tons of loose coal had accumulated 

at two separate places which at one time had been loading points. The 

condition cited had been recorded prior to the shift during which it 

was cited and should have been known to the operator. The occurrence 

of the event against which section 75.400 is directed was probable. 

The injuries contemplated by the occurrence of the event ranged from 

disabling to death. Twenty-four workers were exposed to the hazard. 

Management took extraordinary steps to gain compliance by assigning 

extra men to rock dust and clean up the accumulations. 

Order No. 1-LG (October 7, 1976), was issued becau.se float coal 

dust had been deposited on rock-dusted surfaces in the belt entry and 

crosscuts extending a distance of 2,400 feet and loose coal had accumulated at various places throughout the area. The condition should 

have been known to the operator. The occurrence of the event against 

which section 75.400 is directed was probable. Fourteen men were 

exposed to a hazard which might have caused disabling injury or death. 

The operator took extraordinary steps to gain compliance by assigning 

extra men to correct the condition. 

In support of the reductions made in the proposed penalties for 

these four violations of section 75.400, counsel for Petitioner 

asserted the following: 

Respondent has paid penalties for 75 other violations of this standard between 1970 and the dates of 

these alleged violations. The payments have ranged 

from $75 to $625. The settlements in this case range 

771 
from $-5,000 to $6,500. Increases were made for violations cited at each later date. The gravity and 

negligence in the Proposed Assessment were too high 

in view of the criteria set down in Old Ben Coal Co., 

8 IBMA 98 (1977). 

Order No. 1-JRC (May 5 ,' 1976), was issued because a major ventilation change was made while men were working underground. On 

May 4, 1976, the No. 4 entry of 1 East off 2 South was covered with 

loose dust and mud which was pushed from the highwall above the entry. 

After being cleared, the entry was blasted and again blocked. Approximately 40,000 cfm of air were being taken in through this entry. 

The covering of this entry was a violation of 30 CFR 75.322. The 

condition should have been known.to the operator. It was the result 

of an act or failure to act on the part of management personnel. It 

was improbable that the event against which section 75.322 is directed 

would occur. Seventy five workers were exposed to the hazard. The 

condition was corrected after the closure order was issued. 

In support of the proposed reduction in penalty for this violation, counsel for Petitioner asserted the following: "The history of 

previous violations reveals no other violations of this standard. 

This was a serious violation. The negligence was ordinary. There 

was an effect on mine ventilation. However, air reaching the men 

underground was never dangerously low." 

Order No. 2-RDS (May 26, 1976), was issued because the structure 

on the No. 1 belt was not being maintained. Rollers were allowed to 

deteriorate, were stuck and were being cut by the belt in various 

locations. This condition was in violation of 30 CFR 75.1725. This 

condition resulted from the act or failure to act of mine personnel 

and occurred under the direct observation of management. The order 

was issued at the same time as Order No. 1-RDS, discussed above. It 

is probable that the event against which section 75.1725 is directed 

would occur. Thirty five workers were exposed to the hazard. This 

condition was corrected after the closure order was issued. Management took extraordinary steps to gain compliance by assigning extra 

men to correct the condition. 

In support of the proposed reduction in penalty for this violation, counsel for Petitioner asserted the following: "Respondent has 

paid penalties for twelve other violations of this standard between 

1970 and the date of this violation. The payments have ranged from 

$94 to $180. The settlement in this case was $4,100. This was a 

serious violation and the negligence was ordinary." 

Respondent is a large operator and there is no indication on the 

record that the penalties assessed herein will have an adverse affect 

on Respondent's ability to remain in business. 

772 
In view of the above, Petitioner's motion is granted. 

It is ORDERED that the settlement negotiated between MSHA and 

the Respondent is hereby APPROVED. 

It is further ORDERED that Respondent pay the sum of $42,000 

within 30 days of the date of this decision. 

Issued: 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Joseph M. Walsh, Attorney for Mine Safety and Health 

Administration, U.S. Department of Labor, Office of the 

Solicitor, ~015 Wilson Blvd., Arlington, VA 22203 

Richard C. Ward, Esq., Craft, Barret, Haynes & Ward, 

Post Office Box 1017, Hazard, KY 41701 ·(Certified Mail) 

773 
THE FOLLOWING DECISION DATED APRIL 30, 1979 WAS OMITTED 

FROM OUR APRIL VOLUME OF DECISIONS. 

774 
FEDERAL MINE SAFETY AND liEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON UOULEVARD 

ARLINGTON.VIRGINIA 22203 

April 30, 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 1/ 

Petitioner 

v. 

EASTERN ASSOCIATED COAL 

CORPORATION, 

Respondent 

Civil Penalty Proceedings 

Docket No. HOPE 78-77-P 

A/O No. 46-04500-02007V 

Wharton No. 11 Mine 

Docket No. HOPE 78-76-P 

A/O No. 46-04332-02009V 

Docket No. HOPE 78-75-P 

A/O No. 46-04332-02008V 

Lightfoot No. 1 Mine 

DECISION 

Appearances: Stephen P. Kramer, Esq., Office of the Solicitor, 

Department of Labor, for Petitioner; 

R. Henry Moore, Esq., Rose, Schmidt, Dixon, Hasley, 

Whyte and Hardesty, Pittsburgh, Pennsylvania, for 

Respondent. 

Befo1·e: Judge Cook 

I. Procedural Background 

On November 16, 1977, petitions were filed in the above-captioned 

proceedings for assessment of civil penalties against Eastern Associated Coal Corporation for alleged violations of various previsions of 

the Code of Federal Regulations. These petitions were filed pursuant 

to section 109 of the Federal Coal Mine Health and Safety Act of 1969, 

30 u.s.c. § 801 et~· (1970), hereinafter referred to as "the 1969 

Coal Act."'!:./ Answers were filed on December 19, 1977. 

1/ The Secretary of Labor, Mine Safety and Health Administration 

(MSHA), has been substituted as the petitioner in lieu of the Mining 

Enforcement and Safety Administration of the Department of the 

Interior (MESA) as a result of the enactment of the Federal Mine 

Safety and Health Amendments Act of 1977, P.L. 95-164, November 9, 

1977. 

2/ On March 9, 1978, most provisions of the Federal Mine Safety and 

Health Amendments Act of 1977 became effective. That Act provides for 

175 
A notice of hearing was issued on December 29, 1977. Motions 

were made by the Petitioner for approval of settlements in each of 

the cases. All of the dockets were continued pending determination 

as to the various motions to approve settlements. The motions in 

each of these dockets were denied and the cases reset for hearing. 

A hearing was held commencing October 10, 1978. 

Both parties filed posthearing briefs on November 30, 1978. The 

parties were given until December 15, 1978, to file reply briefs, but 

none were filed. 

II. Violations Charged 

Docket No. HOPE 78-77-P 

Notice No. · 3 AJK, January ll, 1977, 30 CFR 75.316. 

Docket No. HOPE 78-76-P 

Notice No. 6 BJW, January 12, 1977' 30 CFR 75.400. 

Docket No. HOPE 78-75-P 

Order No. 1 BJW, January 14, 1977' 30 CFR 75.1306. 

fn. 2 (continued) 

a different effective date as to certain specifically named provisions 

not pertinent to this proceeding. The Amendments Act of 1977 changed 

the title of the 1969 Act, as amended, to read "Federal Mine Safety 

and Health Act of 1977." That Act will be referred to in this decision as "the 1977 Mine Act." Section 301(a) of the Amendments Act 

provides that: 

"Except with respect to the functions assigned to the Secretary 

of the Interior pursuant to section 501 of the Federal Coal Mine 

Health and Safety Act of 1969, the functions of the Secretary of the 

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

as. amended, and the Federal Metal and Nonmetallic Mine Safety Act are 

transferred to the Secretary of Labor except those which are expressly 

transferred to the Commission by this Act." 

With respect to this transfer of functions, section 301 of the 

Act of 1977 continues in subsection (c)(3), in part as follows: 

"The provisions of this section shall not affect any proceedings 

pending at the time this section takes effect before any department, 

agency, or component thereof, functions of which are transferred by 

this section, except that such proceedings, to the extent that they 

relate to functions so transferred, shall be continued before the 

Secretary of Labor or the Federal Mine Safety and Health Review 

Commission." 

776 
III. Evidence Contained in the Record 

A. Stipulations 

At the commencement of the hearing, counsel for both parties 

entered into stipulations which are set forth in the findings of fact, 

infra. 

B. Witnesses 

Petitioner called as its witnesses Henry J. Keith and Billy Joe 

Workman, who are employed as inspectors by the Mine Safety and Health 

Administration of the Department of Labor. 

Respondent called as its witnesses Jerry Edward Lewis, who at 

the time of the citations was general mine foreman at the Wharton 

No. 11 Mine of the Respondent; Gary Gallaher, who was underground 

project engineer at the Lightfoot No. 1 Mine of the Respondent at 

the time of the citations; Larry Belcher, who at the time of the 

citations was a company mine inspector for the Respondent; and 

D. Aguilar, who at the time of the citations was assistant general 

foreman and acting mine foreman, at the Lightfoot No. 1 Mine. 

C. Exhibits 

(1) Petitioner introduced the following exhibits into evidence: 

GX-1 is Notice No. 3 HJK, January 11, 1977, 30 CFR 75.316. 

GX-2 is the termination of Exhibit GX-1. 

GX-3 is the ventilation plan for the Wharton No. 11 Mine. 

GX-4 is the history of violations of the Respondent. ll 

GX-5 l.S a diagram of the face area of the Wharton No. 11 Mine. 

GX-6 is Notice No. 6 BJW, January 12, 1977' 30 CFR 75.400. 

GX-7 is the termination of Exhibit GX-6. 

GX-8 is Order No. 1 BJW, January 14, 1977' 30 CFR 75.1306. 

3/ The history of violations was marked for identification as 

Exhibit GX-4. The Respondent was then given 14 days after the close 

of the hearing on October 11, 1978, to file objections to the document (Tr. 250). No objections were filed as to such document. 

Therefore, the document marked as Exhibit GX-4 for identification 

is received in evidence. 

777 
GX-9 is the termination of Exhibit GX-8. 

(2) Respondent introduced the following exhibits into evidence: 

OX-1 is a copy of the ventilation and methane map for the 

Wharton No. 11 Mine. 

OX-2 is a copy of the Lightfoot No. 1 cleanup program. 

OX-3 is a copy of a cleanup plan used at the Lightfoot No. 1 

Mine. 

OX-4 is a map showing part of the Lightfoot No. 1 Mine. 

IV. Issues 

Two basic issues are involved in the assessment of a civil penalty: (1) did a violation of the Act occur, and (2) what amount 

should be assessed as a penalty if a violation is found to have 

occurred? In determining the amount of a civil penalty that should 

be assessed for a violation, the law requires that six factors be considered: (1) history of previous violations; (2) appropriateness of 

the penalty to the size of the operator's business; (3) whether the 

operator was negligent; (4) effect of the penalty on the operator's 

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

(6) the operator's good faith in attempting rapid abatement of the 

violation. 

V. Opinion and Findings of Fact 

Docket No. HOPE 78-77-P 

Inspector Keith visited the Eastern Associated Coal Corporation 

Wharton No. 11 Mine on January 11, 1977 (Tr. 35). He entered the 

No. 2 Butt left Section off the 1 East Mains from the direction of the 

No. 5 entry and proceeded to the No. 3 entry near the face. There, he 

noticed that the line curtain terminated at the outby corner of the 

last crosscut (Tr. 37-38). This last crosscut right had been undercut, drilled and shot with three cuts, but the coal had not been 

loaded out of the last cut at that time (Tr. 39, Exh. GX-5). Each cut 

was about 7-9 feet long (Tr. 39, 85). The No. 3 entry face area had 

been cleaned and there were indications that three cuts had been made 

(Tr. 39). It was agreed that this practice, called double heading, 

which entails mining the face and the crosscut at the same time is not 

a good practice (Tr. 44, 78). The inspector indicated that it makes 

it very hard to ventilate the face because the curtain across the 

crosscut has machinery running through it which would short circuit 

the air (Tr. 44). The inspector then noted that there were no line 

curtains to within 10 feet of the deepest penetration of the face 

area and in the crosscut (Tr. 39). In fact, the curtain was 47 feet 

778 
from the furthest penetration in the entry (Tr. 65). At this time 

a roof bolting machine was located outby the corner of the crosscut 

right and the two men who operate the machine were there (Tr. 42). 

The inspector then went through the crosscut to the No. 2 entry 

(Tr• 40). In the crosscut to the right of the No. 2 entry, four cuts 

had been taken out and five cuts had been taken out of the face 

(Tr. 40-41). The crosscut had been cleaned, but the face of the 

No. 2 entry had one cut of coal remaining in it that had been shot 

down (Tr. 41)~ There was no machinery in either the crosscut or the 

face (Tr. 41), but there was one man on the left side of the No. 2 

entry who was shoveling coal and coal dust towards the center of the 

entry (Tr. 41). The curtain terminated at the right corner outby the 

crosscut right (Tr. 42), which was 55 feet from the face (Tr. 70). 

The inspector then proceeded through the crosscut between No. 1 

and No. 2 entries and went to the face of the No. 1 entry (Tr. 42). 

He testified that the curtain terminated at the corner outby the 

crosscut right (Tr. 42). Four cuts had been made from both the face 

and the crosscut right (Tr. 43). 

The inspector cited a violation of 75.316 for a violation of the 

approved ventilation plan (Tr. 48). In particular, the inspector 

referred to an addendum to the ventilation plan which it is found 

was in effect on the day in question. This is found at the second 

last page of Exhibit GX-3 and provides, in part, as follows: 

In addition to the mandatory provisions of Section 

75.316-1, 30 CFR 75, the following provisions are designated applicable to the subject mine. Henceforth these 

provisions are mandatory requirements of the ventilation 

system and methane control plan for this mine: 

* * * * * * * 

2. Section 75.302-l(a) - Properly installed and adequately maintained line brattice or other approved devices 

shall be installed at a distance no greater than 10 feet 

from the area of deepest penetration to which any portion 

of the face in all working places has been advanced, 

unless otherwise specified by written permit. 

Mr. Lewis agreed that the curtains had been taken down in most 

of the areas beyond the last crosscut at the time of the alleged violation (Tr. 79-80). He said that they had encountered a streak of 

rock in the coal which meant that the coal had to be shot extremely 

hard. The result was that coal was blown back 40-50 feet from the 

face. The miners then removed the curtain to clean the ribs, but 

neglected to get the curtain back up (Tr. 80). Mr. Lewis testified 

779 
that at the time of his examination when he first went to the face, 

there was not enough curtain in the No. 1 entry to reach the face, so 

they took the curtain from the right crosscut to have enough to reach 

the face. This left the crosscut right without a curtain (Tr. 80). 

He then went on to state: "But the curtain was to the face of No. 1. 

Although in the No. 2 entry, the curtain was still down. In No. 3 

entry the curtain was still down. But the curtain was piled upon the 

outby rib of the crosscut" (Tr. 80). 

Thus, Mr. Lewis agreed with the statements of the inspector as to 

the location of the line curtains except that he stated that a curtain 

was in the No. 1 entry, although it was not up in the crosscut right 

in that entry (Tr. 89-90, 93). He indicated that the line brattices 

in the Nos. 2 and 3 entries were up reasonably within 10 feet of the 

face when he was on the section earlier on the morning of the inspection (Tr. 100), and although the crosscut right of the No. 3 entry had 

a curtain, he did not know if it was within 10 feet of the face, 

though he did know that it was not hung in a good manner (Tr. 101). 

He testified, however, that when the inspector arrived in entry 

Nos. 2 and 3 as well as the crosscuts right, the brattice was not up, 

but was piled up outby the last open crosscut (Tr. 102). 

Based on the above, it is found that a violation of the roof 

control plan did exist, thus constituting a violation of 30 CFR 

75.316. 

The operator should have known of the violation. The shift had 

been working about 3 hours before the inspector arrived (Tr. 45-46). 

The section foreman should have noticed the violation during the 

shift. Mr. Lewis, the general mine foreman, indicated that while he 

understood that the regulations do not permit the curtains to be 

taken down, and while he never gave his permission to take them down, 

the miners under him do and did take the curtains down (Tr. 97). He 

indicated that -it was normal procedure for the miners to take the 

curtains down to clean the entries (Tr. 102). He testified that while 

he realized that it was management's responsibility to see that the 

curtains were up, if management were not there for a while, the curtains would not be put up (Tr. 102). The general mine foreman had 

also particularly commented about having warned the miners "time and 

again not to double-head these places" (Tr. 44). This poor mining 

practice, described above, was part of the cause of the problem and 

should have been controlled better by management. 

Accordingly, it is found that Eastern's degree of negligence is 

more than ordinary since it knew of the conditions in the area and the 

continuing nature of the actions of the miners, but it is somewhat 

less than gross negligence. 

The No. 11 Mine at the time of this violation was not a gassy 

mine. The inspector testified that while the depth of the entries 

780 
inby the line curtains was such that they could not have been driven 

on one ~hift, at least the last cuts in each of the affected areas 

were made during the shift on which the inspection was being made 

(Tr. 6 6-6 7) • 

The inspector testified that at the time of the inspection, he 

did not consider the problem of methane to be extremely hazardous 

because the mine had not progressed too far underground (Tr. 46, 57). 

He indicated, however, that he thought that the method of mining 

employed in this mine put dust into suspension which could be 

injurious to the people inhaling it (Tr. 46, 57). Mr. Lewis, the 

general mine foreman at this mine at the time of the alleged violation, also testified that this was not a gassy mine (Tr. 77). 

Mr. Lewis testified that dust from the cutting was not a problem 

because the cutting machine cuts into the fire clay under the coal 

seam rather than in the coal, so there is no dust (Tr. 103). He 

testified that the only dust problem is when you shoot the coal, 

and he indicated that went out with the smoke (Tr. 103). However, 

any impurities that were in the area might have been added to by 

this lack of'ventilation (Tr. 47). In addition, there could be 

a fire hazard raised by having dust in suspension (Tr. 47). 

There were approximately eight men working on this section that 

could have been affected by the absence of proper ventilation (Tr. 45). 

Based on the above, it is found that this violation was serious. 

With regard to the abatement of the violation, Mr. Lewis testified that it took approximately 45 minutes to abate (Tr. 77). The 

inspector testified that Eastern complied with what was asked of them 

in abating the violation. Accordingly, it is found that Eastern 

demonstrated good faith in abating the violation after notification 

of it. 

Docket No. HOPE 78-76-P 

Inspector Workman visited the Lightfoot No. 1 Mine on January 12, 

1977. He examined the preshift examiner's books and determined that 

the 005 2 Butt Right Section had been dangered off for loose coal and 

coal dust (Tr. 118). When the inspector arrived on the section at 

about 10:30 a.m., the miners were engaged in _coal production (Tr. 

119). The -mining machine and shuttle cars were in the No. 1 entry 

and the bolting machine was in either the No. 2 or No. 3 entry (Tr. 

126-127). He noticed that lying on the ribs were half-headers, short 

boards approximately 18 inches by 6 or 8 inches, that had "Dangered 

off" written on them (Tr. 119-120). He found accumulations of coal 

in the Nos. 1, 2 and 3 entries ranging from 1 to 18 inches (Tr. 118-

119). The inspector established that "approximately" all of the 

accumulation was 18 inches in depth, that is, approximately 90 percent (Tr. 120). He indicated that he had taken six measurements in 

781 
the three ~ntries (Tr. 128-129). The extent of the accumulations ran 

from the face to a point approximately 85 feet outby in each entry 

(Tr. 120). Of this accumulation, approximately 90 percent was loose 

coal, the remainder was coal dust and float coal dust .(Tr. 121). 

From the conditions the inspector observed, he estimated that 

mining had continued for at least two shifts, since it had last been 

cleaned, because of the range of the accumulations (Tr. 122-123). He 

also testified that when he arrived on the section, at least one cut 

of coal had been made in the No. 1 entry since the shift started (Tr. 

122, 126). A cut of coal is about 18 feet in length (Tr. 147-148). 

Mr. Gallaher, who at the time of the notice, was underground 

project engineer for the Respondent, testified that the previous 

shift, the third shift, was not a production shift (Tr. 140). He 

further testified that on the second shift, "[t]hey did lose a drive 

shaft on the scoop used on thc:tt section for cleanup" (Tr. 140). The 

scoop was repaired sometime during the third shift and brought outside to carry supplies to the section (Tr. 140-141). Mr. Gallaher 

testified that the scoop was required on cleanup,.but that if the 

scoop were n~t available, one would take a shovel and turn the coal 

out for the miner to pick it up (Tr. 144, 154). That was how the 

citation was eventually abated, the loose coal and coal dust was 

thrown out in the middle of the roadway where it could be picked 

up by the miner when it got back on cycle (Tr. 125). It took about 

2 hours to abate the violation (Tr. 143). The cleanup program for 

the mine was set forth in Exhibit OX-2 as follows: 

LIGHTFOOT NO. 1 EACC 

CLEAN-UP PROGRAM 

1. Each place is bolted first to insure safety of workers. 

2. Loose material along the ribs is shoveled into the 

roadway as necessary. 

3. This material is then pushed into the face area by the 

scoop or loaded by the miner as miner advances to next cut. 

4. Rock dust is maintained to at least forty feet from the 

working face. 

The working cycle at this mine is from right to left. 

In Old Ben Coal Compa~, 8 IBMA 98, 84 I.D. 459, 1977-1978 OSHD 

par. 22,087 (1977)~ motion for reconsideration denied, 8 IBMA 196, 

1977-1978 OSHD par. 22,328 (1977), the Board of Mine Operations 

Appeals (Board) held that the presence of a deposit or accumulation 

of coal dust or other combustible materials in active workings of a 

mine is not, by itself, a violation. 

782 
In that case, the Board held that MSHA must be able to prove: 

(1) that an accumulation of combustible material 

existed in the active workings, or on electrical equipment 

in active workings of a coal mine; 

(2) that the coal mine operator was aware, or, by the 

exercise of due diligence and concern for the safety of the 

miners, should have been aware of the existence of such 

accumulation; and 

(3) that the operator failed to clean up such accumulation, or failed to undertake to clean it up, within 

a reasonable time after discovery, or, within a reasonable time after discovery should have been made. 

8 IBMA at 114-115. 

There can be no doubt that there was an accumulation of combustible material in the active workings as described above. Further, 

in view of both the fact that the area had been written up in the 

preshift examiner's report and dangered off, and in view of the 

extent of the accumulation, there is no doubt that the coal mine 

operator was aware, or should have been aware of the existence of 

the accumulation. The section foreman certainly should have 

observed the condition during the 3 hours that expired on the shift 

before the notice was issued. The fact that the danger boards had 

been set aside and that the miners had been at work in actual coal 

production during the first shift after the danger boards were 

removed and while the accumulation still remained, further bolsters 

this finding. The question that remains is.whether Eastern failed 

to clean up the accumulation within a reasonable time after 

discovery was or should have been made. 

As to the issue of "reasonable time," the Board stated: 

As mentioned in our discussion of the responsibilities 

imposed upon the coal mine operators,. what constitutes a 

"reasonable time" must be determined on a case-by-case 

evaluation of the urgency in terms of likelihood of the 

accumulation to contribute to a mine fire or to propagate 

an explosion. This evaluation may well depend upon such 

factors as the mass, extent, combustibility, and volatility 

of the accumulation as well as its proximity to an ignition 

source. 

8 IBMA at l15. 

783 
The Board further stated: 

With respect to the small, but inevitable aggregations 

of combustible materials that accompany the ordinary, routine or normal mining operation, it is our view that the 

maintenance of a regular cleanup program, which would 

incorporate from one cleanup after two or three production 

shifts to several cleanups per production shifts, depending 

upon the volume of production involved, might well satisfy 

the requirements of the standard. On the other hand, where 

an operator encounters roof falls, or other out-of-the 

ordinary spills, we believe the operator is obliged to clean 

up the combustibles promptly upon discovery. Prompt cleanup 

response to the unusual occurrences of excessive accumulations of combustibles in a coal mine may well be one of the 

most crucial of all the obligations imposed by the Act upon 

a coal mine operator to protect the safety of the miners. 

8 IBMA at 111. 

The extent of this accumulation and the opinion of the inspector, 

coupled with the testimony regarding the usual cleanup procedure for 

the mine, and the fact that the scoop was not operable at a stage during the prior second shift, all indicate that the accumulation was 

present for longer than was reasonable. The additional opinion given 

by the preshift examiner in dangering off the area of the accumulations 

followed by the setting aside of the danger signs and the commencement 

of .coal production is further indication of this. 

The Respondent's underground project engineer recognized that 

the regular cleanup cycle had not been followed prior to the issuance 

of the notice (Tr. 142). An effort to clean up the area should have 

been undertaken before coal production was commenced on the shift in 

question. 

In view of the facts set forth above, it is found that MSHA has 

proved all elements necessary to establish a violation of 30 CFR 

75.400. 

The inspector testified that when you have loose coal and coal 

dust in areas where there is travel, there is a danger of fire (Tr. 

123). He did not recall any bad cables in the area, however (Tr. 

123), and Mr. Gallaher testified that he was not aware of any problems with cables on that section at that time (Tr. 140). The inspector also indicated that the mine was damp and there were spots on the 

roadway where there was water, but that it was not damp in the face 

area (Tr. 121). Mr. Gallaher attested to the dampness and indicated 

that there were 8 or 9 inches of water in places (Tr. 135). However, 

the inspector established the fact that there was no standing water 

in the 85-foot area where the accumulations were located in this case 

784 
(Tr. 132). The inspector, Mr. Gallaher, and Mr. Belcher, the company 

mining inspector, testified that there was no methane present at the 

time the citation was issued (Tr. 124, 131, 135, 163). The potential 

sources of ignition on the section were the energized electric face 

equipment, oil on the machinery and the welder kept for repairs on 

the section (Tr. 123-124). However, the welder would have been near 

the belt tailpiece which was at least 300 feet from the working face 

(Tr. 140, 142). Mr. Gallaher was not aware of any mechanical problem 

at that time that would have necessitated its use (Tr. 140). Based 

on all of the above factors, particularly the potential sources of 

ignition, such as the energized electric face equipment, and the extent 

of the accumulation, it is found that the violation was serious. 

It is found as shown above, that the operator knew or should have 

known of the violation. In view of the fact that the area had been 

dangered off and the operator proceeded to mine without regard to 

that fact, it is found that the violation was the result of gross 

negligence. The alleged inexperience of the preshift examiner (Tr. 

146) did not justify the failure to heed the danger signs. 

It is further found that once notified of the violation, the 

operator demonstrated good faith in abating the violation (Tr. 125). 

Docket No. HOPE 78-75-P 

On January 14, 1977, Inspector Workman visited the Lightfoot 

No. 1 Mine to make a regular safety inspection (Tr. 167). During the 

course of that visit, he entered the 004 Mains Section and proceeded 

up the belt entry (Tr. 168). Following the inspection of the face 

area, he went up the No. 3 entry, which is a fresh air intake and 

primary escapeway, and found approximately four cases of explosives 

and detonators stored within 12-1/2 feet of the 7,200 high-voltage 

cable and approximately 15 feet from the travelway (Tr. 168, 184, 

Exh. GX-8) in an area 600 or 700 feet outby the working area (Tr. 

169, 217). The explosives md detonators were stored in a wooden 

container with a lid on it (Tr. 168-169). The container was located 

in a crosscut about 12-1/2 feet from the mouth of the crosscut. The 

high-voltage cable was hung across the mouth of the crosscut (Tr. 

187). The other end of the crosscut was blocked by a permanent 

stopping (Tr. 170, 185). 

There was no dispute as to the location of the explosives and 

detonators. Accordingly, it is found that a violation existed in 

that 30 CFR 75.1306 requires that explosives and detonators be 

located "at least 25 feet from roadways and power wires, * * *·" 

The inspector indicated that one of the hazards inherent in the 

placement of the powder box was the 7,200-volt cable that ran past it. 

The detonating caps stored in the box are set off by an electrical 

charge (Tr. 171, 209). This detonation could be activated by stray 

785 
current from a power cable (Tr. 171). However, in order for there 

to be a stray current, there would have to be a break in the cable 

(Tr. 255). The cable in question was a new cable that had been 

installed about a month before this incident (Tr. 207). This cable 

has a metal shield which is covered by a rubber coating. A person 

can touch it and not receive a shock (Tr. 189). In addition, there 

is a ground-checking system which continuously monitors the system. 

If a hole was made in the armor shielding, the system is designed to 

deenergize itself (Tr. 171, 189, 207-208). There was no reason to 

believe that this system was hooked up improperly (Tr. 256). In 

addition, stray current would have to have a path of conductivity to 

set off the detonators (Tr. 255). The powder box is constructed out 

of wood which is a nonconducting material (Tr. 209, 224), and the 

detonators were separated from the powder by a 4 inch wooden divider 

(Tr. 206). The section where the powder box was located was dry and 

rock dusted and there was no water present on the box itself (Tr. 207, 

259-260). Further, the detonators can not be set off if the wires 

are shunted on them (Tr. 214). All detonator wires that come from 

the factory are shunted by a small lead fitting holding the wires 

together on each dotonator (Tr. 214-215). There was no testimony 

that any of these shunting devices was missing from any of the 

detonators. There were no loose detonators lying around in the 

powder box (Tr. 221-222, 261). 

In addition to the cable, the inspector indicated that there was 

a potential hazard, because of the proximity to a travelway of a scoop 

with its ·batteries coming in direct contact with the powder box (Tr. 

172). It was pointed out that the crosscut had a stopping at one 

end which would cut down on traffic (Tr. 185-186). No one would have 

any reason to go into the crosscut other than to ge't explosives (Tr. 

186, 193). However, as pointed out by the inspector, equipment failure could cause a person to lose control of the machinery (Tr. 184). 

If this were to happen, however, certain safety devices, such as a 

panic bar designed to deenergize the machine in the event of a problem, would serve to lessen, though not eliminate this danger (Tr. 

188, 217, 225). 

The Administrative Law Judge also took judicial notice of a 

West Virginia Statute, section 22-2-32, relating to underground 

storage, which requires that explosives must be stored at least 

15 feet from roadways and power wires, rather than the 25 feet 

required by Federal law (Tr. 199-200). 

Accordingly, it is found that this violation was only moderately 

serious. 

Mr. Aguilar, the acting mine foreman at the time of the incident, 

testified that on the day prior to the issuance of the order, he had 

the explosives' box moved from another location to the crosscut where 

it was at the time of the inspection (Tr. 204, Exh. 0-4). The last 

786 
time he saw it; it was at least 25 feet from the roadway and up 

against the stopping at the rear of the crosscut (Tr. 205). Subsequently, however, and prior to the shift on which the inspection was 

conducted, it was brought out of the mine to be refilled (Tr. 206). 

There is no clear showing that Eastern management knew that the box 

had been placed too near the roadway or the power cable, however, 

since the violation was not cited until about 4 hours after the shift 

began, it should have been seen by management personnel. Ac~ordingly, 

this violation is found to be the result of ordinary negligence. · 

The inspector testified that the time for the abatement was 

one-half hour. This included withdrawing the men from the area and 

moving the powder box further into the crosscut. This latter action 

took approximately 3 minutes (Tr. 180). It is found that Eastern 

demonstrated good faith in abating the violation. 

Appropriateness of Penalty to Size of Operator's Business 

Eastern is a large coal company (Tr. 20). It was stipulated that 

the company's coal production for 1976 was 8 million tons (Tr. 20). 

Effect on Operator's Ability to Continue in Business 

Counsel for Eastern stated that he was willing to stipulate that 

the company would be able to continue in business even if there were 

an assessment in this case (Tr. 20). Furthermore, the Interior Board 

of Mine Operations Appeals (Board) has held that evidence relating 

to whether a penaity will affect the ability of the operator to stay 

in business is within the operator's control, and therefore, there is 

a presumption that the operator will not be so affected. Hall Coal 

Company, 1 IBMA 175, 79 I.D. 668, 1971-1973 OSHD par. 15,380 (1972). 

I find therefore, that penalties otherwise properly assessed in this 

proceeding would not impair the operator's ability to continue in 

business. 

History of Previous Violaiions 

As relates to the Wharton No. 11 Mine, the operator had paid 

assessments for approximately 82 violations of regulations in the 

24 months preceding the violation of January 11, 1977. Of these, 

five were violations of 30 CFR 75.316, the violation cited in these 

proceedings. As relates to all mines of the operator, during the 

year 1975, it paid assessments relating to approximately 58 violations 

of 30 CFR 75.316; as relates to the year 1976, the number was approximately 88 violations of 30 CFR 75.316. 

As relates to the Lightfoot No. 1 Mine, the operator had paid 

assessments for approximately 157 violations of regulations in the 

24 months preceding the violation of January 12, 1977. Of these, 

22 were violations of 30 CFR 75.400. There is no history shown in 

• 

787 
this mine for violations of 30 CFR 75.1306. As relates to all mines 

of the operator, during the year 1975, it paid assessments relating 

to approximately 276 violations of 30 CFR 75.400; as relates to the 

year 1976, the number was approximately 346 violations of 30 CFR 

75.400. As relates to all mines of the operator during the year 

1975, it paid assessments relating to approximately 14 violations of 

30 CFR 75.1306; as relates to the year 1976, the number was approximately 19 violations of 30 CFR 75.1306. In accordance with the 

ruling in Peggs Run Coal Company, 5 IBMA 144, 150, 82 I.D. 445, 

1975-1976 OSHD par. 20,001 (1975), no consideratfon will be given to 

any violations occurring subsequent to the respective dates of violations involved in this case. 

VI. Conclusions of Law 

1. 

Mine and 

the 1969 

Eastern Associated Coal Corporation and its Wharton No. 11 

Lightfoot No. 1 Mine have been subject to the provisions of 

Coal Act and 1977 Mine Act during the respective periods 

involved in these proceedings. 

2. Under the Acts, this Administrative Law Judge has jurisdiction over the subject matter of, and the parties to these proceedings. 

3. The violations charged in Notice No. 3 AJK, January 11, 1977 

(30 CFR 75.316), Notice No. 6 BJW, January 12, 1977. (30 CFR 75.400), 

and Order No. 1 BJW, January 14, 1977 (30 CFR 75.1306), are found to 

have occurred. 

4. All of the conclusions of law set forth in Part V of this· 

decision are reaffirmed and incorporated herein. 

VII. Proposed Findings of Fact and Conclusions of Law 

MSHA and Eastern submicted posthearing briefs. Such briefs, 

insofar as they can be considered to have contained proposed findings and conclusions, have been considered fully, and except to 

the extent that such findings and conclusions have been expressly 

or impliedly affirmed in this decision, they are rejected on the 

ground that they are, in whole or in part, contrary to the facts 

and law or because they are immaterial to the decision in these 

cases. 

VIII. Penalties Assessed 

Upon consideration of the entire record in this case and the 

foregoing findings of fact and conclusions of law, I find that the 

assessment of penalties is warranted as follows: 

788 
Docket No. HOPE 78-77-P 

Notice No. 3 AJK January 11, 1977 30 CFR 75. 316 $1,350.00 

Docket No. HOPE 78-76-P 

Notice No. 6 BJW January 12, 1977 30 CFR 75.400 $1,500.00 

Docket No. HOPE 78-75-P 

Order No. 1 BJW January 14, 1977 30 CFR 75.1306 $ 900.00 

ORDER 

Respondent is directed to pay the penalties assessed in the 

amount of $3,750.00 within 30 days of the date of this decision. 

Issued: April 30, 1979 

Distribution: 

JohnF.~ ~4 

Administrative Law Judge 

Stephen P. Kramer, Esq., Mine Safety and Health Administration, 

Office of the Solicitor, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 

R. Henry Moore, Esq., Rose, Schmidt, Dixon, Hasley, Whyte and 

Hardesty, 900 Oliver Building, Pittsburgh, PA 15222 (Certified 

Mail) 

Administrator for Coal Mine Safety and Health 

Standard Distribution 

789