Index-January 1980 

Commission Decisions 

1-10-80 U.S. Steel Corp. 

1-22-80 Consolidation Coal Co. 

Administrative Law Judge Decisions 

1-2-80 

1-7-80 

1-9-80 

1-10-80 

1-11-80 

1-14-80 

1-15-80 

1-15-80 

1-22-80 

1-23-80 

1-24-80 

1-24-80 

1-28-80 

1-28-80 

1-28-80 

1-28-80 

1-28-80 

1-28-80 

1-28-80 

1-29-80 

1-29-80 

1-29-80 

1-29-80 

1-30-80 

1-31-80 

1-31-80 

Jam.es. F. Cr.umbaker v. Pyro Mining Co. 

Thadeaus Mealus, et al. 

Energy Fuels Corp. 

Davis Coal Co. 

~cCormick Sand Corp. 

Clinchfield Coal Co. 

U.S. Steel Corp, Gary District 

Marblehead Lime Co. 

Consolidation Coal Co. 

Raven Mining Co. 

Island Creek Coal Co. 

Sewell Coal Co. 

Triple S Coal Co., Belinda Coal Co. 

Pyro Mining Co. 

Triple S Coal Co. 

Black Jack Coal Co., Inc. 

United Cement Co. 

Solar Fuel Co. 

C.C.C.- Pompey Coal Co., Inc. 

Rio Algom Corp. 

Sunbeam Coal Corp. 

FMC Corp. 

Brubaker-Mann, Inc. 

Freeport Kaolin Co. 

Local Union 6843, District 28, UMWA v. 

Williamson Shaft Contracting Co. 

Southern Ohio Coal Co. 

PITT 76x232-P 

VINC 77-132-P 

BARB 79-313 

YORK 79-50-H 

DENV 79-27-P 

WEVA 79-358 

LAKE 79-80-RM 

NORT 78-325-P 

WEVA 79-304 

PENN 79-36-M 

MORG 79-109 

NORT 79-78 

KENT 80-22-D 

WEVA 79-293 

PIKE 79-7-P 

KENT 79-181 

PIKE 79-22-P 

BARB 79-157-P 

BARB 79-55-PM 

PITT 79-200-P 

PIKE 79-19-P 

DENV 79-347 

PITT 79-210 

WEST 79-419-RM 

WEST 79-193-M 

BARB 79-219-PM 

VA 80-17-C 

LAKE 79-24 

pg. 1 

Pg. 3 

Pg. 7 

Pg. 12 

Pg. 15 

Pg. 18 

Pg. 21 

Pg. 25 

Pg. 4 7 

Pg. 48 

Pg. 49 

Pg. 82 

Pg. 93 

Pg. 96 

Pg. 100 

Pg. 105 

Pg. 121 

Pg. 128 

Pg. 133 

Pg. 155 

Pg. 163 

Pg. 187 

Pg. 192 

Pg. 225 

Pg. 227 

Pg. 233 

Pg. 265 

Pg. 270 

JANUARY 

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

Secretary of Labor, MSHA, v. Burgess Mining & Construction Corporation, 

SE 79-42-R; (Judge Fauver, December 13, 1979) 

Cleveland Cliffs Iron Company v. Secretary of Labor, MSHA and United 

Steelworkers of America, VINC 79-68-M, and Secretary of Labor, MSHA 

v. Cleveland Cliffs Iron Company, VINC 79-240-PM; (Judge Broderick, 

December 3, 1979) 

Secretary of Labor, MSHA v. Cyprus Industrial Minerals Co., DENV 78-558-M 

(Judge Koutras, December 18, 1979) 

Secretary of Labor, MSHA, v. Davis Coal Company, WEVA 79-130 through 

WEVA 79-133, (Judge Michels, December 13, 1979) 

Secretary of Labor, MSHA, v. El Paso Rock Quarries, Inc., DENV 79-139-PM, 

etc., (Judge Moore, December 17, 1979) 

Secretary of Labor, MSHA v. Cement Division, National Gypsum Company, 

VINC 79-154-PM, (Judge Broderick, December 26, 1979) 

Secretary of Labor, MSHA, v. Oracle Ridge Mining Partners, WEST 79-248-M, 

(Judge Merlin, December 11, 1979) 

Secretary of Labor, MSHA, v. Van Mulvehill Coal Co., Inc., SE 79-127, 

(Judge Broderick, December 12, 1979) 

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

Secretary of Labor, MSHA, v. Ozark-Mahoning Company, VINC 79-138-PM, 

etc., (Judge Stewart, November 29, 1979) 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 10, 1980 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket Nos. PITT 76X232-P 

PITT 76X235-P 

v. 

IBMA 77-23 

U.S. STEEL CORPORATION 

ORDER 

The decision of the administrative law judge assessing penalties 

against U.S. Steel Corporation is affirmed. See, Republic Steel Corp., 

1 FMSHRC 5 (1979); Kaiser Steel Corp., 1 FMSHRC 343 (1979); and ou 

November 30, 1979 order in this case. 

80-1-5 

1 
Distribution 

Thomas A. Mascolino, Esq. 

Edward H. Fitch, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Va. 22203 

Billy M. Tennant, Esq. 

U.S. Steel Corporation 

600 Grant Street, Room 6082 

Pittsburgh, PA 15230 

Administrative Law Judge Paul Merlin 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, VA 22041 

2 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

January 22, 1980 

Docket No. VINC 77-132-P 

IBMA 78-3 

CONSOLIDATION COAL COMPANY 

DECISION 

This case involves a civil penalty proceeding under section 109(a) 

of the Federal Coal Mine Health and Safety Act of 1969, and contested 

within the administrative procedures then provided by the Department of 

the Interio~. Those regulations required the Department's Office of 

Assessments to prepare and serve on the mine operator an initial order 

of assessment; they further provided that the operator could decline to 

pay the proposed assessment and request a hearing before an administrative 

law judge. In this case the mine operator had requested such a hearing. 

Thereafter, but before hearing, the operator offered to pay in full the 

penalty originally proposed by the Office of Assessments. The principal 

question presented here is whether the judge's denial of the operator's 

motion to adopt the original assessment of penalty as his own constituted 

legal error. We .hold that it did not and affirm the judge's de.cision. 

This case. arises because of a fatal accident which occurred at a 

surface coal mine site operated by Consolidation Coal Company. A slide 

of material from a spoil bank at the mine site resulted in fatal injuries 

to a foreman-in-training. Following an accident investigation by the 

Mining Enforcement and Safety Administration Q1ESA), a notice of violation 

was issued charging a violation of 30 CFR §77.1006. Subsection (a) of 

that regulation requires that men other than those necessary to correct 

unsafe conditions shall not work near or under dangerous high walls or 

banks. The notice specifically charged that, at the time of the accident, 

an assistant superintendent at the mine and the foreman were performing 

their duties in an area between a stripping shovel and an unstable spoil 

bank. 

In accordance with regulations then in effect, MESA's Office of 

Assessments issued an order assessing a penalty of $1,300 for the violation. 

The assessment was discussed without resolution at a conference between 

80-1-12 

3 
representatives of the mine operator and the Office of Assessments. 

Consolidation then requested that the matter be ref erred for an evidentiary hearing before an administrative law judge. 

A Petition for Assessment of Civil Penalty was filed by the Office 

of Solicitor, Department of Interior on July 11, 1977, and sought a 

penalty for the alleged violation. The petition made no reference to 

the earlier assessment of the Office of Assessments, nor did it propose 

any specific dollar amount for the penalty. A copy of the petition was 

sent to the mine operator with an accompanying letter signed by MESA's 

attorney. In that letter Consolidation was advised that it could dispose 

of the matter "at this time" by paying the $1,300 assessment in full. 

On August 4, 1977, Consolidation filed an auswer denying that a 

violation took place and the case was assigned to an administrative law 

judge. During subsequent settlement negotiations, the MESA attorney 

apparently advised Consolidation's attorney that he would not accept 

payment of $1,300 as a means of disposing of the proceeding. A prehearing conference was held before the judge on September 9, 1977, at which 

time the attorney for Consolidation moved that the judge adopt the 

findings of MESA's Office of Assessments and issue a final order of the 

Secretary assessing a penalty of $1,300. In opposing the motion, the 

Solicitor expressed the view that $1,300 was an insufficient penalty, on 

the grounds that the gravity of the violation and the negligence of the 

operator justified the maximum penalty of $10,000. By written order of 

September 14, 1977, the judge denied the motion and scheduled the case 

for a hearing on the merits. Consolidation's attempt to take an interlocutory appeal from the judge's order was denied by the Board on 

September 28, 1977. 

The case then proceeded to hearing where the parties litigated the 

issues of whether a violation occurred and, if so, the appropriate 

penalty. In a written decision issued on January 21, 1978, the judge 

held that a violation of 30 CFR §77.1006 occurred and found th.at the 

evidence showed that the assistant superintendent's actions near the 

spoil bank immediately prior to the accident were "extremely negligent 

and reckless in every respect." The judge assessed a $10,000 penalty. 

Consolidation appealed to the Board, arguing that the judge erred 

in denying its motion to adopt the Office of Assessments' original 

assessment prior to hearing. The operator contends that its willingness 

to pay the original assessment of $1,300 eliminated any triable issue, 

rendering a hearing unnecessary. It contends that, in such circumstances, 

the Board's decision in Zeigler Coal Company, 7 IBMA 312 (1977), requires 

that the original assessment be adopted by the judge. We reject Consolidation's argument. 

In Zeigler, the operator had requested a hearing on all 295 alleged 

violations for which MESA had sought a penalty. Thereafter, but before 

the hearing, the operator had offered to pay the full amount assessed by 

the Office of Assessments for 97 of the violations, The judge found 

4 
that MESA would have accepted payment of each penalty in the original 

assessed amount if assessments for all of the 295 violations were 

voluntarily paid. Thus, in Zeigler, the Solicitor had not claimed that 

there was a triable issue of fact regarding the 97 violations, but 

rather took an "all or nothing" approach in the settlement negotiations. 

In those circumstances, the Board held that there was no triable issue 

and that the Office of Assessments' findings may be adopted by the judge 

if found to be appropriate. In that case the judge affirmatively adopted 

those findings. Here, the judge held, and we agree, that the Solicitor's 

request for a $10,000 penalty raised a triable issue, namely, the appropriate amount of penalty in light of the criteria for assessment of 

penalties set forth in section 109(a)(3) of the 1969 Act. 

Furthermore, regulations of both the Office pf Assessments, 

30 CFR §100.7(d), and the Department's Office of Hearing and Appeals, 

43 CFR §4.545(c), specified that if an evidentiary hearing were requested, 

the judge would determine the amount of civil penalty, if any, on a de 

novo basis. 1/ Thus, Consolidation was on notice of this Departmental 

policy at the time it requested the hearing, yet did not make its offer 

to pay the $1,300 until after the issues had been joined before the 

judge. 

Accordingly, we conclude that the judge's action in denying 

Consolidation's motion was consistent with both the case law of the 

and the pertinent Departmental regulations that were then in effect. 

decision is affirmed. 

A. E.~~son, rommissioner 

'-\Qt\~l'X~\Qwull\Ww 

Board 

The 

Marianf Pearlriian Nease, Commissioner 

{ / 

30 CFR §100.7(d) provided: j 

(d) In assessing a penalty, t~o:efice of Hearing and Appeals 

may determine de novo the fact of vi l~ition and the amount of the 

civil penalty, taking into considera on the six criteria specified 

in section 109(a)(3) of the Act. 

43 CFR §4.545(c) provided: 

(c) In determining the amount of civil penalty warranted the 

administrative law judge and the Board of Mine Operations Appeals 

shall not be bound by a recommended penalty of the Mining Enforcement and Safety Administration or by any offer of settlement made 

by either party. 

5 
Distribution 

Fred Souk, Esq. 

Timothy M. Biddle, Esq. 

Crowell & Moring 

1100 Connecticut Ave., N.W. 

Washington, D.C. 20036 

Thomas Mascolino, Esq. 

Michael V. Durkin, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Va. 22203 

Paul Merlin 

Office of the Administrative Law Judges 

FMSHRC 

5205 Leesburg Pike, 10th Floor 

Falls Church, Va. 22041 

6 
ADMINISTRATIVE LAW JUDGE DECISIONS 

JANUARY 1 - 31, 1980 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 1880 

JAMES F. CRUMBAKER, . Complaint of Discharge, 

Discrimination, or 

Interference· · 

Complainant 

v. 

PYRO MINING COMPANY, 

Respondent 

Docket No. BARB 79-313 

Pyro Mine No. 11 

DECISION 

Appearances: William R. Thomas, Esq., Spenard & Thomas, 18 Court Street, 

Madisonville, Kentucky, for Complainant; 

Kirby Gordon, Esq., Gordon & Gordon, 111 Frederica Street, 

Owensboro, Kentucky, for Respondent. 

Before Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued September 21, 1979, a hearing 

in the above-entitled proceeding was held on November 28, 1979, in Evansville, 

Indiana, under Section 105(c)(3) of the Federal Mine Safety and Health Act 

of 1977. 

Upon completion of the evidence presented by the parties, I rendered 

the following bench decision which is reproduced below (Tr. 281-289): 

The application or complaint, I should say, in this case 

was filed on March 13, 1979, and as my opening statement 

indicated, was filed by Mr. Crumbaker after the Secretary of 

Labor had made a finding that the complainant was not involved 

in an activity protected by provisions of Section 105(c)(l) of 

the Act at the time he was discharged. Therefore, I base all 

the findings that I shall make in my decision entirely on 

what the witnesses have said here today. 

The issue. of course, is whether Mr. Crumbaker·was engaged 

in a protected activity under Section 105(c)(l), so as to be 

entitled to a finding of discrimination and a ruling that he · 

should be given the. relief provi.ded for in Section 105(c) (3). 

I shall first make. some findings of fact and if those·· 

facts are.entirely inconsistent wi.th. some of the Witnesses' 

testimony, I shall in the subsequent part of my decision 

indicate/briefly, wh.y I have ruled· in favor of one witness 

as against another. 

7 
Crumbake.r v. Pyro, Docket No, BARB 79-313 (Contd.) 

The ind.dent which led up to Mr, Crumbaker 1 s discharge. 

occurred on Novembe.r 21, 1978. Mr. Crumbaker had come to work 

on the da:y shift and the. section foreman or unit foreman on that . 

day shift was Mr. Griffin, Mr. Crumbake.r fi.rs.t went to the 

number four entry and found that it needed to have some bolts 

installed and he. proceede.d to make that his. first work. of the 

day. 

After he had complete.d h.is. roof bolting i.n the number 

four entry, he constructed some, crossovers at the interse.cti.on 

of the number four e.ntr:y at the last open cross.cut, And after 

completing those, he traveled into the crosscut between the 

fifth, and sixth entries where Mr, Griffin had made some marks, 

indicating that additional roof bolts should be installed, 

Mr. Crumbaker was in the process' of beginning to install 

roof bolts in the crosscut when Mr, Griffin came into the 

crosscut and told Mr. Crumbaker that he wanted Mr, Crumbaker to 

go and get his roof bolting machine loaded with an additional 

supply of bolts, so as to be able to bolt the number six entry 

, , , the face of number six entry, At that time, Mr. Crumbaker 

told Mr. Griffin that the crosscut was unsafe, in his opinion, 

until such time as the additional roof bolts had been installed, 

At that point, Mr, Griffin told Mr, Crumbaker that his 

roof bolting machine was not where he wan~ed it to be and that 

Mr. Crumbaker should move the roof bolting machine out of the 

crosscut. 

It appears on the basis of both Mr, Griffin's and Mr, 

Crumbaker's testimony that Mr. Crumbaker might have had an 

option to whether he should continue on through that crosscut 

or back out of it and go down to the number two crosscut and 

over to the number six entry. But, at this point, it appears 

that both of the parties, the section foreman and Mr. Crumbaker, 

were probably somewhat heated in their emotional state and Mr. 

Griffin did not pursue any discussion on the topic, but simply 

gave Mr. Crumbaker an option of either moving the roof bolting 

machine out of the crosscut or going to the house, which everyone agrees in the case, meant if Mr. Crumbaker did not 

move the roof bolting machine at that moment out of the crosscut, that he would be discharged. 

Mr. Crumbake.r felt strongly that it was unsafe to ••• for 

anyone, himself or anyone else, to go through the crosscut; 

the.re.fore., he took the. option of going to the telephone and call~ 

ing the mine fore.man's office. to advi.se the mine foreman that 

he needed transportation out of the. mine be.cause. he'd been 

discharge.cl by Mr. Griffin. Those are the. basic facts that 

have to be found in order for one to apply Section 105(c)(l) 

to them, to determine whether Mr. Crumbaker was involved in a 

protected activity or not. 

8 
Crumbaker v. Pyro, Docket No. BARB 79-313 (Contd.) 

And, of cours.e., Section 105(c) (1) reads and I quote, 

"No person shall discharge or in any manner discriminate.· 

against or cause. to be.di.scharged or cause discrimination 

against or otherwise interfere. wi.th. the exercise of the 

statutory rights .of any miner, representative of mine.rs or 

applicant for employment in any coal or other mine subject to 

thi.s Act be.cause. such_ mine.r, repres.entative. of miners. or 

applicant for employment has filed or made a complaint under 

or re.lated to this. Act, including.a complaint notifying the 

operator or the. ope.rat.or's agent, or the repres.e.ntative of the 

miners at the coal or other mine of an alleged danger or 

safety or health violation in a coal or other mine * * *"· 

And I shall stop quoting at that point, be.cause I think that 

th.at's as far as[is] needed to apply as much of the. Section as 

is [required] to apply the facts that we have. in this case. 

And I find that on the basis of the facts that Mr. Crumbaker 

was engaged in protected activity at the time of his discharge, 

be.cause if there's any evidence in the case that's clear, it 

is that there was a violation of the roof control plan because 

the roof bolts in the crosscut between the number five and 

six entries were farther apart than they should have been • 

. They're supposed to be no more than five feet apart and 

even Mr. Griffin admits that they were between six and six and 

a half feet apart. And he conceded that in his deposition. He 

may have been correct in saying that they were up to seven feet 

apart. Now, I have [in] many cases,·· civil penalty cases,· assessed 

substantial penalties for violations of the roof control plan 

which were no greater than the one involved in this proceeding. 

And I have had, in many cases, many [i]nspectors testify that 

more miners are killed in underground mines for violation of 

the roof ·control plans than any other cause of death and injury 

in mines. And therefore, if there's any kind of complaint 

that a miner can make which is beneficial to the preservation 

of the safety of the miners, it is for a man to insist that a 

roof control plan be followed and that roof bolts be installed 

before equipment or people pass through entries or crosscuts 

which have not been bolted in accordance with the plan. 

Now, there's been testimony that the roof in the unit 

number three was safe and appeared sound, but [i)nspectors 

are constantly telling me, it's goad roof that kills people 

be.cause an unsafe or a hazardous looking roof gets supported, 

while the good roof is allowed to be unsupported and th.at's the 

time. that a hunk of roof falls an.d injures or [k] ills someone. 

So, we. cannot say that be.cause Mr. Gr if fin walked under this 

unsupported roof that that made i.[t] okay for everyone else to 

do so. · 

Now:, I agre.e. with. Mr. Thomas that the testimony of Mr. 

Wilson i.s very helpful in substantiating the position of Mr. 

Crumbaker in this case. Mr. Wilson was very certain of where the 

power center sh.ould have be.en and where the trailing cables for 

all the equipment was an.cl while he disagreed. with both Mr. 

9 
Crumbaker v. Pyro, Docket No. BARB 79-313 (Contd.) 

Griffin and Mr. Crumbaker as to the location of those trailing cables, but s.till ••• his testimony was still supportive 

of the fact that Mr. Crumbaker was involved in trying to 

support a place_ in this crosscut. And Mr. Wilson's testimony 

sh~s it was_ his intention to go through that crosscut between 

the. number fi:ve and number s.ix entr[ies.]and that was his way 

of going across the unit in order· to mine_ or load from the 

number six entry, acros.s to· the_- number one_ entry. And, therefore, 

Mr. Wilson's te.5timony doe.s support the complaint as it was 

stated by Mr. Crumbaker, namely that Mr. Crumbaker was entitled 

to assum.e, based on normal operating stages that the roof 

bolting machine was right behind ••• excuse me, the loading 

machine was right behind Mr. Crumbaker' s roof bolting machine 

and that Mr. Wilson had every intention of going under that unsafe roof .if Mr. Crumbaker had gone under that unsafe roof and had 

passed on out with the roof bolting machine to the number six entry. 

The testimony of Mr. Griffin in this proceeding was 

extremely erratic. He changed his position several times about 

the location of trailing cables and whether they were supported 

and not supported. And I was not at all certain that he was 

clear in his mind as to the situation that existed at the time 

that Mr. Crumbaker was discharged. And I think that the discussion that occurred on the morning after Mr. Crumbaker's 

discharge, on November 22, were largely an effort by the mine 

foreman, Mr. Ramsey, to support the action which M[r]. Griffin 

had taken. 

It's normal for one supervisor to try to sustain the 

act of another supervisor, because that's the only way to establish discipline in a mine or anywhere else. So, I'm not surprised that Mr. Ramsey supported Mr. Griffin. The fact that 

Mr. Ramsey declined to give Mr. Crumbaker a job even after Mr. 

Crumbaker was willing to concede that he was wrong, shows that 

management was not overly pleased with Mr. Crumbaker's insist(e]nce upon complying with safety regulations. And I think 

that the fact that Mr. Crumbaker refused to operate the shuttle 

car that was not in good mechanical condition would be a reason 

for management to be just as happy to not have that sort of man 

on their payroll. But the fact remains that Mr. Crumbaker has 

a history, based on this record, of trying to support safety 

in the mines and that if there's any reason at all for having 

Section 105(c)(l) in the Act, it is to give protection to a man 

who is willing to take a position as to safety in the. mine. And 

therefore, instead of our condemning Mr. Crum.baker for his 

contentiousness or his inability to get along with people, 

I. think instead we owe him an apology and we should congratulate 

him for being willing to [complain about unsafe conditions]. 

As Mr. Thomas has recognized, that sort of individual 

is, -pe.rhaps, not going to be. liked by management, but sometimes 

a thorn in the flesh is a beneficial tool to bring about the kind 

of safety that this Act was intended to accomplish in coal mines. 

10 
Crumbaker v. Pyro, Docket No. BARB 79-313 (Contd.) 

I may not have touche.d on all the points that the arguments 

have., but I've tried to ••• that all -the. arguments have 

conside.re.d, but 1 have. tried to· give. iny reasons for finding 

in Mr. Crumbaker's favor. 

WHEREFORE, it is ordered: 

(A) The. complaint filed by Mr. James F. Crumbaker i.s granted 

on the. basis of my findings that Mr. Crumbaker was engaged in 

a protected activity under Section 105(c) (1) at the time of 

hi.s discharge.. And, there.fore, he's entitled to the relief which 

is provided for in Section 105 (c) (3) • 

(B) James F. Crumbaker is reinstated to his position of 

roof bolting machine operator at Pyro Mine, Number Eleven and 

he shall be paid back wages beginning on November 21 at ten a.m. 

and extending up to the present time, including interest at 

eight percent less $6,200 earned by Mr. Crumbaker for work 

for Mid-America Canning Corporation during the period covered 

by his discharge. ".!./ The pay will be computed on the basis 

of nine dollars and twenty-eight cents an hour on the basis 

of a forty~one hour week, less insurance and state and federal 

taxes. Mr. Crumbaker shall also be entitled to whatever royalty 

and incentive pay other miners would have received for that 

same period. Additionally, he shall be entitled to payment 

for medical benefits for his family which he has personally 

paid during that period, and for reimbursement for all attorney's 

fees. ±./ 

(C) 

personnel 

1978. 

Finally, there shall be removed from Mr. Crumbaker's 

file, any references to the discharge on November 21, 

~ (3, o3,-1n~tl .. 

Administrative 

Richard C. Steffey 

Law Judge 

~ 

!/ The provisions for offset for earnings and for reimbursement 

for attorney's fees were not part of my bench decision. 

Distribution: I 

William R. Thomas, Esq., Attorney for James F. Crumbaker, Spenard & 

Thomas, 18 Court Street, Madisonville, KY 42431 (Certified Mail) 

M. Kirby Gordon II, Esq., Attorney for Pyro Mining Company, 

111 Frederica Street, Owensboro, KY 42301 (Certified Mail) 

Assistant Solicitor, MSHA, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 

11 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11/12 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

THADEAUS MEALUS 

(Shift Foreman), 

Respondent 

JOHN KREIDER 

(Mine Superintendent), 

Respondent 

ROBERT REUSS, 

JAN 7 1980 

Civil Penalty Proceedings 

Docket No. YORK 79-50-M 

A.O. No. 30-01185-05006A 

Docket No. YORK 79-51-M 

A.O. No. 30-01185-05007A 

Docket No. YORK 79-52-M 

A.O. No. 30-01185-05008A 

Docket No. YORK 79-2-M 

A.O. No.- 30-01185-05003W 

Balmat Mine No. 4 and Mill 

(General Mine Superintendent), 

Respondent 

ST. JOE ZINC COMPANY, 

Respondent 

DECISION AND ORDER 

The Secretary moves to withdraw the three captioned section 

llO(c) cases and for approval of a settlement of the section 

llO(a) case against the corporate operator. The settlement 

proposed is $1600.00, or 80% of the $2,000 initially proposed 

against the corporate operator. 

Based upon an independent evaluation and de novo review 

of the parties' extensive prehearing submissions,tne information furnished at the intensive prehearing conference of 

November 20, 1979, the Secretary's subsequent investigation and the representations of the parties, I find that because 

of the passage of time, the unavailability of certain material 

witnesses, the inability of the inspector to locate the areas 

involved in the claimed innninent danger with a reasonable 

degree of precision, the dinnning of witnesses' memories of 

certain claimed admissions as well as the fact that the underlying 

imminent danger closure order was assessed at only $295.00 it 

is unlikely: 

12 
1. That the Secretary can sustain the burden of showing 

that the loose ground condition for which the underlying 

section 107(a) order (Order No. 210043) was issued 

was, in fact, an imminent danger; 

2. That any of the individuals charged under section llO(c) 

ordered miners into an imminently hazardous area 

solely for the. purpose of removing mining equipment 

in light of time cards which show that these miners 

were primarily engaged in abating the alleged condition; 

3. That the hazard presented by the loose roof. condition 

that existed, while arguably serious, created a 

substantial probability of physical harm to the miners 

who entered the area to scale the loose ground and 

to remove mining equipment; or 

4. That the violation of the closure order alleged 

in Citation No. 210051 was the result of knowing or 

reckless disregard for the order or the law, or was 

caused by anything more than confusion over the conduct 

permitted following issuance of the order. 

For these reasons, and after taking into consideration the 

other statutory criteria, I conclude the motion to withdraw and 

to approve settlement is in accord with the purposes and policy 

of the act. 

Accordingly, it is ORDERED: 

1. That the motion to withdraw the charges against Thadeaus 

Mealus, John Kreider and Robert Reuss be, and hereby is, 

GRANTED and the petitions for assessment of civil 

penalties DISMISSED. 

2. That the motion to approve settlement of the charge 

against St. Joe Zinc Company be, and hereby is, GRANTED, 

and that subject to payment of the amount of the 

settlement agreed upon, $1600.00, on or before Monday, 

January 21, 1980, the petition as to the corporate 

operator be DISMISSED. 

13 
Distribution: 

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

Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Sanders D. Heller, Esq., 23 Main St., Gouverneur, NY 13642 

(Certified Mail) 

14 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 9 1990 

Petitioner 

Civil Penalty Proceedings 

: Docket No. DENV 79-27-P 

A/O No. 05-00302-03001 

ENERGY FUELS CORPORATION, 

Respondent 

Docket No. DENV 79-28-P 

A/O No. 05-00302-03002 

Energy #1 & 2 Strip Mine 

DECISION 

Appearances: Ann M. Noble, Esq., Office of the Solicitor, U.S. Department 

of Labor, for Petitipner; 

John D. Coombe, & Deborah Friedman, Esqs., Holland & Hart, 

Denver, Colorado, for Respondent. 

Before: Judge Charles c. Moore, Jr. 

The two cases captioned above allege 13 violations of the Federal Mine 

Safety and Health Act of 1977. At the beginning of the hearing, the parties submitted a stipulation of partial settlement which I accepted on the 

record. Pursuant to that stipulation, a total penalty of $650 is assessed 

for the following citations: Citation No. 389931, Citation 

No. 389950, Citation No. 389959, and Citation No. 389960. Petitioner vacated 

Citation No. 389952 because the circumstances did not constitute a violation 

of the mandatory standard. Six of the citations alleged that parking brakes 

on various equipment were insufficient. The citation numbers are 389935, 

389943, 389945, 389953, 389963, and 389965. It was agreed that the trial 

would be confined to Citation No. 389965 but that all of the other citations 

would be controlled by the results in the citation tried, including the percentage relationship between the penalty ~ssessed by the assessment officer 

and the penalty assessed by me. For example, if I were to double the assessment officer's penalty as to Citation No. 389965, all of the others would 

also be doubled. This resulted in only three alleged violations being subject to an evidentiary hearing. They were the parking brake citation mentioned, Citation No. 389964, involving alleged unsafe U-bolt clamps on a 

powder truck and Citation No. 389939, involving an accumulation of material. 

After the Secretary had presented its entire case as to the three citations and after Respondent had submitted most of its evidence, the parties 

15 
decided to enter a further stipulation whereby the Secretary of Labor would 

withdraw its penalty action with respect to and consent to the vacation of 

all of the parking brake citations. The aforementioned parking brake citations are accordingly vacated. Respondent agreed to withdraw its challenge 

to Citation No. 389939 and the parties agreed that an appropriate penalty 

would be the original proposed assessment of $240. I approved this agreemen~. As to the remaining violation, Citation No. 389964, the parties 

agreed that the explosive hauling truck was in an μnsafe condition and that 

a violation of the safety standard had occurred. The only issue left for me 

to decide was whether Respondent could be held responsible for a violation 

committed by the owners of an independent explosive supply company. The 

facts regarding the relationship between the mining company and the explosive 

company were stipulated and briefs were filed. 

It was agreed~ however, that I should stay my decision until after the 

Commission had decided Secretary of Labor v. Monterey Coal Company, Docket 

No. HOPE 78-469, etc. The Commission has issued a decision in Monterey, 

however, it based that decision on Secretary of Labor v. Old Ben Coal Company, 

Docket No. VINC 79-119, decided October 29, 1979. Petitions to review the 

Commission's decisions in both Monterey and Old Ben have been filed with a 

United States Court of Appeals, so the last word may not have been spoken on 

this issue. 

I see no point in delaying my decision pending a court decision because 

the losing party will undoubtedly appeal to the Commission and the result 

will eventually be controlled by the court decision anyway. Nor do I see 

any point in adding my analyses of the precedents which go to the point of 

this controversy. In Old Ben and in Monterey the Commission held the owner 

of a mine responsible for the actions of an independent contractor even 

though the decision of the Secretary of Labor to cite the owner had been 

based on an arbitrary policy of always citing the owner for a violation committed in the mine. The decisions were made without regard to whose employees might be endangered, who would be in the best position to observe and 

abate the unsafe condition, or the control which the owner exerci~.es over the 

independent contractor. The Commission hints that it may change its position 

at some future time, but it has not done so yet and in accordance with my 

interpretation of the two Commission decisions on this point, I will hold 

Energy Fuels Corporation responsible for the violation. I realize that this 

means that in order to avoid the possibility of a citation, the mine owner 

may have to inspect every vehicle that comes on to mine property, and while 

I am not sure that such a requirement will promote mine safety, I nevertheless think it is required by the two Commission decisions mentioned above. 

The negligence on Respondent's part, however, was of a lower order and a 

penalty of $50 will be assessed. As to the other criteria, the only information in the file is that contained in the assessment sheet and I am relying 

on that. 

16 
ORDER 

Respondent is ordered to pay to MSHA, within 30 days a penalty in the 

amount of $940. 

Distribution: 

Charles c. Moore, Jr. 

Administrative Law Judge 

Ann Noble, Esq., Office of the Solicitor, U.S. Department of Labor, 

15019 Federal Office Bldg., Denver, CO 80202 (Certified Mail) 

John D. Coombe & Deborah Friedman, Esqs., Holland & Hart, 

555 Seventeenth St., Suite 2900, Denver, CO 80201 (Certified Mail) 

17 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11/12 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DAVIS COAL COMPANY, 

Respondent 

JAN 1 0 1911 

Civil Penalty Proceedings 

Docket No. WEVA 79-358 

A.O. No. 46-02208-0318V 

Docket No. WEVA 79-359 

A.O. No. 46-02208-03019 

Marie No. i" Mine 

DECISION AND ORDER APPROVING SETTLEMENT 

In response to the order to furnish additional information 

concerning the motions to approve settlement, the Regional 

Solicitor has declined to furnish "a current evaluation of this 

operator's ability to comply with the Mine Safety Law 

considering its financial difficulties." The Regional Solicitor 

claims that in reviewing a proposed settlement the advisability 

of a reduction in proposed penalties because of adverse 

business impact need not take into account or be balanced 

against the affirmative interest in perpetuating only safe 

mining operations. 1/ The logical extension of this position 

seems to be that mine safety is a consideration secondary to 

mine productivity and that the enforcement policy in effect 

is "all the safety consistent with production" and not "all 

the production consistent with safety." 

These echoes of a production-oriented enforcement policy 

I thought were authoritatively rejected with the transfer of 

enforcement responsibility from the Interior Department to the 

Labor Department. I believe, therefore, that the view 

expressed by the Regional Solicitor, namely that "evaluation 

of an operator's financial ability to comply with the mine 

safety and health regulations is not" to be considered in 

evaluating a settlement where the principal justification 

1/ While the Act requires that adverse business impact be 

"cons'Idered", it does not require that it be given controlling weight 

or that it cannot be outweighed by the countervailing interest 

in continuing only those mining operations that promote mine 

safety. 

18 
for the reduction is adverse business impact, represents a 

profound misreading of the legislative intent. 

Congress has declared that "the first priority" of all 

concerned with mine safety is protection of the health and 

safety of the miner. Certainly an interpretation of that 

intent that puts safety at risk in the interest of continued 

productivity runs counter to the fundamental declaration of 

policy contained in the Act as well as the Secretary's 

explicit mandate to evaluate an operator's past performance 

and history of compliance to ensure that mining operations 

do not constitute a "continuing hazard to the health or safety 

of miners." 30 U.S.C. §§ 814(c)(l), 818(a)(2); S. Rep. 95-181, 

95th Cong., 1st Sess., at 32-33, 38-39 (1977). 

As the Senate Connnittee Report that accompanied the 1977 

Act notes: "* i• * the purpose of a civil penalty is to induce 

those officials responsible for the operation of a mine 

to comply with the Act and its standards." Id. at 41. How a 

-penalty can deter future violations and ensure voluntary 

compliance if the operator does not have the financial resources 

to effect compliance is not explained. Nor is _the public interest 

in encouraging a mining operation without the financial resources 

to comply with mine safety laws. Just as the purpose of the 

law is not to raise revenue so also its purpose is not to 

perpetuate unsafe or even marginally safe mining operations. 

In my judgment, the failure to make the evaluation called for 

is a violation of the Secretary's obligation to ensure a working 

environment substantially free of the hazards proscribed by the 

Act. 

Under no circumstances, in my judgment, can the imposition 

of a token or unwarrantably low penalty be justified by the 

claim that the adverse business impact criteria precludes a 

realistic evaluation of the ongoing mine operation from the 

standpoint of ability to comply and to devote necessary resources 

to promote mine safety. Such an evaluation of an operation in 

serious financial difficulties is not beyond the competence 

and expertise of MSHA. The history and pattern of prior conduct 

and violations is highly predictive of the likelihood of future 

compliance. Simple observation should provide the basis for 

determining whether, for example, an operator has on hand 

the necessary materials to ensure compliance with its roof 

control plan. Consequently, I think it unfortunate that the 

Regional Solicitor has declined to furnish the evaluation requested. 

Nevertheless, I am satisfied, at least for the present, 

that with the waters stirred, with the matter under review 

by the Commission, and with the possibility that MSHA may 

be held liable for the negligent execution of its duty to 

19 
prevent the continuation of mining conditions that constitute 

an ongoing hazard to miners, the surveillance of the Marie No. 1 

Mine will be intensified. Compare, Raymer v. U.S., 455 F.Supp. 

165 (W.D. Ky. 1978). 

As previously noted, the overall reduction proposed in 

these cases is only $1250.00 or one-third of the amount 

initially assessed. It is unlikely, therefore, that it will 

be determinative of whether the operator sinks or swims. Furthermore, I am impressed with the operator's representations as 

to the efforts he will make to achieve future compliance. 

Based on my independent evaluation and de novo review 

of the violations, the matters set forth in IDrtigation, 

including the fact that the hole-through occurred while the 

operator was acting under an MSHA approved plan, the operator's straitened financial circumstances, and the Pikeville National 

Bank loan to cover immediate operating expenses, I conclude 

the settlement proposed is acceptable. 

Accordingly, it is ORDERED that the Secretary's motions 

to approve settlement be, and hereby are, GRANTED. It is 

further ORDERED that the operator pay the settlement agreed 

upon, $2,325.00 on or before Friday, Feb ry 7, 1980, and that 

subject to payment the captioned petiti s be DISMISSED. 

Distribution: 

Sidney Salkin, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Paul E. Pinson, Esq., P.O. Box 440, Williamson, WV 25661 

(Certified Mail) 

Winford Davis, Davis Coal Company, Box 427, Kermit, WV 25674 

(Certified Mail) 

20 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520S LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 11 1980 

McCORMICK SAND CORPORATION, 

Applicant 

Applications for Review 

v. Docket No. LAKE 79-80-RM 

Citation No. 292383-1; 5/7/79 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Docket No. LAKE 79-81-RM 

Citation No. 292384-1; 5/7/79 

Appearances: 

Before: 

Respondent 

McCormick Sand 

DECISION 

Thomas J. O'Toole, Esq., Muskegan;. Mithigan, for Applicant; 

Karl Overman, Esq., Office of the Solicitor, Department of 

Labor, for Respondent. 

Administrative Law Judge Michels 

These matters are before me for decision upon Applications: for Review 

filed May 14, '!979, pursuant to provisions of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 801 et~· (the Act). Answers were filed 

generally denying the allegations but admitting that the challenged citations 

were issued. A hearing was held on September 24, ·1979, in Grand Rapids, 

Michigan, at which the parties were represented by counsel. The parties 

filed posthearing briefs and proposed findings and conclusions which have 

been carefully considered. The proposed findings not adopted or specifically 

rejected herein are rejected as immaterial or not supported by fact. 

The charges concern Citation Nos. 292383 in LAKE 79-80-RM and 292384 in 

LAKE 79-81-RM. Both are the same except that they refer to different equipment. Citation No. 292383 reads: "A continuous metallic grounding conductor 

was not provided between the.dryer plant and the transformer safety ground" 

(Applicant's Exh. No. 2). Citation No. 292384 reads: "A continuous metallic 

grounding conductor was not provided between the shop and the transformer 

safety ground" (Applicant's Exh. No. 1). In both instances the inspector 

charged a violation of 30 CFR 56.12-25 which states: "Mandatory. All metal 

enclosing or encasing electrical circuits shall be grounded or provided with 

equivalent protection. This requirement does not apply to battery-operated 

equipment." 

21 
Background Facts 

There is little if any controversy on the electrical grounding in use 

by the Respondent. Respondent business is an industrial silica sand operation. The components include a work plant, a dryer plant and a shop. Electricity is supplied by a public utility. The system used is known as a 

"three phase ungrounded delta system" and it is not battery operated (Tr. 7). 

It was grounded by pin grounds or ground electrodes at three locations: One 

at the wash plant near the service entrance box, another at the dryer plant 

and finally a third one at the shop (Tr. 5-9, MSHA Exh. No. 1). The distance 

between the wash plant and the dryer plant is approximately 200 feet; that 

between the dryer plant and the shop, about 75 feet (Tr. 28-29). 

The electrical system, as it had been modified, was designed and 

installed by an electrical firm known as Whittaker Electric. This firm 

supplies electric service and equipment and has offices in Grand Rapids and 

Muskegon, Michigan. It employs engineers and designers (Tr. 68-69). 

Robert Alcala, the firms vice president in charge of construction and 

technical service is a graduate electrical engineer and is registered in the 

states of Michigan and Ohio (Tr. 136). 

The electrical system which Whittaker Electric installed has ground 

fault indicating lights. These are designed to give a warning if a fault 

occurs in the system (Tr. 36). Tests were performed which showed that the 

resistance level of the ground was less than 25 ohms, which is within the 

limit set in the National Electrical Code (Tr. 33-34). 

The abatement procedure, approved by MSHA, consisted of stringing an 

overhead wire from the wash plant to the dryer plant and there grounding it 

to the ground pins and another overhead wire from the dryer plant to the 

shop, and likewise grounding it to the ground pin (Tr. 78). 

There is no dispute that Applicant's electrical circuit required a 

ground or equivalent protection under 35 CFR 56.12-25. There is also no 

question that the circuit was grounded in the sense that it was bonded to 

three pin grounds or ground electrodes (Tr. 8-9). Inspector °Clyde Brown 

testified that such a ground system was in place and he never claimed that 

it was not a ground as the term is defined in the regulations ~·A• (Tr. 

42-43). He admitted that grounding in the aspect of accepting voltage would 

occur (Tr. 35, 40). Mr. John Kavolski an electrician and an electrical 

inspector for MSHA, also conceded that under the pin ground system, current 

with one phase going to ground, would travel through the earth (Tr. 47-48). 

(His further contention, was that depending upon the resistance of the earth, 

if the current isn't sufficient it will not trip the breakers (Tr. 48)). He 

agreed that the earth was part of the system and that there would be continuity in such a system (Tr. 59, 61). 

The pin grounds in this instance were adequately sized according to the 

National Electrica Code in all respects. The Code does not require a 

metallic grounding system for a delta ungrounded system (Tr. 81, 94). 

22 
In substance, Applicant employed a pin ground or ground electrode system 

which was installed by an electrician and which met the requirements of the 

National Electric Code. I find, therefore, the Applicant's electric system 

was grounded, though not grounded according to a method which MSHA demanded. 

DISCUSSION 

As noted above, mandatory standard 30 CFR 56.12-25, here charged, 

requires that "electrical cir~uits shall be grounded or provided with 

equivalent protection." The inspector alleged in his citation that a 

"continuous metallic ·grounding conductor" was not provided. 

The issue, however, is not whether a continuous metallic grounding conductor was provided. The standard clearly does not require this. It demands 

only that the circuit be grounded or that equivalent protection be provided. 

Electrical grounding is defined in 30 CFR 56.2 as meaning "to connect with 

the ground to make the earth part of the circuit." 

The principal argument of MSHA is that an effective grounding system 

must be continuous. It cites standard 30 CFR 56.12-28 which mandates that 

the "continuity and resistance" of grounding systems is to be tested; the 

testimony of John Kovalski an MSHA electrical inspector; and the National 

Electrical Code which provides that the path to ground from circuits, equipment and conductor enclosures shall be "permanent and continuous". 

The problem with the terms "continuity" and "continuous" is that they 

are not clearly defined in this record. Mr. Kovalski, upon whom MSHA so 

heavily relies, failed to elaborate on the meaning of these terms when he 

had the opportunity to do so (Tr. 61). Furthermore, he conceded that there 

could be continuity in the pin grounding system which could be tested under 

the regulations. He qualified this only by stating that such would not be 

as effective as it should be (Tr. 61). 

It is evident that MSHA in referring to "continuous" means a continuous 

metallic conductor, but the published sources relied on do not use such 

language. Moreover, MSHA appears to concede that in some instances a tie 

to a ground can be sufficient if it is a cold water pipe system underground. 

This, it claims, creates a metallic grid which makes the grounding system 

continuous. 

Finally, MSHA apparently defines the term "continuity" as meaning not 

only the bonding to the ground pins, but, at least where there is a three 

phase system, a continuous metallic path connecting all the phases to the 

ground. 

In light of the above, it appears to me that MSHA is attempting to 

require performance which is not specified in the standard. ];/ The standard, 

1/ It seems to me if MSHA believes that the a continuous metallic ground 

conductor is a more effective and therefore a better and safer ground for 

the ungrounded delta system, the mandatory standards should specifically 

require its use. 

23 
fairly read, requires only a "ground" or its equivalent. It does not mandate a 

particular ground such as that mentioned in the citation, i.e., a "continuous 

metallic grounding conductor." The operator, moreover, has had no notice of 

any requirement under this standard other than to provide a "ground" or its 

equivalent. 

In this instance the operator has provided a "ground." As noted, the 

standard requires only that the circuit be grounded and this the operator 

has done. It employed a qualified electrical contractor to install the 

system and the circuit met the requirements of the National Electrical Code 

for grounding. 

Accordingly, I find and conclude that the charge in each docket of a 

violation of 30 CFR 56.12-25 has not been sustained and the citations should 

be dismissed. Further relief, as requested, is denied. 

ORDER 

It is ordered that Citation Nos. 292383 in LAKE 79-80-RM and 292384 in 

LAKE 79-81-RM be and hereby are vacated. 

It is further ordered that these proceedings be dismissed. 

Distribution: 

G~/.?~ Franklin P. Michels 

Administrative Law Judge 

Thomas J. O'Toole, Esq., O'Toole, Stevens, Schuler, Johnson, Piasecki 

& Knowlton, 175 West Apple, Muskegon, MI 49443 (Certified Mail) 

Karl Overman,Esq., Office of the Solicitor, U.S. Department of Labor, 

231 W. Lafayette St., Rm. 57, Detroit, MI 48226 (Certified Mail) 

24 
FEDERAL Ma.~E SAFETY AND HEALTH REVIE\-. COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 1-4 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket Nos. Assessment Control Nos. 

Petitioner 

v. NORT 78-325-P 

Moss No. 2 Mine 

44-00281-02018F 

CLINCHFIELD COAL COMPANY, 

Respondent NORT 78-364-P 44-00280-02022V 

Appearances: 

Before: 

NORT 78-365-P 44-00280-02023V 

NORT 78-366-P 44-00280-02024V 

Camp Branch No. 1 Mine 

NORT 78-367-P 44-00279-02012V 

Chaney Creek No. 2 Mine 

NORT 78-368-P 44-01773-02010V 

Hurricane Creek Mine 

NORT 78-369-P 44-00267-02019V 

Open Fork No. 2 Mine 

NORT 78-376-P 

Lambert Fork Mine 

DECISION 

44-00241-02013F 

John H. O'Donnell, Esq., Office of the Solicitor, Department 

of Labor, for Petitioner; 

Gary W. Callahan, Esq., Lebanon, Virginia, for Respondent. 

Administrative Law Judg~ Steffey 

Pursuant to written notice dated August 16, 1978, as amended August 28, 

1978, a hearing in the above-entitled consolidated proceeding 1/ was held on 

November 28 and 29, 1978, in Abingdon, Virginia, under section-105(d) of the 

Federal Mine Sa~ety and Health Act of 1977. 

1/ At the time the notice of hearing was issued, MSHA's Petition for Assessment of Civil Penalty in Docket No. NORT 78-376-P was a part of this consolidated proceeding, but on November 8, 1978, counsel for MSHA filed a motion 

for approval of settlement in Docket No. NORT 78-376-P. I issued on 

November 14, 1978, a decision approving the settlement agreement reached by 

the parties with respect to MSHA's Petition in Docket No. NORT 78-376-P and 

severed alt matters concerning the issues in Docket No. 78-376-P from this 

consolidated proceeding. 

25 
All of the Petitions for Assessment of Civil Penalty in the d-0cket 

numbers listed in the caption of this decision were filed on June 22, 1978, 

except the Petition in Docket No. NORT 78-325-P which was filed on May 12, 

1978. All of the Petitions seek assessment of a civil penalty for a single 

violation of the mandatory health and safety standards except for the Petition filed in Docket No. NORT 78-366-P which seeks assessment of civil 

penalties for two alleged violations. 

Counsel for MSHA filed on February 26, 1979, a posthearing brief with 

respect to the issues raised in each docket except for Docket Nos. 

NORT 78-366-P and NORT 78-368-P. Counsel for MSHA did not file briefs in 

Docket Nos. NORT 78-366-P and NORT 78-368-P because, during the hearing, he 

had orally made motions for approval of settlement with respect to those 

two cases. Counsel for Respondent filed posthearing briefs on March 1, 

1979, with respect to the issues raised in all dockets except for the issues 

raised in the two cases in which the parties had entered into settlement 

agreements. Counsel for Respondent did not file a brief in Docket No. 

NORT 78-369-P, but there is nothing in the official files to show whether 

the failure to file a brief in that docket was by inadvertence or for some 

other reason. 

Issues 

The issues raised by the Petitions for Assessment of Civil Penalty are 

whether violations of the mandatory health and safety standards occurred and, 

if so, what monetary penalties should be assessed, based on the six criteria 

set forth in section llO(i) of the Act. Four of the six criteria may usually 

be given a general evaluation, but in this particular proceeding only two of 

the criteria may readily be considered on a general basis so as to make such 

generalized consideration applicable to all of the violations which were 

alleged in each docket. The two criteria which may be given a general 

evaluation are the size of Respondent's business and the question of whether 

the payment of penalties would cause Respondent to discontinue in business. 

The remaining four criteria, namely, Respondent's good faith effort to 

achieve rapid compliance, Respondent's negligence, if any, the gravity of 

the alleged violations, and Respondent's history of previous violations, will 

be considered on an individual basis in each docket when the parties' evidentiary presentations are hereinafter reviewed. The two criteria concerning 

the size of Respondent's business and whether the payment of penalties would 

cause Respondent to discontinue in business are considered below. 

Size of Respondent's Business 

Five of Respondent's mines were the subject of the Petitions filed by 

MSHA in this consolidated proceeding. Respondent's Moss No. 2 Mine is one 

of the largest coal mines in the State of Virginia. It employs approximately 

350 miners to produce from 2,500 to 3,000 tons of coal per day (Tr. 15). 

Respondent's Camp Branch No. 1 Mine employs about 185 miners to produce 

approximatley 1,200 tons of coal per day (Tr. 254-255). Respondent's Chaney 

Creek No. 2 Mine employs approximately 150 miners to produce about 1,300 tons 

26 
of coal per day (Tr. 477). Respondent's Open Fork No. 2 Mine employs about 

150 miners to produce approximately 1,400 tons of coal per day (Tr. 524). 

There are no data in the record to show the size of Respondent's Hurricane 

Creek Mine because the Petition filed with respect to that mine was the subject of a motion for approval of settlement. Since the data already in the 

record supported a finding that Respondent operates a large coal business, 

no evidence was given with the respect to the size of Respondent's Hurricane 

Creek Mine. It was stipulated that Respondent is a part of the Pittston 

Coal Group (Tr~ 16). On the basis of the foregoing facts, I find that 

Respondent operates a large coal business and that any penalties which may 

hereinafter be assessed in this proceeding should be in an upper range of 

magnitude insofar as they are determined under the criterion of the size of 

Respondent's business. 

Effect of Penalties on Operator's Ability to Continue in Business 

Respondent's counsel did not present any evidence at the hearing with 

respect to Respondent's financial condition. In Buffalo Mining Co., 2 IBMA 

226 (1973), and in Associated Drilling, Inc., 3 IBMA 164 (1974), the former 

Board of Mine Operations Appeals held that when a Respondent fails to present 

any evidence concerning its financial condition, a judge may presume that 

payment of penalties would not cause Respondent to discontinue in business. 

In the absence of any specific evidence to the contrary, I find that payment 

of penalties will not cause Respondent to discontinue in business. 

The Settlement Agreements 

Docket No. NORT 78-366-P (Camp Branch No. 1 Mine) 

Order No. 1 CAG (7-46) September 6, 1977, section 75.400 (Exhibit M-18) 

Order No. 1 CAG cited a violation of section 75.400 because float coal 

dust and loose coal accumulations existed in depths ranging from 1/8 inch 

to 2 inches along various conveyor belts for a distance of about 4,800 feet. 

The Assessment Office waived the formula normally used in assessing penalties 

and made findings as to the six criteria to support a proposed penalty of 

$4,000. 

Counsel for MSHA stated that Respondent had offered to pay a penalty of 

$2,000 in settlement of the violation of section 75.400 alleged in Order 

No. 1 CAG. MSHA's counsel said that he was willing to accept the offer of 

settlement becau~e MSHA personnel who were acquainted with the facts at the 

time Order No. 1 CAG was written had explained to him that a very serious 

roof problem had developed in a portion of the mine. Management had consulted 

with MSHA personnel and everyone agreed that the section with the bad roof 

should be abandoned because of the deteriorating condition of the roof. 

While the mine's personnel were engaged in removing the conveyor belt so that 

the section could be abandoned, the loose coal and float coal dust accumulated, but the urgency of the abandonment operations was believed to have 

priority over the cleaning up of the accumulations. MSHA's counsel noted 

27 
that the Assessment Office did not have the aforementioned extenuating facts 

in its possession when it proposed a penalty of $4,000 for the violation 

cited in Order No. 1 CAG (Tr. 463-466). 

As has been found above, Respondent is a large operator. There was a 

good faith effort made to achieve rapid compliance with respect to Order 

No. 1 CAG. Respondent was nonnegligent in the circumstances. Exhibit M-12 

shows that Respondent has paid penalties for 43 prior violations of section 

75.400 at its Camp Branch No. 1 Mine. Exhibit M-12 also shows, however, 

that Respondent violated section 75.400 only three times during the first 

8 months of 1977. That is an especially good trend in reducing the number of 

violations of section 75.400 and warrants acceptance of Respondent's proposed settlement· with respect to the violation of section 75.400 alleged in 

Order No. 1 CAG. 

Order No. 2 CAG (7-47) September 19, 1977 section 75.301-4 (Exhibit M-21) 

Order No. 2 CAG alleged that section 75.301-4 had been violated because 

the velocity of the air reaching the working face of the No. 2 pillar split 

in the 2 Right Section off the 8 Left Mains was too low to be measured with 

an anemometer. The Assessment Office waived the usual formula employed for 

determining civil penalties and made findings as to the six criteria to 

support a proposed penalty of $4,000. 

MSHA's counsel stated that Respondent had offered to settle the issues 

raised by Order No.' 2 CAG by paying a civil penalty of $2,500. Although the 

Camp Branch No. 1 Mine releases some methane, there have been no explosive 

quantities of methane found in the mine. Consequently, the primary factor 

to be considered in assessing a penalty is that absence of a sufficient air 

velocity exposed the miners to the possibility of contracting pneumoconiosis. 

In such circumstances, MSHA's counsel expressed the opinion that the Assessment Office had not shown sufficient gravity to warrant imposition of a 

penalty of $4,000 and he moved that the settlement offer of $2,500 be 

approved (Tr. 466-467). 

As previously shown above, Respondent is a large operator. There was 

a rapid good faith effort to achieve compliance as the alleged violation was 

corrected within a period of 45 minutes. There was ordinary negligence. 

Exhibit M-13 shows that Respondent has paid penalties for four previous violations of section 75.301-4 at its Camp Branch No. 1 Mine, but Exhibit M-12 

also reflects that Respondent has not violated section 75.301-4 at its Camp 

Branch No. 1 Mine since November 30, 1976. In such circumstances, the facts 

support approval· of Respondent's offer to pay a penalty of $2,500 for the 

violation of section 75.301-4 alleged in Order No. 2 CAG. 

Docket No. NORT.78-368-P (Hurricane Creek Mine) 

Notice No. 1 VH (7-28) August 1, 1977 section 75.200 (Exhibit M-27) 

Notice No. 1 VH alleged that a violation of section 75.200 had occurred 

because Respondent had failed to comply with its roof-control plan in that 

28 
the face of the left crosscut off No. 3 entry had been advanced 29 feet but 

only two rows of roof bolts had been installed in the last 14 feet of 

supported roof. The Assessment Office waived the formula which is normally 

used in determining penalties and made findings with respect to the six 

criteria to support a proposed penalty of $1,500. 

MSHA's counsel stated that Respondent had offered to settle this 

alleged violation of section 75.200 by paying a penalty of $1,250. MSHA's 

counsel said that the only extenuating circumstances were that the roof 

appeared to be sound and that the violation consisted of Respondent's failure 

to install two additional rows of roof bolts in an area from which coal had 

recently been extracted by the continuous-mining machine. The violation had 

not apparently exposed anyone to a serious threat and MSHA's counsel 

expressed the belief that a penalty of $1,250 was adequate in the circumstances (Tr. 468-472). 

As has been found above, Respondent is a large operator. There was a 

good faith effort to achieve rapid compliance because the alleged violation 

was corrected within an hour after the notice was written. There was ordinary negligence. Exhibit M-26 shows that Respondent has paid penalties for 

12 prior violations of section 75.200 at its Hurricane Creek Mine, but only 

one violation occurred in 1975, none in 1976, and only one occurred in 1977 

prior to the violation alleged in Notice No. 1 VH. I do not condone any 

violations of section 75.200, but the evidence shows that Respondent is 

making an effort to eliminate violations of section 75.200 at its Hurricane 

Creek Mine. The aforesaid findings warrant approval of Respondent's offer 

of settlement with respect to the violation of section 75.200 cited in 

Notice No. 1 VH. 

The Contested Cases 

Docket No. NORT 78-325-P (Moss No. 2 Mine) 

Notice No. 1 WJT (6-85) December 21, 1976 section 75.1403-10 (Exhibit M-7) 

Findings. Section 75.1403-10, to the extent here pertinent, requires 

that a permissible trip light or other approved device, such as reflectors, 

be used on the rear of coal cars pulled by locomotives. Respondent violated 

section 75.1403-10 because no light or reflector had been placed on the last 

or 17th car of a line of loaded coal cars being pulled in Respondent's mine 

(Tr. 14). The violation was ·very serious because the train of cars became 

stalled on the main track leading to the dumping point and the unlighted end 

of the train of ·cars was hit by another locomotive pushing an empty car 

(Tr. 41; 152). The impact of the collision drove the empty car back upon 

the operator of the locomotive. The empty car came to rest upon the locomotive operator and caused his death by suffocation (Tr. 60-61; 80-81). 

Respondent was grossly negligent in failing to provide a proper reflector on 

the end of the train of loaded coal cars (Tr. 44-45; 47). 

Discussion and Conclusions. Respondent's brief (pp. 8-9) contends that 

MSHA failed to prove that the death of the locomotive operator was the result 

29 
of Respondent's failure to provide a reflector or other light on the end of 

the 17th car of coal. Respondent argues that the locomotive which was pushing the empty car was 1 inch higher than the empty car and that the operator 

of the locomotive would hav~ had to have been crouched down to avoid the cold 

air in the track haulageway and would have had to have been unobservant to 

have run into the rear of a loaded coal car which was 8 feet wide and 

30 inches high. It is true that no one saw the operator of the locomotive 

just before the collision and it is possible that he was not alert in performing his job, but the coal car was not a bright color and it is a fact 

that the end of the car was not equipped with a light or reflector which 

might have caught the locomotive operator's attention in time for him to have 

stopped before colliding with the end of the coal car (Tr. 117; 130; 148). 

Respondent's superintendent testified that before becoming a supervisor, 

he had been a locomotive operator for about 20 years, and that it is the 

practice for motormen to crouch low in the locomotives to avoid the cold air 

in the haulageway and thereby get only occasional glimpses of the track in 

front of them (Tr. 135; 140-141; 148). It is management's obligation to 

train its operators to look where they are going and to provide them with 

such shields or goggles as may be necessary to withstand the cold air and 

still enable them to operate the locomotives in a safe manner. The deceased 

operator may well have been following the example of the superintendent and 

may have assumed that nothing would be on the track in front of him. Nevertheless, I must reject the defense that Respondent cannot be held to be 

negligent because of the claim that the deceased operator of the locomotive 

would have seen the unlighted stationary coal car if he had been observant. 

It is true, as Respondent notes in its brief (p. 6), that one of MSHA's 

witnesses expressed the belief that a trip light would not have helped the 

deceased operator of the locomotive (Tr. 69). On the other hand, two of 

MSHA's witnesses believed that a trip light would have assisted in preventing 

the fatal accident (Tr. 117; 130). In fact, one inspector believed that the 

fact that there was no trip light and the fact that the deceased locomotive 

operator was pushing (instead of pulling) an empty car were the direct causes 

of the fatal accident (Tr. 131-132). Respondent can hardly expect to avoid 

liability for the fatal accident by claiming that it had failed to train the 

deceased operator of the locomotive to look where he was going and had also 

failed to instruct him in safe operating procedures, that is, to pull cars 

on the main line instead of pushing them (Tr. 132). 

MSHA's brief (p. 9) recommends that a penalty of $9,000 be assessed for 

this violation of section 75.1403-10. I believe that a penalty of $9,000 is 

warranted. None of the facts associated with the fatal accident are favorable to Respondent's management. The locomotive which was stalled was not 

functioning properly at the time the dispatcher suggested to its operator 

that he take a trip of 17 loaded cars to the loading point (Tr. 94). The 

locomotive had just come from the repair shop and should have been returned 

there for further repairs (Tr. 92). The operator of the locomotive which 

stalled did not report to the dispatcher that the train was stopped (Tr. 97). 

There was speculation that the locomotive operator's failure to call the 

30 
dispatcher was related to a discharged battery, but MSHA's electrical inspector testified that locomotive phones or radios depend on the trolley wire 

for power rather than batteries (Tr. 96; 122). In any event, the operator 

of the stalled locomotive was able to talk to the dispatcher after the fatal 

accident occurred (Tr. 101). Thus, the events leading up to the occurrence 

of the fatal accident all indicate that Respondent's management had failed 

to train its personnel in proper safety procedures. The lack of lights or 

reflectors on the end of the 17th car was not the only negligent act which 

caused the fatal accident, but the unmarked car was certainly a contributing 

cause of the accident.and may have been the sole reason for the deceased 

operator's failure to see the 17th car in time to avoid the collision which 

resulted in his death. 

Respondent's brief (p. 6) argues that failure to have a trip light or 

reflector on the end of the loaded car was not a serious violation, but no 

safety violation can be judged in a vacuum. The failure to have a reflector 

on a coal car in a well-lighted place is nonserious, but when that same car 

is stalled in total darkness on a main track in a coal mine, where 10 tram 

locomotives and six supply locomotives are operated, the failure to equip 

the car with a reflector is a very serious violation (Tr. 149). 

In assessing a penalty of $9,000, I am bearing in mind that a large 

operator is involved (Tr. 15-16), that there was a good faith effort to 

achieve rapid compliance after the violation was cited (Tr. 52), and that 

Respondent has violated section 75.1403-10 on only two previous occasions 

(Exh. M-1, p. 5). The two criteria of gravity and negligence require that a 

high penalty be assessed. It should be noted that Respondent repeatedly 

failed to provide trip lights. On October 10, 1973, an inspector issued a 

notice to provide safeguards requiring Respondent to install trip lights on 

the ends of coal cars (Exh. M-2; Tr. 22). Yet, over 3 years later, Respondent was using coal cars in its mine without equipping them with proper 

reflectors (Tr. 130; 133). I consider the failure to comply with section 

75.1403-10 in such circumstances to be the result of gross negligence and 

the penalty of $9,000 recommended by MSHA will hereinafter be imposed for 

this violation. 

Docket No. NORT 78-364-P (Camp Branch No. 1 Mine) 

Notice No. 1 CAG (7-38) June 21, 1977 section 75.317 (Exhibit M-13) 

Findings. Notice No. 1 CAG dated June 21, 1977, alleged that Respondent had violated 30 CFR 75.317 because (Exh. M-13): 

Five foremen entered underground with flame safety 

lights that had not been tested in a gas box provided for 

that purpose to insure that such lamps were in a permissible 

condition and could not ignite the outside atmosphere of such 

lamps. This violation occurred despite the fact that this 

requirement of the regulations was discussed with mine 

management on June 15, 1977, with the hope that this requirement would not be violated. 

31 
Section 75.317 states as follows: 

Each operator shall provide for the proper maintenance 

and care of the permissible flame safety lamp or any other 

approved device for detecting methane and oxygen deficiency by 

a person trained in such maintenance, and, before each shift, 

care shall be taken to insure that such lamp or other device 

is in a permissible condition. 

The inspector's notice alleged that Respondent's foremen had not tested 

their flame safety lamps in a gas box to insure that such lamps were in a 

permissible condition. There is nothing in the language of section 75.317 

which requires that a flame safety lamp be tested in a gas box to insure 

permissibility. In fact, the unrebutted testimony of Respondent's witness 

Strong, who has a mining engineering degree (Tr. 338), shows that once the 

light in a flame safety lamp has been extinguished by being placed in a box 

containing methane, the lamp may be rendered nonpermissible by such testing 

and the lamp should then be removed from the gas box and be disassembled, 

examined, defective parts, if any, replaced, and reassembled in order to 

restore the lamp's permissibility (Tr. 342). !/ 

The inspector's notice citing a violation of section 75.317 is based 

solely on an allegation that Respondent's foremen had not checked the 

permissibility of their lamps by testing them in a gas box. Since the evidence shows that placing flame safety lamps in a gas box may destroy their 

permissibility instead of insuring permissibility, I find that use of a gas 

box for testing permissibility is an undesirable procedure. Therefore, the 

alleged violation of section 75.317 cited in Notice No. 1 GAG cannot be 

sustained. 

Discussion and Conclusions. MSHA 1 s brief (p. 3) argues that a violation 

of section 75.317 was proven because it is undisputed that all five foremen 

failed to check the permissibility of their lamps by placing them in the gas 

box. As I have already found above, failure to place a flame safety lamp in 

a gas box to test permissibility is not a violation of section 75.317. 

MSHA's brief attempts, alternatively, to prove that a violation of section 

75.317 occurred by alleging that at least one of the five foremen admitted 

that he had not cleaned his flame safety lamp before going underground (Tr. 

307). 

There are several reasons for rejecting MSHA 1 s claim that Notice No. 

1 GAG should be ?Ustained because one of the 'foremen admitted that he had not 

cleaned his flame safety lamp. First, there is nothing in the pleadings to 

show that Respondent was advised that the inspector was claiming that a violation had occurred because of the failure of one foreman to clean his lamp 

!I According to 30 CFR 21.6(a)(2)(ii), MSHA 1 s laboratory personnel reexamine 

the interior of a lamp to redetermine its permissibility after a lighted lamp 

has been extinguished by having been placed in a gaseous atmosphere. 

32 
before going underground. The former Board of Mine Operations Appeals held 

in Old Ben Coal Co., 4 IBMA 198, 208 (1975), that MSHA must give Respondent 

notice of the violation which is being charged so that it can prepare a 

proper defense. I cannot accept MSHA's attempt to sustain a violation of 

section 75.317 based on an entirely different reason from the one alleged by 

the inspector when he wrote the notice which is the basis for the Petition 

for Assessment of Civil Penalty filed in Docket No. NORT 78-364-P. 

The second reason for rejecting MSHA's claim that a violation of section 75.317 occurred because one foreman had not cleaned his lamp before 

going underground is that the inspector himself knew little about the condition of the flame safety lamps. The inspector first stated that he did not 

examine the lamps to determine whether they had been cleaned (Tr. 260). 

Thereafter he claimed that he could on the basis of experience and general 

observation attest to the fact that all five flame safety lamps were dirty 

(Tr. 294). Yet, one of Respondent's foremen testified that he had cleaned 

his lamp and had lighted it while the inspector was in the mine office (Tr. 

319), so there is evidence in the record to rebut the inspector's claim that 

his general observation was sufficient for him to conclude that all five 

lamps were dirty. Additionally, one of the witnesses subpoened by MSHA's 

counsel testified that he was with the inspector and had observed the lamps, 

but that he could not say that they were either dirty or clean (Tr. 308). 

That same subpoened witness introduced the only specific facts in the 

record about a dirty lamp by testifying that one of the foremen stated that 

he had not cleaned his lamp before going.underground (Tr. 307). The failure 

of one foreman to clean his lamp falls short of proving that the lamp was 

nonpermissible. The foregoing conclusion is supported by the testimony of 

one of Respondent's foremen who said that he sometimes cleans his lamp every 

other shift. He testified that the lamp held enough fuel to last for two 

shifts and that since no one used the lamp but him, he was sure it was permissible for use on two shifts. Thus, the failure to clean a lamp immediately prior to going underground does not necessarily mean that the lamp is 

nonpermissible. It is true that the flame in one of the five lamps could 

not be ignited, but the inspector said that the failure of the lamp to ignite 

had nothing to do with his claim that a violation of section 75.317 had 

occurred (Tr. 292). 

Respondent's brief (pp. 7-9) argues that Notice No. 1 CAG should be 

vacated because the inspector issued the notice under the unwarrantable 

failure provisions of section 104(c)(l) of the Federal Coal Mine Health and 

Safety Act of 1~69 and Respond.ent claims that the inspector failed to show 

that the violation was unwarrantable. The former Board's holdings that the 

validity of a notice issued under the 1969 Act is not an issue in a civil 

penalty proceeding has been upheld by the Commission in MSHA v. Wolf Creek 

Collieries Co., Docket No. PIKE 78-70-P, 79-3-11, and in-p()rltiki Coal Corp. 

v. MSHA, Docket No. PIKE 78-420-P, 79-10-13. Therefore, it would be improper 

for-;e-to address Respondent's argument that Notice No. 1 CAG was shown by 

the evidence in this case to have been erroneously issued under section 

104(c)(l) of the 1969 Act. 

33 
As a part of my finding that section 75.317 is not violated when an 

operator fails to test the permissibility of a flame safety lamp by placing 

it in a gas box, it is desirable, however, that I discuss the ramifications 

which accompany an inspector's failure to understand the intended use of a 

gas box. The inspector placed a lot of emphasis on the fact that he had 

warned Respondent's management on June 15, 1977, that they were not using 

the gas box to test permissibility of flame safety lamps (Tr. 256). The 

inspector advised management on June 15 that. he would make further checks to 

determine whether they were testing permissibility of the lamps by placing 

them in the gas box. On June 21, 1977, the inspector returned to the mine 

and wrote the notice here involved after observing five foremen go underground without having tested their lamps in a gas box (Tr. 251). 

Respondent's mine superintendent testified that they did test the flame 

safety lamps by placing them in the gas box for a short period of time after 

the notice was issued, pending consideration of the matter by Respondent's 

safety department. The safety department subsequently advised the superindendent that testing the lamps in the gas box was not required for compliance 

with section 75.317 and all further testing by use of the gas box was 

discontinued (Tr. 347). 

The inspector issued the notice here involved at 12:15 a.m. when 

Respondent's superintendent was at home because the superintendent works the 

day shift instead of the midnight-to-8 a.m. shift during which the notice 

was issued. Respondent's superintendent testified that if he had been at the 

mine, he would not have permitted the lampd to be tested on June 21 by placing them in the gas box because Respondent did not then have a tank of 

methane at the mine for injection of gas into the box. For that reason, the 

foremen on June 2~, in order to satisfy the inspector's requirement that the 

lamps be tested by placing them in the gas box, used a tank of acetylene to 

test the lamps. The superintendent stated that acetylene is much more 

explosive than methane and that it was hazardous for the men to use acetylene 

for the purpose of testing permissibility by insertion of the lamps into the 

box (Tr. 347). 

The evidence also shows that Respondent did not have the gas box at its 

Camp Branch No. 1 Mine for the purpose of testing permissibility of flame 

safety lamps. A gas box is used by the State of Virginia as part of the 

testing given to persons who wish to become certified mine foremen. The 

purpose of the gas box is to have the prospective foremen demonstrate how 

the flame in the lamp will react when it comes into contact with methane in 

the mine. A hal.o effect forms around the flame as a warning to a person 

carrying the lamp that methane is present (Tr. 310; 321). Respondent's 

superintendent testified that the gas box was kept at the mine in a room 

used by State and Federal personnel to test employees for competency in performing gas tests, rather than for the purpose of checking permissibility of 

flame safety lamps (Tr. 345). Therefore, the inspector misunderstood the 

reason that the gas box was kept at the mine and consequently incorrectly 

stated in his notice that Respondent failed to check permissibility of the 

flame safety lamps by placing them in "a gas box provided for that purpose" 

34 
(Exh. M-13). Moreover. the gas box was not kept near the mine office where 

the flame safety lamps were maintained, but was kept in a building which was 

about a half mile from the mine office (Tr. 345). That location in itself 

was an indication that Respondent did not keep the gas box at the mine for 

the purpose of testing permissibility of flame safety lamps. 

A final reason for declining to uphold the inspector's citation of a 

violation of section 75.317 lies in the fact that the inspector admitted 

that not all operators have gas boxes and that permissibility can be established at mines without gas boxes simply by disassembling the lamps, inspecting them, cleaning them, replacing defective parts, if any, and reassembling 

them. The inspector's concession that cleaning and inspecting are sufficient 

to establish permissibility if an operator has no gas box, but that placing 

them in a gas box is required when the operator has a gas box, would produce 

a disparity in the degree of permissibility and safety of flame safety lamps, 

depending on which operators have gas boxes at their mines (Tr. 292-293). 

Fortunately, the evidence in this proceeding shows that gas boxes should not 

be used at all to test permissibility, so permissibility of flame safety 

lamps at all mines is assured by careful cleaning and examining of the lamps 

before they are taken underground. Specifically, permissibility may be 

insured as required by section 75.317 by (1) opening the lamps with a special 

magnet, (2) checking and cleaning the leather gasket, gauze ring, asbestos 

rings, pyrex globe, gauzes, nuts, boot, and bonnet, and (3) replacing any of 

the aforementioned parts, prior to reassembly, which show any sign of defectiveness (Tr. 339-342). 

The testimony of John W. Crawford, who was Respondent's director of 

health and safety at the time the hearing was held, and who had formerly been 

the district manager of MSHA's Norton Office and assistant administrator of 

the Mining Enforcement and Safety Administration, was also significant. He 

stated that it is not Pittston Company's policy to use a gas box to test for 

permissibility because that kind of test is not required by section 75.317, 

that it was not the practice of the inspectors, when he was district manager, 

for them to use a gas box to test permissibility of their flame safety lamps, 

and that the gas box was supposed to be used to tune one's eye to the appearance of the flame when it was subjected to a gaseous atmosphere (Tr. 325-329). 

For the foregoing reasons, I find that the violation of section 75.317 

alleged in Notice No. 1 CAG dated June 21, 1977, was not proven. Therefore, 

MSHA's Petition for Assessment of Civil Penalty in Docket No. NORT 78-364-P 

will hereinafter be dismissed because the sole civil penalty sought to be 

assessed in that. docket was the violation of section 75.317 alleged in 

Notice No. 1 CAG issued June 21, 1977. 

Docket No. NORT 78-365-P (Camp Branch No. 1 Mine) 

Order No. 2 CAG (7-15) January 31, 1977 section 75.400 (Exhibit M-15) 

Findings. Section 75.400 provides that coal dust, including float coal 

dust deposited on rock-dusted surfaces, loose coal, and other combustible 

35 
materials, shall be cleaned up and not be permitted to accumulate in active 

workings. Respondent violated section 75.400 because float coal dust and 

loose coal had been permitted to accumulate in two areas of Respondent's 

mine. One location was inby the 8 Left Mains tailpiece for a distance of 

500 feet. The second location was inby Survey Station No. 3006 in the No. 3 

entry of the 3 Right off 8 Mains and in the Nos. 1 and 2 entries of 2 Right 

off 8 Mains. In both the 3 Right and 2 Right sections, the accumulations 

existed at crosscuts for a distance of 1,100 feet. The accumulations ranged 

in depth from 1/4 inch to 20 inches (Tr. 355-356). The accumulations constituted a serious violation because the float coal dust could have propagated an explosion if one had occurred. 

A trolley wire constituted a potential ignition source in the first area 

of accumulations in the 8 Left Mains and at least one high-voltage disconnect 

switch was a possible ignition source in the second area of accumulations in 

2 Right and 3 Right Sections. The ignition sources would have posed a threat 

of an explosion if methane in an explosive quantity had accumulated in the 

vicinity of the trolley wire or disconnect switch (Tr. 371). Float coal 

dust, if thrown into suspension, may explode in the presence of a spark. 

At the time the order was written, the areas where the accumulations 

were observed were traveled mostly for inspections and served as a transfer 

point for coal produced from other parts of the mine, but the accumulations 

had originally occurred during active mining operations and had remained a 

potential explosive threat for a period of several months. The violation 

was the result of gross negligence because the coal accumulations were being 

deliberately left in the areas cited in Order No. 2 CAG because Respondent's 

continuous-mining equipment then being used was unable to extend far enough 

to extract coal from crosscuts and clean up the residual coal left at such 

break-through points (Tr. 364-365; 432). Moreover, one of the reasons that 

the accumulations were not cleaned up was that Respondent was unable to get 

its roof-bolting equipment into the areas where the accumulations existed 

for the purpose of installing roof bolts. For the foregoing reason, it 

would have been hazardous for Respondent to have cleaned up the accumulations because such clean-up would have required that miners work under 

unsupported roof (Tr. 369). 

Discussion and Conclusions. Respondent's brief filed in Docket No. 

NORT 78-365-P recommends for my consideration a large number of findings of 

fact, but does not contain a discussion of the six criteria or make any 

recommendations as to whether a penalty should or should not be assessed. 

Petitioner's brief contends that a maximum penalty of $10,000 should be 

assessed because.the coal accumulations had been in existence for a long 

period of time and were associated with Respondent's failure to comply with 

the provisions of its roof-control plan (Br., p. 5). 

There is some merit in Petitioner's argument that a maximum penalty 

should be assessed for this violation of section 75.400. Even the two 

witnesses presented by Respondent corroborated the inspector's statement 

that accumulations existed (Tr. 413; 430-432). Still, it is a fact that the 

36 
inspector was unable to show that the ignition sources were located within 

the actual area of the accumulations. Therefore, the inspector felt that 

the likelihood of an explosion depended on the presence in the vicinity of 

the trolley wire or disconnect switch of an explosive quantity of methane. 

Respondent's Camp Branch No. 1 Mine has historically liberated such a small 

amount of methane, that it has not been detected with a hand-held methanometer, but from .01 to .03 of 1 percent of methane has been detected through 

analyses of bottle samples (Tr. 376). Nevertheless, all mines are classified as gassy under the Act and a mine which liberates any methane could have 

a concentration large.enough to cause an explosion which, in turn, could be 

propagated by the existence of float coal dust in quantities such as were 

described in the inspector's order (Tr. 378). As the Commission pointed out 

in its decision in MSHA v. Old Ben Coal Co., 79-12-4, one of the primary 

purposes of the Act--rs-to prevent death and injury from fire and explosions. 

In that case, the Commission also held that the mere existence of combustible 

materials constitutes a violation of section 75.400. Consequently, the 

inspector no longer has to satisfy the prerequisites set forth by the former 

Board of Mine Operations Appeals in Old Ben Coal Co., 8 IBMA 98 (1977), in 

order to prove that a violation of section 75.400 occurred. 

Despite the foregoing considerations, the inspector appeared to have 

considerable difficulty in supporting his belief that the accumulations were 

very hazardous in this instance because he was faced with the remoteness of 

the ignition sources to the accumulations and with the fact that he had 

observed no defects in the physical condition of those potential ignition 

sources (Tr. 362; 381-382). A countervailing consideration is the fact that 

one of Respondent's witnesses agreed with the inspector that the disconnect 

switch was supposed to be in a neutral split of air, but through a mistake 

in the way the ventilation curtains had been installed, the disconnect switch 

was in return air (Tr. 383; 440). Therefore, the area was more susceptible 

to a possible methane accumulation than it would have been if the area had 

been properly ventilated. When all aspects of the accumulations are evaluated, the only conclusion which one can reach is that the accumulations constituted a serious threat to the miners' safety. 

A consideration of Respondent's negligence shows that Respondent 

deliberately failed to clean up the accumulations because the mining equipment it was then using would extend only 200 feet and that was not a sufficient distance to permit the crosscuts to be completed without leaving 

accumulations of loose coal at such break-through points (Tr. 442-443; 451). 

A mitigating factor about the equipment is that Respondent recognized the 

equipment's hazardous limitations and has now ceased to use that type of 

equipment in its· mine in order to avoid occurrence of the kinds of accumulations which were cited in the inspector's order (Tr. 460). As Petitioner 

notes in its brief, Respondent's failure to support the roof in the area of 

the accumulations was another aspect of the coal accumulations which augumented both the seriousness and negligence associated with occurrence of the 

coal accumulations. 

The extent of the accumulations is emphasized by the fact that three 

consecutive shifts of miners worked around the clock for 3 days in applying 

37 
enough rock dust in the areas cited in the inspector's order to render the 

accumulations sufficiently inert to eliminate their threat to the .miner_s' 

safety (Tr. 455-456). 

In view of the fact that the accumulations were extensive and were the 

result of a deliberate pattern of mining which necessarily resulted in such 

accumulations, a penalty of $8,000 is warranted and will hereinafter be 

imposed. The penalty of $8,000 also takes into consideration that Respondent 

is a large operator and that Respondent's Camp Branch No. 1 Mine has an 

unfavorable history of previous violations because Exhibit No. M-12 shows 

that 41 previous violations of section 75.400 have occurred at the Camp 

Branch No. 1 Mine. Since 10 of those 41 violations occurred in 1976, there 

is no mitigating downward trend in Respondent's proclivity for violating 

section 75.400. Therefore, assessment of a large penalty of $8,000 seems to 

be necessary in this instance to achieve the deterrent effect which imposition of civil penalties was intended to accomplish. 

Docket No. NORT 78-367-P (Chaney Creek No. 2 Mine) 

Notice No. 1 KCK (7-95) November 17, 1977 section 75.501-2(2) (Exhibit M-24) 

Findings. Section 75.501-2(2) provides in pertinent part that all 

hand-held drills taken into or used inby the last open crosscut shall be permissible. Respondent violated section 75.501-2(2) because its electricians 

were using a 3/8-horsepower, hand-held nonpermissible drill inby the last 

open crosscut to drill holes in headless bolts to facilitate their removal 

by means of a screw extractor or "easy out". The violation was moderately 

serious because methane emissions of up to .06 of 1 percent have been 

detected in Respondent's Chaney Creek No. 2 Mine, but methane checks were 

being made at the time the violation was cited and power for the hand-held 

drill was being obtained from the continuous-mining machine which would have 

deenergized the power for the electric drill if as much as 2 percent of 

methane had accumulated in the atmosphere where the drilling was being done. 

Respondent was grossly negligent for using the hand-held drill because the 

electricians knew that it was a nonpermissible drill and were obligated to 

evaluate the conditions under which they were deliberately using a drill 

which emitted sparks when it was running (Tr. 478; 486; 491; 508; 515). 

Discussion and Conclusions. Respondent's brief raises two primary 

defenses with respect to MSHA's claim that a violation of section 75.501-2(2) 

occurred. Respondent's first defense (Br., pp. 5-6) is based on the preliminary observation that using a nonpermissible drill is less dangerous than 

using a cutting torch or welding equipment under ground. Respondent's argument continues by pointing out that section 75.1106 would have permitted 

Respondent to use a welding machine for removal of the headless bolts, 

whereas section 75.501~2(2) entirely prohibits the removal of the bolts by a 

less dangerous means, namely, use of a nonpermissible hand-held drill. The 

mere fact that the regulations permit cutting and welding to be done under 

certain controlled conditions does not remove the danger associated with use 

of nonpermissible equipment. As the inspector noted, it is always possible 

38 
for methane to.accumulate in an explosive quantity despite the fact that 

only .06 of 1 percent of methane was detected by the inspector at the time 

he wrote Notice No. 1 KCK (Tr. 480; 486; 491). 

Respondent had an option of using a welding machine to remove the bolts, 

but if Respondent had done so, it would have been obligated to follow the 

precise provisions of section 75.1106 which require that a check for methane 

be maintained on a continuous basis. Such welding or cutting is entirely 

prohibited if as much as 1 percent of methane is encountered and Respondent 

must have present at the welding or cutting site a suitable supply of rock 

dust or fire extinguishers. Respondent's witnesses conceded that they were 

not continuously testing for methane with a hand-held methane detector and, 

while Respondent did have fire-suppression equipment on the continuous-mining 

machine and a water hose, Respondent did not have rock dust or fire extinguishers as required by section 75.1106 (Tr. 504; 509). Therefore, Respondent was not taking precautions equivalent to those required by section 

75.1106 when welding or cutting is being done. Since Respondent had not 

taken the same precautions which are required by section 75.1106 when welding 

or cutting is being done, Respondent cannot expect its use of the nonpermissible drill in violation of section 75.501-2(2) to be condoned. 

Respondent's second defense (Br., pp. 7-9) is that the inspector's 

notice was improperly issued under the unwarrantable failure provisions of 

section 104(c)(l) of the Federal Coal Mine Health and Safety Act of 1969. 

The Commission has already held in MSHA v. Wolk Creek Collieries Co., 

79-3-11, and in Pontiki Coal Corp. v. MSHA, 79-10-13, that the validity of 

notices and orders issued under the 1969 Act are not at issue in civilpenalty proceedings. Nevertheless, since Respondent's contentions are based 

essentially on arguments pertaining to the criteria of negligence and 

gravity, which must be considered in civil-penalty proceedings, I shall discuss its arguments with respect to those two criteria. 

Respondent argues in its brief (pp. 8-9) that the violation was not 

serious because Respondent's electricians were making methane tests every 

15 minutes and that the Chaney Creek No. 2 Mine does not have a history of 

emitting enough methane to make the likelihood of an explosion more than a 

mere possibility. As MSHA notes in its brief (p. 9), it is necessary to 

consider the potential danger associated with a given violation because the 

purpose of the regulations is to require that miners be protected from 

possible explosions as well as those which are indisputably likely to occur. 

An inspector does not have to find the existence of an imminent danger in 

order to conclud~ that the use of a nonpermissible drill inby the last open 

crosscut is a potentially dangerous violation (Tr. 483; 486). 

Respondent's brief (p. 8) also argues that there was a very low degree 

of negligence, if any, associated with the violation. The testimony shows 

that Respondent's electricians were grossly negligent in using the nonpermissible drill inby the last open crosscut. While it is true that the chief 

electrician said that he was unaware that the continuous-mining machine was 

inby the last open crosscut and that he would not have used the nonpermissible drill if he had known that the continuous-mining machine was inby the 

39 
last open crossc~t (Tr. 514-515), the fact remains that the chief electrician 

knew that the drill was nonpermissible. He either knew or was obligated to 

know whether the machine was inby the last open crosscut. The chief electrician had been working in coal mines for over 30 years and can hardly be 

found to have been nonnegligent in failing to realize that he was using a 

nonpermissible drill inby the last open crosscut. 

The chief electrician's use of the nonpermissible drill was also 

associated with his having removed the cover on the control compartment of 

the continuous-mining. machine for the purpose of obtaining electrical current 

to power the nonpermissible drill (Tr. 514; 517). He stated that he was 

making checks for methane every 15 minutes for the reason that he had removed 

the panel cover rather than for the reason that he was using a nonpermissible 

drill (Tr. 514). Respondent's safety director was hard pressed to support 

the chief electrician's removal of the panel cover. The most the safety 

director could say in justification of the opening of the control compartment 

was that such acts are permitted if the purpose of opening the compartment is 

to determine the reason for a malfunction of the continuous-mining machine. 

There was no need to open the control compartment for the purpose of trouble 

shooting because the electricians working on the mining machine knew what was 

wrong with the machine, namely, that sheared bolts in the tracks prevented 

the machine from being trammed from one location to another (Tr. 499-500). 

MSHA's brief (p. 3) argues that the inspector's testimony to the effect 

that a trailing cable was being used to power the hand-held drill is more 

credible than that of the electrician's testimony to the effect that the 

drill was being powered from an outlet located in the control compartment 

beneath the panel cover which had been removed. I have found the chief 

electrician's testimony to be more credible than the inspector's for several 

reasons. First, in stating that he had removed the cover to the control 

compartment (Tr. 514), the chief electrician was admitting that he had done 

an unsafe act. It is unlikely that he would have fabricated a statement 

that made him look even more negligent than he would otherwise have appeared. 

Second, the electricians were very anxious to restore the continuous-mining 

machine to an operating condition. Use of power from the mining machine 

would have been an easy way to obtain power for the drill without the electricians' having to find a trailing cable and connect it to the main power 

source in the mine. Third, at the time the inspector left the scene of the 

violation, the drill was still hooked to a power source, but the drill had 

been removed from the vicinity of the mining machine by the time the inspector returned (Tr. 488). The inspector, therefore, was not present when the 

drill was discon~ected from its power source. The chief electrician was 

certainly in a position to know what the drill's source of power really was. 

Therefore, I find that the source of the drill's power was the control compartment on the continuous-mining machine. Of course, the removal of the 

cover from the control compartment increased the number of potential arcing 

electrical components which could have caused a fire or explosion if a 

dangerous accumulation of methane had occurred. 

MSHA's recommendation that a penalty of $10,000 be assessed for this 

violation of section 75.501-2(2) fails to recognize many of the extenuating 

40 
circumstances surrounding the violation. First, the continuous-mining 

machine weighed 40 tons and the inspector incorrectiy stated that a shuttle 

car could have been used to pull the machine a distance of 25 to 30 feet so 

as to permit the work to be done outby the last open crosscut (Tr. 492; 

505-506). Second, the operator did not have the kind of hoist which would 

have been required to move the machine to a point outby the last onen crosscut. Third, a period of about 3 days, or nine shifts, would have been 

required to bring in another continuous-mining machine having sufficient 

power to pull the inoperable machine to a point outby the last open crosscut. 

Third, the inspector removed himself physically from the site of the repair 

operations with the result that the electricians had time during the inspector's absence within which to continue using the nonpermissible drill for 

the purpose of completing the removal of the headless bolts (Tr. 509-510; 

516). Fourth, if the inspector considered the use of the nonpermissible 

drill to be a very serious violation, he should have required that the drill 

be immediately removed from the site of the continuous-mining machine instead 

of merely advising the electricians that he would not issue a notice of violation at that tim~ and would return later for that purpose (Tr. 509-510). 

Fifth, the electricians were making a methane test every 15 minutes and the 

drill would have been deenergized by the continuous-mining machine's methane. 

monitor if the concentration of methane in the atmosphere had reached as much 

as 2 percent. MSHA's brief (p. 6) argues that the methane tests required by 

section 75.1106 must continously be made by means of a hand-held methane 

detector and that a methane monitor cannot be substituted for a hand-held 

device. That may be true if we were determining whether a violation of section 75.1106 had occurred, but we are not here confronted with an actual 

violation of section 75.1106, and MSHA introduced no evidence to controvert 

the chief electrician's statement that the methane monitor on the continuousmining machine was working. Therefore, the monitior would have deenergized 

the drill if methane in a concentration of 2 percent had occurred. For the 

foregoing reasons, I find that the violation was not of such a serious nature 

as to warrant assessment of a maximum penalty of $10,000. 

MSHA's brief (p. 8) does correctly argue that Respondent's deliberate 

use of the nonpermissible drill was equivalent to gross negligence. Consequently, in assessing a penalty, most of the weight in determining the 

penalty must be assigned under the criterion of negligence and the criterion 

of the size of Respondent's business. Respondent has not previously been 

cited for a violation of section 75.501-2(2) (Tr. 477). Therefore, it is 

unnecessary to consider the criterion of Respondent's history of previous 

violations. There was a good faith effort to achieve rapid compliance (Tr. 

488). Since Respondent operates a very large coal business and inasmuch as 

its electricians· were grossly negligent in using a nonpermissible drill inby 

the last open crosscut, a penalty of $2,000 will hereinafter be assessed for 

this violation of section 75.501-2(2). 

Docket No. NORT 78-369-P (Open Fork No. 2 Mine) 

Notice No. 2 KFO (7-115) October 18, 1977 section 75.400 (Exhibit M-31) 

Findings. Section 75.400 provides that coal dust, including float coal 

dust deposited on rock-dusted surfaces, loose coal, and other combustible 

41 
materials, shall·be cleaned up and not be permitted to accumulate in active 

workings. Respondent violated section 75.400 because loose coal had been 

permitted to accumulate in active workings for a depth of 2 to 4 inches in 

the No. 3 entry for a distance of 175 feet inby the loading point and for a 

depth of from 2 to 24 inches in an adjacent crosscut for an additional distance of 60 feet, or for a total distance of 235 feet (Tr. 526-527). The 

deepest coal accumulation in the crosscut had fallen from the feeder prior 

to the time that the belt line had been moved (Tr. 528; 568). The loose 

coal accumulations in the No. 3 entry resulted from overfilling of the 

shuttle cars so that the coal was dragged off the top of the shuttle cars 

as they passed through the entry on their way to the dumping point (Tr. 

562; 570). The violation was moderately serious because the only ignition 

sources in the vicinity of the accumulations were the trailing cables and 

electrical components of the shuttle cars. The danger of a fire or explosion 

was reduced because no methane was detected and the inspector observed no 

defects in the shuttle cars' trailing cables (Tr. 547-548). While the 

inspector found a permissibility violation in one of the shuttle cars, he 

did not know if that particular shuttle car had passed through the loose coal 

accumulations (Tr. 548). Respondent was grossly negligent in permitting the 

accumulations to exist because Respondent's employees had to stand in the 

deepest of the accumulations at the time they moved the conveyor belt and 

the accumulations should have been cleaned up at that time (Tr. 532). 

Discussion and Conclusions. Respondent failed to file a posthearing 

brief with respect to the issues raised by MSHA's Petition for Assessment of 

Civil Penalty filed in Docket No. NORT 78-369-P. MSHA's brief is primarily 

devoted to demonstrating that MSHA's presentation in Docket No. NORT 78-369-P 

was sufficient to satisfy the evidentiary steps for proving the existence of 

a violation of section 75.400 as those steps were established by the former 

Board of Mine Operations Appeals in Old Ben Coal Co., 8 IBMA 98 (1977). 

While it appears that MSHA did prove that a violation occurred even if the 

requirements of the Board's Old Ben case were still in effect, the Commission 

held in MSHA v. Old Ben Coal Co., 79-12-4, that MSHA does not have to satisfy 

the criteria established by the Board in its Old Ben opinion. The Commission 

held in its Old Ben decision that the mere existence of combustible materials 

is sufficient to show that a violation of section 75.400 has occurred. 

Respondent's section foreman agreed that the inspector had correctly 

described some loose coal accumulations which existed in the No. 3 entry and 

adjacent crosscut (Tr. S64). Respondent's section foreman agreed that the 

accumulations had been caused by loose coal accumulating at the belt feeder 

before it was moved and by loose coal having been dragged off shuttle cars 

on which coal had been piled too high to pass under the low roof which 

existed inby the loading point (Tr. 569-570). The section foreman stated 

that he had observed the loose coal accumulations before the inspector 

arrived on the section and that he would have had them cleaned up by the 

continuous-mining machine when it completed cutting through the pillar from 

which it was extracting coal at the time the inspector arrived to examine 

conditions in the section (Tr. 564). The section foreman said that he would 

have had the loose coal cleaned up within a period of from 30 minutes to an 

42 
hour (Tr. 566). ·The section foreman said that he did not stop the 

continuous-mining machine and clean up the loose coal immediately after he 

observed the loose coal accumulations because they were engaged in retreat 

mining and he believed that interrupting the cutting process in a given 

pillar of coal during retreat mining subjected the miners to greater danger 

than allowing the loose coal accumulations to exist for a period of from 

1 to 2 hours (Tr. 566-567)~ 

Since Respondent's section foreman testified after the inspector had 

finished his testimony, there is nothing in the record to controvert the 

validity of the reason given by the section foreman for not having cleaned 

up the loose coal prior to the time that it was observed by the section 

foreman. On the other hand, it would appear that the section foreman could 

have examined his section for the existence of loose coal accumulations 

prior to commencement ~f mining operations. If he had done so, it appears 

that he could have used the mining machine to clean up the loose coal prior 

to initiation of cutting operations in a pillar of coal. The section foreman 

who testified at the hearing was the one who was present at the time the 

inspector's notice of violation was written. That section foreman had been 

on leave for the 2 days preceding the writing of the notice and it was during 

his absence from the mine that the belt conveyor had been moved. He was, 

therefore, not present at the time the loose coal accumulations were left 

after the belt was moved. He was, nevertheless, grossly negligent in failing 

to clean up the loose coal accumulations prior to the commencement of mining 

operations. The section foreman should have been notified by entries in the 

preshift book that the loose coal accumulations existed. If the preshift 

book did not record the existence of the accumulations, then Respondent's 

section foreman and preshift examiner on the previous shifts were grossly 

negligent for either not having cleaned up the accumulations or for not having made an entry about the accumulations ·in the preshift book. 

MSHA's brief (p. 10) recommends that a penalty of $2,000 be assessed 

for this violation of section 75.400. That appears to be a reasonable penalty when all of the criteria are considered. Although there were potential 

ignition hazards in the form of trailing cables to the shuttle cars, the 

actual danger of an explosion or fire was somewhat remote (Tr. 554). The 

inspector did not detect any trace of methane in the mine at the time he 

wrote the notice of violation (Tr. 547). The most methane the inspector 

had ever detected in the mine on any prior inspections was .2 of 1 percent 

and a bottle sample taken by the inspector revealed only .05 of 1 percent of 

methane (Tr. 547; 549). Consequently, the inspector himself said that an 

explosion was not likely to result from existence of the accumulations (Tr. 

554). 

As I have indicated above, the primary criterion which requires the 

assessment of a rather large penalty in this instance is that Respondent's 

supervisory personnel had known of the existence of the loose coal accumulations for a considerable time and had failed to clean them up. Considering that a large operator is involved, that there was a good faith effort 

to achieve rapjd compliance (Tr. 545), that the violation was moderately 

43 
serious. and that Respondent was grossly negligent. a penalty of $1,500 

should be assessed. Exhibit M-30 shows that Respondent has paid penalties 

for 52 prior violations of section 75.400 in its Open Fork No. 2 Mine. Two 

of the violations occurred in 1971, 12 in 1972 0 5 in 1973 0 9 in 1974, 3 in 

1975, 9 in 1976, and 12 in 1977. I find that the foreging statistics indicate that Respondent's Open Fork No. 2 Mine has a very unfavorable trend 

in its history of previous violations. The history is especially adverse 

in that Respondent had violated section 75.400 on 12 occasions during the 

9-1/2 months of 1977 preceding the writing of the instant violation on 

October 17, 1977. In such circumstances, the penalty of $1,500 should be 

increased by $500 to $2,000 under the criterion of history of previous 

violations. 

Summary of Assessments and Conclusions of Law 

(1) The motions for approval of settlement made with respect to MSHA's 

Petitions for Assessment of Civil Penalty filed in Docket Nos. NORT 78-366-P 

and NORT 78-368-P should be granted and the settlements should be approved 

for the reasons given in the firt part of this decision. 

(2) Pursuant to the settlement agreements, Respondent should be ordered 

to pay civil penalties totaling $5,750.00 which are allocated to the respective alleged violations as follows: 

Docket No. NORT 78-366-P 

Order No. 1 CAG (7-46) 9/6/77 § 75.400 ••••••••••••••••••••• 

Order No. 2 CAG (7-47) 9/19/77 § 75.301-4 •••••••••••••••••• 

Total Settlement Penalties in 

$ 2.000.00 

2,500.00 

Docket No. NORT 78-366-P•••••••••••••••••••••••••••• $ 4,500.00 

Docket No. NORT 78-368-P 

Notice No. 1 VH (7-28) 8/1/77 § 75.200 ••••••••••••••••••••• $ 1,250.00 

Total Settlement Penalties in 

Docket No. NORT 78-368-P•••••••••••••••••••••••••••• $ 1,250.00 

Total Settlement Penalties in This Proceeding ••••••••• $ 5,750.00 

(3) On th~ basis of all the evidence of record and the foregoing findings of fact, Respondent should be assessed the following civil penalties: 

Docket No. NORT 78-325-P 

Notice No. 1 WJT (6-85) 12/21/76 § 75.1403-10 •••••••••••••• $ 9,000.00 

Total Civil Penalties in 

Docket No. NORT 78-325-P•••••••••••••••••••••••••••• $ 9,000.00 

44 
Docket No. NORT 78-365-P 

Order No. 2 CAG (7-15) 1/31/77 § 75.400 •••••••••••••••••••• $ 8,000.00 

Total Civil Penalties in 

Docket No. NORT 78-365-P •••••••••••••••••••••••••••• $ 8,000.00 

Docket No. NORT 78-367-P 

Notice No. 1 KCK (7-95) 11/17/77 § 75.501-2(2) ••••••••••••• $ 2,000.00 

Total Civil Penalties in 

Docket No. NORT 78-367-P •••••••••••••••••••••••••••• $ 2,000.00 

Docket No. NORT 78-369-P 

Notice No. 2 KFO (7-115) 10/18/77 § 75.400 ••••••••••••••••• $ 2,000.00 

Total Civil Penalties in 

Docket No. NORT 78-369-P•••••••••••••••••••••••••••• $ 2,000.00 

Total Civil Penalties in Contested Cases in 

This Proceeding ••••••••••••••••••••••••••••••••••••• $21,000.00 

(4) MSHA's Petition for Assessment of Civil Penalty filed in Docket 

No. NORT 78-364-P should be dismissed for failure to prove that the violation 

of section 75.317 alleged in Notice No. 1 CAG (7-38) dated June 21, 1977, 

occurred. 

(5) Respondent, as the operator of the coal mines listed in the caption 

of this decision, is subject to the provisions of the Act and to the regulations promulgated thereunder. 

WHEREFORE, it is ordered: 

(A) The motions for approval of settlement described in paragraph (1) 

above are granted and the settlement agreements are approved. 

(B) Respondent, within 30 days from the date of this decision, shall 

pay civil penatlies totaling $26,750.00 af which $5,750.00 are assessed 

pursuant to the parties' settlement agreements described in paragraph (2) 

above and $21,000.00 are assessed pursuant to my decision on the contested 

issues as summarized in paragraph (3) above. 

(C) MSHA's Petition for Assessment of Civil Penalty filed in Docket 

No. NORT 78-364-P is dismissed for the reason given in paragraph (4) above. 

~e9t~l:tifht-- Administrative Law Judge 

45 
Distributioni 

John H. O'Donnell, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

Gary W. Callahan, Esq., Attorney for Clinchfield Coal Company, 

Lebanon, VA 24266 (Certified Mail) 

46 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

Petitioner 

v. 

UNITED STATES STEEL CORP., 

GARY DISTRICT, 

Respondent 

JAN 1 5 1980 

Civil Penalty Proceeding 

Docket No. WEVA 79-304 

AC No. 46-01417-03014V 

No. 14, No. 3 Seam Portal 

DECISION GRANTING MOTION TO DISMISS 

On November 22, 1978, Petitioner issued Order No. 253998 to Respondent, 

under section 104(d) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. section 801 et~· citing a violation of 30 CFR 75.200, a 

mandatory safety standard. Respondent filed an application for review of 

the order. A hearing on the merits was held and ,on September 19, 1979, a 

decision was issued by Judge Stewart in United States Steel Corporation, 

Docket No. HOPE 79-152 (September 19, 1979). In vacating the order of 

withdrawal, he found that "Applicant did not violate its roof control 

plan or section 75.200 as alleged in Order No. 253998." 

On September 4, 1979, Petitioner filed a petition for assessment of 

civil penalties for the roof control violation as alleged in Order No. 

253998. Respondent filed an answer denying the violation and moved to 

dismiss the petition based on the decision of Judge Stewart in HOPE 79-

152. 

I find that Judge Stewart's decision in HOPE 79-152 is res adjudicata 

as to the issue of a violation in this proceeding. ~ 

WHEREFORE IT IS ORDERED that the Respondent's motion to dismiss is 

GRANTED and the petition for assessment of civil penalties is DISMISSED. 

-tr)~ ~VeA.- WILLIAM FAUVER, JUDGE 

Distribution Certified Mail: 

Louise Q. Symons, Esq., 600 Grant St., Rm. 6044, Pittsburgh, PA 

15230 

Sidney Salkin, Esq., Office of the Solicitor, US Department of 

Labor, Rm. 14480 Gateway Building, 3535 Market St., Philadelphia, 

PA 19104 

47 
FED5RAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW juoGES . 

SECRETARY OF LABOR, 

Petitioner 

v. 

MARBLEHEAD LIME COMPANY 

Respondent 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN f 5 1980. 

Civil Penalty Proceeding 

Docket No. PENN 79-36-M 

AC No. 36-00238-05008F 

Pleasant Gap Mill 

DECISION AND ORDER APPROVING SETTLEMENT 

On December 26, 1979, the Solicitor filed a motion for decision 

and order approving settlement of this case. This case involves one 

charge of violation of safety and health standards initially assessed by 

MSHA for $7000.00. The parties requested approval of a settlement as 

follows: 

Citation No. 303938 alleged a violation of 30 CFR 57.14-20 (failure 

to block machinery against motion while performing repairs or maintenance). 

The parties moved for approval of a settlement in the amount of $3600.00 

whereas the initial assessment was for $7000.00. In support of the motion 

it is stated that "The operator's negligence was over assessed." Although 

this citation resulted from a fatal accident where a repairman mechanic 

was crushed against a work bench by a front end loader, the operator 

"believed that motion was necessary to make adjustments during the 

installation of axles" and "This procedure was also used at the repair 

facilities of several other area companies." 

Having duly considered the matter, I conclude that the recommended 

settlement is consistent with the purposes and policy of the Act. The 

recommended settlement is, therefore, approved. 

Accordingly, it is ORDERED that the motion for decision and order 

approving settlement is GRANTED.· It is FURTHER ORDERED that the operator 

pay $3600.00 and that subject to such payment the petition be DISMISSED. 

Distribution Certified Mail: 

James H. Swain, Esq., US Department of Labor, Office of the Solicitor, 

Rm 14480 Gateway Bldg., 3535 Market St., Philadelphia, PA 19104 

Harry M. Coven, Esq., 300 West Washington St., Suite 1500, Chicago, 

IL 60606 

48 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520.~LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

J,_N 2 2 1980 

CONSOLIDATION COAL COMPANY, 

Applicant 

Application for Review 

v. Docket No. MORG 79-109 

SECRETARY OF LABOR, Order No. 814153 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Dated: February 26, 1979 

Respondent Four States No. 20 Mine 

UNITED MINE WORKERS OF AMERCIA 

(UMWA), 

Appearances: 

Before: 

Respondent 

DECISION 

Karl T. Skrypak, Esq., Pittsburgh, Pennsylvania, for the 

applicant; 

Leo J. McGinn, Trial Attorney, U.S. Department of Labor, 

Arlington, Virginia, for respondent MSHA; 

Joyce A. Hanula, Legal Assistant, Washington, D.c., for 

respondent UMWA. 

Judge Koutras 

Statement of the Proceeding 

This is an action filed by the applicant on March 8, 1979, pursuant 

to section 107(a)(l) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 817(e)(l), seeking review of an imminent danger closure order 

issued by MSHA inspectors Ra:}rmond L. Ash and Frank D. Bowers on February 26, 

1979, pursuant to section 107(a) of the Act. Withdrawal Order No. 814153, 

described the following condition or practice which the inspectors believed 

constituted an imminent danger warranting closure of the entire mine and · 

the withdrawal of miners: 

An order of withdrawal is issued to withdraw all miners 

from the inside of the Consol No. 20 mine and miners on the 

surface at the Four States Preparation Plant to insure their 

safety due to the danger of the fresh water dam giving way. 

The fresh water dam is used for the Four States Community 

49 
water. Water is being discharged from the dam with 2 Ford 

tractors, discharging into (2) 10" inch lines, approximately 

1000 gallons per minute, approximately half-way over the 

embankment and the water pressure from these 10" lines are 

eating away at the embankment and toe of the dam to a depth 

of approximately 6 to 7 feet. This order is issued through 

no fault of the company. Also, other signs of instability 

exists along the face and toe of this, such as piping and 

etc. 

In its review petition, applicant asserted that the order was improperly and unlawfully issued because: 

1. The description of the conditions and practices in the order is 

inaccurate, no violation of section 3(j) of the 1977 Act occurred as 

alleged, and that there did not exist in the Four States No. 20 Mine 

at the time in question any conditions or practices constituting an 

"imminent danger" within the meaning of section 107(a) of the Act. 

2. The order is invalid since the Mine Safety and Health Administration (MSHA) did not have the authority, capacity, power or right to act in 

the subject situation. MSHA lacked jurisdiction in the matter since the dam 

was not owned, operated or controlled by the applicant, and it was not used 

in, to be used in or resulting from the coal mining operations at the Four 

States No. 20 Mine. An engineering study relating the volume of water in 

the dam to the elevation of the mine shaft indicates that it would have been 

physically impossible (in the event of a dam failure) for the resulting 

water flow to reach the site of the mine shaft. 

3. The order falsely implies that the breastwork of the dam was purely 

earthen when same was in fact concrete and steel at the face banked with 

earth and covered with trees and vegetation. Therefore, "no danger" existed 

and the likelihood of the dam breaking was certainly not "imminent." 

Respondents filed timely answers to the review petition and asserted 

that the imminent danger order was properly issued and should be affirmed. 

A hearing was held in Morgantown, West Virginia, on July 31 and August 1, 

1979, and the parties appeared and participated fully therein. Posthearing 

proposed findings, conclusions, and supporting briefs have been filed by all 

parties and the arguments presented have been carefully and fully considered 

by me in this course of this decision. 

Applicable Statutory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. 

2. 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 

50 
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 loriger 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. 

3. Section 3(j) of the Act (30 U.S.C. § 802(j)) provides that the term 

"imminent danger" means: "[T]he 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; 

* * *·" 

Issues 

1. Whether the conditions cited and described by the inspectors presented an imminent danger warranting the issuance of a closure order pursuant to section 107 of the Act. 

2. Whether MSHA exceeded its jurisdiction by issuing an imminent 

danger closure order and requiring the withdrawal of miners based on an 

asserted imminent danger which purportedly did not exist in the mine or 

on mine property. 

3. Additional issues raised by the parties are identified and discussed in the course of this decision. 

Background of the Controversy 

Aside from the question of jurisdiction and whether an imminent danger 

did in fact exist, the essential facts surrounding the issuance of the imminent danger order in question do not ·appear to be in dispute. The events 

leading up to the issuance of the order began on the evening of February 26, 

1979, when MSHA's subdistrict office received a telephone call through 

MSHA's chain of command concerning a "hotline" telephone call received by 

MSHA's Arlington, Virginia, headquarters reporting that someone was discharging water from a dam in the municipality of Four States, West Virginia. 

The dam in question is known as the Four States Dam, and it is owned and 

operated by the Four States Public Service District and is used as a water 

supply for the residents of the community of· Four States. The dam is not 

owned or controlled by the applicant and it is not located on mine property. 

It was originally constructed in the early 1900's and is located in a remote 

rural area, approximately 1,600 feet from the mine property beginning at 

a parking lot, and approximately one-half mile northeast of the town of 

51 
Four States on an unnamed tributary of Tevebaugh Creek of the West Fork 

River of the Monongahela River. The physical characteristics and type of 

construction for the dam are detailed in a study compiled in February 1979, 

by the West Virginia Department of Natural Resources under guidelines provided by the United States Corps of Engineers pursuant to the National Dam 

Inspection Act, P.L. 92-367, August 2, 1972. A copy of the study is a part 

of the record and was supplied to all of the parties and to me for the purpose of familiarizing the parties with the physical characteristics and 

problems concerning the dam as perceived by those entities who compiled the 

report and for the purpose of posthearing arguments (Tr. 259-260). Since 

the report was mentioned and referred to on several occasions during the 

course of the hearing, it was received by me over objections by applicant's 

counsel as to its probative value. 

In general, the dam in question is approximately 29 feet high and 

255 feet wide, and it consists of an arched concrete, brick, and concrete 

block cantilever retaining wall with an earthen embankment consisting of 

trees, soil, and extensive and dense vegetation and brush. The embankment 

was described as a slope varying from 25 to 35 degrees to the downstream 

side, and the surface water area was desc~ibed as encompassing some 

3.7 acres and extending some 800 feet. At normal height, the volume of 

water impounded by the structure was described as approximately 45-acre 

feet, although the actual volume of water retained by the dam has apparently 

never been precisely computed. In addition to the Corps of Engineers study, 

the record compiled in this proceeding includes maps, surveys, descriptions, 

sketches and pictorial slides which detail the physical exterior and engineering construction specifications for the dam. In addition, for the purpose of familiarizing me and the parties with the general topography and 

geography of the dam and surrounding terrain, including its proximity to the 

mine which is located downstream, a visit was made to the dam site and the 

mine at the conclusion of the hearing and those in attendance included 

counsel for all parties as well as MSHA's inspectors and others who testified at the hearing. 

Upon arriving at the dam site at approximately 7:30 p.m., on 

February 26, 1979, a dark, cold, and snowy evening, MSHA inspectors Ash and 

Bowers observed two tractors parked at the side of the dam pumphouse. The 

tractors were supplying power to two pumps which were pumping water from the 

dam through two 10-inch lines. One line was extended part way down the 

earthen side of the dam structure, and the second line was located below the 

first one, and both lines were discharging water from the dam down the 

earthern embankment. No one was tending the pumps and no one was in the 

area. The inspectors observed and believed that the water being pumped from 

the dam resulted in the washing away of a large gulley or culvert, and the 

depth of the this wash-out was approximately in excess of some 5 feet. 

After this initial observation, the inspectors traversed across the dam and 

observed what was described as fresh water.coming out of the ground in 

several locations on the earthern side of the structure, and moving water 

which was swirling about in different directions at the bottom or toe of the 

earthern side of the dam. They believed that these conditions had resulted 

52 
from water seepage from the inside or water impoundment side of the dam 

through the concrete structure. They estimated the water level in the dam 

at that time as approximately 2 or 3 feet below the top of the dam. They 

then proceeded back to the gulley area created by the pumping water and at 

that time estimated it to be some 7 to 8 feet in depth and much longer than 

initially observed. At that point in time, they decided that the continuing 

erosion of the portion of the earthern structure where the water was being 

pumped created a potential for collapse of the dam, thereby creating an 

imminent danger to the miners working at the mine located downstream at the 

mouth of a hollow extending from the dam to the mine property. The inspectors then drove to the mine and advised the mine superintendent by telephone 

that a section 107(a) closure order would be issued until such time as the 

pumping of the water from the dam was stopped or the lines extended at the 

face of the dam, and the written order was issued at 8:30 p.m. A prior incident involving the dam occurred in December 1978, when state and local 

authorities, concerned about the possible collapse of the dam after a heavy 

rainfall, ordered the evacuation of the inhabitants downstream, including 

miners from the Four States No. 20 Mine. 

After the closure order was issued and the miners withdrawn, the 

inspectors returned to the dam to await the arrival of an MSHA engineer. 

The only person in the area at this time was a civil defense representative 

who was apparently in charge of the pumping of the water from the dam, and 

it was later determined that the pumping was done at the recommenqation of 

the Corps of Engineers in order to prevent the water from reaching the spillway level of the dam. Upon arrival of the engineer, he and the inspectors 

again inspected the dam, and the engineer concurred in the--~nspectors' 

assessment that the pumping of the water from the dam onto the earthern face 

of the structure had caused the erosion creating the gulley, and coupled 

with leakage from the structure, could lead to a collapse of the dam if 

the pumping were to continue unabated. 

After the cessation of the pumping of the water, the order of withdrawal was terminated at 11:45 a.m., on February 27, 1979, and the termination order states as follows: "Pumping of water on the earthern breastwork 

of the Four States water dam has been discontinued, therefore, there is no 

longer erosion of the breastwork and it is now in a more stable condition." 

Following the termination of the order, MSHA engineers engaged in a 

study to determine in future incidents, what the precise effects would be 

downstream should the dam fail. Based on this study, it was determined 

that in the event of a partial or full collapse of the dam structure, a wall 

of water ranging from 5 to 8 feet in depth would reach parts of the mine 

property, including the railroad yards and some of the surface area of the 

preparation plant, but not the mine shafts or the preparation plant building 

itself. 

Testimony and Evidence Adduced by MSHA 

MSHA inspector Raymond Ash, testified that on February 26, 1979, he 

received a telephone call from the MSHA office in Arlington about a water 

53 
problem at the Four States Fresh Water Reservoir and in response to the 

call, he and fellow inspector Frank Bowers went to the dam and arrived at 

7:30 p.m. Mr. Ash observed two tractor pumps discharging water through two 

10-inch rubber lines in an uncontrolled manner on the earthern part of the 

dam. The first rubber line, located near the toe of the dam, was washing 

away the earthen breastwork of the dam. The second rubber line, located 

over the embankment, was not causing any damage to. the dam (Tr. 19-23). 

When he walked along the dam embankment, he found the ground icy, slushy, 

and spongy, and when he inserted a 3-foot long tree limb and a 

five-eighths-inch steel bolt rod into the embankment, they disappeared. He 

found muddy cavities in the breastwork of the dam, including gully erosion. 

The gully was about 8 feet deep and 60 feet long, and the water was about 

3 feet below the top of the dam and the spillway was not being used. When 

he walked to the other side of the dam, he saw more cavities in the earth 

breastwork, and water was bubbling in the center of the earth breastwork 

as well as out of the ground against the stone face of the dam. The water 

was traveling down the hill, and the presence of running water, including 

the gully erosion, frightened him. The presence of running water coming 

through the earth breastwork, led him to believe that the pumping had caused 

the stone wall of the dam to fail, and a trench created by the pumping provided a place for Elie whole side of the earth dam to slide. Water, clay 

and stones were swirling at the toe·of the dam. After making all of these 

observations, it was his judgment that the stability of the dam was so bad 

that there was a real danger of the dam "coming out." He discussed the 

situation with Mr. Bowers, and while they concluded that MSHA did not have 

jurisdiction over the dam, they believed that something had to be done and 

they wanted someone at the mine to help take care of the problem (Tr. 23-

31). 

Mr. Ash testified that the mine property was 500 to 600 feet below the 

dam and while traveling to the mine he saw 6 inches of muddy water running 

over the road, and he believed that the muddy water came from the dam. 

Upon arriving at the mine he talked to superintendent Eugene Jordan by telephone about the situation, and Mr. Jordan advised him that the company had 

nothing to do with the dam. After attempting to issue a verbal withdrawal 

order at 8:15 p.m., which Mr. Jordan would not accept, it was issued in 

writing and served on the company at 8:30 p.m. At that time he also telephoned the assistant district manager, the state police, and the U.S. Army 

Corp of Engineers about the dam conditions (Tr. 34). After the withdrawal 

order was served, he and Mr. Bowers went back to the dam to wait for 

Frank R. Watkins, MSHA's water impoundment engineer. 

Mr. Ash defined an imminent danger as "it is a condition or practice 

that if it is allowed to continue and the operation goes on as normal, and 

this condition or practice is allowed to continue, someone will get seriously hurt or killed" (Tr. 36). The dam is 300 feet wide, 1,000 feet long, 

with a face of some 30 feet, and it had a prior water overflow problem. The 

uncontrolled pumping and wash-out led Mr. Ash to believe that if he had not 

issued the withdrawal order the continued pumping would have caused the 

right side of the portion of the dam upstream to erode that it would have 

54 
lost its earth face and stone wall at the same time. Fifty to 60 miners, 

as well as the recreational hall downstream could be in danger from flooding 

(Tr. 36-42). 

On cross-examination, Mr. Ash testified that his training in water 

impoundments consists of a 5-day MSHA training program dealing with the 

recognition of dangerous conoitions rather than water volume calculations 

and structure analysis and he has no such training (Tr. 42-43). On the 

evening in question it was dark and the only lighting available was his cap 

lamp (Tr. 44). If the dam had broken, the water may have reached mine property, and at the time the order issued he thought it would reach the portal 

(Tr. 54). When he arrived at the mine, he did talk to certain mine supervisors about the condition of the dam, but he did not inspect the mine completely to determine the extent of the imminent danger, nor did he remain 

to insure that all miners were in fact withdrawn and this was because he is 

not required to. He denied that he had given his consent to anyone to 

remain in the mine (Tr. 54). 

On redirect, Mr. Ash reiterated that he observed a steady stream of 

water at the top of the earthen portion of the dam and it was starting to 

flow down the face of the bank with enough force to carry sediment away very 

quickly. It was his opinion that the water resulted from a break somewhere 

in the stone-faced dam because the water flow was more than mere seepage. 

When asked why he believed the water from the dam would reach the mine in 

the event of a collapse, he answered as follows (Tr. 59-60): 

Q. When you related about the collapse of the dam to 

the danger on mine property, did you have any basis for a 

judgment as to whether or not there was enough capacity here 

to affect or involve the mine property? 

A. I actually thought there was enough water that it 

would go down both shafts there. It would probably knock 

the power off at the Four States and go down at least two 

shafts, the coal shaft and the shaft that the men who worked 

near that bottom came down. 

Q. What was the basis for this judgment? 

A. I have seen water. I have seen water running in 

shafts before. 

Q. But from this dam related to the mine, what made you 

think that th1s dam was large enough in capacity to possibly 

have this happen? 

A. I had no firm basis for my opinion, nothing; 

engineering, no firm basis, or anything. To me, the dam was 

large enough. There was a large volume of water, and I 

couldn't see how it could go down that hollow without getting 

into that shaft. 

55 
Later on, it is easy to look- at it and think but then, 

it is a snowy night; it is cold, and the wind is blowing. 

There was rain; there was water; there was mud all over the 

face of that dam. To me, we did the proper thing. 

Mr. Ash further stated that he could not determine how the tractors 

got to the dam site, nor could he find out who was operating them. His 

attempts to ascertain these facts by telephone were fruitless since no one 

wanted anything to do with the dam. He believed that when he issued his 

order there was a definite potential danger of risk to the miners in the 

mine (Tr. 61). 

In response to questions from the bench, Mr. Ash explained the basis on 

which he issued his imminent danger order as follows (Tr. 68-70): 

JUDGE KOUTRAS: Assuming that that dam had been two and 

one-half to three feet below the level of the crest, and 

assuming that they had no pumps there, would you have done 

anything that night? There wouldn't have been any cause for 

anybody to go there, would there? 

THE WITNESS: No, there wouldn't have. 

JUDGE KOUTRAS: Your concern was the manner in which 

this water was being pumped out of this dam that was causing 

some erosion? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: So am I to assume then that the principal 

cause of the apparent imminent danger, or what you thought was 

imminent danger, was caused by the manner in which this water 

was being pumped out of the dam? 

JUDGE KOUTRAS: So the rushing water that you were concerned about was the water that was being pumped out of the 

dam with these ten-inch. lines? 

down? 

THE WITNESS: Yes, sir. 

JUDGE KOUTRAS: Which was causing a little erosion here? 

THE WITNESS: In my ~pinion, it was more than a little. 

JUDGE KOUTRAS: It was causing a gully of water to rush 

THE WITNESS: Yes, sir. 

56 
JUDGE KOUTRAS: Theoretically if they pumped all of the 

water out of the dam, it would inundate the mine at some 

point in time, wouldn't it? 

1HE WITNESS: No, because it would come out gradual. 

JUDGE KOUTRAS: The reason that you decided to withdraw 

the miners was because that you thought this pumping of the 

water was done in such a manner that eventually --

THE WITNESS: This pumping was done in such a manner 

that this gully, the erosion gully, would come down here and 

give this bank, which is nothing but mud, spongey mud_, a 

place to slide and let the whole dam go. 

JUDGE KOUTRAS: If that spongey mud slid, what would 

happen to the stone wall and the cement behind it and all of 

that? Would that come down, too, in your mind? 

THE WITNESS: Yes, it would have. 

And, in response to questions by Applicant's attorney (Tr. 77): 

Q. Mr. Ash, isn't it true that if the people who were 

pumping this dam had extended those hoses below the dam, they 

could have pumped out the entire volume of water in that dam, 

and it would not have bothered that mine whatsoever; isn't 

that true? 

A. Yes, sir. 

Q. The real imminent danger that you were fearful of is 

the actual bursting of that dam and the wall of water coming 

down that valley; is that correct? 

A. Yes, sir. 

MSHA Inspector Frank D. Bowers testified that he has been a coal mine 

inspector for approximately 9 years but that his experience and training on 

dams and impoundments was the same as that,of Mr. Ash. He accompanied 

Mr. Ash on the evening of February 26, during the inspection of the dam, and 

after listening to his testimony he indicated substantial agreement with it. 

The discharging of the water over the dam and onto the earthern embankment 

by pumping was eating away at the embankment, and this in turn would weaken 

the stone or brick dam wall behind the embankment. He has seen training 

films which depicted water seeping through an.embankment from a crack, and 

he indicated that once started it will eventually eat away the dirt and then 

give way. Aside from the gulley of water, the other water they observed was 

from seepage through the dam. Since he had no authority to order the pumps 

shut down and could do nothing about the dam, his only recourse was to "pull 

57 
the men out of the mine for their safety." He believed an imminent danger 

existed and he defined "imminent danger" as "an event which could be reasonably expected to cause serious harm or death before such condition or practice can be abated" (Tr. 82-85). 

On cross-examination, Mr. Bowers reiterated that his dam and impoundment training consisted of a 1-week training class which consisted primarily 

of viewing slides, films, and classwork. In the event he observes an 

impoundment condition which does not appear normal or is not an imminent 

danger, his practice is to call on Mr. Watkins for assistance. Mr. Bowers 

agreed that he had no jurisdiction over the dam itself. He believed the mine 

property was approximately 500 to 600 feet down the hollow from the dam, but · 

also agreed that the distance could be 1,600 feet (Tr. 87). There was vegetation on the earthern breastwork structure of the dam and some of it was 

as high as 20 feet. He had not previously inspected the dam and has not 

inspected it since the order was issued (Tr. 88). With regard to the 

existence of an imminent danger outside of mine property, Mr. Bowers testified as follows (Tr. 89-90): 

Q. Is it your opinion that an imminent danger condition 

can exist outside of mine property? 

A. At this particular time, yes. 

Q. And you would agree that this condition was outside 

of the mine property? 

A. Yes. 

MR. SKRYPAK: I have nothing further. 

BY MR. McGINN: 

Q. Mr. Bowers, what area was closed as being in 

imminent danger under the order? 

A. The entire mine, the inside and outs.ide surface 

facility. 

Q. So the imminent danger consisted of the area of 

the mine? 

A. Yes. 

Q. When you say that the imminent danger was outside, 

did you mean --

A. As far as the dam giving way, which was not, as far 

as we knew, on mine property. 

58 
Q. So the cause of the imminent danger, is that correct? 

A. Yes. 

Q. Was upstream? 

A. Right. 

Q. But the closure order was issued --

A. It was on the mine property itself. 

Q. That is where the danger existed; is that correct? 

A. That is right. 

JUDGE KOUTRAS: That is a play on words, too. It is 

clear to me that both inspectors believed that the cause of 

the imminent danger was something that was off mine property, 

but they were concerned that if they did not withdraw those 

miners, the imminent danger would get on mine property; the 

water would get down. Isn't that what their testimony is? 

MR. McGINN: Yes. I have nothing further. 

In response to questions from the bench, Inspector Bowers testified 

that the water from the. dam was coming down the hollow, and while it did 

not reach mine property at that time, it did reach the roadway paralleling 

the hollow. His concern was that the pumping of the water over the earthen 

breast of the dam would eventually weaken the dam wall, and while he did 

not know how long this process would take, he stated, "By all indications, 

it looked to me like it wouldn't take long" (Tr. 93). Mr. Bowers also 

stated that Consolidation Coal was not in violation of any regulations, and 

that while he had no jurisdiction to check out the dam, the only thing he 

had to work with was section 107(a). As far as he knows, no MSHA inspector 

has been back to the dam to inspect it again. Assuming there were another 

rainfall, he would not go back to inspect the dam unless he were asked to 

because he has no authority over the structure. 

MSHA supervisory engineer Frank R. Watkins, testified that he is in 

charge of waste banks and impoundments and that he previously worked for the 

Federal Power Commission, Bureau of Power. His prior experience includes 

the writing of engineering reports along with Commission license orders for 

hydraulic and power generation dams on navigable waterways operated by 

private parties. He also conducts engineering studies on the construction 

and maintenance of water impoundments, refuse piles, shaft construction, and 

ground control for strip mines (Tr. 98). He visited the dam site in question after receiving a telephone call from Merle Manus, MSHA Assistant 

District Manager, and after arriving at the Four States Water Reservoir at 

9:30 p.m., he spoke with the MSHA inspectors, a safety committeeman, the 

59 
dam pump operator, and a Civil Defense representative. He walked across the 

dam to the spillway, and observed that water was not going through the spillway. There was 2-1/2 to 3 feet of freeboard between the top of the dam and 

the water level. There were two areas that were leaking through the dam 

structure. The first leak was located in the middle'which was free-moving, 

and the second leak was located to the right which was a slow leak. In 

addition to water, he observed an 8-foot gully nea.r the water. pumps. After 

observing the 8-foot gully, he observed an "old hole" which appeared to be 

the place where the water was coming from and it was located at the center 

of the dam 3 feet from.the top. The water was coming straight through the 

dam itself and exiting downstream. 

Mr. Watkins stated that the area from where the water was exiting indicated to him that the dam had a high "phreatic line" which is a line indicating the water level within the dam, and it is a critical sign of 

instability. The higher the level of the phreatic line, the lower the level 

of stability of the dam (Tr. 100-105). When he arrived at the water pump 

location, he observed two 10-inch pump lines, one above the other, discharging water, and the lines were washing away the earth part of the dam's 

structure. A gully and channel were being created by these water lines. 

The gully was 8 feet deep, 6 feet wide and 18 feet long, with a 32-degree 

slope. It was his opinion that the sloped gully hole was a significant 

factor in causing the dam to be unstable (Tr. 107). He also observed a 

soft sink hole where he could push anything into it and the object would 

completely disappear. The sink hole was a sign that the dam was heavily 

saturated with serious voids in its structure. In addition to the pumping 

of the water, the existence of vegetation was a factor in causing the dam 

to be unsafe in that when the trees die, their roots leave holes where water 

can enter the earth embankment, thus carrying particles that create larger 

holes and erosion which can create a pumping type of failure. In his 

opinion, the water was flowing through the earthen part of the dam, the 

dam was capable of collapsing, and, the water in the dam was capable of 

flooding the mine (Tr. 109-110). 

On cross-examination, Mr. Watkins, testified that his conclusions were 

based on visual observations rather than engineering tests. He testified 

that he did not compute the water volume and depth, and he believed that 

the water that flowed at the bottom of the dam was due to seepage rather 

than runoff (Tr. 112-115). Although MSHA did not conduct a stability 

analysis on the dam, he believed that the concrete-stone abutment could 

have retained the water even if the earth breastwork had washed away (Tr. 

116-119). 

On redirect examination, Mr. Watkins testified it is likely that the 

remaining concrete-stone impoundment would fail if the earth embankment had 

washed away (Tr. 120). The washing away of the downstream face of the dam 

by two 10-inch lines was the primary reason fo~ the issuance of the imminent 

danger order. When the pumping stopped it was his opinion that the imminent 

danger had ceased. The water content of the dam is 29 feet, and the volume 

of water is 51 acre-feet. Based on the 51 acre-feet, the water level would 

60 
reach the mine. property if the dam collapsed, but there is no data or estimates available that would change his opinion about water flooding the mine 

property (Tr. 129-130). 

On recross-examination, Mr. Watkins testified that the concrete stone 

structure behind the earth structure may have withstood the water pressure, 

and if there was an instantaneous collapse, the water would reach the mine 

preparation plant but not the mine shafts (Tr. 131-133). 

-Mr. Watkins testified that if the water impoundment was located on mine 

property, it would fall under the Federal jurisdiction of the Secretary of 

labor, and would be within the purview of Part 77 dealing with water impoundment regulations (Tr. 133). The reason the dam does not fall under the 

Part 77 water impoundment regulations is that it is not owned by 

Consolidation. If the dam is not covered by Part 77 regulations, the Secretary has no jurisdiction to act, and MSHA does not have any jurisdiction 

over the dam structure (Tr. 134). However, when the dam endangers miners, 

withdrawal orders are issued notwithstanding the fact that other agencies 

may have direct jurisdiction and control over the dam (Tr. 137). 

Inspector Ash was recalled and testified that with regard to the previous December incident concerning the possibility of the dam collapsing, 

MSHA assigned an inspector to make a routine inspection for the purpose of 

determining whether Consolidation had withdrawn the miners from the mine• 

It was reported that miners were withdrawn and several unidentified agencies 

were at the dam site. Since MSHA had no jurisdiction, he advised the inspector not to get involved. Mr. Ash confirmed that miners were voluntarily 

withdrawn without any orders being issued by MSHA, and had they not been 

withdrawn, a withdrawal order would probably have been issued by MSHA (Tr. 

138-140). 

MSHA mining engineer Edwin Brady, testified that he is a graduate of 

the University of West Virginia and since 1976 has specialized in waste 

impoundments and water hydraulics. Specifically, he has served MSHA in 

an engineering capacity reviewing impoundment designs and dam projects to 

determine whether they comply with the regulations (Tr. 141). On 

February 27, 1979, he and Mr. Watkins inspected the Four States Water 

Reservoir. He arrived there at 8:30 a.m., and walked up and down the dam, 

including the area downstream. In measuring the dimensions of the dam, he 

found that it was 255 feet wide, 800 feet long, 29 feet high, with a slope 

angle of 27 degrees. He took 14 photographs of the dam and described them 

by means of a slide projector (Exhs. 1-14, Tr. 146). He conducted two 

studies of the dam to determine the effects of a dam collapse, and based 

on a UD-16 soil conservation service field mechanical method, it was determined that if there was a 50-foot breach in the dam, the water elevation 

level on the average would approximately come to 1,040 feet and would reach 

the mine railroad yard and a small area beyond that; but, below the buildings 

and.shafts (Tr. 147). Using the UD-16 method,. the depth of the water reaching the railroad yard could not be determined because of a lack of data con- · 

cerning the el,evation of the mine property (Tr. 148). However, in his 

61 
opinion, if there was a complete collapse of the dam, the water level would 

be at an 8-foot level at the railroad yard area, and this opinion is based 

on the fact that the distance between the dam and Mine property is 

1,600 feet and the elevation in the railroad yard is 1,032 feet (Tr. 148-

149). 

On cross-examination, Mr. Brady testified that no one, including MSHA, 

has yet determined the actual depth of the reservoir, and his calculations 

are based on information submitted by another governmental agency. He did 

not use any other engineering methods to determine the depth of the dam, but 

hand instruments were used to compute calculations on the dam and these 

were compared with the other data supplied to him (Tr. 152). Based on his 

observations at the dam, he did not believe that an instantaneous break 

would occur, but that a partial failure would occur. The "worst thing" tha.t 

could have occurred was an instantaneous, rather than partial break, and 

in this event his calculations indicated that there would have been 8 feet 

of water at the mine property on the railroad track, and with a partial 

breach, there would have been 6 feet at that location. With an instantaneous 

breach, the water itself would never have reached the mine shafts or preparation plant, but would have reached the upper portions of the railroad track 

as shown on the topographical map (Exh. G-4). Based on the elevations and 

topography as depicted on the map, the primary flow of water from the dam 

in the event of a break would be out to the left rather than directly at 

the mine shaft and preparation plant, and his visual observations upon 

visiting the dam site confirmed this fact. 

Mr. Brady stated that based ori his after-the-fact calculations, he 

would have withdrawn men from the lower part of the railroad yard which 

is associated with the.car-dropping process, but he would not have withdrawn them from the preparation building itself or from the underground 

mining facilities. In his view, the only persons in possible danger were 

those who may have been located in the railroad track area below the actual 

preparation plant in an area depicted within contour line 1,040 as shown 

on the map (Tr. 152-158). 

In response to UMWA questions, Mr. Brady stated that based on his study 

of the situation, if the dam totally collapsed and the water came down the 

hollow, it would not reach the mine portal. Under certain conditions, the 

recreation center building located down the middle of the hollow could 

possibly determine the flow of water, but this would be hard to define 

(Tr. 160). 

Testimony and Evidence Adduced by the UMWA 

Betty Garrett, Chairperson of' the Four States Public Service District, 

testified that her agency did not exercise any legal authority over the dam, 

including the water pump system, when Withdrawal Order No. 0814153 was 

issued on February 26, 1979 (Tr. 163). When her agency obtained ownership 

of the dam in May 1979, she became involved in attempting to resolve the 

matter when no one wanted to do anything about the imminent threat. The 

62 
State Department.of Natural Resources and the U.S. Corps of Engineers would 

take no action other than to conduct dam studies. Her attempts at locating 

the dam owners came aboutasaresult of the fact that Federal funds to aid 

in a dam stability analysis, or to effect repairs, which has still not been 

done, are only available if the dam is not privately owned. Prior to her 

agency's involvement, the previous owners were the Rochester & Pittsburgh 

Coal Company and a Mr. Daniel Hall, who was the operator of the water system, 

and those are the entities from whom her agency ob~ained the deed to the 

dam. 

She was at the dam at approximately 5 p.m., on the day MSHA's order 

issued and she wondered why no one was there watching the pumps since she 

was concerned that school children ride in and out of the area on a school 

bus. She has never determined who started the pumps which were pumping the 

water. She telephoned a.Mr. Gene Straight at the Fairmont Civil Defense 

Office and he did not know who started the pumps, but Mr. Daniel Hall came 

to the dam the same evening and turned them off. Mr. Hall denied starting 

the pumps and tol4 her there was nothing he could do since he did not start 

them. 

Mrs. Garrett testified further that she hopes the dam will be repaired 

and she is still attempting to get someone to conduct a stability study. In 

the meantime, pumping will again be done when the water level rises, and 

this will be monitored by her agency and the State Department of Natural 

Resources. She was told that the water level must be maintained 2 feet 

below the spillway level. In the event the water level rises again, her 

agency will notify the.Department of Energy as well as the people downstream, including the mine itself. The dam is the only source of local 

water supply (Tr. 163-166). 

On cross-examination, Mrs. Garrett stated that the tractors which were 

pumping water are controlled by the Civil Defense Off ice but owned by the 

State Department of Highways. The orders to keep the water level 2 feet 

below the spillway came from a report made by the Department of Natural 

·Resources and the U.S. Corps of Engineers. Those reports reflect that the 

dam is "a high hazardous potential structure, introducing imminent threat 

to the people below the dam" (Tr. 168). Her agency now owns the land that 

the water is on and the water and waterworks, but the Four States Community 

has been using the water as their water source since 1911 (Tr. 168, 172). 

However, she also later indicated that Four States has been using the water 

at the dam as~ source of their water supply since 1946 or 1948 (Tr. 173). 

Mrs. Garrett related her attempts to ascertain the owner or .owners of 

the dam through the search of tax and deed records at the local courthouse. 

She believed that the last owner was the R & P Coal Company, but since 

Consolidation Coal paid taxes for land in Four States she also assumed that 

Consol owned it, but she confirmed that the deed came from R & P, and that 

at the time of the prior dam problems last December, R & P owned it, but 

Four States was buying the water from Mr. Hall, who in turn had leased the 

water rights from R & P. She entered into negotiations on behalf of her 

63 
agency to purchase the dam from R & P, and this occurred on May 22, 1979 

(Tr. 171). Her interpretation of the deed is that "It gives us the ground 

so that we could do something with the dam. That's all. The dam; it gives 

us the dam." (Tr. 180). 

Earnest W. Michael, chairman of the Consol No. 20 Mine Safety Committee, 

testified that he was notified of the withdrawal order 45 minutes after 

it was issued, and he and fellow safety committeeman Gary Riggs went to 

the dam and walked around looking at the conditions. He expressed agreement 

with the contents of the imminent danger order as issued, including the finding of imminent danger. The next day, he met with company officials and 

safety inspectors, and Inspector Ash advised Consol employee Mauck that if 

he could guarantee that no more water would be pumped down over the crest 

of the dam the order would be lifted. Mr. Mauck assured him that he would 

make sure the pumping was stopped (Tr. 186-189). 

On cross-examination, Mr. Michaels testified that neither MSHA nor any-' 

one else ever led him to believe that Consol had anything to do with the 

pumping at the dam, but he always believed that Consol owned the dam. He 

has worked at the No. 20 Mine for 8 years and it was his understanding that 

Consol owned the dam and the property around it (Tr. 192). 

Michael P. Zemonick, president of the UMWA local, and an employee of 

Consol, testified that he was scheduled to work at the mine on December 9 

and 10, 1978, but was advised by mine superintendent Darrel Auch that in 

view of a reported danger at the dam all work for those 2 days had been 

cancelled, and he did not work that weekend. He participated in the meeting the day after the order in question was issued, and he believed that 

mine management was trying to contact Mr. Hall to take care of the dam so 

that the mine could return to production. He indicated that "some people" 

say that Mr. Hall owns the dam, but that "it is really not known" (Tr. 195). 

Applicant's Testimony 

Kent Simmons, preparation plant foreman, testified that the order in 

question was served on him on the evening of February 26, 1979, after 

Inspectors Ash and Bowers advised him that they were going to shut the mine 

down because the dam was in danger of bursting and that the water would go 

down the mine shafts. Mr. Simmons then telephoned mine superintendent 

Jordan, and the inspectors left to return to the dam, and after some 

15 minutes, they again came to the mine and told him they were writing an 

order and that miners should be withdrawn, and by 9:15 a.m., everyone was 

out of the mine. Mr. Simmons did not go to the dam and had no personal 

knowledge as to what was there. Responding to a question about the physical 

mine layout near the preparation plant, Mr. Simmons testified that railroad 

cars are filled one at a time with coal, uncoupled, and then dropped off 

for shipment by a car dropper who spends ~ to 10 percent of his time in 

the coal yard, and he is usually the only person there (Tr. 217). 

On cross-examination, Mr. Simmons testified that coal miners walk down 

by the tipple rather than the lower end of the railroad tracks to get to 

64 
the privately-oWned recreation center, and that occasional maintenance work 

is performed at the tipple (Tr. 219). With regard to the recreation center, 

Mr. Simmons stated that it is not located on mine property and is privately 

owned and operated by someone in the community (Tr. 220). 

Eugene L. Jordan, general mine superintendent, Consol No. 20 Mine, 

testified that he received a phone call from Mr. Simmons at approximately 

8:15 the evening of February 26, and he advised that MSHA inspectors Ash and 

Bowers were concerned about the dam. He spoke with Mr. Ash who informed him· 

that the dam was in a "dangerous condition" because someone was pumping water 

there. Mr. Ash inquired as to the identity of the person doing the pumping 

and Mr. Jordan suggested a contact with Mr. Dan Hall because he (Jordan) 

believed that Mr. Hall was in charge of the water system or, in the alternative, a contact with Mrs. Garrett. Mr. Ash called him again and advised him 

that a withdrawal order would issue against Consol but that it will note 

that "it is no fault of Consolidation Coal Company." Mr. Jordan did not 

visit the mine after the order issued, but he did go there on the morning of 

February 27, and he also went to the dam site at approximately 8:30 a.m. that 

morning, and the pumps were not operating. He subsequently learned that 

they ran out of gas. He observed the dam conditions, including the gUlley 

which had been washed out, and he stated that the dam did not appear any 

different from the way he observed it on any other day (Tr. 220-226). 

Mr. Jordan testified that he had previously observed the dam weekly 

during his travels along the dam road, and he considered buying a home 

nearby but did not do so because of the dam and his fear that his young 

son might fall into i~. The morning after the order issued, and while at 

the dam, he observed the water seepage through the dam breastwork, but was 

not concerned about it. Since the order issued, he has traveled back and 

forth from the dam site no less than three times a week and has observed 

no one performing any reclamation work at the site, although he has observed 

the water level at the same height or higher than it was on February 27. He 

testified that Mr. Mauck, who is now retired as a company vice president, 

advised Inspector Ash that although Consol has nothing to do with the dam, 

he would look into the water pumping situation (Tr. 226-231). 

Mr. Jordan testified that Mr. Daniel Hall is employed by Consol as a 

bratticeman, but that Consol is not involved with the dam at all. Mr. Hall 

advised him that he started the pumps on the advice' of the state agency 

who controls the dam, and the state agency purportedly told Mr. Hall that 

the water should be pumped when it reaches close to the spillway. Mr. Hall 

advised him that he would in the future extend the pumping lines beyond the. 

area of the wash-out and that was the last time he saw Mr. Hall (Tr. 233). 

The pumps were not owned by Consol and Consol had nothing whatsoever to do 

with the dam (Tr. 234). Mr. Jordan stated that it was his opinion that on 

February 27 the dam was not in such a condition that it posed a threat of 

serious injury or death to the miners at the mine (Tr. 236). Mr. Jordan 

stated that Mr. Ash agreed that he could keep supervisory personnel in the 

mine after the order issued in order to keep it from flooding (Tr. 238). 

65 
On cross-examination, Mr. Jordan testified that he has never been 

concerned about the dam because he has.gone by it "hundreds of times" since 

1969. He indicated that on December 7, 1978, representatives of the U.S. 

Corps of Engineers and the State Department of Natural Resources visited 

his office at the mine and expressed concern over the fact that water was 

going over the dam spillway. The state police were also present and people 

were being evacuated from the area, and water was being pumped from the dam 

by the local fire department. Although he was not particularly concerned, 

men were withdrawn from the mine shaft but not from the preparation plant. 

He was not concerned because he had observed the dam "come up and down for 

ten years" and based on his visual observations and judgment, even if the 

dam had totally collapsed the water would not have reached the shafts because 

the shafts are at a higher level than everything else (Tr. 243-244). The 

Corps of Engineers has never advised him that it did not think the dam was 

safe, but did tell him it was in a deteriorating condition (Tr. 245). 

Mr. Jordan stated that Mr. Hall charges his customers directly for the 

water used from the dam, and while he owns the water system, he did not know 

whether Mr. Hall also owns the dam (Tr. 253). Regarding the water that was 

being pumped from the dam on the evening the order issued, Mr. Jordan testified that his "concern" over that condition would depend on the appearance 

of the gulley and whether it was eroding "a whole lot of the face of the dam 

away or just the small amount it did" (Tr. 256). Assuming that the pumping 

had continued continuously for a couple days, that would possibly have concerned him (Tr. 256). Since Consol did not own or control the dam, he was 

not going to send anyone there to shut the pumps down in order to abate 

the order (Tr. 257). 

DISCUSSION 

The Concept of Imminent Danger 

"Imminent danger" is .defined in section 3(j) of the Act, 30 u.s.c. 

§ 802(j) as: "The existence of any condition or practice in a coal or other 

mine which could reasonably be expected to cause death or serious physical 

harm before such condition or practice can be abated." 

Section 107(a) of the Act provides as follows: 

If, upon any inspection or investigation of a coal or 

other mine which is subject to this Act, an authorized 

representative of the Secretary finds that an imminent danger 

exists, such representative shall determine the extent of the 

area of such mine throughout which the danger exists, and 

issue an order requiring the operator of such mine to cause 

all persons, except those referred to in section 104(c), to 

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

area until an authorized representative of the Secretary 

determines that such imminent danger and the condition or 

practice which caused such imminent danger no longer exists. 

66 
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 legislative history with respect to the concept of "imminent 

danger," Committee on Education and Labor, House of Representatives, Legislative History of Federal Coal Mine Health and Safety Act of 1969 at page 

4 (March 1970), states in pertinent part as follows: 

The definition of an "imminent danger" is broadened from 

that in the 1952 ·Act in recognition of the need to be concerned with any condition or practice, naturally or otherwise 

caused, which may lead to sudden death or injury before the 

danger can be abated. It is not limited to just disastrous 

type accidents, as in the past, but all accidents which could 

be fatal or nonfatal to one or more persons before abatement 

of the condition or practice can be achieved. [Emphasis 

added.] 

And, at page 89 of the report: 

'!he concept of an imminent danger as it has evolved in 

this industry is that the situation is so serious that the 

miners must be removed from the danger forthwith when the 

danger is discovered * * *· The seriousness of the situation 

demands such immediate action. The first concern is the 

danger to the miner. Delays, even of a few minutes may be 

critical or disastrous. 

'!he former Interior Board of Mine Operations Appeals has held that an 

imminent danger exists when the condition or practice observed could reasonably be expected to cause death or serious physical harm to a miner or 

normal mining operations are permitted to proceed in the area before the 

dangerous condition is eliminated. The dangerous condition cannot be 

divorced from normal work activity. Eastern Associated Coal Corp. v. 

Interior Board of Hine Operations Appeals, et al., 491 F.2d 277, 278 (4th 

Cir. 1974). The test of imminence is objective and the inspector's subjective opinion need not be taken at face value. The question is whether 

a reasonable man, with the inspector's education and experience, 'would conclude that the facts indicate an impending accident or disaster, likely to 

occur at any moment, but not necessarily immediately. Freeman Coal Mining 

Corporation, 2 IBMA 197, 212 (1973), aff'd, Freeman Coal Mining Company v. 

Interior Board of Mine Operations Appears:- et al., 504 F.2d 741 (7th Cir. 

1974). The foregoing principles were reaffirmed in Old Ben Coal Corporation 

v. Interior Board of Mine Operations Appeals, et al., 523 F.2d 25 (7th Cir. 

1975), where the court, following Freeman, phrased the test for determining 

an imminent danger as follows: 

[E]ach case must be decided on its own peculiar facts. The 

question in every case is essentially the proximity of the 

67 
peril to life and limb. Put another way: Would a reasonable 

man, given a qualified inspector's education and experience, 

conclude that the facts indicate an impending accident or 

disaster, threatening to kill or to cause serious physical 

harm, likely to occur at any momemt, but not necessarily 

immediately? The uncertainty must be of a nature that would 

induce a reasonable man to estimate that, if normal operations designed to extract coal in the disputed area proceeded, it is at least just as probable as not that the 

feared accident or disaster would occur before elimination of 

the danger. 

In a proceeding concerning an imminent danger order, the burden of 

proof lies with the applicant, and the applicant must show by a preponderance 

of the evidence that imminent danger did not exist. Lucas Coal Company, 

1 IBMA 138 (1972); Carbon Fuel Company, 2 IBMA 43 (1973); Freeman Coal Mining 

Corporation, 2 IBMA 197 (1973). However, since withdrawal orders are "sanctions" within the meaning of section 7(d) of the Administrative Procedure Act 

(5 u.s.c. § 556(d) (1970)), and may be imposed only if the government produces reliable, probative and substantial evidence which establishes a prima 

facie case, MSHA must bear the burden of establishing a prima facie case. It 

should be noted that the obligation of establishing a prima fac~e case is not 

the same as bearing the burden of proof. That is, although the applicant 

bears the ultimate burden of proof in a proceeding involving an imminent 

danger withdrawal order, MSHA must still make out a prima facie case. Thus, 

the order is properly vacated where the applicant proves by a preponderance 

of the evidence that an imminent danger was not present when the order was 

issued. See: Lucal Coal Company, supra; Carbon Fuel Company, 2 IBMA 43 

(1973); Freeman Coal Mining Corporation, supra; Zeigler Coal Company, 4 IBMA 

88·, 82 I.D. 111 (1975); Quarto Mining Company and Nacco Mining Company, 

3 IBMA 199, 81 I.D. 328, (1973-1974); Kings Station Coal Corporation, 3 IBMA 

322 81 I.D. 562 (1974). 

The Seventh Circuit also noted in its Old Ben opinion that an inspector 

has a very difficult job because he is primarily concerned about the safety 

of men, and the court indicated that an inspector should be supported unless 

he has clearly abused his discretion (523 F.2d at 31). On the fact presented 

in Old Ben, the court observed that an inspector cannot wait until the danger 

is so immediate that no one can remain in the mine to correct the condition, 

nor can the inspector wait until an explosion or fire has occurred before 

issuing a withdrawal order (523 F.2d, at 34). Thus, on the facts presented 

in this proceeding, MSHA must show that reasonable men with the inspectors 

education and experience would conclude t·hat the water being pumped out of 

the dam over and down the earthern breastwork at such a rate which was causing a gulley and other erosion and washing.away of materials to occur constituted a situation indicating an impending accident or disaster, likely to 

occur at any moment, but not necessarily immediately. 

68 
Arguments Presented by the Parties 

Applicant Consolidation Coal Company (Consol) 

In its posthearing brief, applicant traces the chain of title to the 

dam and maintains that this is conclusive proof that the subject fresh 

water dam is not owned, operated, or controlled by Consol. In addition, 

applicant states that MSHA has admitted that this is in fact the case, and 

that the inspectors themselves testified and conc.eded that they have no 

jurisdiction over the dam structure. 

With regard to the existence of any imminent danger on the day the 

order issued, applicant argues that a literal reading of the definition of 

the term "imminent danger" as it appears in section 3(j) of the Act, coupled 

with the definitions of "coal or other mine" as set forth in sections 3(h)(l) 

and (2), clearly establishes that the condition or practice purported to be 

an imminent danger must exist in a coal or other mine as defined by the Act, 

and that the wa~er dam area in question obviously does not come under any 

definition of coal mine or coal property. Applicant maintains further that 

section 302 of the 1977 Amendments Act, which established MSHA in the Labor 

Department, did not grant to MSHA broad general police powers as the protector of all mankind and the enforcer of all laws, but limited its jurisdiction to the provisions of the Act, namely enforcement powers for mining 

activities. 

With respect to the independent contractor cases such as MSHA v. 

Republic Steel, decided April 11, 1979, holding an owner responsible for 

violations where it lacked control or was not at fault, applicant points out 

that in all of these cases the conditions or practices cited existed in a 

coal mine over which MSHA had jurisdiction. Regarding the recent decision 

in Westmoreland Coal Co. v. Mine Safety and Health Review Commission, 

606 F.2d 417 (4th Cir. 1979), where the Commission upheld the closing of a 

mine because of the danger of flooding from an adjacent mine, applicant 

argues that it is obvious that the condition or practice in that case was 

caused by and located in an adjacent coal mine, and that MSHA had jurisdiction over the condition or practice because of the definition of coal mine 

as found in section 3(h)(l), section 3(h) (2), and section 318(1) of the Act. 

In the instant case, applicant points to the fact that the fresh water dam, 

which was the condition giving rise to the issuance of the order, is not 

to be found within any of the jurisdictional guidelines given to MSHA. 

Applicant maintains that if MSHA is allowed to con~true their jurisdiction as 

covering extrinsic factors as conditions or practices which can cause an 

imminent danger the boundaries are limitless. An inspector could believe 

that Skylab or a similar satellite might fall on a mine; an inspector might 

believe that a nuclear reactor accident would affect a mine five or more 

miles away; an inspector might believe that· Boulder Dam would burst and flood 

a mine 20 miles away. The possibilities are endless. As in this case, if 

there was a danger of a dam breakage, Applicant maintains that the police 

powers of the State of West Virginia would authorize civil defense or policerelated authorities to evacuate people including miners at the mine who 

69 
might be in danger. The civil authorities, who are more experienced in 

these matters, did not envision any danger since they did not request that 

anyone, including residents of the homes directly below the dam be 

evacuated. 

With regard to the existence of "imminent danger, applicant cites the 

court decisions in Eastern Associated Coal Corporation v. Interior Board of 

Mine Operations Appeals, 491 F.2d 277, 278 (4th Cir. 1974), aff'g Eastern 

Associated Coal Corporation, 2 IBMA 128, 136 (1973), and Old Ben Coal 

Corporation v. Interior Board of Mine Operations Appeals, 523 F.2d 25 

(7th Cir. 1975), where the court affirmed the Secretary's determination 

that an imminent danger exists when the condition or practice observed 

could reasonably be expected to cause death or serious physical harm to a 

miner if normal mining operations were permitted to proceed in the area 

before the dangerous condition is eliminated. However, applicant argues 

that in order to determine "reasonable actions," one must consider the 

inspectors' training and experience. In this case, applicant asserts that 

while Inspectors Ash and Bowers may have been qualified inspectors for underground coal mining, they were novices in the area of dam evaluation. In 

support of this premise, applicant cites the testimony of Inspector Ash indicating that his total training in evaluating water impoundments consisted 

of a course lasting 5 working days at an average of 6-1/2 hours per day 

(Tr. 43). The training consisted of lectures and visual aids in the form 

of slides of various impoundments (Tr. 42-44). Training was not given in 

methods of calculating structural stability or water volume but merely in 

recognizing dangerous conditions (Tr. 42-44). Further, the training dealt 

with earthen dams, not.with dams having solid wall construction (Tr. 43). 

The training was conducted in a classroom (Tr. 42-44). Likewise, applicant 

cites the testimony of Inspector Bowers indicating that his total training 

was exactly the same as that of Mr. Ash (Tr. 86). He had the same 5 days at 

the rate of 6-1/2 hours per day (Tr. 86). Applicant maintains that the two 

inspectors, with only 32-1/2 hours of training each in water impoundments 

were certainly not qualified to make a judgment as to whether or not the 

fresh water supply dam was in danger of bursting. 

With regard to the conditions which prevailed on the evening of 

February 26, 1976, when the order issued, applicant argues that it was 

already dark when the inspectors arrived at the dam site, and that the only 

means of lighting was the inspectors mine cap lamps (Tr. 44). Inspector Ash 

testified that the lamps normally shine 90 to 100 feet, but that night in 

the rain, snow, wind and fog, it was somewhat less (Tr. 45). The inspectors 

did not know the depth of the water in the dam (Tr. 46). Nor did they know 

its actual length or width (Tr. 48). Therefore, there is no possible way a 

reasonable calculation of the water volume behind the dam could have been 

made. Therefore, prior to the issuance of the order at about 8:30 p.m., 

on February 26, 1979, the inspectors only had less than 1 hour to 

visually observe the dam in adverse weather conditions. They saw some wet 

areas on the face of the dam and alleged three areas where they believed 

water was flowing (Tr. 47-49). However, they only assumed the water was 

coming through the dam when it could have been run off from outside water 

70 
sources. The primary area of concern was a ditch that was being created by 

water discharging from hoses connected to the two pumps. However, it turns 

out that when issuing the order, the inspector did not know how much water 

was in the dam; he did not know where water seepage on the breast of the dam 

was coming from; he did not know what material the dam was constructed from; 

he did not know its stability; he could not determine if a partial bursting 

or if a total instantaneous burst would take place. With all of these · 

unknowns, one would contend that if an inspector is alleging that water is 

going to flood a mining area he cannot just guess at it. He must have a 

reasonable idea of the amount of water that he speculates might be rushing 

toward the mine. In this case, applicant suggests the inspector could do 

nothing more than guess as to all factors involved which is certainly not 

reasonable. 

Finally, applicant argues that after the order was issued, MSHA's own 

engineering studies and the testimony of its dam engineering expert, 

Mr. Watkins, established that even if there was a complete instantaneous 

burst of the dam, that the water would never have risen to a level that it 

would go down the shaft into the mine (Tr. 133). Mr. Watkins testified: 

(Skrypak) Q. Based on what you know now, would that 

w:iter have reached th~ Preparation Plant or the shafts where 

the men go into the mine? 

(Watkins) A. Based upon what I know now, I would say 

that it would not go down the openings into the shaft. 

(Skrypak) Q. It would not go down the shaft? 

(Watkins) A. It would not go down the shaft. 

(Skrypak) Q. So although the inspectors did not know 

it on that night, the water, even assuming an instantaneous 

burst of that dam, would not have made it go down the shaft; 

is that correct? 

(Watkins) A. Right. That is our engineering judgment. 

[TR 133]. [Emphasis added.] 

In summary, applicant's case rests on its assertions that while many 

state and Federal agencies had been involved with the fresh water dam in 

question and seemed to do nothing, MSHA is attempting to make Consolidaton 

Coal Company a scapegoat. Since MSHA does not have jurisdiction over the 

dam which is not owned, operated or controlled by a coal company, and since 

it does not fall within any definition of a coal mine, applicant claims MSHA 

lacks jurisdiction to issue any withdrawal orders. And, since an imminent 

danger must exist in a coal mine and not be an· extrinsic causal factor, 

applicant asserts the testimony clearly establishes that the inspectors did 

not have the training or experience to make a reasonable judgment, and that 

even the crudest training or general common sense would dictate that the 

71 
inspectors should have had some knowledge of the volume of water involved, 

which these inspectors did not. 

Respondent MSHA 

Citing the precedent cases dealing with imminent danger, Freeman Coal 

Mining Company, supra; Eastern Associated Coal Corporation, supra, and Old 

Ben Coal Corporation, supra, MSHA argues that giv€n the facts described in 

the record of testimony and on the face of the withdrawal order, the inspectors had no possible course of action other than to issue an 107(a) order 

Withdrawing miners from coal mine property until the hazardous condition 

could be abated. Given the circumstances presented on the night of 

February 26, 1979, MSHA believs that no reasonable man charged with the 

responsibility for protecting the lives and safety of miners on coal mine 

property, could possibly have acted otherwise. MSHA asserts that the action 

of the inspectors completely satisfied the reasonable standard test set out 

in Freeman. The inspectors were authorized representatives with extensive 

mining experience; they had received specialized training for just such a 

situation as presented in this case which required a decision concerning 

the stability of a dam. Inspector Ash was personally familiar with the size 

and structure of the dam as well as its location with respect to the mine 

below it. Both inspectors were aware, as a result of a prior incident that 

occurred in December 1978, when state officials had evacuated families from 

the area below the dam and Consol officials had voluntarily evacuated miners 

from the mine before an inspector arrived in the area because of a feared 

dam collapse resulting from heavy rainfall, that the dam had been classified 

as highly unstable and had been recognized as a genuine threat. Further, 

MSHA argues that after inspecting the dam for signs of general instability, 

the inspectors determined that the continuing eroding of the earthen structure resulting from the high pressure water discharge would likely lead to 

collapse of the structure unless the pumping were terminated. Proceeding 

to mine property, and upon further investigation, they determined that the 

six (6) inches of water already covering the ground in the tipple area was 

leakage from the dam •. They then explained to mine management the conditions 

observed by them and the reasons why an imminent danger existed at the mine, 

requiring the immediate withdrawal of those working there. 

Based on the foregoing arguments, MSHA concludes that an imminent 

danger as defined under the Act and under controlling Board and court decisions existed as alleged and that the inspectors acted reasonably, and in 

accordance with legal precedents in ordering the immediate withdrawal of 

the miners. Further, MSHA asserts that the applicant has failed to sustain 

its burden of proof with respect to both the threshold issue of no danger 

and the issue of imminence. In support of this argument, MSHA argues that 

while Consol put forward two witnesses, neither of them could offer any eyewitness testimony concerning the issues of danger or of imminence and no 

direct evidence was offered by the applicant in this regard. MSHA concludes 

that the applicant has failed to rebut by a preponderance of the evidence 

the presumption of imminent danger which arose when the order was issued. 

72 
With regard to applicant's argument that the imminent danger order of 

withdrawal is invalid because it cannot be held responsible for the condition which caused the imminent danger on coal mine property and that the 

water dam in question is not owned, operated or controlled by applicant 

and therefore, not subject to MSHA's jurisdiction, MSHA contends that both 

arguments must be rejected. In support of its position, MSHA points out 

that the section 107(a) order in question itself states that "this order 

is issued through no fault _of the company," and that unlike orders of withdrawal issued pursuant to sections 104(d)(l) and (2), in which an inspector 

must find that there there has been a violation of a mandatory health or 

safety standard and that such a violation was caused by the unwarrantable 

failure of the operator to comply, the valid issuance of an order issued 

pursuant to section 107(a) does not require the finding of a violation of 

a mandatory standard or any negligence attributable to the operator. Section 107(a) simply states that upon the finding that an imminent danger 

exists, an order requiring the operator to withdraw all persons from the 

affected areas shall be issued. The question in this proceeding, asserts 

MSHA, is not whether the imminent danger as alleged was caused by applicant, 

but rather, whether an imminent danger existed as alleged for miners working 

at the Consolidation Four States No. 20 Mine. Citing the case of District 6 

United Mine Workers v. United States Department of the Interior Board of Mine 

Operations Appeals, 562 F.2d 1260 (1977), where the court held that imminent 

danger could exist even without any failing by the mine operator, for example, 

as a result of natural causes; whereas the other closures all involve some 

negligence by the operator. MSHA points to the court's citation from the 

legislative history of the Act which states that: 

The concept of an imminent danger as it has evolved in 

this industry is that the situation is so serious that the 

miners must be removed from the danger forthwith when the 

danger is discovered without waiting for any normal proceedings or notice. The seriousness of the situation demands 

such immediate action. The first concern is the danger to 

the miners. Delays even of a few minutes may be critical or 

disastrous. After the miners are free of danger, then the 

operator can expeditiously appeal the action of the inspector. 

The imminent danger may be due to a violation of a mandatory 

safety standard or some other cause not covered by a standard, 

including natural causes. Senate Report No. 91-411 91st 

Congress, 1st Session 90 (1969). 

Finally, MSHA argues that the language of section 107(a) and the 

definition of imminent danger in the Act specifically and deliberately 

exclude any considerations of liability, cause, or negligence upon the part 

of a mine operator, and that nowhere in the language of the Act or in 

its legislative history can there be found any basis for restricting an 

imminent danger to a situation whose cause, natural or otherwise, exists on 

mining property. Citing District 6 United· Mine Workers, supra at 1267, 

MSHA states that Congressional hearings, statutory language, and judicial 

review all support the fact that "the clear intent of Congress is that coal 

73 
mines, or areas of coal mines, in which imminent danger was found to exist 

must be evacuated at once, with the benefit of any doubt cut in favor of 

withdrawal." The unmistakable intent of Congress is that it matters not one 

whit what caused the imminent danger; the sole concern is that miners on 

mine property be evacuated immediately. MSHA concludes that to adopt the 

narrow, restrictive meaning of imminent danger proposed by applicant in this 

proceeding would be in direct conflict with case law dealing with the inter-

. pretation of federal coal mine safety legislation, and it cites St. Mary's 

Sewer Pipe Company v. Director of U.S. Bureau of Mines, 262 F.2d 378, 381 

(3rd Cir. 1959), where the court said: "It is so obvious as to be beyond 

dispute that in construing safety or remedial legislation, narrow or limited 

construction is to be eschewed." 

}ffiHA suggests that the interpretative principles set out in St. Mary's 

Sewer Pipe, have been reaffirmed in the judicial decisions it has cited in 

support of its case, and that the Conference Committee Repor_t in the legislative history of the 1969 Act further evidences the intention of Congress, 

in stating as follows: "In adopting these provisions, the managers intend 

that the Act be construed liberally when improved health or safety to miners 

will result." Conference Report No. 91-761, 9lst Cong. 1st Sess. at 62. 

Respondent UMWA 

Respondent argues that the imminent danger in this case is the potential 

of flooding the surface and underground of Consol's Four States No. 20 Mine 

by the bursting of the Four States dam, which is classified as a "high hazard 

potential structure * * *·" The dam is a high hazard potential structure, 

"because there is a chance of loss of more than a few lives should failure 

occur" (UMWA Exh. I, at 2). Citing the Fourth Circuit Court decision in 

Westmoreland Coal Company v. Mine Safety and Health Review Commission and 

Marshall, 606 F.2d 417 (1979), respondent argues that the condition or practice does have to exist in the mine that is shut down by a closure order, and 

the miners do not have to be working at the time a closure order is issued. 

Respondent asserts'that in the Westmoreland case, the court upheld MSHA's 

closing of Westmoreland's Hampton #4 Mine because of the possibility that 

the mine could be flooded with water from an abandoned, adjacent mine, and 

that the court affirmed the Secretary's enforcement action, even though the 

source of the imminent danger did not exist in the mine that was owned, 

controlled, or operated by Westmoreland. 

Respondent argues that the question of fault and control on the part of 

a mine operator are not prerequisites to the issuance of a closure order, 

and in support of this argument cites the Commission's decision of April 11, 

1979, in MSHA v. Republic Steel Corp., Dockets MORG 76-21 and MORG 76-95-P, 

holding Republic responsible for violations created by its independent contractor even though Republic could not have prevented the violations. 

Respondent asserts that in both Westmoreland and Republic, the operator who 

was subjected to the Secretary's enforcement action did not control the area 

in which the dangerous condition existed, and although in each instance, 

the operator who received the withdrawal order could not have prevented the 

74 
dangerous condition from occurring, neither of these facts was considered 

an adequate reason for vacating the withdrawal order at issue and, in each 

case, therefore, the Secretary's enforcement action was· upheld. 

Citing a number of cases at page 9 of its brief, respondent argues 

further that the reasonableness of the Secretary's construction of section 

107(a) is apparent, since the Secretary has followed the mandate of Congress 

and the Courts that the Act be construed liberally in order to promite its 

primary purpose, that of promoting safety in the .mines. Citing the legislative history of the 1977 Act, Senate Report No. 95-181, 95th Cong., 1st 

Sess. (1977), respondent states that the Senate Committee Report rejected a 

construction of "imminent danger" which would require a finding by an 

inspector that it would be as likely as not that a serious injury or death 

would result before a condition might be abated. The report stated: 

The Committee disavows any notion that imminent danger 

can be defined in terms of a percentage of probability that 

an accident will happen; rather the concept of imminent 

danger requires an examination of the potential of the risk 

to cause serious physical harm at any time. It is the 

Committee's view that the authority under this section is 

essential to the protection of miners and should be construed 

expansively by inspectors and the Commission. Since we are 

dealing with situations where there is an immediate danger of 

death or serious physical harm. The Conunittee intends that 

the Act give the necessary authority for the taking of action 

to remove miners from risk. [Emphasis added.] 

Turning to the evidence and testimony adduced at the hearing, respondent 

points to the fact that Consol admitted some involvement with the dam and was 

aware of its condition in that it had giv~n some piping to someone who ran 

the waterworks, but has since discontinued the practice. In addition, 

respondent argues that the testimony reflects that Consol employee Daniel 

Hall ran the water works, that mine superintendent Jordan contacted him 

about the pumping of the water, and that then Consol vice president Mauck 

prevailed on Mr. Hall to take certain steps to prP.vent any future incident 

involving the pumping of water over the face of the dam. Respondent 

believes it is apparent on the facts here presented that an employee of 

Consol, Mr. Mauck, felt he would be able to take steps to protect the miners 

from an imminent danger in the future. Respondent concludes that the inspectors, after observing the water and the condition of the dam, could not disregarn the miners' safety and acted reasonably in issuing the section 107(a) 

order, and that they need not wait until the water is on mine property 

before issuing a section 107(a) order. 

In its reply brief, respondent UMWA comments on applicant's discussion 

of the jurisdictional and reasonable belie·f is!?ues, and it points to applicant's counsel's comments at the hearing where he stated: 

Mr. Skrypak: "Your Honor, we have no problem with the 

idea of the reasonable belief of the inspectors. If it 

75 
matters *. * * we would accept that, that the imminent danger 

order is based on a reasonable belief by the inspectors. Our 

position is purely jurisdictional, that he did not have the 

jurisdiction over that outside force * * *·" [Emphasis 

added.] 

(Tr. 9, 11-17). 

With regard to the applicant's arguments concerning the inspector's 

training and expertise in evaluating water impoundments, respondent states 

that applicant fails to mention that Mr. Ash has had 21 years of experience 

before joining MSHA, much of the time at the Four States No. 20 Mine, and 

that he was raised near the dam, saw it rebuilt, and knew the approximate 

size and dimensions of the dam (Tr. 17, 39). Further, respondent argues 

that while a stability analysis on the dam is not available, the Army Corps 

of Engineers' report classified it as a "hazardous structure," and in fact, 

asserts that the report had caused the pumping (which was the subject of the 

instant action) to be initiated in the first place because, when the water 

level raises, it must be kept 2 feet below the spillway (Tr. 145). Further, 

respondent argues that the term "reasonableness," as used in the Act, means 

reasonableness in the minds of the inspectors and not reasonableness as 

interpreted by applicant. Just as applicant cannot realistically expect the 

inspectors to wait until the water has reached mine property before issuing 

their closure order, so, too, applicant cannot expect to have only a dam 

expert issue the closure order. The inspector has adequate training to meet 

MSHA requirements and he was backed by the Army Corps of Engineers' study 

which stated that, whenever the water level rises, it must be kept 2 feet 

below the spillway for safety precautions. Thus, respondent again concludes 

that the 107(a) order was issued on a reasonable belief that the dam was in 

danger of bursting before abatement of the condition might occur which would 

endanger the lives of the miners working on the surface and underground at 

th~ Four States No. 20 Mine. 

Findings and Conclusions 

Were the conditions describerl by the inspectors an imminent danger, and if 

so, was the withdrawal order properly issued? 

It is clear from the testimony of Inspectors Ash and Bowers that they 

believed the dam would weaken and collapse if the pumping of the water over 

the face of the dam and down the earthern embankment continued unabated. 

Their conclusion that this event was likely to occur was based on their 

observations of water being pumped and discharged in such a manner as to 

cause erosion of materials from the earthern breastwork of the d.am, the 

formation of a gulley which grew in depth and breadth as they made their 

way across the dam structure during their inspection, water seepage which 

they attributed to a breach in the dam structure.itself, other signs of 

instability which they described during their testimony in support of the 

withdrawal order, and their belief that had the dam collapsed, the surging 

water would go down the hollow and inundate the mine, including the surface 

76 
preparation plant as well as the shafts. The inspectors' conclusions, both 

as to the existence of an imminent danger, and the conditions which they 

observed which led them to conclude that the dam would collapse if the pumping and discharging of the water continued unabated was supported by the 

testimony of MSHA engineer Watkins who arrived at the dam site an hour or so 

after the written withdrawal order was issued. Mr. Watkins examined the 

existing conditions, including the water level in the dam, several leaks 

which he believed were caused by seepage through the dam structure itself, 

the gully being formed by the pumping and discharging of water through the 

two liries described by the inspectors, sink holes, erosion being caused by 

the pumping, and the existence of a high dam phreatic or seepage line which 

he believed was a critical sign of the instability of the dam structure. 

Mr. Watkins also believed that with the existence of all of these condit"ions, the dam was capable of collapsing, and if it did, the water would 

flood the mine. 

1he thrust of applicant's defense to the imminent danger order is its 

belief that such an order may not be issued on the basis of an imminently 

dangerous condition which exists outside of or off mine property, and MSHA's 

lack of jurisdiction over the dam structure itself. Also, applicant maintains that the inspectors' lacked the necessary engineering expertise to 

make an informed judgment as to the stability of the dam and that an afterthe-fact engineering study conducted by MSHA indicated that even if the dam 

had collapsed, the water would only have reached the perimeter of the mine 

property at the railroad yard and would not have innudated the preparation 

plant or the underground mine shafts. 

Regarding the actual conditions observed by the MSHA inspectors and 

Mr. Watkins, none of the witnesses presented by applicant actually observed 

those conditions on the evening of February 26 when the order issued. 

Preparation Plant Foreman Simmons never visited the dam site and knew 

nothing about the conditions observed there. Mine Superintendent Jordan 

visited the dam site the day after the order issued and after the pumping 

and discharging of water had ceased. Although he expressed little concern 

over the condition of the dam, he agreed that had the pumping and discharge 

of water continued for a couple of days, that would have been of some concern to him. He also indicated that the erosion and formation of the gulley, 

which was the primary concern of the inspectors, would have concerned him 

only if more rather than less of the face of the earthern portion of the 

dam were affected by the erosion. It seems obvious to me that the continuous pumping and discharging of the water from the dam over and down the 

earthern breastwork of the dam would have increased, rather than decreased, 

the erosion, thus expanding the gulley being formed. Under the circumstances, taken in perspective, Mr. Jordan's "concerns" with respect to 

the erosion and the existence of the gulley coincides with the concerns of 

the inspectors. 

After careful review and analysis of the testimony presented by MSHA in 

support of the closure order in question, I find and conclude that the 

77 
inspectors acted properly in issuing the order and that their testimony supports their finding of an imminent danger. I am not persuaded by applicant's 

arguments concerning the lack of engineering expertise by the inspectors at 

the time they observed the conditions on which they based their action. It 

seems clear to me that the inspectors were qualified to make a judgement as 

to the existence of an imminent danger, that they were qualified mine inspectors of many years experience in mining, including the inspection of mines 

and the detection of any perceived hazards which.may result from those 

inspections. Further, I do not believe that one necessarily has to be a 

professional engineer to determine whether an imminent danger actually 

exists. Those judgments may, and in fact are, made by inspectors in the 

normal course of their everyday mine inspections. The question presented is 

whether on the facts presented they acted reasonably in the circumstances 

presented on the evening of February 26, 1979. In this case, both inspectors were experienced inspectors and they had adequate training in the 

detection of conditions which could lead to the collapse of a dam structure. 

The fact that they were proved subsequently wrong with respect to the question of whether the water would actually reach the dam in the event of a 

collapse is immaterial to their judgement call made on the evening of 

February 26. The legislative history of the concept of "imminent danger," 

as well as the case law previously discussed herein makes it clear to me 

that the inspector's made the proper decision and that the facts and circumstances which they observed supports their judgement that an imminent 

danger did in fact exist at the time the order was issued. 

Applicant's suggestion that an inspector must wait upon the arrival of 

a professional engineer or water impoundment expert, or must await the result 

of engineering studies·before taking any action to insure the safety of 

miners is rejected. Faced with the situation of a possible dam collapse and 

the inundation of the mine from that collapse, the inspectors need not wait 

the results of further testing or studies before taking immediate appropriate action to protect the lives of miners. They are compelled to take prompt 

action, and to do anything less would endanger lives and lessen the impact 

of what Congress intended when it enacted the imminent danger withdrawal 

sanction of section 107(a). A literal application of applicant's argument 

on this point would require an inspector to sit back and wait until the 

water from the dam is running down the mine shafts before taking any action. 

On the facts presented here, if the inspectors had not acted and the pumping 

of water had continued unabated and uninterrupted, I conclude that it was 

just as probable as not that the earthern portion of the dam would have 

weakened and washed away to the point where it was likely that it would 

have collapsed and released a torrent of water downstream in the direction 

of the mine. Under the circumstances, it seems clear to me that the inspectors' intent in issuing the order was to remove the miners from the 

imminently dangerous position they were in and to insulate them from the 

possibility of being exposed to the water had it reached the mine shafts. 

Further, as pointed out by the UMWA in its.brief, applicant's counsel more 

or less conceded during oral arguments at the hearing that the inspectors' 

finding of imminent danger was based on their reasonable belief that the 

conditions they observed presented an imminently dangerous situation. 

78 
May an imminent danger order be sustained in the basis of an imminently 

dangerous condition which exists off mine property? 

After careful review and consideration of the arguments presented by 

the parties with respect to the question of whether extrinsic factors off 

mine property may serve as the basis for a finding of imminent danger affecting miners on mine property, I conclude and find that the arguments advanced 

by the respondents in this· case are correct and that those advanced by the 

applicant must be rejected. While it may true that on its face, the 

definition of "imminent danger" as stated in section 3(j) speaks in terms 

of conditions or practices in a mine, it is also true and without question 

that the courts have construed the Act broadly and liberally so as to effectuate Congressional intent to insure the safety of miners while in their 

work environment. It seems clear to me from the legislative history and the 

court decisions cited by the respondents that the Act has been liberally construed on the side of safety and that once it-is established that an imminent danger posing a threat to the lives and safety of miners has been 

established it matters not that the source of the imminent danger is some 

exstinsic set of circumstances. On the facts of this case, it seems clear 

that the imminent danger was the liklihood of a dam failure which the inspectors reasonably believed would have resulted in a torrent of water inundating the mine. In such circumstances, I cannot conclude that the inspectors acted unreasonably. Further, it seems clear that applicant too does 

not seriously contest the fact that such an imminent danger should be 

ignored. Aside from the legalistic and strict interpretation arguments 

advanced by the applicant in defense of the closure order, applicant still 

maintains that it would have voluntarily withdrawn miners without prodding 

from MSHA if in fact an imminent danger existed and that it did so in the 

past when it ceased mining operations and withdrew miners in December 1978 

when the dam crested and resulted in an evacuation of persons downstream by 

several local agencies. 

With respect to the question of whether MSHA had initial jurisdiction 

over the dam, the fact is that notwithstanding MSHA's own admission that it 

lacks inspection jurisdiction over the dam, the inspectors did venture on 

the dam property, albeit as trespassers, and determined that an imminent 

danger in fact existed. That is a fact that I cannot ignore, and coupled 

w.1..th the additional fact that the dam owner lodged no protest to the presence of the inspectors at the time the closure order was issued, I am constrained to apply the facts as I find them. Here, as previously found and 

concluded by me, the dam conditions as observed by the inspectors on the 

evening of February 26, constituted an imminent danger and they acted reasonably so as to protect the miners from harm. Under the circumstances, while 

the inspectors may not have had enforcement jurisdiction over the dam 

per se, they did have jurisdiction under the Act to determine the existence 

of any imminent danger to the miners and to take appropriate action to 

insure the safety of the miners and to insulate them from any hazards posed 

by that danger. 

I believe it is clear from the evidence and testimony presented in this 

proceeding thar applicant did not own, operate, or other control the dam 

79 
structure which in fact created the imminently dangerous condition found by the 

inspectors on the_evening of February 26, 1979. Further, while it is true 

that applicant did not initially create the imminent danger nor exercised 

any legal control over the abatement of the conditions which resulted in the 

imminent danger, it is clear from the facts presented in this case that the -

abatement was a direct result of applicant's exercise of its influence over 

the person who was manning the pumps. While Mr. Hall's status as an 

anployee of Consol may not be considered in a technical sense as creating 

an employee-employer relationship concering the dam and the pumping of 

water that was taking place on February 26, the fact is that applicant's 

then vice president prevailed on Mr. Hall to take the necessary steps to 

stop the pumping, thereby insuring the abatement and eventual termination 

of the closure order. In addition, one may infer that from a practical and 

realistic point of view, this act on the part of a Consol official precluded 

the future pumping of water in such a manner which undoubtedly would again 

expose the mine to another possible closure order. Thus, on the facts here 

presented, while applicant may be correct when it argues that it has no 

legal responsibility to insure against future pumping of the water in the 

manner in which it was being pumped on February 26, it seems clear to me 

that Mr. Hall would not want to again place himself in a similar position 

of defying or ignoring the pleas of his own employer to cease and desist 

from any future course of actions which would inevitably lead to another 

mine closure order and loss of production, irrespective of the fact that 

Consol may not have any legal obligations to intercede. 

Although one may sympathize with Consol's predicament with respect to 

the abatement process, the fact is that on the facts of this case abatement 

was achieved through the direct intervention of Consol and that fact should 

be appreciated and recognized by all concerned. This is particularly true 

in this case where it seems clear that while the dam in question has for many 

years been a source of potential threats, not only to the miners and a community hall downstream, but to all of the inhabitants of the Four States Community, no one has taken any direct action to conduct stability studies and to 

take the necessary construction corrective action to insure against the loss 

of property and lives in the event of a dam failure. It also seems clear, 

and MSHA concedes, that the imminent danger resulted from no fault on the 

part of applicant, and MSHA should seriously consider this fact if it is 

contemplating filing a separate civil penalty proceeding seeking an assessment against Consol for the imminently dangerous conditions created by the 

dam on February 26. I take note of the fact that the language of section 

107(a) with regard to the assessment of any civil penalty on the facts here 

presented suggests that the filing of any such act is discretionary or 

permissive rather than mandatory, and that considering the circumstances 

here presented, a civil penalty proceeding may be inequitable. 

Conclusion 

In view of the aforementioned findings and conclusions, and on the 

basis of the preponderance of the reliable and probative evidence adduced 

80 
in this proceeding, I find and conclude that the conditions described in 

the order of withdrawal constituted an imminent danger and that the order was 

issued. The evidence of record supports the judgment of the inspectors that 

the conditions they found on the day in question presented a situation that 

could reasonably be expected to result in death or serious injury to the 

miners in the Four States No. 20 Mine before the conditions could be abated 

and that normal mining operations could not continue or proceed until those 

cqnditions were abated. 

Order 

Order of Withdrawal No. 814153 issued February 26, 1979, is AFFIRMED 

and this proceeding is DISMISSED. 

Distribution: 

" 

/r//~ ~~EKoutr 

t;U1 

Administrative 

~ ~ 

Law ' Judge 

~ 

Leo J. McGinn, Trial Attorney, U.S. Department of Labor, Office of 

the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 

Karl T. Skrypak, Esq., Consolidation Coal Company, 1800 Washington Road, 

Pittsburgh, PA 15241 (Certified Mail) 

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

900 15th St., N.W., Washington, D.C. 20005 (Certified Mail) 

Standard Distribution 

81 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

RAVEN MINING COMPANY, 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 3 1980. 

Contestant 

Respondent 

Contest of Citation and Order 

Docket No. NORT 79-78 

Order No. 0678141 

January 22, 1979 

Citation No. 035139 

January 8, 1979 

UNITED MINE WORKERS OF AMERICA, 

(UMWA), No. 1 Mine 

Appearances: 

Before: 

Respondent 

DECISION 

J. Perry Dotson, Esq., Norton, Virginia, for the contestant; 

Leo McGinn, Trial Attorney, U.S. Department of Labor, 

Arlington, Virginia, for the respondent MSHA. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a contest filed by Raven Mining Company on 

March 2, 1979, challenging the legality of the issuance of the captioned 

citation and order. The notice of contest° is in the form of a letter dated 

February 8, 1979, from contestant's attorney, challenging the fact of violation and requesting a hearing on the closure order for the purpose of 

"determining damages sustained" by Raven Mining Company. 

Respondent MSHA filed an answer on March 28, 1979, and asserted that the 

order was properly issued after contestant failed to take reasonable steps 

to abate the citation after an extension of the original time for abatement 

had been granted by the inspector who issued the citation. By notice of 

hearing issued on July 11, 1979, the matter was scheduled for hearing in 

Bristol, Virginia, September 11, 1979. Thereafter, on August 23, 1979, 

MSHA filed a motion to dismiss on the ground that the Act does not provide 

a remedy for recovery of "damages" sustained by a mine operator as a result 

of a closure order, and that a final order assessing a civil penalty in 

the amount of $160 for the violation in question was entered on May 23, 

82 
1979, and upon subsequent non-payment, was forwarded .to the Department of 

Justice for collection on July 12, 1979. The collection procedure initiated 

by MSHA pursuant to 30 CFR 100.5 and 100.6, resulted from contestant's failure to respond to the initial notice of assessment issued by MSHA. Since 

MSHA's motion to dismiss was filed well after the notice of hearing, no 

ruling was made and the parties were directed to appear at the hearing and 

MSHA was afforded an opportunity to be heard on its motion. A hearing was 

conducted on the merits of the withdrawal order and the parties were 

afforded a full opportunity to be heard on all issues presented in the proceeding. The parties were afforded an opportunity to file posthearing 

briefs but declined to do so. 

Issues Presented 

1. Whether the final disposition of the civil penalty proceeding pursuant to Part 100, Title 30, .Code of Federal Regulations, which resulted from 

contestant's failure to timely challenge the issuance of the citation, precluded contestant from challenging the propriety and legality of the closure 

order which resulted from the failure to abate the citation within the time 

fixed by the inspector. 

2. Whether the time fixed for abatement of the citation was reasonable 

and whether the closure order was properly issued. 

Applicable Statutory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

~~· 

2. Sections 104(a) and (b) of the Act, which states as follows: 

(a) If, upon inspection or investigation, the Secretary 

or his authorized representative believes that an operator 

of a coal or other mine subject to this Act has violated this 

Act, or any mandatory health or safety standard, rule, or 

regulation promulgated pursuant to this Act, he shall, with 

reasonable promptness, issue a citation to the operator. 

Each citation shall be in writing and shall describe with 

particularity the nature of the violation, including a 

reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated. In addition, 

the citation shall fix a reasonable time for the abatement of 

the violation. The requirement for the issuance of a citation with reasonable promptness shall not be a jurisdictional 

prerequisite to the enforcement of any provision of this Act. 

(b) If, upon any follow-up inspection of a coal or 

other mine, an authorized representative of the Secretary 

finds (1) that a violation described in a citation issued 

pursuant to subsection (a) has not been totally abated within 

83 
the period of time as originally fixed therein or as subsequently extended, and (2) that the period of time for the 

abatement should not be further extended, he shall determine 

the extent of the area affected by the violation and shall 

promptly issue an order requiring the operator of such mine 

or his agent to immediately cause all persons, exc.ept those 

persons referred to in subsection (c), to be withdrawn from, 

and to be prohibited from entering, such area· until an 

authorized representative of the Secretary determines that 

such violation has been abated. 

DISCUSSION 

Background of the Controversy 

On January 8, 1979, at approximately 9:45 a.m., MSHA inspector Joseph 

Tankersley issued Citation No. 035139 pursuant to section 104(a) of the Act 

charging a violation of 30 CFR 75.1713-2. He fixed the abatement time as 

9 a.m., January 12, 1979, and the citation stated as follows: "A communications system was not provided at the mine where the nearest point of medical 

assistance in case of an emergency could be contacted. (The phone company 

had removed the phone from mine property)." 

Qn January 12, 1979,-the inspector extended the abatement time to 

January 19, 1979, and the reason given for the extension was stated as follows: "The mine foreman stated that the operator contacted the phone company, and they are going to install the phone as they could get to it. 

More time is needed for t"he telephone company to install the telephone." 

On January 22, 1979, the inspector issued a section 104(b) order of 

withdrawal and the basis for this action is shown on the face of the order 

as follows: "A communication system has not been provided at the mine where 

medical assistance could be contacted in the event of an emergency." 

The inspector modified the withdrawal order on January 23, 1979, to show 

that the entire mine and surface work areas were closed. He further modified 

the closure order on January 24, 1979, to allow mine operations to continue, 

and the reasons for this action are shown on the face of the modification 

order as follows: "This is a modification allowing the operator to resume 

operations due to the fact that Moss 3~A Mine, Clinchfield Coal Company is 

readily available (estimated five (5) minutes travel) and the operator is 

installing communications to the Moss 3-A Mine. Moss 3-A personnel have 

agreed to the communication system." 

The order was subsequently terminated on January 26, 1979, after abatement of the cited conditions and after telephone communications were established between the Raven Mine and the Clinchfield Mine, and Clinchfield 

agreed to supply emergency ambulance service. The telephone communications 

between the two mines is the system presently in use and MSHA has now 

84 
accepted this arrangement as compliance with the requirements of section 

75.1713-2 (Tr. 78-84). 

Testimony and Evidence Adduced by MSHA 

MSHA inspector Joseph R. Tankersley testified that he issued the citation and order in question, and he identified copies of the citation, order, 

the modification of the order, and the termination of the order (Exhs. G-4 

through G-6). During his January 8th inspection, he noticed that the telephone which had been installed for emergency communication had been removed 

from the mine. Based on conversations with the mine foreman, he ascertained 

that the telephone was removed by the phone company for failure to pay delinquent bills. The phone jack was still on the wall of the mine office and he 

had observed the telephone during previous mine inspections. The phone was' 

installed to comply with section 75.1713-2, and mine president 

James C. Scarborough, had previously submitted a letter to the MSHA district 

manager advising that the emergency communication system would be by telephone. The letter stated that the operator would contact the Dante Clinic 

by telephone in emergency cases (Tr. 37). Inspector Tankersley explained the 

requirement of the standard to the foreman, and when asked whether a CB 

radio was acceptable to meet the requirements of section 75 .1713-2, he 

advised him that it was. However, a CB radio was not located on mine property during the January 8th inspection. The CB radio was kept in the mine 

foreman's personal vehicle which was being used by his wife on that day, 

and anytime miners or their wives used the vehicles, the CB' s would be off 

mine property. When he inspected the mine on January 8, 1979, there was 

no automobile or CB radio on mine property, and there was no other form 

of communications available. 

Inspec:tor Tankersley testified that he fixed January 19 as the abatement time, but could not return to the mine until January 22, at which time 

he found that the mine phone had not been reinstalled because of non-payment 

of back bills. He modified his order on January 24, because Mr. Scarborough 

spoke with MSHA's subdistrict manager about providing an alternate communication system whereby Mr. Scarborough and the district manager agreed that a 

telephone line would be extended to the Clinchfield Mine, approximately 

300 yards away, and Clinchfield Coal Company agreed to provide the Raven 

Mine with emergency ambulance service. Upon the subsequent installation of 

the telphone on January 26, he .terminated the withdrawal order. Although 

he modified and terminated the withdrawal order, Mr. Tankersley did not 

believe that the contestant acted in a reasonable manner in abating the 

citation and withdrawal order because non-payment of bills is not a valid 

reason. The first time contestant attempted to negotiate with Clinchfield 

about a telephone line was January 24, 1979, and prior to this time contestant refused to pay the delinquent telephone bills, but the telephone 

was subsequently reinstalled at the mine (Tr. 33-43). 

On cross-examination, Inspector Tankersley testified that section 

75.1713-2 permits the use several means of communications, such as a phone, 

CB, vehicle radio phone, or "any other means of prompt communcation to the 

nearest point of medical assistance." He stated that "any other means of 

85 
prompt communication" means some kind of positive communication between the 

medical facility and the mine, and it does not mean face-to-face vocal 

communication. He would not accept as compliance Mr. Scarborough running 

to the Clinchfield Mine to seek ambulance assistance in the event of an 

accident. Although the Dante Clinic is some 5 miles, or 20 minutes, from 

the mine, whereas the Clinchfield Mine is 5 minutes away and has an ambulan~e available, Clinchfield does not have the medical personnel as does 

the clinic, and the intent of section 75.1713-2 is' to provide medical 

service. Further, even though Mr. Scarborough is a lessee of Clinchfield, 

it is debatable whether Clinchfield would render assistance (Tr. 43-47). 

At the time the telephone line to Clinchfield was being installed on 

January 25, a CB system would have sufficed as long as there were someone 

present all the time to answer it. He did not believe that someone running to Clinchfield would satisfy the requirement of promptness (Tr. 48). 

There have been no medical emergencies at the mine (Tr. 48). 

Responding to a question about section 75.1713-1, Mr. Tankersley testi-. 

fied that it requires the mine operator to advise the district manager of 

the type of communication plan used at the mine so the district manager can 

determine whether it complies with the standard, and if there are changes, 

the operator is required to notify.the district manager within 10 days. 

Section 75.1713-2 allows the operator to determine whether or not the change 

in communication complies with the requirements (Tr. 49). 

On redirect examination, Inspector Tankersley testified that the "Paul 

Revere" type of communication, as opposed to the telephone line to the 

Clinchfield Mine, is not satisfactory because the 300 yard distance by foot 

is not easily traveled o~ accessible during snow or rainy weather. If an 

accident occurs on mine property, the operator is required to maintain a 

permanent telephone number for the emergency medical facilities posted (Tr. 

50). 

On recross-examination, Mr. Tankersley testified that the Clinchfield 

Moss 3A Mine is 300 yards higher on the mountain than the Raven mine, and 

the mines are connected by a haulage road. Miners frequently use a vehicle 

in traveling on the haulage road to and from both mines (Tr. 51-52). 

Responding to a bench question about whether he was aware of the existence 

of an alternate means of communication when he issued the citation on 

January 9, 1979, Inspector Tankersley stated that he was not (Tr. 55). 

Calls from the mine to the Dante Clinic were not made by CB radio, and the 

reason for issuing the citation was that he observed no telephone at the mine 

(Tr. 57). 

' 

On redirect examination, Inspector Tankersley testified that if the 

telephone had been replaced in the mine office by a CB radio, he would not 

have issued a citation, and had he observed any telephone communication 

between the two mines, he would have contacted personnel at the other mine 

to ascertain whether this arrangement was acceptable (Tr. 58). 

86 
On recross~examination, Inspector Tankersley testified that he does not 

inspect any mines that are using CB radios. In Kentucky, MSHA inspectors 

have accepted CB radios under section 75.1713-1 only if they are installed 

in the mine office, but a CB radio installed in a vehicle which is not on 

mine property at all times does not comply with section 75.1713-1 (Tr. 59). 

Contestant's Testimony 

James c. Scarborough, President o~ Raven Mining Company, testified that 

he probably wrote up .a communication plan, but when he first started operations, he could not obtain telephones. In view of the fact that the C & P 

Telephone Company was slow in installing telephones, he installed a telephone line down the hill to the Clinchfield Mine and used that system as 

a mine telephone. Although Mr. Tankersley did not inspect the mine at that 

time, another inspector did and and he accepted the system. On January 8, 

the mine used a CB radio instead of a telephone, because the existing line 

to Clinchfield was broken by a truck. When the CB was being used he did 

not advise MSHA of the change because he was not aware that he had to, and 

he spoke to no inspector about it (Tr. 62). He could not recall whether the 

phone was out or in and indicated that he was experiencing difficulties in 

maintaining the phone in working order when it rained and that the phone 

company could not maintain it in operating order (Tr. 63). 

Mr. Scarborough testified that his CB arrangements entailed arrangements with a Mr. Darrel Duty, who is home all the time working with CB's. In 

the event of the need for medical assistance, a call would be made to 

Mr. Duty from a CB in three trucks at the mine and he in turn would call the 

Coeburn Rescue Squad which was an hours drive away. There was no CB in the 

mine office. This plan.never included the Dante Clinic, and Mr. Scarborough 

stated he did not know that the Dante Clinic had an ambulance service. This 

arrangement was the mine plan which was filed with MSHA in addition to the 

plan to run to the adjacent clinchfield mine to summon their ambulance in 

the event of an emergency. He then stated that the CB plan was not filed 

with MSHA's district manager, but that it was in use at the mine. The 

district manager was also not informed about the arrangements to use 

Clinchfield's ambulance, but frequent trips are made to that mine either by 

automobile over the road or on foot. In addition, he can yell down to the 

mine and can be heard. He has never discussed this plan with Inspector 

Tankersley (Tr. 63-68). 

Mr. Scarborough stated that under his interpretation of section 

75 .1713-2, he can "holler at somebody and· get communication, it's just as 

well as talking to somebody on the telephone." He was not at the mine when 

the inspector was there on January 8, but he set up a CB radio after that 

time and his employee assured him from that day on that the three vehicles 

with CB's would be at the mine at all times. He learned from his employee 

that when the inspector returned to the mine, he refused an offer to call 

Mr. Duty on the CB and issued his closure order (Tr. 69). 

Mr. Scarborough stated that he is not protesting the fact that the 

inspector issued a citation on January 8 after he observed that there was no 

87 
phone in the mine office. His protest is of the closure order after he 

established CB communication and the procedure for running to the Clinchfield 

mine for assistance (Tr. 77). 

On cross-examination, Mr. Scarborough testified that he did not know 

when the telephone was removed from the mine office, nor he know whether the 

foreman's truck with the CB radio was off mine property. Although he did 

not see or talk to Inspector Tankersley, he testified that Mr. Tankersley 

returned to the mine on January 12, the date on which the citation was 

scheduled to be terminated, and he spoke with foreman Gary Johnson, and 

granted an extension for abatement until January 19. He further testified 

that he did not see or talk to Inspector Tankersley during the citation 

closure stage, and Mr. Johnson informed him about the CB arrangements with 

Mr. Duty, but that he personally has never met Mr. Duty (Tr. 91-93). 

Although the mine was operating under two shifts when the citation was 

issued, all three employees with the CB's in their trucks were on mine 

property at all times even though they worked only one shift. Now that the 

mine is operating under one shift, all three employees are present (Tr. 94). 

Responding to a question about the reinstallation of the telephone 

system between his mine and the Clinchfield Mine, Mr. Scarborough testified 

that he authorized the issuance of a telephone order on January 22, 1979. 

Although Inspector Tankersley granted respondent 3 days beyond the extension 

to January 22, he testified that it was unreasonable for him for not trying out the CB radio. If all three employees were there, a CB radio was 

guaranteed to be there. Foreman Gary Johnson has never been absent since 

the mine has been in operation, and Mr. Johnson told him that Inspector 

Tankersley was mistaken about the CB radio truck being taken away by his 

wife on January 8, 1979 (Tr. 96). 

Findings and Conclusions 

Reviewability of the Closure Order 

During the hearing, MSHA reasserted its view that the contest should be· 

dismissed because the pleadings filed by the contestant indicated a desire 

by contestant to be heard on the limited question of "damages" sustained 

by the closure order. Since the Act does not provide for monetary damages, 

and since a final default order assessing a civil penalty in the amount of 

$160 for the citation in question was entered on May 23, 1979, and forwarded 

to the Justice Department for collection on July 12, 1979, MSHA argues that 

the operator's opportunity for affirmatively pleading economic loss as a 

mitigating factor in the amount of any penalty assessed is irrevocably lost 

(Tr. 8-10; MSHA's Motion to Dismiss, filed August 23, 1979). 

Contestant argued that its intent in filing its initial notice of contest on February 8, 1979, was to challenge both the fact of violation and 

the subsequent withdrawal order which issued. Contestant maintained that 

it should be given the opportunity to establish and prove its contention 

that at the time the citation issued, contestant did in fact have a communications system in effect at the mine which met the requirements of 

88 
section 75.1713-2, that the issuance of the citation and the order were 

arbitrary, and that contestant should be entitled to present its case so 

as to avail itself of all available administrative, as well as economic 

remedies to which it is entitled under the Act (Tr. 12-14). 

It would appear from the record in this case that no formal civil penalty proceeding has ever been filed by MSHA with the Commission, and this 

resulted from the fact that the contestant did not contest the initial proposed penalty issued by MSHA pursuant to 30 CFR 100.5 and 100.6, and the 

matter culminated in a default order being forwarded to the Department of 

Justice for collection of the $160 assessment for Citation No. 035139. 

Under the circumstances, I agree with MSHA's assertion that contestant is 

foreclosed from pleading any off-set resulting from the closure order in 

its current contest. However, it seems clear that in a civil penalty proceeding, the validity of the order is not in issue, and withdrawal orders 

are not subject to vacation, Buffalo Mining Company, 2 IBMA 327 (1973); 

Plateau Mining Company, 2 IBMA 303 (1973); Ashland Mining Company, 5 IBMA 

259 (1975); Jewell Ridge Coal Company, 3 IBMA 376 (1974). The usual method 

for an operator to contest the propriety and legality of a withdrawal order 

is to seek review pursuant to section 105(d) of the Act, and the fact that 

the conditions cited have been abated and the order terminated does not warrant dismissal of the contest, Zeigler Coal Company, 1 IBMA 72 (1971). On 

the facts and circumstances presented in this proceeding, I conclude that 

contestant is entitled to an independent review of the validity and propriety of the closure order issued pursuant to section 104(b) of the Act, 

notwithstanding the fact that it did not contest the initial proposed civil 

penalty assessment. Under the circumstances, MSHA's narrow and restrictive 

reading of the notice of.contest filed in this case is rejected and its 

motion to dismiss is DENIED. I conclude that contestant has a right to seek 

review of the reasonableness of the abatement time, and coupled with the 

fact that it may be liable to compensate miners under section 111 of the Act 

for the period of time the mine was closed as a result of that order, it is 

is entitled to its day in court, and MSHA conceded as much during oral argument (Tr. 20-23, 26). Although it is true the notice of contest filed by 

the contestant on February 8, 1979, makes reference to a desire for a hearing "to determine damages" sustained by the contestant as a result of the 

closure order, I believe that the pleadings should be broadly construed so 

as to protect not only the rights of miners, but mine operators as well. 

Reasonableness of the Abatement Time 

The underlying citation issued in this case charges the contestant 

with a violation of 30 CFR 75.1713-2, which provides as follows: 

(a) Each operator of an underground coal mine shall 

establish and maintain a communication system from the mine 

to the nearest point of medical assistance for use in an 

emergency. 

89 
(b) The emergency communication system required to be 

maintained under paragraph (a) of this § 75.1713-2 may be 

established by telephone or radio transmission or by any 

other means of prompt communicationi to any facility (for 

example, the local sheriff, the State highway patrol, or 

local hospital) which has available the means of communication with the person or persons providing emergency 

medical assistance or transportation in accordance with 

the provisions of § 75.1713-1. 

The citation was initially issued on January 8, 1979, and the original 

abatement time was fixed as January 12, 1979, and subsequently extended to 

January 19, 1979. The inspector did not return to the mine until January 22, 

1979, and at that time made the determination that abatement had not been 

achieved and that the time should not be further extended. Under the circumstances, he then proceeded to issue his withdrawal order, and the issue 

presented is whether the inspector acted reasonably in light of all of the 

prevailing circumstances. In this regard, it seems clear that where an 

inspector finds that a violation has not been abated within the initial or 

extended time fixed by him, he is authorized to either grant another extension or issue a withdrawal order. The inspector must act reasonably on 

the basis of the facts confronting him at that time, United States Steel 

Corporation, 7 IBMA 109 (1976), and it is an abuse of discretion to issue 

a withdrawal order if the circumstances show that the time for abatement 

should have been further extended, Old Ben Coal Company, 6 IBMA 294 (1976). 

The contestant has the burden of establishing that the inspector acted 

unreasonably in fixing or failing to extend the abatement time, Freeman 

Coal Mining Corporation, 1IBMA1 (1970). 

It seems clear from the record in this proceeding that the inspector 

issued the initial citation when he failed to find a telephone installed in 

the mine office. Although he observed a phone jack, the telephone was missing, and upon further inquiry he learned that the phone had been removed 

because of non-payment of past bills. Contestant has presented no evidence 

to dispute this fact, and Mr. Scarborough did not deny it. The inspector 

believed that a violation occurred because contestant failed to maintain 

its telephone communications between the mine and a local clinic, and this 

arrangement was the only one on file with the local MSHA district office. 

Further, during the course of oral argument at the hearing, contestant 

indicated that it was not challenging the initial citation issued by the 

inspector as a result of his failure to find a telephone installed in the 

mine office (Tr. 76). Contestant's defense to the order is based on the 

assertion that subsequent to the issuance of the citation, contestant did 

in fact establish a communications system which complied with section 

75.1713-2, when it instituted a procedure for voice of foot communications 

with the adjacent Clinchfield Mine and a system for use of CB radios 

mounted on vehicles which were on mine property. In these circumstances, 

contestant argued that it was in compliance at the time the order issued 

and that the inspector acted arbitrarily and unreasonably in failing to 

accept these procedures as compliance and in issuing his closure order (Tr. 

75-80). 

90 
Although Mr. Scarborough alluded to the fact that he had somehow 

changed his communication plan which had been filed with MSHA, and 

intimated that MSHA had accepted something less than telephone communications, it seems clear from the abatement and the testimony presented by 

both Mr. Scarborough and the inspector, that abatement was achieved by 

the installation of a phone line between the Raven Mine and Clinchfield 

Mine so that emergency ambulance service could be provided, and that MSHA 

will not accept CB communications mounted in a mine vehicle or voice 

and/or foot communication as compliance (Tr. 79-85). It is also clear to 

me that contestant's .attempts at compliance by utilizing means other than 

a telephone system took place during the abatement period (Tr. 89). 

Mr. Scarborough was not at the mine when the withdrawal order was issued 

on January 22, and he believed the inspector acted unreasonably by not trying out the CB radio arrangements (Tr. 95). Aside from the fact that it 

can be argued that contestant has waived its right to contest the fact of 

violation by not contesting the original civil penalty assessment and permitted that assessment to ripen into a default judgment, the facts and 

evidence adduced at· the hearing in this contest proceeding supports a 

finding of a violation of the cited standard. It seems clear from the 

record that at the time the citation issued, contestant was not in compliance with section 75.1713-2, because it did not have the required operative telephone communications arrangements with respect to emergency 

medical assistance. 

With respect to the reasonableness of the abatement time, I find and 

conclude that the record establishes that the inspector acted in more than 

a reasonable fashion in fixing the initial abatement time, as well as in 

the exercise of his discretion in not extending the abatement time any 

further. On the basis of the evidence adduced here, it seems clear to me 

that contestant's failure to maintain the required emergency telephone 

communications stems from the fact that contestant failed to pay its past 

due telephone bills. That is a matter solely within the contestant's control, and I can find no mitigating circtnnstances presented which detracts 

from that fact. The initial abatement time was more than ample for contestant to resolve the matter with the phone company. As a matter of fact, 

contestant was gratuitously given an additional period for compliance from 

January 19 to January 22. However, on the basis of the record here presented that time was apparently spent by contestant in an effort to convince 

MSHA that his alternative communications efforts were in compliance rather 

than to comply with the citation and timely reinstall the phone. Considering the totality of the circtnnstances presented, I conclude and find that 

the time fixed for abatement was reasonable and that the inspector was not 

arbitrary in failing to extend the abatement time further. The order is 

AFFIRMED. 

ORDER 

In view of the foregoing findings and conc~usions, Citation No. 035139, 

issued January 8, 1979, and Order of Withdrawal No. 0678141, issued 

January 22, 1979, are AFFIRMED, and contestant's request for any relief 

91 
with respect to ·the issuance of the citation and order pursuant to the Act 

is DENIED and this contest is DISMISSED. 

~t{,~ Administrative Law Judge 

Distribution: 

J. Perry Dotson~ Esq., Earls, Wolfe & Farmer, 470 Park Avenue, Norton, 

VA 24273 (Certified Mail) 

Leo McGinn, Trial Attorney, Office of the Solicitor, u.s. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

92 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 4 1980 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of 

ANTHONY E. HERIGES, 

v. 

Applicant 

ISLAND CREEK COAL COMPANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of 

TOM ANTONINI, 

v. 

Applicant 

ISLAND CREEK COAL COMPANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of 

JOHNNY GIBSON, 

v. 

Applicant 

ISLAND CREEK COAL COMPANY, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of LARRY HALEY, 

Applicant 

v. 

Complaints of Discharge, 

Discrimination, or Interference 

Docket No. KENT 80-22-D 

CD 79-103 

Docket No. KENT 80-23-D 

CD 79-113 

Hamilton No. 2 Mine 

Morganfield, Kentucky 

Docket No. KENT 80-15-D 

CD 79-133 

Docket No. KENT 80-14-D 

CD 79-97 

Hamilton No. 1 Mine 

Madisonville, Kentucky 

Docket No. KENT 80-42-D 

GD 79-198 

No. 9 Mine 

Docket No. KENT 80-52-D 

CD 79-199 

93 
ISLAND CREEK COAL COMPANY, 

Respondent 

No. 9 Mine 

ORDER OF DISMISSAL 

The Secretary filed his response to my December 20, 1979 and January 3, 

1980 Orders to Show Cause why the above cases should not be dismissed in 

light of the Commission's decision in Secretary of Labor, Mine Safety and 

Health Administration (MSHA) v. The Helen Mining Co., Docket No. 

PITT 79-llP, 1 FMSHRC Dees. 1796 (1979), appeal docketed, No. 79-2537 

(D.C. Cir. Dec. 21, 1979). 

Most of the Secretary's arguments are directed to the soundness of the 

Commission's reasoning in Helen Mining. I have no power to disturb that 

decision. Thus, the Secretary must demonstrate that the facts of these 

cases are sufficiently distinguishable from those in Helen Mining that the 

latter case is not controlling. The Secretary argues that: 

"Helen Mining-, supra, specifically addresses the spot 

inspection required by § 103(i) of the Act. This section 

requires the Secretary by his authorized representative to 

conduct spot inspections at irregular intervals where the 

mine to be inspected is found to liberate a given quantity 

of methane gas. Only Tom Antonini, Docket No. KENT 80-15-D, 

CD 79-133, is a true 103(i) inspection matter. The other 

cases under consideration involve spot inspection of a different nature than the type contemplated by Helen Mining, 

supra. ConsequentlY., Helen Mining, supra, should not constitute precedent which would cause a dismissal of the complaints of discrimination." Secretary's Response at 10. 

I do not find this argtnnent to be convincing. In Helen Mining, the 

Commission stated the issue as "whether a mine operator must pay a miners' 

representative for the time he spends accompanying a mine inspector during 

a 'spot' inspection required by section 103(i) of the Federal Mine Safety 

and Health Act of 1977 * * *" 1 FMSHRC Dec. 1796. The Commission's analysis 

of the statutory language and legislative history of the Act clearly indicates that the decision was not intended to be so limited. The following 

statement of Congressman Perkins, made during an oral report to the House 

on the results of the conference committee's deliberations, was relied on by 

the Commission in Helen: 

"* * * [I]t is the intent of the committee to require 

an opportunity to accompany the inspector at no loss of pay 

only for the regular inspections mandated by subsection (a), 

and not for the additional inspections otherwise required or 

permitted by the act. Beyond these requirements regarding no 

loss of pay, a representative authorized by.the miners shall 

be entitled to accompany inspectors during any other inspection exclusive of the responsibility for payment by the 

operator." 1 FMSHRC Dees at 1804 quoting Legislative History 

of the Federal Mine Safety and Heal th Act of 1977 at 1358. 

94 
This evidence of legislative intent is equally dispositive of the 

issue presented here. Furthermore, after the Commission's decision in 

Helen Mining, it again relied upon Congressman Perkins' remarks in holding 

that a miners' representative was not entitled to walkaround pay for the 

time spent accompanying an inspector during a special electrical inspection. Kentland-Elkhorn Coal Corporation v. Secretary of Labor, Mine Safety 

and Health Administration (MSHA), and United Mine Workers of America, 

Docket No. PIKE 78-399, 1 FMSHRC Dees. 1833 (1979), appeal docketed, 

No. 79-2536 (D.C. Cir. Dec. 21, 1979). 

ORDER 

The cases are DISMISSED withou~ prejudice. 

Distribution: 

~/L~ Edwin S. Bernstein 

Administrative Law Judge 

William F. Taylor, Attorney, Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Marshall s. Peace, Ass't. Corporate Counsel, Island Creek Coal Company, 

2355 Harrodsburg Road, P.O. Box 11430, Lexington, KY 40575 (Certified 

Mail) 

Office of Special Investigation_, MSHA, U.S. Department of Laobr, 4015 

Wilson Boulevard, Arlington, VA 22203 

95 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMIN:LSTRATION (MSHA), 

v. 

SEWELL COAL COMPANY, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520 3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 4 1980 

Petitioner 

Respondent 

.. . Civil Penalty Proceeding 

Docket No. WEVA 79-293 

A.O. No. 46-03859-03029 

Sewell No. lA Mine 

DECISION 

Pursuant to Section llO(a) of the Federal Mine Safety and Health Act of 

1977 (the Act), the Secretary of Labor petitioned for the assessment of a 

civil penalty. Petitioner alleged that Respondent violated the mandatory 

safety standard at 30 CFR 75.1403-6(b)(3). That standard provides that: 

"[E]ach track-mounted self-propelled personnel carrier should: * * * [b]e 

equipped with properly installed and well-maintained sanding devices, except 

that personnel carriers (jitneys), which transport not more than 5 men, need 

not be equipped with .such sanding device * * *·" 

A hearing was held on December 17, 1979, in Charleston, West Virginia. 

The issues are whether Respondent violated the standard and, if so, the 

appropriate civil penalty to be assessed, based upon the six criteria in 

Section llO(i) of the Act. At the hearing, Homer s. Grose, the MSHA 

inspector who issued the citation, testified for Petitioner and Paul E. 

Given, Respondent's safety director, testified for Respondent. 

The parties stipulated, and I find, that: 

1. I have jurisdiction over this p.roceeding, and Respondent is within 

the jurisdiction of the Act. 

2. Respondent is a large operator and payment of an appropriate civil 

penalty will not affect its ability to continue in business. 

3. Respondent was duly served with the citation and its termination 

notice. 

4. Respondent exercised ordinary good faith in abating the conditions 

giving rise to the citation. 

96 
5. In the 24-month period immediately preceding the issuance of the 

citation, 452 alleged violations were assessed against Respondent, covering 

a total of 242 inspection days. This information was derived from an MSHA 

computer history printout. 

6. Between 30 and 40 of these alleged violations involved 30 CFR 

75.1403-6(b)(3), the standard involved in this case. By entering into this 

stipulation, Respondent does not concede that these citations actually 

represent violations of the cited standard. 

7. All exhibits are authentic and may be admitted into evidence on 

that basis, subject to possible objections as to their relevancy. 

Mr. Grose was the only witness present at the time of the alleged violation. His testimony was uncontradicted. He stated that at approximately 

8 a.m. on January 18, 1979, he observed a self-propelled, track-mounted 

personnel carrier emerge from Respondent's No. lA Mine and discharge miners 

who had worked the night shift. The vehicle, which was capable of carrying 

approximately eight men, was equipped with devices which apply sand onto 

the tracks in front of the vehicle's metal wheels. The purpose of the sand 

is to increase traction and allow for better control of the vehicle. There 

is one sand tube in front of each of the four wheels. 

At about 8 a.m., Mr. Grose observed Respondent's representative, Robert 

Neal, check the personnel carrier. After Mr. Neal had completed his inspection, Mr. Grose inspected the carrier. He found that two of the four sand 

hoses were clogged and therefore inoperative. Based upon this, he issued 

the citation. The hoses were cleared within 15 minutes of the issuance of 

the citation. 

The sand hoses are approximately an inch and a half in diameter and can 

become clogged if the sand becomes damp or moist. They can be unclogged by 

inserting a rod or similar object into them and removing the damp sand. On 

January 18, 1979, there was no moisture on the mine's surface but there was 

dampness in the low-lying areas within the mine. Mr. Grose stated, and I 

find, that the mine contained steep grades and narrow areas which had little 

clearance and no shelter holes. Therefore, if a personnel carrier lost 

control, it could cause a dangerous accident. 

The Secretary of Labor issued a safeguard notice with regard to this 

type of violation to Respondent in January 1978. During January 1979, 

there were nine other citations issued to Respondent for violations of this 

standard. Mr. Grose testified that violations of 30 CFR 75.1403-6(b)(3) 

occurred quite frequently at this mine. 

Mr. Given did not know the facts surrounding the alleged violation. He 

was not present at the site on January 18, 1979, but he testified that the 

mine had a policy of attempting to comply with all personnel carrier standards and had issued instructions and posted notices to encourage compliance. He stated that there had never been an accident in this mine or any 

other Sewell mine as a result of a violation of this standard. 

97 
The parties waived submission of briefs. Based upon the evidence, I 

make the following conclusions of law and order: 

Occurrence of Violation: The evidence is undisputed that on the date, 

time, and at the place alleged in the citation, the vehicle in question had 

only two of its four sanding devices in operating condition. The vehicle 

transported more than five men. Therefore, Respondent.violated the standard 

at 30 CFR 75.1403-6(b)(3). 

Gravity of Violation: I agree with Petitioner that this is a serious 

violation. Despite Respondent's arguments that the vehicle was equipped 

with brakes to impede its descent, the sanding devices were designed to prevent the vehicle from losing control and to increase traction between the 

vehicle's wheels and the tracks. I find that the devices were necessary for 

the vehicle's safe operation. At the time that the citation was issued, the 

vehicle in question was about to carry seven men down into the mine. The 

grades in the No. lA Mine were fairly steep and areas near the vehicle's 

track had narrow clearances and no shelter holes. Therefore, if the vehicle 

lost control it is quite likely that serious injury or death would result. 

Negligence: The parties stipulated that the operator was cited for 

between 30 and 40 violations of this safety standard during the 24-month 

period preceding this incident. During January 1979, the operator was served 

with nine citations for violation of this standard. The inspection of the 

vehicle made by Mr. Neal was inadequate, as he did not notice the inoperative 

sanding devices. This indicates negligence on the part of the Respondent. 

Good Faith Efforts to Achieve Rapid Compliance: As stipulated, the 

operator acted in good faith in correcting this violation. The evidence 

showed that this was done within about 15 minutes. 

Size of Operator's Business and Effect of Penalty on Operator's 

Ability to Continue in Business: The parties stipulated, and I find, that 

Respondent is a large operator and that the proposed penalty would have no 

effect upon .its ability to continue in business. 

History of Previous Violations: There were 452 previous violations by 

the operator during the 24-month period preceding this incident, covering 

242 man-days of inspections. 

Assessment of Penalty: The Assessment Office recommended a penalty of 

$295. Counsel for the Secretary contended that that amount is too small in 

view of the gravity of the violation and Respondent's high degree of negligence. I agree. I am impressed with the large number of violations of this 

safety standard committed by this operator. I think the recommended penalty 

is insufficient to motivate the operator to comply with this standard. A 

larger penalty is required to impress upon·Resp~ndent the seriousness of 

this type of violation and encourage future voluntary compliance. Therefore, 

I assess a penalty of $1,000. 

98 
ORDER 

Respondent is ORDERED to pay $1,000 in penalties within 30 days of the 

date of this Order. 

Distribution: 

Edwin s. Bernstein 

Administrat.ive Law Judge 

Barbara Krause Kaufmann and Sidney Salkin, Attorneys, Office of the 

Solicitor, U.S. Department of Labor, Room 14480, Gateway Building, 

3535 Market Street, Philadelphia, PA 19104 (Certified Mail) 

Gary W. Callahan, Esq., Sewell Coal Company, Lebanon, VA 24266 

(Certified Mail) 

99 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52Q3 LEESBURG PIKE 

SECRETARY OF LABOR, 

MINE SAFETY ~D HEALTH 

ADMINISTRATION (MSHA), 

v. 

TRIPLE S COAL COMPANY, 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

BELINDA COAL COMPANY, 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 8 1980 

Petitioner 

Respondent 

Petitioner 

Respondent 

Civil Penalty Proceeding 

Docket No. PIKE 79-7-P 

A.C. No. 15-09867-03001 

Mine No. l 

Docket No. PIKE 79-24-P 

A.C. No. 15-03785-03001 

Mine No. l 

DECISION 

Appearances: John H. O'Donnell, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

Gary Stiltner, Ash Camp, Kentucky, for Respondent. 

Before: Administrative Law Judge Steffey 

Pursuant to written notice dated April 12, 1979, as amended May 7, 1979, 

a hearing in the above-entitled consolidated proceeding was held on May 17, 

1979, in Pikeville, Kentucky, under section 105(d) of the Federal Mine Safety 

and Health Act of 1977. 

MSHA's Petition for Assessment of Civil Penalty in Docket No. 

PIKE 79~7-P was filed on October 16, 1978, seeking to have a civil penalty 

assessed for an alleged violation of 30 CFR 75.1204 by Triple S Coal Company. 

The Petition for Assessment of Civil Penalty in Docket No. PIKE 79-24-P was 

filed on November 15, 1978, seeking to have a civil penalty assessed for an 

alleged violation of 30 CFR 75.1204 by Belinda Coal Company. 

Issues 

The issues raised by the Petitions for Assessment of Civil Penalty are 

whether violations of the mandatory health and safety standards occurred and, 

100 
if so, what monetary penalties should be assessed, based on the six criteria 

set forth in section llO(i) of the Act. Respondents' sole defense in their 

answers to the Petitions for Assessment of Civil Penalty and in the testimony 

of their witness at the hearing is that no violations of section 75.1204 

occurred. Therefore, the first question to be determined in this proceeding 

is that of whether either respondent violated section 75.1204. 

Docket No. PIKE 79-7-P 

Notice No. 2 TLA (7-3) 12/13/77 § 75.1204 (Exhibit 5) 

Findings. Section 75.1204, to the extent here pertinent, provides that 

when an operator permanently abandons a coal mine, he shall within 60 days 

after such abandonment file with the Secretary a copy of the mine map revised 

and supplemented to the date of abandonment or closure. Respondent Triple 

S Coal Company abandoned its No. 1 Mine in March or May 1977 and, within 

2 weeks after such abandonment, one of its copartners personally took copies 

of the final map to MSHA's Pikeville Office and gave them to an inspector 

named Doug Fleming who gave the copartner no receipt showing that the final 

map had been submitted (Tr. 41). 

When Triple S Coal Company received Notice No. 2 TLA alleging that the 

final map had not been submitted, the copartner who had delivered the map to 

Mr. Fleming called MSHA's Pikeville Office. Someone in that office stated 

that there had been some confusion regarding the map and that the matter would 

be taken care of. The copartner subsequently examined his old records and 

found two additional copies of the final mine map which were sent to MSHA and 

received by the Pikeville Office on January 20, 1978 (Tr. 33-34). 

MSHA presented two witnesses in support of Notice No. 2 TLA. The first 

witness was Mr. Thomas L. Adams who wrote the notice. Notice No. 2 TLA 

alleges that respondent did not submit a final map of its No. 1 Mine although 

the mine had been abandoned for more than 90 days. Mr. Adams testified that 

he issued Notice No. 2 TLA on the basis of information supplied to him by 

MSHA's Ventilation Department at the Pikeville Office, but Mr. Adams did not 

know the date on whch the No. 1 Mine had been abandon,ed. Mr. Adams visited 

the site of the No. 1 Mine on or about December 1, 1977, and again about a 

week later. Since he found nq one on the mine property on either occasion, 

he concluded that the mine was abandoned at that time, but he did not know 

how long the mine had been abandoned before he issued Notice No. 2 TLA 

(Tr. 30-31). 

MSHA's other witness was Mr. Elmer Fuller who wrote on February 7, 1978, 

a notice of termination of Noti~e No. 2 TLA after he had been given a copy 

of the final map showing that it had been received on January 20, 1978 

(Tr. 34-36). Mr. Fleming, to whom respondent's copartner gave the final 

maps, was unable to attend the hearing to state whether or not he agreed 

that respondent's copartner had submitted the final map within 2 weeks after 

the mine was closed (Tr. 11). 

101 
Conclusions. In my notice of hearing issued in this proceeding, I 

referred to the fact that respondent's defense was that it had submitted the 

final maps as required by section 75.1204. My notice then stated that MSHA 

should try to present as a witness the person to whom respondent allegedly 

gave the maps so that he could state whether or not he agreed or disagreed 

with respondent's claim that the final map had been submitted. MSHA did not 

have that person present at the hearing and gave no reason for his unavailability as a witness other than indicating through Mr. Adams' testimony that 

Mr. Fleming "***was unable to attend this hearing this morning" (Tr. 11). 

Since respondent's witness testified under oath that he submitted the 

final map within 2 weeks after Triple S Coal Company's No. 1 Mine was 

abandoned, his testimony is entitled to more weight than MSHA's testimony 

because neither of MSHA's witnesses had personally examined MSHA's files in 

order to determine for certain that no final map had been submitted (Tr. 

31; 36). They based their allegations that the final map had not been submitted solely on a list of companies which had been given to them by their 

supervisor. That list included respondent's No. 1 Mine, but neither of 

MSHA's witnesses was able to rebut with any personal knowledge respondent's 

claim that the final map had been submitted (Tr. 31-38). MSHA's Pikeville 

Office no doubt processes a large number of filings. Even the most competent 

employees occasionally make mistakes. In the absence of some evidence showing that a mistake was not made in processing respondent's maps, I believe 

that respondent's claim that it submitted the required map should be upheld. 

Inasmuch as MSHA's evidence fails to show that respondent's copartner 

incorrectly alleged that the final maps were submitted within 60 days after 

respondent's No. 1 Mine was abandoned, I find that no violation of section 

75.1204 was proven as alleged by Notice No. 2 TLA dated December 13, 1977. 

Therefore, MSHA's Petition for Assessment of Civil Penalty filed in Docket 

No. PIKE 79-7-P will hereinafter be dismissed. 

Docket No. PIKE 79-24-P 

Notice No. 1 BHT (8-1) 1/30/78 § 75.1204 (Exhibit 2) 

Findings. Notice No. 1 BHT alleged that respondent had violated section 

75.1204 by failing to submit a final map for its No. 1 Mine which had been 

abandoned since June 23, 1975. Belinda Coal Company's witness agreed that 

the No. 1 Mine had been abandoned on June 23, 1975, but he insisted that he 

had personally, within 1 or 2 days after abandonment, submitted to Mr. Rick 

Keene in MSHA's Pikeville Office copies of the final map (Tr. 20; 27). 

Respondent's witness stated that he lives 30 miles from Pikeville and that 

it was his practice to come to Pikeville and fill out abandonment papers for 

both Federal and State agencies because "* * * I think practically everyone 

knows you have to have final maps before you can abandon mines" (Tr. 20). 

MSHA's first witness in support of Notice No. 1 BHT was Mr. Billy H. 

Tackett. He stated that he had issued the notice after his supervisor gave 

him a "big list" of mines which had been abandoned without submission of 

final maps. Mr. Tackett did not check any files to determine whether Belinda 

102 
Coal Company had submitted a final map (Tr. 8). Another of MSHA's witnesses, 

Mr. Thomas Adams, testified that a final map was even~ually submitted for 

Belinda's No. 1 Mine but that he did not know the date on which such a map 

was submitted (Tr. 13). 

Conclusions. Apparently Mr. Adams was confused about the submission of 

a final map by Belinda in response to Notice No. 1 BHT because Belinda's 

witness stated that he never did submit a final map in response to Notice 

No. 1 BHT because he knew that he had already done so and that he had 

declined to do so after receiving Notice No. 1 BHT (Tr. 45). Nevertheless, 

Belinda's witness agreed at the hearing that he would submit a final map for 

a second time in order that MSHA's records could be completed with respect to 

Belinda's No. 1 Mine (Tr. 45). 

MSHA's evidence in support of Notice No. 1 BHT was inadequate. Although 

MSHA did know when Belinda's No. 1 Mine had been abandoned, MSHA was 

unable to present as a witness Mr. Rick Keene or anyone else who had personal 

knowledge about Belinda's claim that copies of the final map had been submitted to Mr. Rick Keene 1/ (Tr. 10; 32; 36). MSHA's witnesses had not 

examined any files pertaining to Belinda Coal Company and could not personally state what specific information had been used to prepare the "big list" 

alleging that Belinda Coal Company had failed to submit a final map (Tr. 

5-13). 

Belinda's witness testified under oath that he had submitted the final 

map within 1 or 2 days after the No. 1 Mine had been abandoned and that he 

had done so because both MSHA and the State of Kentucky require that a final 

map be submitted at the time a mine is abandoned. The witness also recalled 

specifically that he had handed the final map to Mr. Rick Keene who then 

worked in the Ventilation Department in MSHA's Pikeville office (Tr. 19). 

I cannot find that the testimony of MSHA's witnesses who possessed only 

a "big list" of abandoned mines prepared by other personnel in the Pikeville 

Office can be used to prove a violation of section 75.1204 when the company 

charged with such violation introduces the testimony of a credible witness 

to the effect that the final map was submitted within 60 days after abandonment as required by section 75.1204. I find that MSHA failed to prove that 

the violation of section 75.1204 alleged in Notice No. 1 BHT occurred. 

Therefore, I shall hereinafter dismiss MSHA's Petition for Assessment of 

Civil Penalty filed in Docket No. PIKE 79-24-P. 

1/ Belinda's witness claimed that he had given the map to Mr. Keene in 

this instance, instead of to Mr. Fleming as was the case with respect to 

Triple S Coal Company, supra. Moreover, there is doubt in the record as to 

when Mr. Keene actually stopped working for MSHA because one witness testified that he left in late August or early September 1976, while another of 

MSHA's witnesses stated that Mr. Keene left on April 8, 1976 (Tr. 32; 36). 

Regardless of whether Mr. Keene left in April or September 1976, he would 

have been working in the Pikeville Office in 1975 at the time Belinda's 

witness claimed he gave the final map to Mr. Keene. 

103 
Ultimate Findings and Conclusions 

For the reasons hereinbefore given, MSHA failed to prove that the violation of section 75.1204 alleged in Notice No. 2 TLA (7-3) dated 

December 13, 1977, and the violation of section 75.1204 alleged in Notice 

No. 1 BHT (8-1) dated January 30, 1978, occurred. Since no violations of 

the mandatory safety standards were proven, it is unnecessary for me to 

consider the six criteria under which civil penalties are assessed if violations are found to have occurred. 

WHEREFORE, it is ordered: 

MSHA' s· Petitions for· Assessment of Civil Penalty filed in Docket Nos. 

PIKE 79-7-P and PIKE 79-24-P are dismissed for failure of MSHA to prove that 

the violations of section 75.1204 alleged therein actually occurred. 

Distribution: 

Richard 

~c.o.8~ C. Steffey ~ Administrative Law Judge 

(Phone: 703-756-6225) 

John H. O'Donnell, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

Triple S Coal Company and Belinda Coal Company, Attention: Gary 

Stiltner, Copartner, P.O. Box 196, Ash Camp, KY 41512 

(Certified Mail) 

G and R Coal Company, Attention: Gary Stiltner, Copartner, Route 3, 

Box 10, Cedar Bluffs, VA.25609 (Certified Mail) 

104 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES · 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 8 1980 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket Nos. Assessment Control Nos. 

v. 

PYRO MINING COMPANY, 

Petitioner 

KENT 79-181 15-11702-03001 

Pyro Central Shop 

Respondent KENT 79-182 

Wheatcroft Mine 

KENT 79-183 

Pyro Mine No. 2 

KENT 79-184 

KENT 79-185 

KENT 79-186 

Pyro Mine No. 6 

KENT 79-187 

Pyro Mine No. 11 

DECISION APPROVING SETTLEMENT 

15-10815-03010 

15-02131-03020 

15-10353-03019V 

15-10353-03020 

15-10353-03021 

15-10339-03017 

Counsel for the Secretary of Labor filed on December 31, 1979, in the 

above-entitled proceeding a motion for approval of settlement. Under the 

settlement agreement, respondent would pay penalties totaling $8,378 instead 

of penalties totaling $9,505 as proposed by the Assessment Office. Respondent's motion was accompanied by a considerable number of documents to 

support the settlement agreement. · 

The motion for approval of settlement states that the parties considered 

the six criteria set forth in section llO(i) of the Federal Mine Safety and 

Health Act of 1977. Three of those criteria may be given a generalized 

evaluation which will apply to all of the 40 violations alleged in MSHA's 

seven Petitions for Assessment of Civil Penalty, while the remaining three 

criteria will be considered on an individual basis when each of the alleged 

violations is hereinafter reviewed. The three criteria which may be given 

a general evaluation are the size of respondent's business, the question of 

whether payment of penalties would cause respondent to discontinue in 

business, and respondent's history of previous violations. 

105 
The orders of assessment prepared by the Assessment Off ice show that 

respondent's mines produce a total of 1,634,680 tons of .coal per year, 

whereas an income statement submitted with the motion for approval of 

settlement shows that respondent sold a total of 1,228,353 tons of coal 

during the 12 months ending July 31, 1979. Since respondent's income statement provides data which are more current than the production figures in the 

assessment orders, I shall use the income statement for the purpose of 

determining the size of respondent's business. Assuming that respondent 

operated its mines for 250 days during the 12 months covered by its income 

statement, the average daily production would have been 4,912 tons per day. 

On the basis of those figures, I find that respondent is a large operator 

and that penalties in an upper range of magnitude should be assessed to the 

extent that they are determined under the criterion of the size of respondent's business. 

The financial data submitted with the motion for approval of settlement 

show that respondent lost about $14.6 million during the 12 months ending 

July 31, 1979, of which an amount of at least $7 million is attributable to 

its coal operations. Respondent's quarterly report submitted to the 

Securities and Exchange Commission states that respondent is in violation 

of the debt and equity covenants under its financing agreements with both of 

its lenders, but that respondent hopes to avoid defaulting under its agreement by selling its Corinne gas field in Mississippi for $25,800,000 of which 

amount a sum of $20,000,000 is to be paid in cash. The financial data also 

show that respondent's net losses made it unnecessary for respondent to provide for payment of any Federal income taxes for the periods ending 

January 31, 1978, and January 31, 1979. 

On the other hand, the motion for approval of settlement (p. 5) states 

that "[w]hile the agreed upon penalty will affect respondent's financial 

posture it will have no effect on respondent's ability to remain in business." Respondent's answers to MSHA's Petitions for Assessment of Civil 

Penalty indicate that respondent does not agree with the above-quoted 

statement in the motion for approval of settlement because respondent's 

answers claim that "civil penaties will substantially affect our ability to 

stay in business." Respondent's answers further allege that inflation, 

higher interest rates, and EPA restrictions, which required respondent to 

construct expensive cleaning plants which wash away 30 percent of the coal 

which respondent used to sell, all contribute to respondent's inability to 

make a profit on its coal operations. 

It would appear that the financial data submitted by respondent would 

support a finding that payment of penalties might cause respondent to discontinue in business if it were not for the fact that one of the few 

optimistic statements in respondent's quarterly report to the SEC states 

as follows (p. 9): 

Coal revenues increased significantly principally due to 

a 31% increase in tons sold by the Registrant's Kentucky 

operation and the fact that a substantial portion of the sales 

106 
were under higher-priced contracts. In addition, the 

Registrant's Alabama operation was shut down during a significant portion of the three months ended October 31, 1978 due 

to the erection of a large dragline on the property. 

After considering all of the financial data submitted by respondent, 

I conclude that the payment of penalties will not cause respondent to 

discontinue in business. 

The assessment orders in this proceeding assign anywhere from 0 points 

(Docket No. KENT 79-181) to 13 points (Docket No. KENT 79-187) for assessment 

of penalties under the criterion of history of previous violations. The 

data submitted in support of the motion for approval of settlement do not 

provide information which would permit me to find that the Assessment Office 

has attributed more penalty points to the criterion of history of previous 

violations than is warranted. In the absence of any facts to show that the 

Assessment Office has erred in its evaluation of the criterion of history 

of previous violations, I find that the Assessment Office has made reasonable 

conclusions with respect to the criterion of history of previous violations 

and no further effort to analyze the Assessment Office's determinations as to 

that criterion will be made. 

The remaining three criteria, namely, respondent's negligence, if any, 

the gravity of the alleged violations, and respondent's good faith effort to 

achieve rapid compliance will hereinafter be individually considered in my 

review of the specific violations alleged in each docket. 

Docket No. KENT 79-181 

Citation No. 795149 alleged that respondent had violated section 

77.1607(0) because a truck used during daylight hours was not provided with 

operative headlights. The Assessment Office considered that the violation 

involved no negligence, that it was moderately serious, and that there was 

a normal effort to achieve compliance. The Assessment Office proposed a 

penalty of $14 and respondent has agreed to pay the full proposed penalty. 

I find that the Assessment Office derived an appropriate penalty and that 

respondent's agreement to pay the full amount should be approved. 

Citation No. 795152 alleged that respondent had violated section 77.410 

because a truck had not been equipped with an adequate backup alarm. The 

Assessment Office considered that the violation involved ordinary negligence, 

that it was serious, and that respondent demonstrated normal good faith in 

achieving compliance. The Assessment Office proposed a penalty of $60. 

Respondent has agreed to pay the full proposed penalty. I find that the 

Assessment Office properly arrived at an appropriate penalty and that respondent's agreement to pay the full amount should be approved. 

Docket No. KENT 79-182 

Citation No. 795701 alleged that respondent had violated section 

75.1100-l(e) because the fire extinguisher on ~battery-powered locomotive 

107 
did not contain expellant or powder. The Assessment Office considered that 

the violation involved ordinary negligence, that it was serious, and that 

respondent demonstrated a better than average good faith effort to achieve 

compliance. The Assessment Office proposed a penalty of $90 and respondent 

has agreed to pay a penalty of $65. The operator's evaluation sheet shows 

that the operator believed the alleged violation to be nonserious because 

the operator did not think that the violation would result in injury or that 

the conditions surrounding the violation would be likely to cause a fire. 

If a hearing had been held, questions would have been raised as to the 

degree of the operator's negligence and the gravity of the violation. In 

such circumstances, I find that respondent's agreement to pay a penalty of 

$65 is reasonable and should be approved. 

Citation No. 795702 alleged that respondent had violated section 

75.1100-Z(d) by failing to equip a battery-powered personnel carrier with a 

fire extinguisher. The Assessment Office found that the violation involved 

ordinary negligence, that it was serious, and that respondent demonstrated 

a better than average effort to achieve compliance. The Assessment Office 

proposed a penalty of $98 and respondent has agreed to pay a penalty of $70. 

Respondent's evaluation sheet claims that respondent was nonnegligent because 

an unauthorized person had removed the fire extinguisher. Respondent did not 

believe that the conditions existing at the time the citation was written 

would produce a fire and doubted that any injury would occur as a result of 

the absence of the fire extinguisher. If a hearing had been held, questions 

would have been raised as to the degree of respondent's negligence and the 

gravity of the alleged violation. Therefore, respondent's agreement to pay 

a reduced penalty of $70 is· approved. 

Citation No. 795703 alleged that respondent had violated section 

75.601-1 because the circuit breaker for the trailing cable to a roof-bolting 

machine was set 400 amps higher than it should have been. The Assessment 

Office considered the violation to involve ordinary negligence, that it was 

serious, and that respondent demonstrated a better than average effort to 

achieve compliance. The Assessment Office proposed a penalty of $98 and 

respondent has agreed to pay a penalty of $70. Respondent alleges that no 

overcurrent was present. In such circumstances, a question exists as to 

whether the Assessment Office may have assigned an excessive number of points 

to the criterion of gravity •. I find that respondent's agreement to pay a 

penalty of $70 should be approved. 

Citation No. 795704 alleged that respondent had violated section 

75.1722(a) because the tramming chain and tramming sprockets on the feeder 

were not guarded. The Assessment Office believed that the violation involved 

ordinary negligence, that it was serious, and that respondent demonstrated a 

better than average effort to achieve compliance. Respondent has agreed to 

pay a penalty of $100, whereas the Assessment Office proposed a penalty of 

$130. There are remarks on the inspector's statement indicating that the 

feeder only moves when the conveyor belt is being extended and that no more 

than one person would be likely to be injured by an unguarded tramming chain. 

I find that a question exists as to whether the Assessment Off ice assigned 

108 
an excessive number of points under the criteria of negligence and gravity 

and that respondent's agreement to pay a reduced penalty of $100 should be 

approved. 

Citation No. 795705 alleged that respondent had violated section 75.601 

because the circuit breaker for the trailing cable of an offside shuttJe 

car had been set 400 amps higher than it should have been. The Assessment 

Office considered that the violation involved ordinary negligence, that it 

was serious, and that respondent had demonstrated a normal effort to achieve 

compliance. The Assessment Office proposed a penalty of $114 and respondent 

has agreed to pay a penalty of $80. Respondent claims that no overcurrent 

was present. That allegation raises an issue as to whether the violation 

was as serious as the Assessment Office believed. I find that respondent's 

agreement to pay a reduced penalty of $80 should be approved. 

Citation No. 795706 alleged that respondent had violated section 75.523 

because the deenergization device, or panic bar, on a shuttle car was 

inoperative when tested. The Assessment Office believed that the violation 

involved ordinary negligence, that it was serious, and that respondent had 

demonstrated a better than average effort to achieve compliance. The 

Assessment Office proposed a penalty of $130 and respondent has agreed to 

pay a penalty of $100. Respondent claims that injury resulting from the 

violation was improbable and that few miners would be exposed to danger by 

the violation. Additionally, it should be noted that respondent had provided 

a panic bar, but it had become inoperative and there is nothing in the file 

to show how long the bar had been in an inoperative condition. In such circumstances, the violation may not have involved as much negligence or gravity 

as the Assessment Offi~e assigned to those criteria. Therefore, respondent's 

agreement to pay a reduced penalty of $100 should be approved. 

Citation No. 795712 alleged that respondent had violated section 75.904 

because the 400-amp circuit breaker for the conveyor belt drive was not 

marked for identification. The Assessment Office considered that the violation involved ordinary negligence, that it was very serious, and that respondent had demonstrated a better than average effort to achieve compliance. 

The Assessment Office proposed a penalty of $150 and respondent has agreed 

to pay $115. Remarks on the inspector's statement allege that no other plug 

the size of the one for the conveyor belt was being used. Also· the main plug 

had been marked, but the suboutlet had not been marked. Those factors would 

reduce the likelihood that the circuit breaker for the belt drive would be 

mistaken for the circuit breaker for a different piece of equipment. That 

consideration indicates that the Assessment Office may have assigned an 

excessive number of points under the criteria of negligence and gravity. 

Therefore, I find that respondent's agreement to pay a reduced penalty of 

$115 should be approved. 

Citation No. 795713 alleged that respondent had violated section 75.601 

because the circuit breaker for the battery charger was set 400 amps above 

the allowable setting. The Assessment Office believed that the violation 

involved ordanary negligence, that it was serious, and that respondent had 

109 
demonstrated a better than average effort to achieve compliance. The· 

Assessment Office proposed a penalty of $98 and respondent has agreed to 

pay $70. Respondent claims that conditions were unfavorable for occurrence 

of any injuries and that no injury caused by the violation could be expected. 

Therefore, the Assessment Office may have assigned more points under the 

criteria of both negligence and gravity than the facts warranted and respondent's agreement to pay a reduced penalty of $70 should be approved. 

Citation No. 795714 alleged that respondent had violated section 75.516 

because the power cables for the battery charger were not supported on 

insulators and were permitted to come into contact with combustible materials 

at several locations. The Assessment Office considered that the violation 

involved ordinary negligence, that it was serious, and that respondent had 

demonstrated a better than average effort to achieve compliance. The 

Assessment Office proposed a penalty of $106 and respondent has agreed to 

pay a penalty of $75. Respondent claims that the power cable was insulated. 

That fact indicates that the likelihood of fire was improbable and that the 

Assessment Office may have rated the violation as involving more negligence 

and gravity than the facts warrant. Therefore, respondent's offer to pay a 

reduced penalty of $75 should be approved. 

Citation No. 795715 alleged that respondent had violated section 

75.1722(b) because the tail pulley roller on a conveyor belt was not adequately guarded. The Assessment Office considered that the violation 

involved ordinary negligence, that it was serious, and that respondent 

demonstrated a normal good faith effort to achieve compliance. The Assessment Office proposed a penalty of $150 and respondent has agreed to pay a 

penalty of $115. It should be noted that the citation refers to failure 

to guard "adequately" rather than a failure to provide any guard at all. 

If a hearing had been held, a question of fact would have arisen as to 

whether respondent's guard was adequate. In such circumstances, it appears 

that the Assessment Office may have assigned a larger number of points under 

the criterion of gravity than was warranted. Therefore, respondent's agreement to pay a reduced penalty of $115 should be approved. 

Citation No. 795716 alleged that respondent had violated section 75.515 

because the trailing cable for the coal drill was.not equipped with a suitable device to prevent strain.from being exerted on the electrical connections within the drill. The Asses8ment Office considered that the violation 

involved ordinary negligence, that it was serious, and that respondent demon~ 

strated a normal effort to achieve compliance. The Assessment Office proposed a penalty of $150 and respondent has agreed to pay a penalty of $115. 

The conditions set forth in the citation are ambiguous. The inspector 

alleges that respondent failed to provide a "suitable" fitting, but he fails 

to say that no fitting at all was provided. Additionally, there is nothing 

to show that there was any sign that the cable was worn or would have exposed 

anyone to an electrical shock at the time the citation was written. There 

is nothing in the inspector's statement which would show that the violation 

was as serious as the Assessment Office considered it to be. Therefore, 

respondent's offer to pay a penalty of $115 should be approved. 

110 
Citation No~ 795717 alleged that respondent had violated section 

75 .172.Z(b) because the pulley roller to the tail piece had not been adequately guarded. The Assessment Office considered that this violation 

involved ordinary negligence, that it was serious, and that respondent 

had demonstrated a normal effort to achieve compliance. The Assessment 

Office proposed a penalty of $150 and respondent has agreed to pay a 

penalty of $115. Here again, the citation shows that respondent had provided a guard, but that it was not as "adequate" as the inspector believed 

it should have been. The fact that respondent had provided a guard shows 

that the Assessment Office may have assigned an undue number of points 

under the criterion of negligence and justifies acceptance of respondent's 

offer to pay a reduced penalty of $115. 

Citation No. 795718 alleged that respondent had violated section 75.400 

because loose coal and coal dust had been permitted to accumulate on and 

around the two 40-horsepower motors on the feeder. The Assessment Office 

considered that the violation involved ordinary negligence, that it was 

serious, and that respondent had demonstrated a normal good faith effort to 

achieve compliance. The Assessment Office proposed a penalty of $122 and 

respondent has agreed to pay a penalty of $95. The Assessment Office reduced 

the proposed penalties with respect to several of the citations involved in 

this docket when respondent corrected the alleged violation within a period 

of 30 minutes. The alleged violation in this instance was corrected within 

a period of only 30 minutes, but no credit was given for that rapid effort 

to achieve compliance in this instance. Giving proper credit to respondent's 

effort to achieve rapid compliance justifies acceptance of respondent's 

offer to pay a reduced penalty of $95. 

Docket No. KENT 79-183 

Citation No. 794820 alleged that respondent had violated section 75.606 

because there was evidence that the trailing cable to the cutting machine 

had been run over by rubber-tired equipment. The Assessment Office considered that the violation involved ordinary negligence, that it was serious, 

and that respondent had demonstrated a better than average effort to achieve 

compliance. The Assessment Office proposed a penalty of $106 and respondent 

has agreed to pay a penalty of $79. The inspector's statement indicates that 

respondent took extraordinary steps· to gain compliance in this instance. 

Also the inspector's termination of the citation states that there was no 

short circuit in the trailing cable and that no damage had been done to the 

trailing cable by the equipment which appears to have run over it. In such 

circumstances, the Assessment Office may have assigned more points under the 

criterion of gravity than was warranted. Therefore, respondent's offer to 

pay a penalty of $79 should be approved. 

Docket No. KENT 79-184 

Order No. 795432 was issued under the unwarrantable failure provisions 

of the Act and alleged that respondent had violated section 75.200 by failing 

to install bolts on 5-foot centers in compliance with its roof-control plan. 

The roof bolts were alleged to be up to 6-1/2 feet apart in the Nos. 1 

111 
through 6 entries and 9 feet away from the ribs. Over 98 roof bolts had to 

be installed to restore the area to the requirements of the roof-control 

plan. The Assessment Office waived the point system normally used in determining penalties and made findings of fact as to the six criteria to support 

its proposed penalty of $5,000 which respondent has agreed to pay in full. 

The inspector's statement alleges that two roof falls had previously occurred 

in the section here involved. It appears that enough negligence and gravity 

were associated with the alleged violation to warrant imposition of a penalty of $5,000. Respondent's agreement to pay the full amount should be 

approved. 

Docket No. KENT 79-185 

Citation No. 9948483 alleged that respondent had violated section 70.250 

by failing to submit a valid respirable dust sample or give a reason for not 

sampling for one employee. The Assessment Office considered that the violation involved ordinary negligence, that it was nonserious, and that respondent demonstrated a normal effort to achieve compliance. The Assessment 

Office proposed a penalty of $84 and respondent has agreed to pay $60. 

Section 70.250 requires that the atmosphere of each miner on a working section be sampled at intervals of 120 days and that the atmosphere of other 

miners be sampled at intervals of 180 days. The samples required under section 70.250 are unrelated to the sampling of the high-risk employee whose 

samples are used to determine if an operator's mine is in compliance with 

the respirable-dust program. While there is generally some negligence 

associated with the failure to submit the 120-day and 180-day samples, a 

penalty of $60 is a sufficient amount unless there is evidence to show that 

an operator has been grossly negligent in continuously violating section 

70.250. Since there is no evidence in this proceeding to show that respondent frequently violated section 70.250, I believe that respondent's agreement to pay $60 should be approved. 

Citation No. 795155 alleged that respondent had violated section 75.1714 

because the operator of a roof-bolting machine was not provided with a selfrescue device. The Assessment Office considered that the violation involved 

no negligence, that it was serious, and that respondent demonstrated an 

average good faith effort to achieve compliance. The Assessment Office proposed a penalty of $84 and respondent has agreed to pay $60. The inspector's 

statement does not rate the seriousness of the violation. There must have 

been extenuating facts associated with the alleged violation or the inspector 

would not have considered the operator to be nonnegligent. In such circumstances, I believe that respondent's agreement to pay a penalty of $60 should 

be approved. 

Docket No. KENT 79-186 

Citation No. 795340 alleged that respondent had violated section 75.603 

because a temporary splice in the trailing cable for the coal drill had been 

made by tying the conductors in square knots. The Assessment Office considered that the violation involved ordinary negligence, that it was serious, 

112 
and that respondent demonstrated a better than average effort to achieve 

compliance. The Assessment Office proposed a penalty of $122 and respondent 

has agreed to pay $95. Respondent's evaluation sheet claims that the splice· 

was well insulated and that no one would have been injured because of the 

use of square knots in the temporary splice. Moreover, respondent states 

that production was immediately stopped and the splice was remade in the 

correct manner. In such circumstances, the Assessment Office may have 

assigned more penalty points to the criterion of gravity than were warranted. 

Therefore, respondent's agreement to pay a penalty of $95 should be approved• 

Citation No. 795521 alleged that respondent had violated section 75.605 

because respondent had failed to clamp the trailing cable of the coal drill 

to the cable reel so as to prevent strain from being placed on the electrical 

connections. The Assessment Office considered that the violation involved 

ordinary negligence, that it was serious, and that respondent had demonstrated a normal effort to achieve compliance. The Assessment Office proposed a penalty of $122 and respondent has agreed to pay $95. The Assessment 

Office may have assigned excessive penalty points because the operator's 

evaluation sheet shows that the operator felt that it was improbable that an 

injury would occur as a result of the alleged violation. The operator 

believed the violation to be nonserious because the grounding mechanism was 

in good condition as well as the circuit breaker. Moreover, respondent 

alleges that it had made a better than average effort to achieve rapid compliance, but the Assessment Office considered that there had been only a 

normal effort to achieve compliance. In such circumstances, respondent's 

agreement to pay $95 should be approved. 

Citation No. 795522 alleged that respondent had violated section 

75.1107-16(b) because a loading machine's fire-suppression device had been 

rendered inoperative by a severed hose. The Assessment Office considered 

that the violation involved ordinary negligence, that it was serious, and 

that the operator had demonstrated an outstanding effort to achieve compliance. The Assessment Office proposed a penalty of $84 and respondent has 

agreed to pay $60. The operator's evaluation sheet claims that the operator 

was nonnegligent and alleges that any injury as a result of the violation 

was improbable since the loading machine was in a clean condition and there 

was good ventilation in the mine. In such circumstances, the Assessment 

Office may have assigned an excessive number of points under the criteria of 

negligence and gravity. Therefore, respondent's agreement to pay a penalty 

of $60 should be approved. 

Citation No. 795523 alleges that respondent had violated section 75.603 

because a temporary splice had been made in the trailing cable on a roofbol ting machine and the splice was close to the reel. The Assessment Office 

considered that the violation involved ordinary negligence, that it was 

serious, and that respondent had demonstrated an outstanding effort to 

achieve rapid compliance. Respondent's evaluaiion sheet claims that it was 

nonnegligent because the miners had been instructed in proper splicing procedures and alleges that the violation was nonserious because the splice 

113 
had been well insulated. In such circumstances, respondent's agreement to 

pay a penalty of $95, instead of the penalty of $122 proposed by the Assessment Office, should be approved. 

Citation No. 795524 alleged that respondent had violated section 75.1722 

because 5 feet of the fencing used to guard the belt head were missing which 

would permit a person to come in contact with moving head rollers. The 

Assessment Office considered that the violation ·involved ordinary negligence, 

that it was serious, and that respondent had demonstrated a better than 

average effort to achieve rapid compliance. The Assessment Office proposed 

a penalty of $114 and respondent has agreed to pay $80. The Assessment 

Office may have assigned an excessive number of points under the criteria of 

negligence and gravity because respondent's evaluation sheet claims that 

respondent was nonnegligent and that the likelihood of injury was improbable. 

In such circumstances, respondent's offer to pay a penalty of $80 should be 

approved. 

Citation No. 795525 alleged that respondent had violated section 75.202 

because overhanging ribs ranging in size from 12 to 28 inches were observed 

in four entries. The Assessment Office considered that the violation 

involved ordinary negligence, that it was serious, and that respondent had 

demonstrated an outstanding effort to achieve rapid compliance. The Assessment Office proposed a penalty of $106 and respondent has agreed to pay 

$75. The respondent's evaluation sheet claims that the violation involved 

no negligence and alleges that the overhanging ribs were not large enough to 

have been likely to injure anyone. It appears that the Assessment Office 

may have assigned an excessive number of points under the criteria of 

negligence and gravity. Therefore, respondent's agreement to pay a penalty 

of $75 should be approved. 

Citation No. 795526 alleged that respondent had violated section 75.503 

because the loading.machine had two openings which exceeded the width permitted by the permissibility standards. The Assessment Office considered 

that the violation involved ordinary negligence, that it was serious, and 

that the operator demonstrated a better than average effort to achieve rapid 

compliance. The Assessment Office proposed a penalty of $98 and respondent 

has agreed to pay $70. Respondent's evaluation ~heet claims that the mine 

atmosphere contained no methane and that the weekly check of equipment had 

revealed no permissibility violations. In view of the contested facts, the 

Assessment Office may have assigned excessive points under the criteria of 

negligence and gravity. Therefore, respondent's offer to pay a penalty of 

$70 should be approved. 

Citation Nos. 795527 and 795528 alleged that respondent had violated 

section 75.503 because permissibility violations existed in a shuttle car and 

cutting machine, respectively. The Assessment Office considered that both 

violations involved ordinary negligence, that they were serious, and that 

respondent demonstrated a better than average effort to achieve rapid compliance with respect to Citation No. 795527 and demonstrated a normal effort 

to achieve compliance with respect to Citation No. 795528. The Assessment 

114 
Office proposed a penalty of $122 and $98 for Citation Nos. 795527 and 

795528, respectively, and respondent has agreed to pay penalties of $95 and 

$70, respectively. The operator's evaluation sheet claims that the weekly 

examination had revealed no permissibility violations, that no methane was 

present, and that ventilation was good. In view of the extenuating circumstances alleged by the operator, I find that respondent's agreement to pay 

penalties of $95 and $70 should be approved. 

Citation No. 795536 alleged that respondent had violated section 75.1722 

because the belt feeder head roller was not adequately guarded in that the 

wire guard had been pulled back far enough to expose a person to the hazard 

of being caught in the roller. The Assessment Office considered that the 

violation involved ordinary negligence, that it was serious, and that respondent had made a better than average effort to achieve rapid compliance. The 

Assessment Office proposed a penalty of $114 and respondent has agreed to pay 

a penalty of $80. Respondent's evaluation sheet indicates that the belt 

examiners had not yet made their inspection as the citation was written at 

7:50 a.m. Respondent corrected the violation within 10 minutes after the 

citation was written. In such circumstances, I find that respondent's agreement to pay $80 should be approved. 

Citation No. 795538 alleged that respondent had violated section 75.200 

because a crosscut between the Nos. 4 and 5 entries was 25 feet wide in 

violation of respondent's roof-control plan which permits crosscuts to be 

no more than 20 feet wide. The Assessment Office considered that the violation involved ordinary negligence, that it was serious, and that respondent 

had demonstrated an ou~standing effort to· achieve rapid compliance. The 

Assessment Office proposed a penalty of $170 and respondent has agreed to 

pay $130. Respondent's evaluation sheet claims that the wide crosscut was 

needed for the purpose of turning the mining machine around and that it was 

improbable that injury would result from the violation, and that production 

was stopped so that the crosscut could be timbered immediately. Respondent's 

evaluation sheet raises questions as to whether the alleged violation was as 

serious or involved as much negligence as the Assessment Office believed. 

Therefore, respondent's agreement to pay a penalty of $130 should be 

approved. 

Citation No. 795539, as modified, alleged that respondent hatl violated 

section 75.316 because there was an excessive amount of dust in the No. 4 

Unit as a result of respondent's failure to use water to control dust. The 

Assessment Office considered that the violation involved ordinary negligence, 

that it was serious, and that respondent had demonstrated an outstanding 

effort to achieve rapid compliance. The Assessment Office proposed a penalty 

of $106 and respondent has agreed to pay $75. Respondent's evaluation sheet 

contends that no violation occurred as no dust was in suspension. In view 

of the question of fact which would have been raised if a hearing had been 

held, I find that respondent's agreement to pay. a penalty of $75 should be 

approved. 

Citation No. 795540 alleged that respondent had violated section 75.200 

because a roof bolter was not provided with two temporary supports as 

115 
required by the roof-control plan. The Assessment Office considered that the 

violation involved ordinary negligence, that it was serious, and that.respondent had demonstrated an outstanding effort to achieve rapid compliance. The 

Assessment Office proposed a penalty of $98 and respondent has agreed to pay 

$70. Respondent's evaluation sheet alleges that no roof bolting had yet been 

done and that the roof was in good condition. If a hearing had been held, 

questions of fact would have been raised as to respondent's negligence and 

as to the gravity associated with failure to install temporary supports 

before any roof bolting had been started. Therefore, respondent's agreement 

to pay a penalty of $70 should be approved. 

Citation No. 796521 alleged that respondent had violated section 75.503 

because there were nonpermissible openings on a scoop while it was being used 

inby the last open crosscut in No. 2 entry. The Assessment Office considered 

that the violation involved ordinary negligence, that it was serious, and 

that respondent had demonstrated an outstanding effort to achieve rapid 

compliance. The Assessment Office proposed a penalty of $106 and respondent 

has agreed to pay $75. Respondent's evaluation sheet claims that no methane 

was present in the mine atmosphere and that there was no likelihood of an 

explosion. In view of the questions of fact raised by respondent's claim 

that the violation was nonserious, respondent's agreement to pay a penalty 

of $75 should be approved. 

Citation No. 796522 alleged that respondent had violated section 75.316 

because an airlock had not been provided at the belt tailpiece. The Assessment Office considered that the violation involved ordinary negligence, 

that it was serious, and that respondent had demonstrated an outstanding 

effort to achieve rapid compliance. The Assessment Office proposed a penalty 

of $84 and respondent has agreed to pay a penalty of $60. Respondent's 

evaluation sheet claims that an airlock had been constructed but that it had 

been torn down when it became caught in the belt conveyor. Respondent also 

claims that good ventilation was being maintained on the section. If a hearing had been held, questions of fact would have been raised as to whether 

respondent was negligent and as to whether the violation was serious in the 

circumstances. Therefore, respondent's agreement to pay $60 should be 

approved. 

Citation No. 796523 alleged that respondent had violated section 75.703 

because a battery charger was being used to charge the batteries on a scoop 

without providing a proper frame ground for the charger. The Assessment 

Office considered that the violation involved ordinary negligence, that it 

was serious, and that respondent had demonstrated an outstanding effort to 

achieve rapid compliance. The Assessment Office proposed a penalty of 1$140 

and respondent has agreed to pay a penalty of $110. Respondent's evaluation 

sheet claims that the frame ground was torn loose during the shift preceding 

the shift on which the inspector's citation was written and that chargers 

are equipped with back-up grounding systems. If a hearing had been held, 

questions of fact would have been raised as to the extent of respondent's 

negligence and as to the gravity of the violation. Therefore, I find that 

respondent's agreement to pay a penalty of $110 should be approved. 

116 
Citation No. 796525 alleged that respondent had violated section 75.303 

because inadequate examinations of the conveyor belts had been made in that 

obvious violations were observed by the inspector but a record of the violation had not been recorded in the approved belt examiners' book located on 

the surface. The Assessment Office considered that the violation involved 

ordinary negligence, that it was serious, and that respondent made a normal 

effort to achieve compliance. Respondent's evaluation sheet claims that 

management had no knowledge that the belts were not being adequately 

examined and that they had been examined that d~y. If a hearing had been 

held, a number of factual issues would have been raised as to whether respondent was negligent and as to the gravity of the alleged violation. Therefore, respondent's agreement to pay a penalty of $140, instead of the 

penalty of $180 proposed.by the Assessment Office, should be approved. 

Citation No. 596531 alleged that respondent had violated section 75.606 

because a scoop was observed as it was driven over the energized cable of 

the loading machine. The Assessment Office considered that the violation 

involved no negligence, that it was serious, and that respondent had demonstrated a normal effort to achieve compliance. The Assessment Office proposed a penalty of $84 and respondent has agreed to pay $60. Respondent's 

evaluation sheet claims that management had no control over the situation 

because the employee disobeyed company orders in running over the cable. 

Respondent also claims that the grounding mechanism and circuit breaker were 

operative. The inspector's citation shows that the violation was corrected 

within 10 minutes and that it was determined that the loading machine's cable 

had not been damaged. The Assessment Office failed to give respondent credit 

for stopping production to make a quick examination of the cable. In such 

circumstances, respondent's agreement to pay a penalty of $60 should be 

approved. 

Docket No. KENT 79-187 

Citation No. 401741 alleged that respondent had violated section 

70.lOO(b) because the average concentration of respirable dust in the 

environment of the high-risk miner was 3.6 milligrams per cubic meter of air. 

The Assessment Office considered that the violation involved ordinary negligence, that it was very serious, and that respondent demonstrated a normal 

effort to achieve compliance. The Assessment Office proposed a penalty of 

$255 and respondent has agreed to pay a penalty of $200. Neither the 

official file nor the materials submitted with the motion to approve settlement contain any statements showing that the Assessment Office incorrectly 

overstated the negligence o~ seriousness of the alleged violation. On the 

other hand, respondent's agreement to pay $200 for this violation of the 

respirable dust standard shows that the parties have recognized that the 

degree of negligence and gravity associated with this alleged violation was 

rather high. Since there is nothing in the record to show how long the 

condition lasted, I conclude that the miners w~re not exposed to 3.6 milligrams of respirable dust for a long period of time. Therefore, respondent's 

agreement to pay $200 is reasonable and should be approved. 

117 
Citation No.· 794976 alleged that respondent had violated section 75.301 

because respondent had not provided enough air at the working face for the 

velocity of the air to be measured with an anemometer. The Assessment Office 

considered that the violation involved ordinary negligence, that it was 

serious, and that respondent demonstrated an outstanding effort to achieve 

rapid compliance. The Assessment Office proposed a penalty of $106 and 

respondent has agreed to pay $75. Respondent's evaluation sheet explains 

that the curtain had been torn by a shuttle car, that the helper of the 

cutting-machine operator was in the process of moving up the waterline, and 

that no methane was d~tected. The inspector's citation shows that respondent 

increased the velocity of air to 3,600 cubic feet within 5 minutes after the 

citation was written. I find that there were enough extenuating circumstances to justify acceptance of respondent's offer to pay a penalty of $75. 

Citation No. 794978 alleged that respondent had violated section 75.316 

by failing to have two water sprays on the cutting machine. Respondent's 

ventilation, methane, and dust control plan requires that the machine have 

two operable sprays. The Assessment Office considered that the violation 

involved ordinary negligence, that it was serious, and that respondent demonstrated a better than average effort to achieve rapid compliance. The 

Assessment Office proposed a penalty of $140 and respondent has agreed to 

pay $110. Respondent's evaluation sheet claims that two water sprays had 

been installed on the cutting machine and that one had been knocked off. 

Respondent claims that management was unaware of the missing spray because 

one spray was doing an adequate job of wetting the coal. Respondent also 

claims that production was stopped and that an additional spray was installed 

within a period of 30 minutes. In such extenuating circumstances, respondent's offer to pay a penalty of $110 should be approved. 

WHEREFORE, it is ordered: 

(A) For the reasons hereinbefore given, the seven motions for approval 

of settlement filed in this proceeding on December 31, 1979, are granted and 

the settlement agreements are approved. 

(B) Pursuant to the settlement agreements, respondent, within 30 days 

from the date of this decision, shall pay civil penalties totaling $8,378.00 

which are allocated to the respective alleged violation as follows: 

Docket No. KENT 79-181 

Citation No. 795149 3/8/79 § 77.1607(0) ••••••••••• $ 

Citation No. 795152 3/12/79 § 77.410 •••••••••••••• 

Total Settlement Penalties in 

Ibcket No. KENT 79-181 ••••••••••••••••••••• $ 

Docket No. KENT 79-182 

Citation No. 795701 3/20/79 § 75.1100-l(e) •••••••• $ 

Citation No. 795702 3/20/79 § 75.1100-2(d) •••••••• 

118 

14.00 

60.00 

74.00 

65.00 

70.00 
Citation No. 795703 3/20/79 § 75.601-1 •••••••••••• 70.00 

Citation No. 795704 3/20/79 § 75.1722(a) •••••• ~ ••• 100.00 

Citation No. 795705 3/20/79 § 75.601 ...•...•.••.•. 80.00 

Citation No. 795706 3/20/79 § 75.523 ••••••••• ; •••• 100.00 

Citation No. 795712 3/27/79 § 75.904 •••••••••••••• 115.00 

Citation No. 795713 3/27/79 § 75.601 •••••••••••••• 70.00 

Citation No. 795714 3/27/79 § 75.516 •.••..••.•..•. 75.00 

Citation No. 795715 3/27 /79 § 75.1722(b) •••••••••• 115.00 

Citation No. 795716 3/29/79 § 75.515 .•••••••.••••• 115.00 

Citation No. 795717 3/29/79 § 75.1722(b) •••••• r ••• 115.00 

Citation No. 795718 3/29/79 § 75.400 •••••.•••••••• 95.00 

Total Settlement Penalties in 

Docket No. KENT 79-182 ••••••••••••••••••••• $1,185.00 

Docket No. KENT 79-183 

Citation No. 794820 2/5/79 § 75.606 ••••••••••••••• $ 79.00 

Total Settlement Penalties in 

Docket No. KENT 79-183 ••••••••••••••••••••• $ 79.00 

Docket No. KENT 79-184 

Order No. 795432 2/15/79 § 75.200................. $~,000.00 

Total Settlement Penalties in 

Docket No. KENT 79-184............... •.•.•••• $5,000.00 

Docket No. KENT 79-185 

Citation No. 9948483 3/2/79 § 70.250 •••••••••••••• $ 60.00 

Citation No. 795155 4/3/79 § 75.1714.............. 60.00 

Total Settlement Penalties in 

Ibcket No. KENT 79-185 ••••••••••••••••••••• $ 120.00 

Docket No. KENT 79-186 

Citation No. 795340 3/19/79 § 75.603 ...••.•••....• $ 95.00 

Citation No. 795521 3/19/79 § 75.605 ••••••••• · ••••• 95.00 

Citation No. 795522 3/19/79 § 75.1107-16(b) ••••••• 60.00 

Citation No. 795523 3/20/79 § 75.603 •••••••••••••• 95.00 

Citation No. 795524 3/20/79 § 75.1722 ••••••••••••• 80.00 

Citation No. 795525 3/21/79 § 75.202 ••••.••••••••• 75.00 

Citation No. 795526 3/21/79 § 75.503 ••••••.••••••• 70.00 

Citation No. 795527 3/21/79 § 75.503 ••••.••••••••• 95.00 

Citation No. 795528 3/21/79 § 75.503 •••••••••••••• 70.00 

Citation No. 795536 3/27/79 § 75.1722 ••••••••••••• 80.00 

Citation No. 795538 3/27/79 § 75.200 •••••••••••••• 130.00 

119 
Citation No. 795539 3/27/79 § 75.316 ...•.......... 75.00 

Citation No. 795540 3/27/79 § 75.200 ••••••••••••• ~ 70.00 

Citation No. 796521 3/27 /79 § 75.503 ••••..••.••••• 75.00 

Citation No. 796522 3/27 /79 § 75.316 ••..•••.•••••. 60.00 

Citation No. 796523 3/27 /79 § 75.703 ••••.•••••..•• 110.00 

Citation No. 796525 3/29/79 § 75.303 •••.•••••••.•• 140.00 

Citation No. 796531 3/30/79 § 75.606 •••••.•••••••• 60.00 

Total Settlement Penalties in 

·Docket No. KENT 79-186..................... $1,535.00 

Docket No. KENT 79-187 

Citation No. 401741 12/12/78 § 70.lOO(b) •••••••••• 

Citation No. 794976 4/6/79 § 75.301 ••••••••••••••• 

Citation No. 794978 4/6/79 § 75.316 ••••••••••••••• 

Total Settlement Penalties in 

$ 200.00 

75.00 

110.00 

Docket No. KENT 79-187..................... $ 385.00 

Total Settlement Penalties in 

This Proceeding •••••••••••••••••••••••••••• $8,378.00 

Richard 

Administrative 

~c~~ C. Steff.ey 

Law Judge 

~ 

Distribution: 

George Drumming, Jr., Attorney, Office of the Solicitor, U.S. Department 

of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Pyro Mining Company, Attention: Bennie E. Morgan, Director of Safety 

and Training, P.O. Box 267, Sturgis, KY 42459 (Certified Mail) 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 8 1980 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. PIKE 79-22-P 

Assessment Control No. 

15-09646-03001 

Petitioner 

v. 

TRIPLE S COAL COMPANY, Mine No. 2 

Respondent 

DECISION 

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

U.S. Department of Labor, for Petitioner; 

Gary Stiltner, Ash Camp, Kentucky, for Respondent. 

Before: Administrative Law Judge Steffey 

Pursuant to written notice dated April 12, 1979, as amended May 7, 

1979, a hearing in the above-entitled proceeding was held on May 17, 1979, 

in Pikeville, Kentucky, under section 105(d) of the Federal Mine Safety 

and Health Act of 1977. 

MSHA's Petition for Assessment of Civil Penalty was filed on 

November 14, 1978, in Docket No. PIKE 79-22-P seeking assessment of a 

civil penalty for an alleged violation of 30 CFR 75.1711 by respondent. 

Issues 

The issues raised by the Petition for Assessment of Civil Penalty are 

whether a violation of 30 CFR 75.1711 occurred and, if so, what monetary 

penalty should be assessed, based on the six criteria set forth in section 

llO(i) of the Act. My decision as to whether a violation occurred will be 

based on the findings of fact set forth below: 

Findings of Fact 

(1) The respondent in this proceeding is Triple S Coal Company which 

is a four-man partnership (Tr. 19). For a short period of time, respondent 

operated a No. 1 Mine near Feds Creek, Kentucky. Respondent subleased the 

mineral rights to the coal in its No. 1 Mine from Hawkins Coal Company. 

121 
(2) Another company, B D and D Coal Company, operated a mine about 

one-half mile from respondent's No. 1 Mine. B D and D Coal Company also 

subleased the mineral rights to the coal in its mine from Hawkins Coal 

Company. After BD&D had stopped producing coal in its mine, Hawkins Coal 

Company asked Mr. Gary Stiltner, one of the copartners in Triple S Coal 

Company, to inspect the mine which BD&D had· abandoned to determine if any 

more coal could economically be produced from that mine (Tr. 20). 

(3) After a coal mine is abandoned, no person may reenter that mine 

without filing with MSHA for permission to reopen the mine (Tr. 21). Therefore, in order for Mr. Stiltner to inspect the mine abandoned by BD&D, it 

was necessary for him to travel to Phelps, Kentucky, and execute certain 

forms which indicated that Triple S Coal Company wished to reopen, as its 

No. 2 Mine, the mine which BD&D had abandoned (Exh. 4; Tr. 20). 

(4) In May 1977, Mr. Stiltner and two MSHA inspectors examined the 

No. 2 Mine to determine whether there was coal in the mine which could be 

produced economically (Tr. 22). The MSHA inspectors and Mr. Stiltner found 

that so much work would have to be done to the No. 2 Mine to make it operable,· that the small amount of coal reserves remaining in the mine could 

not be economically produced (Tr. 20). After he had determined that the 

No. 2 Mine could not be operated economically, Mr. Stiltner returned to 

MSHA's office and filled out the necessary forms to show that Triple S Coal 

Company had abandoned the No. 2 Mine (Tr. 20). MSHA's Mine Information 

Form alleges that Triple S Coal Company had four men working at the No. 2 

Mine, but not producing coal. Mr. Stiltner intended for the information 

furnished to MSHA to show how many men planned to work at the No. 2 Mine 

if the initial inspection of the mine had indicated that the No. 2 Mine 

could become a feasible operation (Tr. 21-22; Exh. 4). 

(5) As it turned out, Triple S Coal Company never did produce any 

coal at the No. 2 Mine and none of the Triple S Coal Company's copartners, 

other than Mr. Stiltner, ever went to the No. 2 Mine, and Mr. Stiltner only 

entered the No. 2 Mine once while in the company of two MSHA inspectors (Tr. 

22). 

(6) Section 75.1711 provides that any coal mine which is permanently 

closed, or abandoned for more than 90 days, shall be sealed by the operator 

of the mine in a manner prescribed by the Secretary. The manner of sealing 

is set forth in section 75.1711-2 providing that the entries of abandoned 

or closed mines are to be sealed with materials such as concrete blocks 

or~by filling the entries with incombustible material for a distance of 

25,feet. Additionally, drain pipes at least 4 inches in diameter must be 

installed in at least one entry (Tr. 10). 

(7) An MSHA inspector examined the site of respondent's No. 2 Mine on 

September 20, 1977, and found that the Nos. 1 and 3 entries had been properly sealed, but the Nos. 2 and 4 entries had not been properly sealed. 

Dirt had been pushed into the Nos. 2 and 4 entries for a distance of only 

about 5 or 10 feet and there was space above the dirt through which persons 

could enter the mine (Tr. 6-7). 

122 
(8) After observing the conditions described in paragraph (7) above, 

the inspector issued Notice No. 1 ELF (7-2) on September 20, 1977, citing 

respondent for a violation of section 75.1711 (Tr. 6; Exh. 1). 

On the basis of the findings set forth above, I conclude that a violation of section 75.1711 occurred. Mr. Stiltner was actually making an 

economic evaluation of the coal reserves remaining in the No. 2 Mine as an 

agent for Hawkins Coal Company (Tr. 21), but there is nothing on the Mine 

Information Form in MSHA's files to show that Mr. Stiltner was acting for 

Hawkins. The Mine.Information Form shows only that Triple S Coal Company 

had applied for permission to reopen the mine which BD&D had been operating. 

1be Form shows that Triple S Coal Company intended to operate the mine as 

its No. 2 Mine. Although Mr. Stiltner was acting as Hawkins' agent, he was 

also acting on behalf of the partnership which owned Triple S Coal Company 

because he stated that if producible coal reserves had been found, the four 

partners who comprised Triple S Coal Company would have jointly participated 

in operating the No. 2 Mine (Tr. 27-28; Exh. 3). 

Having found that a violation occurred, it is now necessary to consider 

the six criteria before assessing a civil penalty. 

Size of Respondent's Business 

Respondent's No. 1 Mine produced only about 20 tons of coal daily over 

a short period of time (Tr. 26). Respondent never did operate the No. 2 

Mine as an active mine (Tr. 18; 21). The four partners who operated the 

No. 1 Mine are now producing coal from a mine in Virginia under the name 

of G and R Coal Company. The reserves from the Virginia mine were obtained 

from Bostic Coal Company. The Virginia mine produces about 50 or 60 tons 

of coal per day. The coal was sold to Bostic Coal Company until May 14, 

1979, when Bostic notified the partners that it no longer had any orders 

to fill and would not purchase any more coal from the four partners until 

further notice (Tr. 29-30). 

On the basis of the facts set forth above, I find that respondent is 

a very small operator and that the penalty should -be assessed in a low 

range of magnitude to the extent that it is determined under the criterion of the size of respondent's business. 

Effect of Penalties on Ability of Respondent To Continue in Business 

The facts reviewed above show that the four partners are now operating 

only a single coal mine. At the time of the hearing, they were stockpiling 

their coal because they had no market for it. Even when they have a market 

for their coal, they would be likely to have a marginal operation because 

they were producing only 50 to 60 tons per day. I find that some consideration should be given in assessing a penalty to the criterion of whether payment of penalties will cause respondent to discontinue in business. 

123 
History of Previous Violations 

C.Ounsel for MSHA stated at the commencement of the hearing that respondent does not have a history of previous violations at its No. 2 Mine (Tr. 

3). Therefore, it is unnecessary to consider the criterion of history of 

previous violations in assessing a penalty. 

Good Faith Effort To Achieve Rapid Compliance 

Notice No. 1 ELF .was written on September 20, 1977, and provided that 

respondent should have until October 21, 1977, within which to seal the 

entries on the No. 2 Mine (Exh. 1). On October 25, 1977, an inspector 

other than the one who had written Notice No. 1 ELF issued Order of Withdrawal No. 1 HB stating that entry No. 1 was not properly sealed and that 

no drain pipes had been provided for the Nos. 1, 2 and 3 openings within 

the time allowed. The conditions stated in the withdrawal order imply the 

existence of sealing requirements which are inconsistent with MSHA's actual 

requirements for the sealing of abandoned mines. The withdrawal order 

alleges that respondent had failed to place drain pipes in the Nos. 1, 2 

and 3 entries, whereas MSHA's reqirements for installation of drain pipes 

state (Tr. 10-11): 

* * * A means to prevent a build-up of water behind the seal 

shall be provided in at least one of the seals. Metal pipes 

used for this purpose shall be a minimum of 4 inches in 

diameter and shall be installed of sufficient height above 

the bottom of the.seal to prevent it from becoming blocked 

with mud or debris. [Emphasis supplied.] 

The inspector who wrote Notice No. 1 ELF testified that no drains had been 

placed in the entries and that the Nos. 1 and 3 entries had been sealed, 

whereas the Nos. 2 and 4 entries had not been adequately sealed (Tr. 7). 

The order of withdrawal alleges that only the No. 1 entry had not been 

adequately sealed and that drains were needed in three of the four entries. 

The inference which could be drawn from the order of withdrawal is that 

some work had been done between the writing of the notice by one inspector 

and the issuance of the withdrawal order by a different inspector. Inasmuch as the inspector who wrote the notice had not been back to the mine 

after he issued the notice and since Mr. Stiltner had not returned to the 

mine after the notice was written, there were no witnesses at the hearing 

who could state whether any work had been done to improve the seals on the 

entries between the time the notice was issued and the time the withdrawal 

order was issued. 

Respondent's defense in this proceeding has always been that since it 

owned neither the mineral rights nor the land on which the No. 2 Mine was 

situated, it was not obligated to seal the.mine under the requirements of 

section 75.1711 (Tr. 23). Mr. Stiltner testified that the owner of the 

land on which respondent's No. 1 Mine was located did not want the entries 

sealed after respondent abandoned the No. 1 Mine, but Hawkins Coal Company, 

124 
from whom he subleased the coal, had sealed the entries to the No. 1 Mine 

despite the land owner's objections. Mr. Stiltner stated that whatever 

work had been done in sealing the entries to the No. 2 Mine had also been 

done by someone hired by Hawkins Coal Company (Tr. 23). 

The facts reviewed above show that Hawkins Coal Company may have 

attempted to do some additional work toward sealing the No. 2 Mine after 

the notice was issued, but there is no specific evidence in the record to 

support a finding that Hawkins or anyone else actually did any additional 

work toward sealing the mine after the notice was issued. The discrepancies between the conditions described in Notice No. 1 ELF and Order 

No. 1 HB may have resulted from two inspectors having come to slightly 

different cone lusions after examining the ·same physical evidence. 

In order to find that respondent made a good faith effort to achieve 

compliance, there should be. some evidence .showing that respondent took 

some kind of action to make certain that all the entries of the No. 2 

Mine were sealed ~fter Notice No. 1 ELF was·issued, but the evidence shows 

that respondent did nothing •. Although respondent knew that Hawkins Coal 

Company had undertaken to seal the entries before the notice was issued, 

respondent made no effort to get Hawkins to improve or complete the sealing work which had already been started. Mr. Stiltner knew that Hawkins 

had hired a third party to do the work that had been done before the 

notice was written (Tr. 23). It is inconceivable that Hawkins would have 

hired a third party to seal the entries in a fashion which would not pass 

MSHA's inspection. That third party was liable to Hawkins for doing a 

satisfactory job in s.ealing the entries. The least that respondent 

should have done would have been to have reported to Hawkins that the 

No. 2 Mine had not been properly sealed and that as a result of the poor 

workmanship done by the third party which Hawkins had hired to seal the 

entries, respondent had been cited for a violation of section 75.1711. 

Respondent could have then insisted that Hawkins have the third party complete the work which had been started, but not completed in a satisfactory 

manner. 

Respondent's failure to do anything whatsoever after Notice No. 1 ELF 

was issued supports a finding, and I so find, that respondent failed to 

make a good faith effort to achieve compliance after Notice No. 1 ELF was 

issued. Therefore, respondent's indifference about seeing that the mine 

was properly s.ealed will be given considerable weight in assessing a 

penalty. 

Negligence 

As indicated above, respondent did not own the mineral rights to the 

coal and did not .own the land on which the No. 2 Mine was situated. The 

land owner did not want the mine entries sealed after respondent had abandoned its No. 1 Mine, but Hawkins Coal Company, which owned the mineral 

rights, sealed the entries despite the contrary wishes of the land owner 

(Tr. 24-25). Respondent has been involved in several coal-mining operations and is knowledgeable about the obligations which an operator has to 

125 
assume when he abandons a mine. Moreover, MSHA sends each operator who 

abandons a mine a letter advising him that he must do certain things. 

Among those things is the requirement that he seal the openings of the 

mine which he has abandoned (Tr. 9-10). Respondent did not deny that it 

had received that sort of information from MSHA. 

Even if MSHA failed to send a letter to respondent advising him about 

the requirement that entries of abandoned mines are required to be sealed, 

the former Board of Mine Operations Appeals held in Freeman Coal Mining Co., 

3 IBMA 434 (1974), that the operator is conclusively presumed to know what 

the mandatory health and safety standards are. Consequently, I find that 

respondent's failure to inquire about the sealing of the No. 2 Mine involved 

ordinary negligence even though respondent expected Hawkins Coal Company to 

do the actual sealing of the mine. Respondent's witness agreed at the hearing that abandonment of the No. 2 Mine involved the furnishing of a final map 

just as if respondent had actually produced coal from the No. 2 Mine (Tr. 23). 

Since respondent also knew that the entries had to be sealed (Tr. 23), he 

should have made an effort to seal the mine or determine for certain that 

Hawkins Coal Company intended to seal the entries as required by section 

75.1711. 

Gravity of the Violation 

'!he inspector stated that the danger associated with failure to seal 

the mine was that the mine was located about one-half mile from the nearest 

residence and that a person might venture to the site of the mine and might 

enter it and be injured or killed either by rocks falling from the roof or 

by encountering air devoid of oxygen. The No. 2 Mine was a relatively 

shallow mine which extended only about 400 feet underground (Tr. 8-9), but 

that would be a sufficient distance for a person to be injured or killed if 

he should venture into the mine. The mine was located only 2 miles from a 

school house and it is easily possible that someone from the school might 

walk to the mine from the school and be injured (Tr. 5). Therefore, I 

find that the violation was serious. 

Assessment of Penalty 

There are many extenuating circumstances associated with assessing a 

penalty in this proceeding. The facts show that Mr• Stiltner was acting as 

an agent of Hawkins Coal Company. He apparently expected Hawkins Coal Company to seal the No. 2 Mine just as it sealed his No. ·l Mine. Hawkins Coal 

Company's failure to seal the mine adequately resulted in respondent's being 

cited for the violation of section 75.1711. As Mr. Stiltner conceded at the 

hearing, he made a mistake in not showing on the Mine Information Form that 

it was really Hawkins Coal Company which wanted the No. 2 Mine reopened in 

order to evaluate the economic feasibility of recovering coal from that mine 

(Tr. 21). If Hawkins Coal Company's name had appeared on the Mine Information Form, there is reason to assume that Notice No. 1 ELF would have been 

issued in the name of Hawkins Coal Company instead of Triple S Coal Company. 

126 
It seems somewhat unfair to require respondent to pay a civil penalty 

for failure to perform an obligation which another company probably should 

have done, and did attempt to do in an inadequate fashion. There was no 

information in MSHA's files, however, which even hinted that Mr. Stiltner 

was really having the No. 2 Mine reopened at the request of Hawkins Coal 

Company. Therefore, MSHA properly held Triple S Coal Company liable for 

sealing the mine because it had no reason to believe that any other entity 

was liable. 

Considering that respondent operates a very small business, that its 

operations would be adversely affected by a large penalty, that a good faith 

effort was not made to achieve compliance, that there is no history of previous violations, that ordinary negligence was involved, and that the violation was serious, a penalty of $150 will hereinafter be assessed for this 

violation of section 75 .'1711. 

Ultimate Findings and Conclusions 

(1) Respondent should be assessed a civil penalty of $150.00 for 

the violation of section 75.1711 cited in Notice No. 1 ELF (7-2) dated 

September 20, 1977. 

(2) Respondent, as the operator of record of the No. 2 Mine, is subject to the Act and to the regulations promulgated thereunder. 

WHEREFORE, it is ordered: 

Respondent, within 30 days from the date of this decision, shall pay a 

civil penalty of $150.00 for the violation described in paragraph (1) above.; 

Distribution: 

~ef7e~ r-Jfa#~ Administrative Law Judge 

(Phone: 703-756-6225) 

John H. O'Donnell, Trial Attorney, Office of the Solicitor; U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Triple S Coal Company, Attention: Gary Stiltner, Copartner, P.O. 

Box 196, Ash Camp, KY 41512 (Certified Mail) 

G & R Coal Company, Attention: Gary Stiltner, Copartner, Route 3, 

Box 10, Cedar Bluffs, VA 24609 (Certifi~d Mail) 

127 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5205 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 8 t980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. BARB 79-157-P 

Petitioner A.C. No. 15-09816-03002 

v. 

No. 1 Surface Mine 

BLACK JACK COAL COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

John H. O'Donnell, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

Larry Cleveland, Esq., Frankfort, Kentucky, for Respondent. 

Administrative Law Judge Steffey 

Pursuant to written notice dated April 12, 1979, a hearing in the above-·· 

entitled proceeding was held on May 16, 1979, in Pikeville, Kentucky, under 

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

MSHA's Petition for Assessment of Civil Penalty in this proceeding was 

filed on December 13, 1978, and seeks to have civil penalties assessed for 

three alleged violations of the mandatory health and safety standards by 

respondent. 

Issues 

In a civil penalty proceeding, the issues normally raised by the Petition for Assessment of Civil Penalty are wheth'er violations occurred and, if 

so, what monetary penalties should be assessed, based on the six criteria 

set forth in section llO(i) of the Act. In this proceeding, counsel for 

respondent stipulated that the violations alleged in MSHA's citations had 

occurred and that the only matters which he wished to have me consider· are 

those pertaining to the six criteria (Tr. 3). 

Four of the six criteria may usually be given a general evaluation, but 

in this proceeding it is perferable to consider on a generalized basis only 

two of the criteria, namely, the size of respondent's business and the question of whether the payment of penalties would ·cause respondent to discontinue in business. The remaining four criteria, that is, respondent's good 

128 
faith effort to achieve rapid compliance, respondent's negligence, if any, 

the gravity of the violations, and respondent's history of previous violations, will be considered on an individual basis when the parties' evidentiary presentations are hereinafter reviewed. The two criteria concerning 

the size of respondent's business and whether the payment of penalties would 

cause respondent to discontinue in business are considered below. 

Size of Respondent's Business 

The thre~ citations to be considered in this proceeding were all written 

on April 12, 1978. At that time, respondent's mine employed about 20 men 

and produced approximately 500 tons of coal per day from the Little Caney 

coal seam (Tr. 6-7). At the time of the hearing, which was held on May 16, 

1979, respondent was employing between 60 and 70 miners and was producing 

about 290,000 tons of coal per year, or about 1,160 tons per day, assuming 

that the coal mine operated 250 days each year (Tr. 51). Those facts support 

a finding that respondent is a relatively small operator and that penalties 

should be assessed in a fairly low range of magnitude insofar as the penalties are determined under the criterion of the size of respondent's 

business. 

Effect of Penalties on Operator's Ability To Continue in Business 

Respondent's witness testified that assessment of penalties in the range 

proposed by the Assessment Office, that is, $150 for each alleged violation, 

would not be likely to cause respondent to discontinue in business. A 

company which has tripled its working force in a period of about 1 year is 

not likely to discontinue in business even if penalties considerably greater 

than $150 were to be assessed. Inasmuch as respondent is operating a strip 

mine, it is likely that exhaustion of suitably located coal reserves is more 

likely to cause it to discontinue in business than payment of penalties. 

Citation No. 123424 April 12, 1978 § 77.107 (Exhibit 2) 

Findings. Section 77.107 requires every operator of a coal mine to 

provide a program approved by the Secretary for the training and retraining 

of personnel in the tasks which they are required to perform as certified 

and qualified persons. Respo~dent .stipulated that the violation occurred 

(Tr. 3). The violation was moderately serious because there is no way to be 

certain that mine personnel have been SGheduled to receive training in such 

subjects as first aid, mine rescue, safety regulations, use of self-rescuer, 

methods for detecting methane and oxygen deficiency, etc., unless respondent 

has a written program providing for such training. Respondent was negligent 

in failing to have a program because such programs were required to be submitted on or before September 30, 1971, and respondent should certainly have 

submitted the program by April 12, 1978 (T+. 9-20). 

Conclusions. Respondent's witness stated that he was certain that he 

had certified persons at his mine, but he was unaware that they had to be 

retrained on an annual basis (Tr. 45-46). It is no doubt difficult to keep 

129 
abreast of the regulations, but the former Board of Mine Operations Appeals 

held in Freeman Coal Mining Co., 3 IBMA 434 (1974), that the operator is 

conclusively presumed to know what the mandatory health and safety standards 

are. The mine foreman did not have a card to show that he had received the 

necessary annual retraining in the required subjects (Tr. 20). 

The inspector conceded that respondent's personnel appeared to be competent in operating their equipment but he stated that he could not conclude 

from their ability to operate equipment that they also knew how to administer 

first aid in case of an accident nor that they knew how to test for oxygen 

deficiency or the presence of methane (Tr. 18). The fact that a mine foreman 

may at some time have had an initial course in first aid is not a reason to 

reduce the degree of negligence involved in respondent's failure to submit a 

training program for MSHA's approval as required by section 77.107. 

Considering that respondent operates a relatively small business, that 

the violation was moderately serious, that respondent was negligent, that 

respondent showed a normal good faith effort to achieve compliance, and that 

respondent has not previously violated section 77.107, a penalty of $75 will 

hereinafter be imposed. 

Citation No. 123425 April 12, 1978 § 77.106 (Exhibit 4) 

Findings. Section 77.106 requires the operator of each coal mine to 

maintain a list of all certified and qualified persons. Respondent stipulated that a violation of section 77.106 had occurred (Tr. 3). The violation 

was nonserious. Respondent was negligent in failing to maintain a list of 

certified and qualified persons (Tr. 21-30). 

Conclusions. In the inspector's opinion, it is important for each 

operator of a coal mine to make a list of the persons who are certified at 

his mine so that everyone will know which person is in charge in case a miner 

should be injured (Tr. 24). On cross-examination, the inspector conceded, 

however, that the miners would expect the foreman to be in charge in case of 

an emergency (Tr. 28). 

The operator submitted to MSHA's office located in Barbourville, 

Kentucky, a list of three persons for the purpose.of complying with section 

77.106. The list was received in evidence as Exhibit 10. The three persons 

whose names appear on the list received a first-aid course, but the list does 

not indicate the dates on which the three persons received first-aid training. Nevertheless, the inspector stated that he had been accepting a list 

such as that submitted by respondent as satisfactory compliance with section 

77.106 (Tr. 32-33). 

Considering that a moderately small operator is involved, that the violation was nonserious, that ordinary negligence was involved, that respondent 

showed a normal good faith effort to achieve compliance, and that respondent 

has not previously violated section 77.106, I believe that a penalty of $25 

130 
is reasonable, especially since the charge in Citation No. 123424 for failure 

to have a training program somewhat overlaps the charge in Citation 

No. 123425 for failure to submit a list of certified persons. 

Citation No. 123426 April 12, 1978 § 77.1000 (Exhibit 6) 

Findings. Section 77.1000 requires each operator to establish and 

follow a ground control plan for the safe control of all highwalls, pits, and 

spoil banks to be developed at his mine. It was stipulated that respondent 

had violated section 77.1000 (Tr. 3). The violation was nonserious because 

the inspector stated that respondent's highwall and spoil bank were both 

stable and that he saw no violation in the way respondent was controlling his 

highwall. Respondent was negligent for failing to have and to submit a 

ground control plan (Tr. 37-41). 

Conclusions. Respondent's witness stated that he thought the ground 

control plan was associated with the surface ~ining regulations which are 

administered by the Department of the Interior. He understood that those 

regulations were to become-effective on May 3, 1978. He said he was, therefore, surprised to be cited on April 12, 1978, for failure to have a ground 

control plan (Tr. 50; 60). It is difficult to keep informed as to all the 

regulations pertaining to mining coal, but respondent's witness stated on 

cross-examination that he had not tried to obtain clarification as to the 

regulations even though his mine is not far from the MSHA office at Hazard, 

Kentucky (Tr. 54). Additionally, Exhibit 1 indicates that respondent was 

previously cited for a violation of section 77.1000 on July 15, 1976. That 

previous violation should have made him acutely aware of the fact that he 

was required to establish a ground control plan and submit it to MSHA before 

May 3, 1978. 

Respondent's witness did, however, appear to be sincerely interested in 

complying with all safety regulations and he stated that he had been mining 

coal for 3 years without ever having had a lost-time accident at his mine 

(Tr. 47). Respondent's witness stated that he had asked for a hearing on 

the three violations involved in this proceeding primarily because he wanted 

to receive some clarification about the training program he had been cited 

for not having and about whether the ground control plan was required in 

April at the time he received_ the citation (Tr. 54-57). 

Considering that a relatively small business is involved, that the violation of section 77.1000 was nonserious in the circumstances, that respondent was negligent for failing to submit the plan to MSHA, and that there 

was a good faith effort to achieve compliance, a penalty of $50 would have 

been assessed. Exhibit 1 shows, however, that respondent has violated 

section 77.1000 on a previous occasion. That tends to offset the operator's 

claim that he thought a ground control plan was one of the requirements of 

the new surface mining regulations which were not effective on April 12, 

1978, when the instant violation of section 77.1000 was cited. Therefore, 

the penalty will be increased by $25 to $75 because of respondent's history 

of a previous violation. 

131 
Summary of Assessments and Conclusions 

(1) On the basis of all the evidence of record and the foregoing 

findings of fact, respondent should be assessed the following civil 

penalties: 

Citation No. 123424 4/12/78 § 77.107 ••••••••••••••• 

Citation No. 123425 4/12/78 § 77.106 ••••••• ~······· 

Citation No. 123426 4/12/78 § 77.1000 •••••••••••••• 

$ 75.00 

25.00 

75.00 

Total Assessments in This Proceeding •••••••••• $ 175.00 

(2) Respondent was the operator of the No. 1 Mine at all pertinent 

times and, as such, is subject to the provisions of the Act and to the 

regulations promulgated thereunder. 

WHEREFORE, it is· ordered: 

Respondent, within 30 days from the date of this decision, shall pay 

civil penalties totaling $175.00 as summarized in paragraph (1) above. 

Distribution: 

~e.sStafA Richard C. Steffey #' ~ Administrative Law Judge 

(Phone: 703-756-6225) 

John H. O'Donnell, Trial Att9rney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd, Arlington, VA 22203 

(Certified Mail) 

Larry Cleveland, Esq., Attorney for Black Jack Coal Company, Inc., 

P.O. Box 595, 314 Wilkinson Street, Frankfort, KY 40602 

(Certified Mail) 

132 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 8 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

UNITED CEMENT COMPANY, 

Petitioner 

Respondent 

Docket No. BARB 79-55-PM 

A.O. No. 22-00313-05001 

Artesia Quarry & Plant Mine 

DECISION 

Appearances: Murray A. Battles, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

Before: 

Joe F• Canterbury, Jr., Esq., Smith, Smith, Dunlap 

& Canterbury', D'allas, Texas, for Respondent. 

Judge Cook 

I. Procedural Background 

On October 24, 1978, the Mine Safety and Health Administration (MSHA) 

filed a petition for assessment of civil penalty pursuant to section llO(a) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a) 

(1978) (1977 Mine Act), against United Cement Company alleging violations 

of various sections of the Code of Federal Regulations. All of the subject 

citations were issued pursuant to section 104(a) of the Act. The Respondent 

filed its original answer on November 27, 1978, and filed an amended answer 

on December 14, 1978. 

A notice of hearing was issued on February 22, 1979, setting the case 

for hearing on the merits beginning at 9:30 a.m., May 22, 1979. On March 1, 

1979, counsel for the Respondent filed a request for a continuance. An 

order was issued on March 12, 1979, continuing the hearing to May 31, 1979, 

in Birmingham, Alabama. 

The hearing was held as scheduled. Representatives of both parties 

were present and participated. A schedule for the submission of posthearing 

briefs was agreed upon at the conclusion of the hearing. Counsel for the 

Petitioner stated that he would not file a brief (Tr. 187-188). Respondent's 

posthearing brief was filed on July 16, 1979. 

133 
II. Violations Charged 

Citation No. 80420, April 4, 1978, 30 CFR 56.9-87. l_/ 

Citation No. 80421, April 4, 1978, 30 CFR 56.12-34. 

Citation No. 80422, April 4, 1978, 30 CFR 56.16-5. 

Citation No. 80423, April 4, 1978, 30 CFR 56.20-3. 

Citation No. 80424, April 4, 1978, 30 CFR 56.11-2. 

Citation No. 80425, April 4, 1978' 30 CFR 56.14-1. 

Citation No. 80426, April 4, 1978, 30 CFR 56.9-12. 

III. Evidence Contained in the Record 

A. StiEulations 

At the commencement of the hearing, the parties entered into stipulations which are set forth in the findings of fact, infra. 

B. Witnesses 

The Petitioner called as its witness Clyde H. Gilliam, an MSHA inspector 

on April 4, 1978, and an assessment conference specialist with the.Office 

of Assessments on the date of the hearing. 

The Respondent called as its witness Darrell Price, the Respondent's 

production manager. 

c. Exhibits 

1. The Petitioner introduced the following exhibits into evidence: 

M-1 is a copy of Citation No. 80420, April 4, 1978, 30 CFR 56.9-87. 

M-l(a) is a copy of the inspector's statement pertaining to M-1. 

M-2 is a copy of Citation No. 80421, April 4, 1978, 30 CFR 56.12-34. 

M-2(a) is a copy of the termination of M-2. 

M-2(b) is a copy of the inspector's statement pertaining to M-2. 

1/ The Petitioner moved, at the close of its case-in-chief, to dismiss the 

petition as relates to Citation No. 80420. The motion was thereupon granted 

(Tr. 60-61). 

134 
M-3 is a ·copy of Citation No. 80422, April 4, 1978, 30 CFR 56.16-5. 

M-3(a) is a copy of a modification of M-3. 

M-3(b) is a copy of the inspector's statement pertaining to M-3. 

M-4 is a copy of Citation No. 80423, April 4, 1978, 30 CFR 56.20-3. 

M-4(a) is a copy of the inspector's statement pertaining to M-4. 

M-5 is a copy of Citation No. 80424, April 4, 1978, 30 CFR 56.11-2. 

M-5(a) is a copy of the termination of M-5. 

M-5(b) is a copy of the inspector's statement pertaining to M-5. 

M-6 is a copy of Citation No. 80425, April 4, 1978, 30 CFR 56.14-1. 

M-6(a) is a copy of the inspector's statement pertaining to M-6. 

M-7 is a copy of Citation No. 80426, April 4, 1978, 30 CFR 56.9-12. 

M-7(a) is a copy of the inspector's statement pertaining to M-7. 

2. The Respondent introduced the following exhibits into evidence: 

0-1. is a photograph pertaining to Citation No. 80425. 

0-2 is a photograph pertaining to Citation No. 80424. 

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 consi4ered: (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 Facts 

A. Stipulations 

1. The Administrative Law Judge has jurisdiction of the abovecaptioned proceeding (Tr. 4). 

135 
2. Clyde H• Gilliam was an authorized representative of the Secretary 

of Labor (Tr. 4). 

3. The United Cement Company received copies of each of the subject 

citations (Tr. 4). 

4. The United Cement Company was served a copy of the complaint in the 

above-captioned proceeding (Tr. 4). 

5. The United Cement Company has been served all papers necessary for 

appearances at the hearing (Tr. 4). 

6. There is no history of previous violations (Tr. 5-6). 

7. The size of the Artesia Quarry & Plant is rated at approximately 

250,000 man-hours per year (Tr. 7). 

8. United Cement Company is a wholly-owned subsidiary of Texas 

Industries (Tr. 7). 

9. The size of Texas Industries' combined mining operations (sand, 

gravel, cement and crushed stone) is rated at approximately 2 million manhours per year (Tr. 9-10). 

10. The size of United Cement Company is rated at approximately 

250,000 man-hours per year (Tr. 9-10). 

11. The amount of the proposed penalties will not affect the United 

Cement Company's ability to remain in business (Tr. 10). 

B. Occurrence of Violation, Negligence, Gravity and Good Faith 

MSHA inspector Clyde H. Gilliam, issued the subject citations on 

April 4, 1978, during an inspection of the Respondent's Artesia Quarry & 

Plant (Tr. 14, Exhs. M-1, M-2, M-3, M-4, M.,...5, M-6, M-7). He was accompanied 

on the inspection tour by Mr. Darrell Price (Tr. 15-16, 171). According to 

Inspector Gilliam, Mr. Price was the general mill foreman (Tr. 15-16). 

However, Mr. Price described himself as the production manager, but stated 

that.his duties as production manager encompassed responsibility for safety 

at the plant (Tr. 167). 

The findings with respect to the individual citations are set forth as 

follows: 

1. Citation No. 80421, April 4, 1978, 30 CFR 56.12-34 

The mandatory standard embodied in 30.CFR 56.12-34 provides that 

"[p]ortable extension lights, and other lights "that by their location present a shock or burn hazard, shall be guarded." 

136 
Inspector Gilliam cited the following "condition or practice" as violating the regulation: "Three light bulbs located approximately 7 feet 

above the floor did not have a protective guard around them. Should a 

worker with a metal bar be working below the light bulbs accidentally break 

the glass, the filament could cause electrical shock" (Exh. M-2). 

According to the inspector, the light bulbs were located in a structure 

used as a conveyor belt transfer station (Tr. 63) that measured approximately 

20 feet in length by 20 feet in width (Tr. 70). One of the bulbs was located 

directly above the transfer point (Tr. 71-72). He testified that the lights 

were approximately 7.feet above the floor, but indicated that it could have 

been less (Tr. 69). He did not measure the height, but estimated it visually 

(Tr. 72). Mr. Price testified that the company measured the height and determined that it was less than 7 feet (Tr. 184). 

The 7-foot figure, standing alone, would not be significant absent the 

so-called "7-foot rule" agreed upon amongst the inspectors during their 

meetings (Tr. 72-73). By Inspector Gilliam's own admission, 7 feet is "not 

in the law." He stated that "we" presumably the inspectors, "have to set 

some arbitrary figure," and indicated that 7 feet "is common sense." (Tr. 

72). He stated that the "7-foot rule" is not applicable throughout the 

nation because "Washington would put out something to that effect and we 

have never seen nothing to that effect" (Tr. 73). Apparently, the "requirement" was devised after an individual in Georgia, employed by Vulcan 

Materials, was electrocuted when a bulb broke and his sweaty arm touched the 

two electrodes. According to the inspector: 

A. Since that time we have made it a point to put guards 

around light bulbs where it's possible that a man may have a 

rod in his hands or moving, say around 7-feet or less, where 

the light bulbs could be broken, and catch the two electrodes. 

(Tr. 64). 

The testimony of Inspector Gilliam, the description of the "condition or 

practice" contained in the citation and the comments contained in the document known as the inspector's statement reveal that the possibility of a 

worker receiving an electrical shock was the sole hazard that the inspector 

associated with the condition (Exhs. M-2, M-2(b),"Tr. 64-66). Neither the 

documents nor his testimony a·ssociate a burn hazard with the condition. 

According to the inspector, a metal object being carried by a worker 

could accidentally strike the bulb, break the glass and make contact with 

the filaments (Exh. M-2, Tr. 64-65). A sweaty individual could thus be 

electrocuted, while a dry individual could sustain a shock (Tr. 66). 

The testimony as to the derivation of the "7-foot rule," when viewed in 

the light most favorable to the Petitioner, and the testimony as to the 

hazard posed by the three unguarded light bulbs, when taken alone and without 

137 
regard to the nature of the work actually performed in the transfer station, 

sets forth a plausible basis for finding a violation. However, the question 

as to whether the regulation has been violated can only be answered by 

giving due consideration to all of the evidence adduced. It is only through 

an appraisal of the nature of the actual work performed in the transfer stat ion that a determination can be made as to whether the location of the 

lights presented a shock hazard to the workers within the meaning of the 

regulation. ];/ 

According to the inspector, employees are not assigned to the transfer 

station on a continuous basis, but work there periodically to perform repair 

and maintenance functions (Tr. 63, 65, 73). It is not a regular work station, but merely houses some equipment (Tr. 70-71). The inspector stated 

that the area is visited by workers to remove blockages from the chute 

(Tr. 65). Pieces of wood or metal were identified as the possible obstructions (Tr. 75-76). He testified that removal of a blockage would definitely 

require the use of metal rods approximately 1 inch in diameter and 6 feet in 

length (Tr. 65, 71). The inspector stated that an individual wielding such a 

tool could accidentally shatte~ the bulb with the rod (Tr. 65), and achieve 

contact with the exposed filaments. It was the fear of this type of accident that cause him to issue the citation (Tr. 73-74). However, he admitted 

that he did not see anyone working in the area, that he could not recall 

seeing any metal bars in the transfer station (Tr. 71), and that he did not 

see anyone with a metal bar entering the room (Tr. 74). 

2/ At the close of MSHA 1s case-in-chief, the Respondent moved to dismiss 

the petition as relates to Citation No. 80421 on two grounds: First, 

counsel for the Respondent argued that no evidence had been presented to 

establish that any employee had ever used any type of metal bar in the 

transfer station. Second, the Respondent argued that the so-called "7 foot 

rule" was arrived at arbitrarily and that operators cannot be bound by 

unwritten requirements. 

However, the evidence contained in the record at the time the motion 

was made established a prima facie case as to the alleged violation and was 

sufficient to withstand a motion to dismiss. The inspector testified as an 

expert witness that a metal rod, approximately 6 feet in length and 1 inch 

in diameter, would be required to remove a blockage from the chute at the 

transfer point. The existence of such expert testimony supported the inference that unguarded light bulbs located approximately 7 feet above the floor 

presented a shock hazard. On the basis of this, it was immaterial that an 

informal "7-foot rule" happened to exist because reliance on it was unnecessary to sustain the finding of a violation. Additionally, the fact that the 

inspector testified as an expert witness was sufficient at that stage of the 

case to support an unrebutted opinion that a metal rod of the specified 

dimensions would be needed to alleviate a blockage. 

Accordingly, based on the evidence in the 'record when the motion was 

made, the Respondent's motion to dismiss is DENIED. 

138 
The sole evidence as to how blockages are actually removed from the 

chute was provided by Mr. Price, who testified that a blockage would normally 

be one floor above the level on which the subject light bulbs are located 

and that picks and shovels would be used to alleviate the blockage (Tr. 178). 

Thus, the sum total of all the evidence fails to establish that 

employees were exposed tq an electrical shock hazard of the type alleged 

in the citation because there was no proof that employees used metal objects 

in the cited area to remove chute blockages. 

Accordingly, I find that the evidence fails to establish a violation of 

30 CFR 56.12-34 by a preponderance of the evidence. 

2. Citation No. 80422, April 4, 1978, 30 CFR 56.16-5 

a. Occurrence of Violation 

The mandatory standard codified at 30 CFR 56.16-5 provides: "Mandatory. 

Compressed and liquid gas cylinders shall be secured in a safe manner." 

Inspector Gilliam cited the following condition as a violation of the standard: "The oxygen cylinder located in the welding area of the shop was not 

secured in an upright position by a chain, rope or other means" (Exh. M-3). 

The inspector testified that the unsecured cylinder was full of oxygen, 

and testified as an expert that the pressure inside was approximately 2,000 

pounds (Tr. 81). The Respondent offered no rebuttal evidence on this point. 

The question of whether a violation occurred is simplified by the 

Respondent's ad~ission that the cylinder was not secured, but that it should 

have been secured (Tr. 87). 

Accordingly, it is found that a violation of 30 CFR 56.16-5 has been 

established by a preponderance of the evidence. 

b. Negligence of the Operator. 

The area in which the violation was observed.was classified as a big 

storage area containing many oxygen cylinders (Tr. 88). Only one of the 

cylinders was unsecured (Tr. 88). Facilities were provided for tying down 

the cylinders (Tr. 88), although the witnesses differed as to the type of 

facilities provided. Inspector Gilliam testified that chains were provided 

(Tr. 83), while Mr. Price testified that ropes were provided (Tr. 178). The 

differences in their testimony on this point are immaterial, because both 

agree that adequate facilities were provide~. 

The inferences drawn from Inspector Gilliam's testimony indicate that 

it is more probable than not that an employee had been using the oxygen 

cylinder, but had replaced it in its proper location without securing it 

(Tr. 83). The inspector made a general observation to the effect that 

employees wiJl often leave a cylinder unsecured with the intention of using 

it again within approximately the next 30 minutes (Tr. 88). However, this 

139 
general observation is of no assistance in the instant case because _the 

record does not contain any indication as to precisely why the cylinder was 

not secured. 

According to Mr. Price, all employees had been instructed to secure 

the cylinders (Tr. 178). That this requirement was enforced effectively 

by the Respondent is attested to by the inspector's interpretation of his 

own observations as confirming that the Respondent enforced its safety rules 

(Tr. 91-92). Thus, the evidence in the record is inadequate to establish 

that the violation was anything other than an isolated occurrence. 

Although the inspector testified that the unsecured cylinder was sufficiently conspicuous so as to be observable to an employee working in the area 

(Tr. 84), the evidence fails to establish that the Respondent or any of the 

Respondent' s supervisory personnel knew or should have known of the condition. There is no indication that the Respondent had actual knowledge of 

the condition because. the inspector did not know whether the operator; 

Mr. Price or a foreman actually observed the unsecured cylinder prior to the 

issuance of the citation (Tr. 90). The sole basis for imputing constructive 

knowledge to the Respondent is the inspector's statement that a foreman in 

the area would have known about the condition had it existed for 5 minutes 

(Tr. 89). However, he admitted not only that it could have existed for 

substantially less than 5 minutes (Tr. 89-90), but also that it was possible 

that the foreman was unaware of it (Tr. 89). 

Therefore, the evidence is insufficient to establish anything other than 

the fact that the violation was an isolated occurrence of which the Respondent neither knew nor should have known. 

Accordingly, it is found that the Petitioner has failed to establish 

operator negligence by a preponderance of the evidence. 

c. Gravity of the Violation 

The unsecured cylinder posed a danger of falling over and hitting the 

concrete floor, thus damaging the brass, hand-operated valve and causing an 

oxygen leak (Exh. M-3(b), Tr. 82, 85). The inspector classified an occurrence as probable and noted that one person was exposed to the hazard (Exh •. 

M-3(b)). 

The inspector's testimony points to an anticipated fatality as a result 

of a gas leakage providing sufficient thrust to propel the cylinder as a 

missile through the walls of the metal building (Tr. 81-84, 85). 

Accordingly, it is found that an extremely serious degree of gravity 

has been established. 

d. Good Faith in Attempting Rapid Abatement 

The citation was issued at 11 a.m. on April 4, 1978, (Exhs. M-3, M-3(a), 

Tr. 81). Although the citation was not terminated until 3 p.m. the same day, 

140 
i.e., 4 hours after issuance, the inspector testified that the condition was 

abated immediately (Tr. 85-86, 88). In fact, both his· testimony and the 

inspector's statement reveal that the Respondent took extraordinary steps to 

gain compliance (Tr. 88-89, Exh. M-3(b)). 

Accordingly, it is found that the Respondent demonstrated good faith in 

attempting rapid abatement of the violation. 

3. Citation No. 80423, April 4, 1978, 30 CFR 56.20-3 

a. Occurrence of Violation 

The mandatory standard codified at 30/CFR 56.20-3 provides, in part, as 

follows: "Mandatory. At all mining operations: (a) Workplaces, passageways, 

storerooms and service rooms shall be kept clean and orderly." Inspector 

Gilliam cited the following condition as violating the mandatory standard: 

"There was loose paper, conduit, empty wire reel and a gallon glass jug in 

the floor and walkway of the electrical control room for the electro-static 

precipitator" (Exh. M-4). 

The control room was approximately 14 feet long and 7 feet wide (Tr. 

171). The inspector testified that it was not a work area (Tr. 107), the 

inference being that it was frequented periodically by employees recording 

the readings from the instrument panels (Tr. 102). No one was in the control 

room when the examination was made (Tr. 102). 

According to the inspector, all of the debris was in front of the control panel (Tr. 106). He testified that the wire reel was 36 inches in 

diameter (Tr. 106), and 12 to 15 inches in height (Tr. 109). It was composed of wood (Tr. 106). The piece of conduit was composed of metal (Tr. 

112), and, to the best of his recollection, was approximately 24 to 36 inches 

in length. The paper volume consisted of 12 to 18 sandwich bags and approximately 6 pieces of newspaper (Tr. 112). Based on these observations, the 

inspector deduced both that electrical work had been performed in the area 

(Tr. 111), and that employees had been using the control room as a lunch 

room (Tr. 113). 

Although Mr. Price classified the area as sloppy by company standards 

(Tr. 172), his testimony differs from the inspector as to both the volume of 

refuse present and potential safety hazard arising from it. According to 

Mr. Price, a glass jug, a brown paper bag, a Frito bag and a Coke can were 

present (Tr. 172). He recalled the piece of metal conduit as being approximately 6 to 8 feet in length and leaning in a corner of the room (Tr. 172), 

not lying in front of the control panel. He recalled the reel as being 

approximately 6 to 8 inches in diameter and 8 to 12 inches in length (Tr. 

172), which would make it much smaller thari the inspector's recollection 

would indicate. 

The resolution of this conflict in the testimony of the witnesses can be 

a~complished only by assessing their credibility. Although both witnesses 

141 
were completely· honest and forthright in their testimony, the inspector's 

memory, in light of all the evidence, appears more acc.urate. Accordingly, I 

find that Inspector Gilliam's recollection of the nature, composition, extent 

and location of the refuse in the control room accurately reflects the conditions existing on April 4, 1978. Thus, it is found that the control room was 

was not being kept clean and orderly as required by 30 CFR 56.20-3. 

Accordingly, it is found that a violation of 30 CFR 56.20-3 has been 

established by a preponderance of the evidence. 

b. Negligence of the Operator 

Although the inspector testified that the condition would be obvious to 

a foreman entering the area, he did not know whether a foreman actually saw 

it (Tr. 107-108). He had no actual knowledge as to when the debris was 

placed in the room (Tr. 108), an admission with particular significance as 

to the Respondent's actual or constructive knowledge of the presence of the 

sandwich bags, newspaper and glass jug. Since the conditions were observed 

at 1:20 p.m., i.e., shortly after the employees' lunch period (Tr. 108), 

there is a substantial basis for the inference that those materials had not 

been present for a sufficient period of time for a foreman to have observed 

them. In fact, the inspector testified that there was nothing upon which to 

base an opinion as to operator negligence except the presence of the reel 

and the conduit (Tr. 110-111). The presence of these two articles dictates 

the common sense conclusion that people had been working in the area (Tr. 

110-111). 

However, it is found that the evidence indicates a very minor degree of 

negligence. 

c. Gravity of the Violation 

Gravity must be assessed with reference to both the potential tripping 

hazards and the potential fire hazard posed by the refuse. 

The inspector testified that it was unlikely that a person would trip 

over the reel, but noted that the conduit posed more of a hazard (Tr. 109, 

112). The feared injuries, at most, ranged from a sprained ankle to a 

sprained back (Tr. 101, 103). A back sprain could result in lost workdays 

(Tr. 103). 

No ignition sources were present on the front of the electrical panel, 

but an ignition source would be presented by a blown cable on the back of 

the panel (Tr. 113). However, the inspector could not recall any bare cables 

(Tr. 113). 

Both the inspector's statement (Exh. ~-4(a)) and the testimony reveal 

that an occurrence was improbable (Tr. 109), that the injury resulting from 

the violation could most reasonably be expected to result in no lost workdays, and that one worker was exposed to the hazard. 

142 
Accordingly, it is found that the violation was accompanied by moderate 

gravity. 

d. Good Faith in Attempting Rapid Abatement 

The Respondent abated the condition in the 40 minutes allotted (Exh. 

M-4, Tr. 103-104). In fact, the inspector begrudgingly admitted that the 

Respondent took extraordinary steps to gain compliance (Tr. 109). 

Accordingly, it .is found that the Respondent demonstrated good faith 

by attempting rapid abatement of the viola~ion. 

4. Citation No. 80424, April 4, 1978, 30 CFR 56.11-2 

a. Occurrence of Violation 

30 CFR 56.11-2 provides: "Mandatory. Crossovers, elevated walkways, 

elevated ramps, and stairways shall be of substantial construction provided 

with handrails, and maintained in good condition. Where necessary, .toeboards 

shall be provided." 

Inspector Gilliam cited the following condition as violating the mandatory standard: "There was no handrails around the platform nor on the steps 

at the kiln oxygen analyzer station. The platform was approximately 

30 inches-above the ground. A worker will visit this station once each 

shift" (Exh. M-5). 

The kiln oxygen analyzer station was described as a small, isolated 

building atop a raised platform (Tr. 119). 

The platform, more accurately characterized as an elevated walkway, was 

located outside the building. It was approximately 5 to 6 feet in width 

and approximately 15 feet in length (Tr. 115). It was reached by climbing 

four steps (Exh. 0-2). 

The fact that the platform was elevated approximately 30 inches above 

the ground, in conjunction with the fact that it provided access to the 

station, renders it an elevat.ed walkway within the meaning of the subject 

regulation. ]_/ 

3/ In this regard, the existence or nonexistence of the so-called "30-inch 

regional rule" (Tr. 123-125, 172-173), is immaterial to the finding of a 

violation. It is unnecessary to decide, assuming that such a rule had been 

developed informally amongst the inspectors, whether all walkways 30 inches 

above the ground require handrails per se. In the instant case, reliance 

on such an informal rule is unnecessary to find a violation because the 

height of the platform and the nature of its use dictate that handrails 

should have been present. 

Additionally, the fact that toeboards were not provided (Tr. 117, 130) 

is immaterial since their absence is not alleged in the citation. 

143 
Accordingly, ·it is found that a preponderance of the evidence establishes that the Respondent violated 30 CFR 56.11-2 in that neither the 

elevated walkway nor the stairway were provided with handrails. 

b. Negligence of the Operator 

The Respondent's position with respect to operator negligence centers 

around the Respondent's alleged compliance with Occupational Safety and 

Health Administration (OSHA) regulations. According to the Respondent, the 

fact that the plant was constructed according to OSHA specifications demonstrates a lack of operator negligence. (Respondent's Brief, p. 6) (see also, 

Tr. 173, 183). I am in partial agreement with the tenor of the Respondent's 

argument, but I am unable to accept the implication that compliance with 

those standards, at the time the plant was constructed, necessarily requires 

a per se finding that negligence was not present. The controlling considerations when such a defense is raised are: (1) whether the subject area 

complied with the OSHA regulations at the time of construction, and (2) the 

amount of time intervening between the termination of OSHA inspections and 

the inspection by a Federal mine inspector giving rise to the subject citation. For purposes of the instant case, it is important to bear in mind 

that an absence of handrails was present on both the elevated walkway and 

the stairway. 

The plant was completed by March of 1974 (Tr. 167). The OSHA standards 

in effect at that time pertaining to handrails around walkways and stairways, 

29 CFR 1910.23(c) and 1910.23(d) (1973), provided: 

(c) Protection of open-sided floors, platforms, and 

runways. (1) Every open-sided floor or platform 4 feet or 

more above adjacent floor or ground level shall be guarded by 

a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides, except 

where there is entrance to a ramp, stairway, or fixed ladder. 

The railing shall be provided with a toeboard wherever, 

beneath the open sides, 

(i) Persons can pass, 

(ii) There is moving machinery, or 

(iii) There is equipment with which falling 

materials could create a hazard. 

(2) Every runway shall be guarded by a standard railing 

(or the equivalent as specified in paragraph (e)(3) of this 

section) on all open sides 4 feet or more above floor or 

ground level. Wherever tools, machine parts, or materials 

are likely to be used on the runway, a toeboard shall also be 

provided on each exposed side. 

144 
Runways used exclusively for special purposes {such as oiling, 

shafting, or filling tank cars) may have the railing on one 

side omitted where operating conditions necessitate such 

omission, providing the falling hazard is minimized by using 

a runway of not less than 18 inches wide. Where persons 

entering upon runways become thereby exposed to machinery, 

electrical equipment, or other danger not a falling hazard, 

additional guarding than is here specified may be essential 

for protection. 

(3) Regardless of height, open-sided floors, walkways, 

platforms, or runways above or adjacent to dangerous equipment, pickling or galvanizing tanks, degreasing units, and 

similar hazards shall be guarded with a standard railing and 

toe board. 

(d) Stairway railings and guards. (1) Every flight 

of stairs having four or more risers shall be equipped 

with standard stair railings or standard handrails as 

specified in subdivisions (i) through (v) of this subparagraph, the width of the stair to be measured clear of all 

obstructions except handrails: 

(i) On stairways less than 44 inches wide having both 

sides enclosed, at least one handrail, preferably on the 

right side descending. 

(ii) On stairways less than 44 inches wide having one 

side open, at least one stair railing on open side. 

(iii) On stairways less than 44 inches wide having both 

sides open, one stair railing on each side. 

(iv) On stairways more than 44 inches wide but less 

than 88 inches wide, one handrail on each enclosed side and 

one stair railing on each open side. 

(v) On stairways 88 or more inches wide, one handrail 

on each enclosed side, one stair railing on each open side, 

and one intermediate stair railing located approximately 

midway of the width. 

(2) Winding stairs shall be equipped with a handrail 

offset to prevent walking on all portions of the treads 

having width less than 6 inches. [Emphasis added.] 

In addition to the foregoing, the regulations prescribing the construction characteristics of fixed industrial stairs required standard railings 

"on the open sides of all exposed stairways and stair platforms." 29 CFR 

1910.24{h) (1973) (emphasis added). Under 29 CFR 1910.24{b) (1973): 

145 
Fixed stairs shall be provided for access from one structure 

level to another where operations necessitate regular travel 

between levels, and for access to operating platforms at any 

equipment which requires attention routinely during operations. Fixed stairs shall also be provided where access to 

elevations is daily or at each shift for such purposes as 

gauging, inspection, regular maintenance, etc., where such 

work may expose employees to acids, caustics, gases, or other 

harmful substances, or for which purposes the carrying of 

tools or equipment by hand is normally required. • • • 

As relates to the elevated walkway, the salient provisions of the abovequoted regulation are those requiring railings 4/ around runways 5/ and open 

sided floors or platforms 6/ 4 feet or more above floor or ground-level. It 

will be recalled that the elevated walkway in the instant case was 30 inches 

above ground level. 

As relates to stairways, the above-quoted regulations require standard 

stair railings or standard handrails for every flight of stairs having four 

!!.._/ 29 CFR 1910.21 (1973), sets forth the following definitions: 

"(a) As used in § 1910.23, unless the context requires otherwise, floor 

and wall opening, rail~ng and toe board terms shall have the meanings 

ascribed in this paragraph. 

* * * * * * * (3) Handrail. A single bar or pipe supported on brackets from a wall 

.or partition, as on a stairway or ramp, to furnish persons with a handhold 

in case of tripping. 

* * * * * * * 

(6) Standard railing. A vertical barrier erected along exposed edges 

of a floor opening, wall opening, ramp, platform, or runway to prevent falls 

of persons. 

* * * * * * * 

(8) Stair railing. A vertical barrier erected along exposed sides of a 

stairway to prevent falls of persons." 

5/ The term "runway," as used in 29 CFR 1910.23 (1973), is defined at 29 CFR 

l910.2l(a)(5) (1973), which provides the following: 

"Runway. A passageway for persons, elevated above the surrounding floor 

or ground level, such as a footwalk along shafting or a walkway between 

buildings." 

6/ The term "platform," as used in 29 CFR 1910.23 (1973), is defined at 

Z9 CFR 1910.2l(a)(4) (1973), which provides the following: 

"Platform. A working space for persons, elevated above the surrounding 

floor or ground; such as a balcony or platform for the operation of machinery 

and equipment." 

146 
or more risers, ]_/ and, as relates to industrial stairs, on the open sides 

of all exposed stairways and stair platforms. In the instant case, neither 

standard was complied with. 

These standards remained in effect after the termination of OSHA inspections in 1975 (Tr. 183-184). 29 CFR 1910.23(c). and 1910.23(d), 1910.24(b) 

and 1910.24(h) (1975). 

Based on the foregoing, I conclude that the.elevated walkway complied 

with the OSHA regulations in effect both when the plant was completed in 1974 

and when OSHA inspections of the plant ceased in 1975. Although permitting 

this condition to exist during the approximate 3-year time period between 

1975 and 1978 would ordinarly constitute gross negligence, the reliance on 

the previously applicable OSHA requirements during that time period, under 

the facts presented herein, is sufficient to reduce the degree of negligence 

demonstrated by ~he Respondent. Accordingly, it is found that the Respondent 

demonstrated a high degree of ordinary negligence by failing to provide 

handrails around the elevated platform. 

The stairway, however, presents a different problem because it did not 

comply with the OSHA requirements either in 1974 or at any time subsequent 

thereto. Therefore, permitting the condition to exist between 1975 and 1978 

constituted gross negligence. 

c. Gravity of the Violation 

The fact that the walkway was exposed to the elements indicates that 

rain or other weather conditions could render it slick ( Tr. 116). Logically, the same consideration applies to· the stairway. 

According to the inspector, an individual could back off the 

walkway, fall 30 inches to the ground and sustain back injuries (Tr. 

114-115). However, the inspector classified an occurrence as improbable (Tr. 126, Exh. M-5(b)), noting that how a person fell would 

determine whether an injury would be sustained (Tr. 125-126). One 

person would have been exposed to the hazard (Exhs. M-5, M-5(b), 

Tr. 114). 

fn. 7 (continued) 

7/ The regulations contain no definition of the term "riser" applicable to 

29 CFR 1910.23 (1973). Guidance as to its meaning under that section is provided by 29 CFR 1910.2l(b)(7) (1973), which provides the following: 

"(b) As used in § 1910.24, unless the context requires otherwise, 

fixed industrial stair terms shall have the meaning ascribed in this 

paragraph." 

* * * * * * * (7) Riser. The upright member of a step situated at the back 

of a lower tread and near the leading edge of the next higher tread." 

147 
Accordingly, it is found that moderate gravity was associated with the 

violation. 

d. Good Faith in Attempting Rapid Abatement 

Inspector Gilliam allotted the Respondent 1 day to abate the condition 

(Tr.· 118-119, Exh. M-5). According to Mr. Price, the installation of handrails commenced immediately and was completed the next day (Tr. 174). The 

citation was terminated when the inspector returned on April 11, 1978 (Tr. 

120, Exh. M-5(a)). 

Accordingly, it is found that the Respondent demonstrated good faith 

by attempting rapid abatement of the violation. 

5. Citation No. 80425, April 4, 1978, 30 CFR 56.14-1 

a. Occurrence of Violation 

30 CFR 56.14-1 provides: "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." 

Inspector Gilliam cited the following condition as violating the standard: "A guard was not installed around the rotating line shaft of the fan 

for the dust collector located in the bag house. A worker probably walked 

by the rotating shaft once during a shift" (Exh. M-6). 

The Respondent does not contend that a guard was present on the drive 

shaft. Indeed, it contends in its answer that the condition existed in an 

isolated area with no employee exposure. Accordingly, it is found that the 

conditions described in the citation existed as alleged. 

In view of the wording of the regulation it must be concluded that 

exposed moving shafts must be guarded if they may be contacted by persons 

and cause injury to such persons. 

As set forth in Part V(B)(5)(c), infra, addressing gravity, the rotating 

line shaft could have been contacted by and caused injury to employees of the 

Respondent. 

Accordingly, I conclude that the condition set forth in the citation 

constituted a violation of 30 CFR 56.14-1. 

b. Negligence of the Operator 

According to the inspector, anyone operating the equipment or working 

in the area should have observed the violation .(Tr. 136). Although there is 

no indication as to precisely how long the Respondent had permitted the 

condition to exist, it can be inferred that the condition had existed since 

the plant was built. 

148 
Mr. Price did, however, state that throughout the plant numerous covers 

had been placed on pulleys, sprockets and shafts, although he did not know 

why a cover had not been placed on the subject shaft (Tr. 176). In fact, the 

chain drive adjacent to the subject shaft was guarded (Tr. 138-140, 177). 

Inferences drawn from this testimony indicate that at some point in time the 

Respondent undertook to provide guards for all exposed moving machine parts, 

but that, for some unexplained reason, the subject shaft was not provided 

with a guard. Accordingly, I find that the Respondent demonstrated a high 

degree of ordinary negligence. 

c. Gravity of the Violation 

The line shaft was mounted between two pillar blocks (Tr. 133, Exh. 

0-1), and was between 20 to 24 inches above the floor (Tr. 134, 184). The 

inspector estimated that the sha~t rotated at 1,800 revolutions per minute 

and believed, based on experience, that the machine was powered by a 

IO-horsepower motor (Tr. 136, 147). Alamite fittings were present on each 

pillar block to permit lubrication (Tr. 147). According to the inspector, 

the shaft was accessible to all personnel walking in the area (Tr. 134). 

The inspector indicated that a guard would prevent loose clothing from 

becoming wound around the rotating shaft (Tr. 133, 148), although he testified that for this to occur a burr would have to be present on the shaft 

(Tr. 136). There is no indication that a burr was present. Although he 

indicated that workers walking by the shaft were exposed to the hazard (Tr. 

133), both the testimony and the inspector's statement reveal that the worker 

directly exposed to the hazard would be the one lubricating the bearings 

inside the pillar blocks (Exh. M-6(a), Tr. 140, 147). However, the testimony 

of Mr. ·Price reveals an employee would not be required to climb over any 

obstacles in order to reach the alamite fittings (Tr. 185). It is significant to note that the Respondent permitted lubrication of the equipment 

without requiring its employees to lock out the equipment (Tr. 176), a practice that could greatly facilitate injuries caused by accidentally_starting 

the machinery. 

Since an accident could result in the loss of a limb, the inspector 

classified the potential injury as permanently disabling (Exh. M-6(a), Tr. 

136-137). However, he classHied an occurrence as improbable (Exh. M-6(a)). 

Accordingly, it is found that a high level of gravity was associated 

with the violation. 

d. Good Faith in Attempting Rapid Abatement 

The Respondent immediately commenced fabricating a guard following the 

issuance of the c·itation (Tr. 135, 176). Although the inspector gave the 

Respondent 1 day to abate the violation (Exh. M-6, Tr. 135), the guard was 

in place, and thus the violation was abated in 1-1/2 hours (Exh. M-6, Tr. 

135-136). 

149 
Accordingly, it is found that the Respondent demonstrated good faith 

in attempting rapid abatement. 

6. Citation No. 80426, April 4, 1978, 30 CFR 56.9-12 

a. Occurrence of Violation 

This citation was issued when Inspector Gilliam observed several pieces 

of refuse on the floor inside the cab of a water truck (Exh. M-7, Tr. 155, 

158). The citation (Exh. M-7) describes the condition as follows: "There 

~as loose papers and 2 Coke cans in the floor of the water truck cab. The 

Coke cans can roll under the brake pedal and prevent the operator from 

applying the brakes." 

The cited standard, 30 CFR 56.9-12, provides: "Mandatory. Cabs of 

mobile equipment shall be kept free of extraneous materials." 

The inspector's testimony dealt mainly with the presence of the two 

Coca Cola cans (Tr. 155-166). Mr. Price confirmed the presence of the two 

cans in the truck (Tr. 183). 

Accordingly, it is found that a violation of 30 CFR 56.9-12 has been 

established by a preponderance of the evidence in that extraneous material 

in the form of two Coca Cola cans were present on the floor of the water 

truck's cab. 

b. Negligence of the Operator 

As relates to actual knowledge of the violation, Inspector Gilliam 

admitted that he did not know whether the Respondent knew of the condition 

(Tr. 160). The truck was stationary and nobody was in the cab (Tr. 158, 

161). In fact, the inspector testified that it would be difficult for the 

Respondent to check each truck every time the driver got out (Tr. 160). 

Mr. Price did not know that the cans were present in the truck (Tr. 179). 

The inspector's testimony indicates that in order to charge the Respondent with constructive knowledge, the Respondent would have to issue instructions to the drivers to keep the floorboards clear of such refuse and conduct 

spot inspections to assure that the instructions were being followed (Tr. 

157). He admitted, however, that the gespondent would have to rely, to a 

certain degree, on the drivers following the instructions (Tr. 157). 

According to Mr. Price, all drivers had been instructed to keep all cabs 

free of debris (Tr. 179). Both Mr. Price and his supervisor conducted spot 

checks of the cabs (Tr. 179), presumably to assure that the instructions 

were being followed. The fact that at least five trucks were on the premises 

and that only the subject truck had rolling mater.ial on the floorboard (Tr. 

159), tends to support the proposition that: the Respondent effectively 

enforced its rule relating to debris in truck cabs. 

Accordingly, it is found that the Petitioner has failed to establish 

negligence by a preponderance of the evid~nce. 

150 
c. Gravity of the Violation 

The inspector did not recall whether there was a hump in the floorboard 

or whether the cans were on the driver's side or the passenger's side of the 

cab (Tr. 155-156). However, he recounted an incident in which an unnamed 

individual, presumably working for some unidentified company, was killed when 

a bottle rolled under his brake pedal, preventing him from applying his 

brakes (Tr. 156). 

The "rolling bottle" example is not very material to the gravity of 

the violation in the instant case because an aluminum Coca Cola can is 

malleablei (Tr. 156), whereas a glass bottle is not. The fact that the ends 

of a Coco Cola can are stiff (Tr. 156), does not, standing alone, establish 

that one or two mashed cans present a significant safety hazard of the type 

envisioned by the inspector (Exhs. M-7, M-7(a)). This is especially true 

in light of the fact that the cans were under the seat (Tr. 160) and that 

it was not established that they could roll .under the brake. 

Of greater significance is the fact that the truck was stationary with 

nobody in the cab when the violation was cited (Tr. 158, 161). The inspector never saw the truck move and did not know whether it had been operated 

with the Coke cans inside of it (Tr. 161-162). 

In light of this, I am unable to accept the inspector's estimate that 

the occurrence of an accident was probable (Exh. M-7(a)). Based on all the 

facts, I must conclude that an occurrence was highly improbable. If, however, an accident did occur, one worker would have been exposed to the 

hazard and the resulti~g injury would most reasonably be expected to result 

in lost workdays or restricted duty (Exh. M-7(a)). 

Accordingly, I find that de minimis gravity was associated with the 

violation. 

d. Good Faith in Attempting Rapid Abatement 

The inspector gave the Respondent 15 minutes to abate the violation, 

and abatement was accomplished within the prescribed time period (Exh. M-7, 

Tr. 163). 

Accordingly, it is found that the Respondent demonstrated good faith 

in attempting rapid abatement. ' 

C. History of Previous Violations 

The Respondent has no history of previous violations (Tr. 5-6). 

D. Size of the Operator's Business 

The United Cement Company is a wholly-owned subsidiary of Texas 

Industries (Tr. 7). The size of Texas Industries' combined mining operations (sand, gra¥el, cement and crushed stone) is rated at approximately 

151 
2 million man-hours per year (Tr. 9-10). The size of United Cement Company 

is rated at approximately 250,000 man-hours per year (Tr. 9-10). The size 

of the Artesia Quarry & Plant is rated at approximately 250,000 man-hours 

per year (Tr. 7). 

E~ Effect of Penalty on Operator's Ability to 

Continue in Business 

The parties entered into a stipulation that the amount of the proposed 

penalties will not affect the United Cement Company's ability to remain in 

business (Tr. 10). Any penalty proposal computed by the Office of Assessments is immaterial to the issues presented herein because civil penalty 

proceedings are de novo proceedings. The amount of the penalty is determined 

by the Judge solely with reference to the six statutory criteria contained 

in section 110 of the Act. In this regard, it has long been recognized that 

the Judge is empowered to assess penalties greater than those proposed by the 

Office of Assessments. Gay Coal Inc., 7 IBMA 245, 84 I.D. 99, 1977-1978 

OSHD par. 21,662 (1977); Old Ben Coal Company, 4 IBMA 198, 82 I.D. 277, 

1974-1975 OSHD par. 19,723 (1975); Bμffalo Mining Company, 2 IBMA 226, 

80 I.D. 630, 1973-1974 OSHD par. 16,618 (1973); 29 CFR 2700.27(c) (1978). 

However, the Interior Board of Mine Operations Appeals (Board) has held 

that evidence relating to whether a penalty 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 will 

not impair the operator's ability to continue in business. 

VI. . Conclusions of Law 

1. United Cement Company and its Artesia Quarry & Plant have been subject to the provisions of the Federal Mine Safety and Health Act of 1977 at 

all times relevant to this proceeding. 

2. Under the Act, the Administrative Law Judge has jurisdiction over 

the subject matter of, and the parties to, this proceeding. 

3. Former MSHA inspector Clyde H. Gilliam was a duly authorized representative of the Secretary of Labor at all time~ relevant to this proceeding. 

4. The violations charged in Citation Nos. 80422 through 80426 are 

found to have occurred as set forth in Part V, supra. 

5. The Petitioner has failed to establish the violation charged in 

Citation No. 80421 by a preponderance of the evidence. 

6. All of the conclusions of law set forth in Part V, supra, are 

reaffirmed and incorporated herein. 

152 
VII. Proposed Fingings of Fact and Conclusions of Law 

The Respondent filed a posthearing brief, the Petitioner did not. Such 

brief, insofar as it can be considered to have contained proposed findings 

and conclusions, has been considered fully, and except to the extent that 

such findings and conclusions have been expressly or impliedly affirmed in 

this decision, they are rejected on the grounds that they are, in whole or 

in part, contrary to the facts and law or because they are immaterial to 

the decision in this case. 

VIII. Penalty Assessment 

Upon consideration of the entire record in these cases and the foregoing findings of fact and conclusions of law, I find that the assessment 

of a penalty is warranted as follows: 

30 CFR 

Citation No. Date Standard Penaltz 

80422 4/4/78 56.16-5 $ 75.00 

80423 4/4/78 56.20-3 40.00 

80424 4/4/78 56.ll-2 150.00 

80425 4/ 4/78 56.14-1 100.00 

80426 4/4/78 56.9-12 25.00 

$390.00 

ORDER 

Accordingly, the oral determination made at the hearing granting the 

Petitioner's motion to dismiss the petition as relates to Citation No. 80420 

is hereby REAFFIRMED, and the citation is herewith VACATED. 

IT IS FURTHER ORDERED that the petition be DISMISSED as relates to 

Citation No. 80421, and the citation is herewith VACATED. 

IT IS FiURTHER ORDERED that the Respondent pay civil penalties in the 

amount of $390 within 30 days of the date of this decision. 

~r;;:::i ohn F. Cook 

Administrative Law Judge 

153 
Distribution: 

Murray A. Battles, Esq., Office of the Solicitor, U.S. Department of 

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

(Certified Mail) 

Joe F. Canterbury, Jr., Esq., Smith, Smith, Dunlap & Canterbury, 

4050 First National Bank Building, Dallas, TX 75202 (Certified Mail) 

Administrator for Metal and Nonmetal Mine Safety and Health, U.S. 

Department of Labor 

Standard Distribution 

154 
\ 

FEDERAL MINE SAFETY ~ND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

\ 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

~MN 2 8 1980 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PITT 79-200-P 

A/O No. 36-02617-03003 

v. 

Solar No. 5 Mine 

SOLAR FUEL COMPANY, 

Respondent 

DECISION 

.Appearances: James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor, for Petitioner; 

Eugene E. Fike II, Esq., Somerset, Pennsylvania, for 

Respondent. 

Before: Judge Cook 

I. Procedural Background 

On May 2, 1979, the Mine Safety and Health Administration (Petitioner) 

filed a petition for assessment of civil penalty against Solar Fuel Company 

(Respondent) in the above-captioned proceeding. This petition, filed pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C § 820(a) (1978) (1977 Mine Act), alleged two violations of the Code 

of Federal Regulations. The Respondent filed its answer on May 11, 1979-.--

On August 27, 1979, the Petitioner filed a motion to amend the petition 

for assessment of civil penalty as relates to Citation No. 4230, issued on 

November 8, 1978, to allege a violation of 30 CFR 75.1712-3(a). The petition, as filed, had alleged a violation of 30 CFR 71.402(a). The Petitioner's motion was granted by an order issued on September 12, 1979. 

Pursuant to notices issued on October 1, 1979, and October 10, 1979, 

the hearing was conducted on October 31, 1979, in Somerset, Pennsylvania. 

Representatives of both parties were present and participated. 

At the beginning of the hearing, coun.sel for the Petitioner moved to 

dismiss the petition for assessment of civil penalty as relates to 

155 
Citation No. 9903735, November 15, 1978, 30 CFR 70.250. This motion was 

granted. (Tr. 4) !./ 

The record was left open for the filing of exhibits by the Petitioner 

as relates to the size of the operator's business and history of prior violations. Additionally, the Respondent was accorded time to file objections 

and supplemental exhibits. The Petitioner filed these exhibits (Exhs. M-6, 

M-6A) on December 17, 1979. The Respondent did not file objections or 

supplemental exhibits. Exhibits M-6 and M-6A were received in evidence by 

an order dated January 15, 1980. 

'Ille parties waived the filing of briefs. Accordingly, no briefs were 

filed. 2/ 

II. Violations Charged 

'Ille petition for assessment of civil penalty, as amended, charges the 

following violations of provisions of the Code of Federal Regulations: 

Citation No. 

4230 

9903735 

Date 

ll/8/78 

ll/15/78 

III. Evidence Contained in the Record 

A. Stipulations 

30 CFR 

Standard 

75.1712-3(a) 

70.250 

During the course of the hearing, the parties entered into various 

stipulations which are set forth in the findings of fact, infra. 

1/ Counsel for the Petitioner advanced the following reasons in support 

of the motion to dismiss: 

"The Secretary has agreed to vacate the Citation No. 9,903,735 citing 

violation 30 CFR 70.250A, I think it is--.• 250. Basically this case involves 

what we originally thought was a failure to submit valid dust samples. The 

facts of this appear to have been that Operator's sample have been sent [sic] 

in time with the regular mine cycle as required in 70.250. However, in submitting the data cards he inadvertently placed the same Social Security 

number for two different men. At this point, after discussions between the 

parties, we determined those factors do not constitute a violation 70.250 

[sic] but would perhaps constitute a violation of 70.260 which is the transmISSion of sample section as opposed to the section requiring individual 

samples once every nine days which were cited. For. those reasons the Secretary has decided, after that knowledge, the Petition will be dismissed" 

(Tr. 4). 

2/ In spite of the waiver, the parties were afforded 2 weeks in which to 

reconsider their position (Tr. 93). 

156 
B. Witnesses 

1he Petitioner called as its witness Theodore R. Dues, an MSHA 

inspector. 

The Respondent called as its witnesses James L. Custer, the Respondent's manager of safety and health; and William R. Hutchinson, an employee 

of the Respondent. 

C. Exhibits 

1. The Petitioner introduced the following exhibits in evidence: 

M-1 is a copy of Citation No. 4230, issued on November 8, 1978, 

originally issued alleging a violation of 30 CFR 71.402(a) 

M-2 is a copy of the termination of M-1. 

M-4 is a copy of the inspector's statement pertaining to M-1. 

M-5 is a copy of a modification of M-1 to reflect a viola.tion of 

30 CFR 75.1712-3(a). 

M-5A is a modification of M-5. 

M-6 is a computer printout compiled by th.e Office of Assessments 

listing the history of· prior violations for which the Respondent had paid 

assessments between November 9, 1976, and November 8, 1978. 

M-6A is a copy of a controller information report. 

2. The Respondent introduced the following exhibit in evidence: 

(}-16 is a document styled "Record of River and Climatological 

Observations." 

IV. Issues 

Two basic issues are involved in the assessment of a civil penalty: 

(1) did a violation of the 1977 Mine 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. 

157 
v. Opinion and Findings of Fact 

A. Stipulations 

During the course of the hearing, the parties entered into the following 

stipulations: 

1. Solar Fuel Company owns and operates the Solar No. 5 Mine and 

both are subject to the jurisdiction of the 1977 Mine Act (Tr. 4). 

2. The Administrative Law Judge has jurisdiction over this proceeding 

pursuant to section 105 of the 1977 Mine Act (Tr. 5). 

3. Inspector Theodore R. Dues, who issued the subject Citation, was 

a duly authorized representative of the Secretary of Labor at all times 

relevant to the proceeding (Tr. 5). 

4. The Solar No. 5 Mine produces an average of 80,000 tons of coal 

annually (Tr. 5). 

5. Solar Fuel Company mines an average of 243,000 tons per year (Tr. 

5). 

6. The assessment of a civil penalty in this proceeding will not 

affect the operator's ability to do business (Tr. 5). 

B. Occurrence of Violation 

MSHA inspector Theodore R. Dues conducted a regular health and safety 

quarterly inspection of the Respondent's Solar No. 5 Mine on November 8, 

1978 (Tr. 13, Exh M-1). After leaving the mine office, the inspector 

obtained his boots and coveralls from his car and proceeded to the change 

room (Tr. 14). The change room was located in a trailer approximately 

300 feet from where the men go to work (Exh. M-1, Tr. 26, 48). The evidence reveals that the change room facility was located in close proximity 

to a belt used to haul coal from the mine (Tr. 78~79). 

The inspector observed that the change room was not clean and orderly 

(Tr. 14). He thereupon issued the subject citation at 9:15 a.m., describing 

the conditions observed as follows: 

1he bathing facilities, change room and sanitary flush toilet 

facilities that were located in a trailer mobile home on the 

surface was not being maintained in a clean and sanitary condition in that coal dust, spit on the wall, flush toilet not 

clean and an odors [sic] in the shower and toilet facilities. 

The petition for assessment of civil penalty, as amended, alleges that 

the cited condition constitutes a violation of mandatory standard 30 CFR 

75.1712-3{a), which provides that: 

158 
All bathing facilities, change rooms, and sanitary toilet 

facilities shall be provided with adequate light, heat, and 

ventilation so as to maintain a comfortable air temperature 

and to minimize the accumulation of moisture and odors, and 

such facilities shall be maintained in a clean and sanitary 

condition. 

According to the inspector, coal dust was on the sink, bathroom 

facilities, bench, floor and lockers (Tr. 14-15). The best available evidence reveals that the coal dust on the floor was mixed with water. Some 

of it was partially dry (Tr. 30, 34, 44,). The inspector observed a sufficient accumulation of coal dust on the bathroom sink to permit a person to 

write his name in it (Tr. 15, 31-33). The inspector further testified that 

tobacco or snuff spit was present at numero.us locations on the wall near the 

benches (Tr. 14-15, 27-28). In addition, he testified that he detected the 

odor of urine in the toilet area (Tr. 15, 22). 

The Respondent's witnesses, Messrs. Custer and Hutchinson, recalled 

observing several spots, described as discolorations, on the wall above the 

trash receptacle. Although neither witness could positively identify the 

composition of the spots, Mr. Hutchinson described their physical appearance 

as "splatters" (Tr. 46., 81). Inspector Dues, during his rebuttal testimony, reasserted that the material was spit (Tr. 90-91). In light of the 

inspector's positive identification, I find that spit was present on the 

wall as described in his testimony during the Petitioner's case-in-chief. 

The Respondent's witnesses attempted to establish the odor detected by 

the inspector as emanating from the water supply and the soiled mine 

clothing. According to the Respondent's witnesses, the water supply at 

the mine contains sulphur, imparting to it a slight odor similar to that 

of rotten eggs (Tr. 61-63, 80). In addition, Mr. Custer testified that 

any odors present would be accentuated by the heat in the trailer (Tr. 63). 

The inspector's rebuttal testimony convincingly establishes a urine odor 

in the cited area. He was aware of the problem posed by the mineral content of the water and did not cite the Respondent for the stains on the 

toilet and bathing facilities caused. by the sulphur. He reasserted that 

he detected the odor of urine and testified that he did not detect the 

"rotten egg smell" described by the Respo?dent's witnesses (Tr. 89-91). 

Accordingly, I find that the conditions cited by the inspector constituted a violation of 30 CFR 75.1712-3(a). ~/ 

3/ The testimony establishing the presence of cigarette butts in the cited 

area (Tr. 14-15) is not deemed material to the issue of whether a violation 

occurred since they are not alleged in the petition for assessment of civil 

penalty. 

159 
C. Gravity of the Violation 

1he inspector classified the violation as serious because of the 

health hazard posed (Tr. 22-23), while Mr. Custer, a former MSHA inspector 

(Tr. 63), did not believe the cited area to be in an unsanitary condition 

(Tr. 64). However, it is significant to note, in assessing Mr. Custer's 

testimony on this point, that he was unable to identify the composition of 

the material on the wall and that he did not testify to detecting the odor 

of urine. 

The best available evidence indicates that no miners were in the cited 

area when the inspector observed the condition, but that approximately 10 

miners had been in the area shortly prior to his arrival (Tr. 16, 26-27, 

47). No evidence was presented as to the probability of an occurrence. 

Accordingly, I conclude that a slight amount of gravity was associated 

with the violation. 

D. Negligence of the Operator 

1he inspector's opinion that the condition had existed for over a week 

(Tr. 16) was rebutted in part by the testimony of Mr. Hutchinson. 

Mr. Hutchinson testified that he cleaned the cited area between 7 and 8 p.m. 

on November 7, 1978, in accordance with his customary practice (Tr. 77-78). 

The cleaning consisted of mopping, sweeping and wiping (Tr. 77). In addition, he testified that he cleaned the sink, bathing and toilet facilities. 

However, there is evidence indicating that the cleaning job was less than 

thorough (Tr. 78, 85). Specifically, he testified that he did not remove 

the splatter marks observed by him from the wall (Tr. 85). 

However, above and beyond this consideration, the record clearly 

reveals that substantial coal dust accilmulations were a recurrent problem 

in the area, and that this state of affairs should have been known by the 

Respondent. According to Mr. Hutchinson, coal dust accumulates quickly in 

the cited area due to its proximity to a belt leading from the mine to a 

bin (Tr. 78-79). He further testified that an appreciable amount of coal 

dust could have accumulated over a 6- to 12-hour ·period because "I could 

clean it like tonight and tomorrow morning you could go in and write your 

name in dust" (Tr. 81). The fact that the facility was used by one section foreman on each shift (Tr. 47) indicates that the Respondent should 

have known of this recurrent problem. 

Accordingly, I conclude that the Respondent demonstrated ordinary 

negligence. 

E. Good Faith in Attempting Rapid Abatement 

Abatement was accomplished in the time allotted by the inspector (Exhs. 

M-1, M-2, M-5A). Accordingly, I conclude that the Respondent demonstrated 

good faith in attempting rapid abatement. 

160 
F. History of Previous Violations 

lhe history of previous violations at the Solar No. 5 Mine for which 

the Respondent had paid assessments between November 9, 1976, and November 8, 

1978, is summarized as follows:. 

30 CFR Standard 

All Sections 

75 .1712-3( a) 

(Exh. M-6). 

Year 1 

11/9/76 - 11/8/77 

9 

0 

Year 2 

11/9/77 ~ 11/8/78 

10 

0 

G. Appropriateness of the Penalty to the Size of the Operator's 

Business 

Total 

19 

0 

Gulf and Western Industries, Inc. (Gulf and Western), is the controller 

of Solar Fuel Company (Exh. M-6A). Exhibit M-6A reveals that all of Gulf 

and Western's coal production in 1978 and 1979 was attributable to Solar 

Fuel Company. The parties stipulated that Solar Fuel·company mines an 

average of 243,00 tons of coal annually, and that the Solar No. 5 Mine 

produces an average of 80,000 tons of coal annually (Tr. 5). 

H. Effect on Operator's Ability to Continue in Business 

The parties stipulated that the assessment of a civil penalty in this 

proceeding will not affect the operator's ability to do business (Tr. 5). 

Furthermore, the· Interior Board of Mine Operations Appeals has held that evidence relating to whether a civil penalty will affect the operator's ability 

to remain in business is within the operator's control, resulting in a rebuttable presumption that the operator's ability to continue in business will 

not be affected by the assessment of a civil penalty. Hall Coal Company, 

1 IBMA 175, 79 I. D. 668, 1971-1973 OSHD par. 15, 380 (1972). Therefore, I 

find that a penalty otherwise properly assessed in this proceeding will not 

impair the operator's ability to continue in business. 

VI. Conclusions of Law 

1. Solar Fuel Company and its Solar No. 5 Mine have been subject to 

the provisions of the 1977 Mine Act at all times relevant to this proceeding. 

2. Under the 1977 Mine Act, the Administrative Law Judge has jurisdiction over the subject matter of and the parties to this proceeding. 

3. MSHA inspector Theodore R. Dues was a duly authorized representative of the Secretary of Labor at all times relevant to the issuance of the 

citations which are the subject matter of this proceeding. 

161 
4. The conditions set forth in Citation No. 4230, issued on November 8, 

1978, are found to have occurred and to have constituted a violation of 

30 CFR 75.1712-3(a). 

5. The oral determination at the hearing granting the Petitioner's 

motion to withdraw the petition for assessment of civil penalty as relates 

to Citation No. 9903735, November 15, 1978, 30 CFR 70.250 is AFFIRMED. 

6. All of the conclusions of law set forth in Part V, supra, are 

reaffirmed and incorporated herein. 

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: 

Citation No. Date 

4230 11/8/78 

30 CFR 

Standard 

75.1712-3(a) 

ORDER 

Penalty 

$40 

Respondent is ORDERED to pay the civil penalty in the amount of $40 

assessed in this proceeding within 30 days of the date of this decision. 

IT IS FURTHER ORDERED that the petition for assessment ·of civil penalty be, and hereby is, DISMISSED as relates to Citation No. 9903735, 

November 15, 1978, 30 CFR 70.250. 

Law Judge 

Distribution: 

James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor, 

Room 14480, Gateway Building, 3535 Market Street, Philadelphia, 

PA 19104 (Certified Mail) 

Eugene E. Fike II, Esq., Scull Building, Somerset, Pennsylvania 15501 

(Certified Mail) 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 

162 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520:\ LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

'JAN 2 8 1980 

Civil Penalty Procee~ing 

Docket Nos. Assessment Control Nos. 

Petitioner 

PIKE 79-19-P 15-09727-03002 

PIKE 79-111-P 15-09727-03005 

c.c.c.-POMPEY COAL COMPANY, INC., 

Respondent 

PIKE 

PIKE 

79-112-P 15-09727-03006 v 

79-117-P 15-09727-03003 v 

PIKE 79-125-P 15-09727-03004 v 

KENT 79-116 15-09727-03007 v 

No. 3 Mine 

DECISION 

Appearances: Robert A. Cohen, Esq., and Michael C. Bolden, Esq., Office 

of the Solicitor, U.S. Department of Labor, for Petitioner; 

Garred O. Cline, Esq., Pikeville, Kentucky, for Respondent. 

Before: Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued June 7, 1979, as amended on 

June 26, 1979, and August 29, 1979, a hearing in the above-entitled proceeding was held on September 25, 26, and 27, 1979, in Pikeville, Kentucky, 

under Section 105(d) of the Federal Mine Safety and Health Act of 1977. 

The consolidated proceeding involves six Petitions for Assessment of 

Civil Penalty filed by the Mine Safety and Health Administration. The 

tabulation below shows the dates on which the Petitions were filed· and 

lists the number of violations alleged in each Petition: 

Docket Numbers Dates of Filing 

November 14, 1978 

March 13, 1979 

March 13, 1979 

March 19, 1979 

March 22, 1979 

May 30, 1979 

Number of 

Alleged Violations 

20 

3 

1 

1 

PIKE 79-19-P 

PIKE 79-111-P 

PIKE 79-112-P 

PIKE 79-117-P 

PIKE 79-125-P 

KENT 79-116 

Total Alleged Violations ••••••••••••••••••••••••••••• 

11 

1 

37 

163 
Counsel ior the parties entered into the following stipulations (Tr. -

5-6): 

(1) Respondent is subject to the jurisdiction of the Federal Mine 

Safety and Health Act of 1977. 

(2) The inspectors who wrote.the notices of violation, orders of 

withdrawal, and citations involved in this proceeding were authorized representatives of the Secretary of the Interior or the Secretary of Labor at 

the time such documents were written. 

(3) At the time the alleged violations were cited, respondent's 

No. 3 Mine employed between 20 and 40 miners and produced approximately 

60 9000 tons of coal per year. 

(4) Exhibit 1 in this proceeding shows that respondent has paid penalties for 64 previous violations at the No. 3 Mine. 

The Summary of Assessments given at the end of this decision shows that 

seven of the 37 violations alleged by MSHA in this consolidated proceeding 

were the subject of evidentiary presentations by the parties and that the 

remaining 30 alleged violations were the subject of a settlement agreement 

entered into by the parties. I rendered bench decisions with respect to the 

seven contested violations. The bench decisions will first be reproduced 

in this decision as they appear in the transcript. Subsequently, this decision will summarize the reasons advanced by counsel in support of their 

request that their settlement agreement be approved with respect to the 

remaining 30 alleged violations. 

The Contested Violations 

Docket No. PIKE 79-19-P 

Notice No. 2 FIJ (7-8) 2/28/77 § 75.1710 

Upon completion of introduction of evidence by the parties, I rendered 

the bench decision quoted below with respect to Notice No. 2 FIJ (Tr. 198-

199): 

The former Board of Mine Operations Appeals held in several cases -- Buffalo Mining Company, 2 IBMA 226, at Page 259 

(1973) -- that if the materials needed for abatement are not 

available, no Notice of Violation should be written; and the 

Board held the same thing in two other cases -- Associated 

Drilling, Incorporated, 3 IBMA 164, at Page 173 (1974); and 

Itmann Coal Company, 4 IBMA 61 (1975). 

The Board also held in P and P Coal Company, 6 IBMA 86 

(1976) that an administrative law judge cannot raise this 

impossibility of performance defense himself, and I do not 

think I have raised it here. 

164 
But it does seem to me Mr. Cline's testimony, through 

both Mr. Chaneys, do[es] show that this Acme 100 was unfit 

and unqualified for installation of canopies in 1977 -- that 

is February 26, 1977, when the Notice was written. 

And I realize and recognize the inspectors had a job to 

do and they were applying this Section 75.1710 to all mines 

in an effort to get these canopies put on th~m. 

And as Mr. Cline pointed out, they did require a lot of 

companies to get into the designing of canopies, to make 

their own, and some of the more affluent companies such as 

the Pittston Company did actually redesign shuttlecars; and 

in one case I had, they spent three million dollars redesigning equipment so that canopies could be put on them; but I 

do not think c.c.c.-Pompey Coal Company is large enough to 

have done a job such as that. 

So, I think the evidence here clearly shows it was an 

impossibility of performance on this Acme 100 roof drill; 

consequently, I am going to grant Mr. Cline's motion to dismiss the petition in Docket Ntunber PIKE 79-19-P, insofar as 

it seeks assessment of penalty with respect to Notice Number 

2 FIJ dated. February 28, 1977. 

Notice No. 5 BHT (7-23) 5/11/77 § 75.1710 

Upon· completion of introduction of evidence by the parties with respect 

to the above Notice, I rendered the following bench decision (Tr. 236-238): 

This particular Notice is much more difficult to deal 

with because it is a fact it was terminated with the company acquiring a usable canopy, if you consider the conditions Mr. Chaney talked about as being usable. 

But it is also a fact it took them over a year after the 

N:>tice was originally issued before they were able to get a 

canopy that would work •. I recognize on the day the Notice 

was issued, as Mr. Chaney also recognized, the height was 

forty-eight inches; and that perhaps if he can keep it at 

forty-eight inches all the time and keep a level floor all 

the time, he might be able to accommodate this canopy fairly 

well. 

But as he pointed out, it is not quite that easy; it 

fluctuates, both in height and floor condition, and is still 

giving them an awful lot of trouble. 

And one of the factors I have to give considerable 

weight to is the fact Mr. Tackett said that on May 11, 1977, 

165 
he had not found other mines that were using a Galis 300 

with canopies on them any more than Mr. Chaney was succeeding with that. 

And as Mr. Chaney pointed out, he did try to get a 

canopy on this machine about six months before the Notice was 

issued, which shows an unusual amount of effort and certainly 

more so than if he had waited around until he was cited and 

then tried to get one. 

So, I think this situation, even though there are many 

factors about it that weigh heavily, the fact a violation 

perhaps -- the Notice, rather, should have been issued in 

order to protect miners and apparently did ultimately succeed in getting them the protection, the fact remains there 

is a certain amount of danger associated with these canopies, 

and it is still a debatable situation; but that is neither 

here nor there. 

The important and only thing I have to consider today is 

whether this is truly a situation where the materials needed 

for the canopy were available on the date the Notice was 

issued, and I think the preponderance of the evidence shows 

that the equipment was not available; and therefore, I am 

going to grant Mr. Cline's motion with respect to Notice 

Number 5 BHT dated May 11, 1977, and dismiss the petition in 

Docket Number PIKE 79-19-P with respect to that particular 

Notice. 

Upon completion of the introduction of evidence by the parties, I 

rendered the following bench decision with respect to the alleged violations which are discussed in the bench decision (Tr. 602-616): 

There are four general criteria as to which I can make 

a general finding and those findings will be applicable for 

all of the remaining alleged violations unless there is some 

specific evidence persuading me there was not a good faith 

effort to achieve rapid compliance. 

The evidence submitted by stipulation indicates as 

to the size of Respondent's business that it produced 

sixty thousand tons per year and if you assume 

two hundred fifty working days a year that would amount 

to about two hundred forty tons per day. 

Yesterday Mr. Cline referred to production of three hundred tons per day in some of his questions so I assume the 

daily production is somewhere between two hundred forty tons 

and three hundred tons. I would conclude from that that 

166 
Respondent operates a relatively small business, so the penalties that I assess will be in a relatively low magnitude 

under the criteri[on] of the size of Respondent's business. 

Mr. Cline indicated on Tuesday he did not intend to 

introduce evidence regarding Respondent's ability to pay 

penalties; therefore, in the absence of any evidence, I 

find payment of penalties will not cause Respondent to 

discontinue in business. 

I am finding there was a normal good faith effort to 

achieve rapid compliance with respect to all the alleged violations. I recognize that Inspector Steele did not think 

there had been a good faith effort to achieve rapid compliance with respect to some of his citations and orders, but 

he based that primarily on the fact that the alleged violations were not abated until May 25, and it so happens that a 

lot of notices or citations were issued on the same day, 

May 12, and all of them had the effect of closing down the 

mine. 

The Respondent worked on all of them simultaneously and 

finished cleaning up the mine and getting ready for inspection by May 25 so I don't think you could make a finding of 

failure to abate any one of the alleged violations at a 

given point between May 12 and May 25 would have shown a 

lack of good faith effort to achieve rapid compliance. 

So as to all the citations and orders that have been 

issued up 'til now I find a good faith effort to achieve 

rapid compliance unless we have evidence of a contrary 

nature at some subsequent point in which case I would give 

that criteri[on] additional consideration at that time. 

As to 

sider that 

assessed. 

eration to 

gravity. 

the history of previous violations, I shall concriteri[on] individually when the penalty is 

Of course, I shall also give individual considthe remaining two criteria of negligence and 

Turning then to the order in which the evidence was 

received [in] Docket No. [PIKE] 79-19-P, the first one of 

those was Citation No. 66814 issued on May 25, 1978, by 

Inspector Murphy alleging a violation of Section 75.400. 

The alleged violation consisted of float coal dust extending from the portal to Spad No. 605 which was a distance of 

about eight hundred feet. 

'!be float coal dust existed in an entry which had been 

designated as an escapeway and while it was an intake escapeway on May 25, 1978, when the citation was written, the 

167 
escapeway had previously been a return entry because in the 

inspector's opinion, based upon a review of the mine map, 

the float coal dust had accumulated in the entry during the 

time the eptry had been used as a return which would have 

made the accumulation form in a period prior to about May 8 

to May 12, 1978, when the flow of air was reversed in the 

escapeway. 

The inspector did not take any samples because the float 

coal dust was paper thin and defied the taking of samples. 

Moreover, the former Board of Mine Operations Appeals held 

in the Kaiser Steel case at 3 IBMA 489 (1974), that it is 

unnecessary to take samples to support a violation of Section 

75.400. c 

The former [B]oard did establish some very strict criteria which must be shown or proven by an inspector in order 

to make a prima facie case with respect to an alleged violation of Section 75.400. The [B]oard's opinion on that matter was issued in Old Ben Coal Company, 8 IBMA 98, where at 

pages 114 to 115 the [B]oard said that a prima facie case 

requires the following steps in proof: First, an accumulation of combustible material existed in the active workings 

or on electrical equipment in the active workings of a coal 

mine; two, that the coal mine operator was aware, or by exercise of due diligence and concern for the safety of the 

miners, should have been aware of the existence of such 

accumulation; and three, 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. 

There is a close question between Inspector Murphy and 

Mr. Harold Chaney with respect to whether the gray appearance 

of the escapeway was dark enough to be considered a float 

coal dust accumulation because both witnesses stated the 

appearance of the entry was gray. 

Mr. Chaney claims the gray appearance was the result of 

dampness and after the entry was rock dusted to abate the 

citation it regained its gray appearance a short time after 

the rock dusting when the new coat of rock dust became as 

wet as the old coat of rock dust. 

That evidence requires me to make a credibility determination between the two witnesses and I'm finding in favor 

of Inspector Murphy because both Mr. Harold Chaney and his 

brother praised the fair and objective manner in which 

Inspector Murphy made his inspection and I don't -- and I 

mean all inspections -- and I don't believe Inspector 

168 
Murphy would have written a citation as to float coal dust 

without making a very careful and thorough examination 

which convinced him an accumulation of float coal dust 

existed. 

Therefore, I find that the accumulation of float coal 

dust existed and I find Mr. Chaney either knew about it or 

should have known about it if he had made as diligent an 

examination of the escapeway as Inspector Murphy did. 

Inspector Murphy believed that Respondent had failed to 

clean up the accumulation within a reasonable time because he 

wrote the citation on May 25, 1978, and he believed the float 

coal dust had existed since about May 8, 1978, when the air 

flow was reversed from the return to intake air. 

Mr. Harold Chaney said the air flow was reversed on 

May 12, 1978, and he stated there was no float coal dust in 

the escapeway on May 12, 1978. Nevertheless, I have found 

the float coal dust existed on May 25, 1978, so it would 

have had to have accumulated after May 12, 1978, under 

Hr. Chaney's view of the facts. 

In the Old Ben case the [B]oard stated that the operator 

knew exactly when the accumulation there involved occurred 

and knew when the cleanup was begun and how many men were 

being used to do the cleanup. In this case, Mr. Harold 

Chaney did not know when the escapeway was last rock 

dusted; therefore, I find he lacked the necessary facts to 

overcome MSHA's prima facie case that violation of Section 

75.400 occurred. 

I find that the violation was only moderately serious 

because Inspector Murphy cited no ignition hazards and 

stated that an explosion at the face of some size would be 

required for propagation of an explosion down the escapeway. 

There was normal negligence involved because the gray color 

of the float coal dust might have been a reason for 

Hr. Chaney to omit having a new coat of rock dust applied; 

therefore, a penalty of one hundred dollars ($100) will be 

assessed for this violation of Section 75.400. 

Exhibit 1 shows Respondent violated Section 75.400 twice 

in 1976, and eight times in 1977. That is a very adverse 

trend in the numbers of violations of Section 75.400; therefore, the penalty will be increased by one hundred dollars 

($100) to two hundred dollars ($200) because of Respondent's 

unfavorable history of previous violations. 

Also in Docket No. PIKE 79-19-P there is an alleged violation of Section 75.1704 alleged by Inspector Murphy in 

169 
Citation No. 66815 dated Uay 25, 1978. Section 75.1704 

requires an escapeway [to] be maintained in a safe condition. 

Inspector Murphy stated a two hundred foot portion of 

the same escapeway inby Spad No. 605 mentioned in the previous citation was unsafe because the roof needed scaling 

in several locations and additional timbers needed to be 

installed to maintain a travelway six feet wide. 

Mr. Chaney stated the two hundred foot portion had just 

been added to the escapeway to correct another alleged violation but the two hundred foot portion had been marked as an 

escapeway and was required to be in a safe condition. 

Inspector Murphy believed that this violation was only 

potentially serious and I find it was moderately serious 

and involved normal negligence; therefore, a penalty of 

one hundred dollars ($100) will be assessed for.this violation of Section 75.1704. 

Exhibit 1 shows Respondent has _violated this section on 

one previous occasion. It is important that escapeways be 

maintained in a safe condition so the penalty will be 

increased by twenty-five dollars ($25) to one hundred 

twenty-five dollars ($125) because of Respondent's history 

of a previous violation. 

The petition ·for assessment of civil penalty filed in 

Docket No. PIKE 79-117-P seeks assessment of civil penalty 

with respect to Citation No. 66866 dated May 12, 1978, 

involving an alleged violation of Section 75.301 because 

the velocity of air was too low to be measured with an 

anemometer. 

There was a great deal of discussion in the record about 

the way that Inspector Steele conducted himself during the 

inspection made on May 12, 1978, but Respondent has presented no witness who denies that the air velocity was 

below nine thousand cubic feet per minute when Inspector 

Steele issued Citation No. 66866. 

Mr. Harold Chaney found a velocity of more than 

nine thousand cubic feet per minute when he made his preshift examination prior to 6:00 a.m. but Mr. Chaney agrees 

some of the required curtains were down when he next examined 

the section and since he did not take an air reading at the 

subsequent time when Inspector Steele.issued Citation No. 

66866 on May 12, 1978, I believe the evidence shows the 

velocity was very low at the time Inspector Steele made 

his examination. 

170 
While all witnesses agree no coal was being mined on 

May 12, 1978, all witnesses did agree that the.coal was 

being loaded on May 12 and the ventilation, methane, and 

dust control plan requires that a velocity of nine 

thousand cubic feet of air be maintained at the last open 

crosscut if coal is being mined, cut or loaded; therefore, 

I find a violation of Section 75.301 occurred. 

The preponderance of the evidence shows the violation 

W"as only moderately serious because the low air velocity had 

not existed for more than one or two hours as it occurred 

between the preshift examination and the writing of the citation at 8:30 a.m. 

The low air velocity was caused by heavy rain which 

caused the belt on the fan to slip and turn more slowly than 

was normal and by the fact that the scoop operator knocked 

down curtains when they began cleaning up the coal on the 

section at· the beginning of their shift. The section foreman was considerably negligent in failing to maintain his 

air velocity or check with Mr. Chaney if he could not 

dete~mine why he lacked the required air velocity. 

Inspector Steele did not observe a tremendous amount of 

dust in suspension in the section at the time the citation 

was written and since the violation had existed for only 

one or two hours there was not a great likelihood of an 

explosion from methane accumulation since no methane was 

detected by Inspector Steele and none has ever been 

detected in the No. 3 Mine. 

Since there was a high degree of negligence a penalty of 

three hundred dollars ($300) is warranted. Exhibit 1 shows 

no previous violations of Section 75.301; therefore, the 

penalty will not be increased under the criteri[on] of 

history of previous violations. 

There was only one alleged violation in.that docket 

[PIKE 79~117-P]. The next docket that was considered is 

Docket No. PIKE 79-125-P. In that-one, the first one that 

was considered was Order No. 66869 which was written by 

Inspector Steele on May.12, 1978, at 9:00 a.m. citing a 

violation of Section 75.400. 

Here again the [B]oard's Old Ben opinion at 8 IBMA 98 

must be considered. All witnesses, namely Inspector Steele, 

Inspector Ratliff, and both Mr. Harold Chaney and Mr. Ronald 

Chaney, agreed there was some coal dust, oil and grease on 

the S&S scoop cited in Inspector Steele's order. 

171 
There is disagreement among the witnesses as to whether 

the accumulations were great enough to warrant the issuance 

of an order but Inspector Ratliff believed it would take --

or would have taken about a week for the oil to accumulate 

to the extent he observed it when he was checking 

permissibility. 

But he did not express an opinion as to the time that 

would have been required for the coal dust to accumulate. 

Nevertheless, the preponderance of the evidence supports my 

finding, and I find an accumulation of combustible materials 

existed on the scoop. 

lhe next step in building a prima facie case is barely 

made out by the evidence but I find the operator knew or 

should have known that the accumulation existed. The third 

step in the prima facie case, however, is not supported by 

Inspector Steele because he stated during cross-examination 

that he could not put a time limit on the period the accumulation had existed and he stated he did not ask when the 

scoop had last been cleaned. 

The [B]oard in the Old Ben ca~e reversed the finding 

that a violation of Section 75.400 had occurred primarily 

because of the Inspector's failure to make an investigation 

as to whether the operator had failed to clean up the accumulation within a reasonable time after the accumulation 

occurred. 

It should be noted that Inspector Murphy in the previous 

violation that I found as to Section 75.400 knew an exact 

time when the float coal dust in the escapeway should have 

been removed and re-rock dusted but here Inspector Steele 

did not have the necessary facts to support all steps of the 

prima facie case required by the [B]oard's Old Ben opinion; 

therefore, I find that MSHA failed to prove that a violation 

of Section 75.400 occurred with respect to Order No. 66869 

and that its petition for assessment of civil penalty in 

Docket No. PIKE 79-125-P should be dismissed to the extent 

that a penalty is sought with respect to the violation of 

Section 75.400 1/ alleged in Order No. 66869 dated May 12, 

1978. 

1J On December 12, 1979, the Commission issued its decision in MSHA v. 

Old Ben Coal Co., Docket No. VINC 74-11, 79-12-4, in which it held that 

the mere existence of a combustible accumulation could be considered a 

violation of Section 75.400. Since my bench de.cision was rendered on 

September 27, 1979, and.was final insofar as the parties were concerned, 

172 
Also in Docket No. PIKE 79-125-P Order No. 66870 dated 

May 12, 1978, cited Respondent for a violation of Section 

75.316 because Respondent had failed to install stoppings 

in five open crosscuts. Inspector Steele's allegation 

that five stoppings were missing was strongly challenged 

by Respondent's witness, Mr. Harold Chaney, who said that 

stoppings were required in only four crosscuts because the 

section had only advanced four crosscuts to the right of 

the main heading. 

The confusion as to the disagreement between Mr. Chaney 

and Inspector Steele was resolved and Inspector Steele 

numbered the affected crosscuts on Exhibit 4 or the mine 

map. Mr. Chaney, thereafter, said Inspector Steele was 

including a crosscut inby the feeder which Mr. Chaney did 

not consider to be a part of the [working] section cited in 

Order No. 66870. 

Inspector Steele agreed the stoppings which were 

installed at the time Mr. Chaney made his preshift examination would have been in compliance with the ventilation plan 

or Exhibit 3, since Mr. Chaney had obtained an air velocity 

of nine thousand cubic feet a minute or more at the last open 

crosscut. Eventually, both Mr. Chaney and Inspector Steele 

agreed that enough stoppings had been knocked down by the 

scoop operator when he was cleaning up to reduce the 

required number of stoppings below those required to be 

maintained to have a proper separation of the return from 

the intake entries; therefore, I find a violation of Section 

75.316 occurred. 

Here again, the preponderance of the evidence shows that 

the violation existed for only about three hours, so the 

miners were not exposed for long to excessive respirable dust 

or a possible explosion, which would have been remote in any 

event since no methane was detected on May 12, 1978, or has 

ever been [detected] in the No. 3 Mine. Again I find the 

section foreman was very· negligent in failing to see th[at] 

proper ventilation was maintained and a penalty of 

three hundred dollars ($300) is warranted. 

Exhibit 1 shows Respondent has previously violated Section 75.316 on two prior occasions; therefore, the penalty 

will be increased by fifty dollars ($50) to three hundred 

fn. 1 (continued) 

I do not believe that my decision should be amended to change my finding 

with respect to the violation of Section 75.400 alleged in Order No. 66869 

because the Board's Old Ben opinion was the applicable law at the time my 

bench decision was rendered. 

173 
fifty dollars ($350) under the criteri[on] of Respondent's 

history of previous violations. 

Also in Docket No. PIKE 79-125-P Order No. 66872 dated 

May 12, 1978, cited Respondent for a violation of Section 

75.200 because Respondent had failed to comply with its roof 

control plan or Exhibit 3 by driving seven entries for three 

crosscuts inby and two crosscuts outby Survey Station No. 

1708 to a width of from twenty-one feet, ten inches to 

twenty-three feet, one inch, whereas the roof control plan 

permits a width of only twenty feet. 

Mr. Harold Chaney challeged that order, that is 

No. 66872, as having correctly cited a violation of Section 

75.200 because he stated a provision on page 8 of Respondent's roof control plan allows Respondent to drive an 

entry up to four feet in excess of the normal twenty foot 

width, provided an extra roof bolt is installed, so as to 

prevent a spacing of roof bolts greater than four feet from 

the rib. 

Since Inspector Steele did not allege he had checked the 

roof bolts at the wide places cited in his order and found 

spaces -- and therefore did not know whether spaces existed 

at the roof bolts greater than four feet [from the ribs], 

Mr. Chaney correctly contended no violation of the roof 

control plan had been proven. 

I find Mr. Chaney's point is well taken. The provision 

on page 8 of the roof control plan would permit varying entry 

widths of up to four feet so long as an extra roof bolt is 

installed to prevent a roof bolt spacing from the rib of 

more than four feet. 

Inspector Steele stated another inspector had examined 

the spacing of the roof bolts and that he did not personally 

make that a part of his order. I find that Inspector 

Steele's failure to consider the roof bolt spacing as a 

simultaneous part of the citation of a violation of the roof 

control plan is a fatal flaw in his Order No. 66872 and prevents me from finding that a violation of Section 75.200 is 

proven. 

Therefore, MSHA's petition for assessment of civil penalty in Docket No. PIKE 79-125-P will be dismissed to the 

extent it seeks assessment of a civil penalty for a violation of Section 75.200 with respect to Order No. 66872 

dated May 12, 1978. 

174 
Docket No. PIKE 79-111-P 

Order No. 70617 8/14/78 §§ 75.603, 75.604, and 75.517 

Upon completion of the introduction of evidence by the parties, I 

rendered the following bench decision with respect to Order No. 70617 

(Tr. 627-632): 

The order that Mr. Cline has been talking about is No. 

70617 issued August 14, 1978, alleging violations of Sections 75.603, 75.604 and 75.517. Considering those in the 

order they are set forth in Order No. 70617 I shall discuss 

the alleged·violation of 75.603 first. 

Inspector Murphy alleged there were four temporary 

splices in the trailing cable to a Galis 300 roof bolting 

machine, whereas only one temporary splice is permitted in 

a twenty-four period. Mr. Harold Chaney, Respondent's witness, stated he had added an exten[s]ion to the pre-existing 

trailing cable to the roof bolting machine and that the 

exten[s]ion was obtained by removing it from an unused Acme 

roof bolter on the surface~ 

Mr. Chaney connected the exten[s]ion to the pre-existing 

cable by using a temporary splice. Mr. Chaney said there 

were some taped places on the trailing cable but as far as 

he knew the only temporary splice in the cable was the one 

he used for connection of the cable to the pre-existing 

cable. 

Inspector Murphy's rebuttal testimony shows that he specifically found the spliced conductor in the cable and since 

Inspector Murphy examined the trailing cable with greater 

care than Mr. Chaney I find that his testimony supports a 

finding that the four temporary splices existed and at the 

time I wrote that language, I did not have before me 

Mr. Cline's offer of proof on behalf of witness Cantrell. 

I cannot give Mr. Cantrell's proposed statement as much 

weight as I do Inspector Murphy's statement because Inspector Murphy was here and [was] cross-examined in great detail 

about all these matters. I am unwilling to find that an 

offer of proof is sufficient to rebut Inspector Murphy's 

testimony on this point, particularly in light of general 

testimony in this record to the effect that Mr. Murphy is. a 

fair and objective inspector. 

So with respect to the temporary splices I find the violation was only moderately serious because the four temporary 

splices were apparently in satisfactory condition inasmuch as 

175 
no bare wires were cited by Inspector Murphy when he examined 

them; the shock and fire hazard associated with the temporary 

splices was therefore only potential. 

The negligence associated with this violation, however, 

was of a high degree because Mr. Chaney, Mr. Harold Chaney, 

used a temporary splice without making certain that other 

temporary splices were nonexist[e]nt. 

He says there were taped places but he was not sure 

whether there were splices in those tapes or not. While 

Mr. Chaney intended to remove the temporary splice within 

the twenty-four period so as to avoid a violation of Section 75.603, it is a fact that he used the temporary 

splice to save the cost of buying a permanent splicing kit 

and to avoid stopping production for from one to one half 

of one shift because he expected to pull out of [the area 

here involved] after roof bolts had been installed to 

abate another violation written at a previous time. 

Mr. Ronald Cha¥y, Respondent's president, was aware the 

trailing cable had been lengthened but he believed any 

defects in the cable were nonserious because they existed 

near the nip station where miners would be unlikely to walk 

unless a fuse should need to be replaced. It is haste and 

taking unnecessary risks which produce fatalities in coal 

mines. 

While neither of Respondent's witnesses believed the 

extension of the cable exposed the miners to serious injury, 

it is a fact that the extension could have resulted in the 

electrocution of a miner who might have come to the nip 

station to replace a fuse which might have blown because 

of the use of a different size cable or defects in the old 

piece of cable used to make the extension; therefore, I 

believe the moderate seriousness and high degree of negligence involved in this violation of Section 75.603 warrants 

a penalty of five hundred dollars ($500)• 

I would assess more if a relatively small operator were 

not involved. Exhibit 1 does not indicate that Respondent 

has previously violated Section 75.603, so the penalty will 

not be increased under the criterion of history of previous 

violations. 

Passing on to the alleged violation of Section 75.604 

which deals with permanent splices and a bare wire in one 

and worn places in others, there's no.dispute about the 

fact the trailing cable had worn permanent splices in it. 

As both Inspector Murphy and Mr. Harold Chaney agreed, the 

176 
cable contained permanent splices and Mr. Chaney agreed 

that some of the permanent splices were worn and needed to 

be repaired. 

\\bile Mr. Chaney stated he did not see a bare wire 

exposed in any permanent splice, Mr. Chaney did not examine 

the splices as carefully as Inspector Murphy and therefore 

I find Inspector Murphy's testimony supports the finding 

[that] an exposed bare wire existed in one o·f the splices. 

Since an exposed wire is capable of causing electrocution I find that the violation was very serious. Mr. Chaney 

was very negligent in failing to repair the permanent 

splices; therefore, a penalty of seven hundred fifty dollars 

($750) will be assessed for the violation of Section 75.604. 

Exhibit 1 shows no history of previous violations with 

respect to Section 75.604 and therefore there will be no 

increase in the penalty under that criteri[on]. 

As to Section 75.517, Inspector Murphy's testimony also 

supports a finding that two damaged places existed in the 

trailing cable. Since one of the damaged places had a bare 

wire exposed in it, the violation of Section 75.517 was 

equally serious and involved a similar degree of negligence. 

For those reasons a penalty of seven hundred fifty 

dollars ($750) will be assessed for the violation of Section 

75.517. Exhibit 1 indicates that Respondent has not previously violated Section 75.517 so the penalty will not be 

increased under that criteri[on]. 

That completes the decision on all the cases or alleged 

violations as to which we had evidence. I asstune that you're 

ready to proceed to the matters that were settled? 

Settlement Agreements. 

Docket No. PIKE 79-19-P 

_Citation No. 66877 dated May 12, 1978, alleged that respondent had violated Section 75.200 because loose roof bolts had been observed in an area 

starting at the portal and extending inby to the 001 Section. The citation 

was subsequently changed to Withdrawal Order No. 66813 when Inspector 

lbrphy returned on May 25, 1978, and found that the alleged violation had 

not been abated. The Assessment Office proposed a penalty of $760 for this 

alleged violation and respondent has agreed to pay a penalty of $400. MSHA's 

counsel stated that he had agreed to accept the reduced amount because the 

operator's contention is that in some places the roof had been doubly supported by additional roof bolts. Also there was no allegation made that 

177 
the roof itself was bad, other than around the roof bolt area, and there 

is doubt as to the number of roof bolts involved in this particular violation. Those facts warrant a reduction in the penalty. Additionally, even 

though the operator had been issued a withdrawal order for failure to abate 

on May 25, 1978, }1SHA's counsel thought that some consideration should be 

given to the fact that the operator's mine had been closed by numerous 

outstanding withdrawal orders and the operator was having some difficulty 

in abating all of the orders simultaneously (Tr. 633). 

Citation No. 67701 dated May 12, 1978, alleged that respondent had violated Section 75.514 because suitable connectors were not being used in 

approximately 40 splices installed in 200 feet of feeder wire. Wire rope 

clamps were being used for connectors and a dispute arose over the types 

of clamps that can be installed in feeder wire. MSHA's counsel stated that 

in some instances some of the clamps that had been installed as connectors 

had been acceptable by MSHA in the past. The Assessment Office proposed a 

penalty of $920 and respondent has agreed to pay a penalty of $500. MSHA's 

counsel stated that he had agreed to accept the reduced amount because even 

though it was a serious violation, the small size of the operator should 

be considered. Also the fact that the operator failed to abate in a 

timely fashion was again the result of the fact that he was under numerous 

withdrawal orders and may have been hindered from abating all alleged violations as rapidly as he would have preferred to have corrected them (Tr. 634-

635). 

Citation No. 67702 dated May 12, 1978, alleged that respondent had violated section 75.517 in that the 300-volt DC feeder wire was uninsulated in 

approximately 40 places. along its entire length from the drift up to the 

face of the 001 Section. MSHA's counsel noted that some of this wire was 

located in places not frequently traveled by the miners and that factor 

reduced the miners' likelihood of exposure to danger associated with the 

uninsulated places. The Assessment Office proposed a penalty of $920 and 

respondent has agreed to pay a penalty of $500. The penalty was increased 

substantially by the Assessment Office because a subsequent withdrawawl 

order was issued on May 25 for failure of the operator to abate the condition, but, again, the operator was trying to cope with numerous withdrawal 

orders a~d was hindered from abating the citation as quickly as the inspector seemed to think it should have been abated (Tr. 636). 

Citation No. 67703 dated May 12, 1978, alleged that respondent had violated Section 75.516 in that the DC feeder wire was not properly supported 

on insulators and was in contact with the roof or mine floor along its 

entire length from the portal to the working section. MSHA's counsel 

stated that this was a serious violation since the principal danger was 

the possibility of a fire. The operator claims that there were areas 

where the wire was properly supported. The Assessment Office proposed a 

penalty of $920 and respondent has agreed to pay $500. MSHA's counsel 

stated that the Assessment Office increased the.proposed penalty substantially because a withdrawal order had been issued. MSHA's counsel said 

178 
that the operator was hampered from supporting the feeder wire by obligations resulting from other orders and that he believed a penalty of $500 

was fair and reasonable in this instance (Tr. 637-638). 

Citation No. 67704 dated May 12, 1978, alleged that respondent had violated Section 75.512 because the switch used to control the No. 2 belt drive 

from the tailpiece was not properly designed in that a bare wire and nail 

were being used to make contact on the 230-volt DC control circuit. The 

Assessment Office considered that the violation involved gross negligence, 

that it was very serious, and proposed a penalty of $690 which respondent 

has agreed to pay in full (Tr. 638-639). 

Citation Nos. 67706 and 67708 were both dated May 12, 1978, and both 

alleged that respondent violated Section 75.523-2. Both citations alleged 

violations because the deenergization devices, or panic bars, installed on 

two scoops were inoperative •. The scoops were used to load coal in the 001 

Section. Respondent's and MSHA's counsel agreed that panic bars do break 

down on a fairly regular basis. MSHA's counsel stated that there was no 

way to determine how long the panic bars had been inoperative prior to the 

inspection. The operator claims that the panic bars had been checked 

before the inspection and found to be working. Therefore, the operator 

contends that he was unaware of their inoperative condition. The Assessment Office proposed a penalty of $195 for each of the alleged violations 

and respondent has agreed to pay $125 for each alleged violation (Tr. 640-

641). 

Citation No. 67707 dated May 12, 1978, alleged that respondent had violated Section 75.503 by not maintaining the scoop so that it was in a permissible condition. Counsel for MSHA stated that the lack of permissibility 

should have been found during an electrical inspection, but· he noted that 

no methane had been detected and he believed that the lack of methane should 

be considered as a factor to reduce the gravity of the alleged violation. 

The Assessment Office proposed a penalty of $255 and respondent has agreed 

to pay $200 (Tr. 641-642). 

Citation No. 67709 dated May 12, 1978, alleged that respondent had violated Section 75.503 because an S & S scoop was not maintained in a permissible condition. That condition, when considered with the fact that no 

methane was found, reduced the gravity of the alleged violation sufficiently, 

in the opinion of MSHA's counsel, to justify accepting respondent's offer 

to pay a penalty of $150 instead of the penalty of $170 proposed by the 

Assessment Office (Tr. 642). 

Citation No. 67710 dated May 12, 1978, alleged that respondent had violated Section 75.313-1 because the methane monitors on two scoops were 

inoperative. The operator stated that the panic bars were not operating 

either because an electrical problem had developed on the scoops which the 

operator claims prevented his knowing of the inoperative monitors. Respondent alleges that it endeavors to keep the monitors in good condition even 

though no methane has been found on the working section. The Assessment 

179 
Office proposed a penalty of $195 and respondent has agreed to pay $150 for 

the alleged violation (Tr. 643). 

Citation No. 67711 dated May 12, 1978, alleged that respondent had violated Section 75.518 because no short circuit protection had been provided 

for the 30-horsepower belt drive motor. The violation produced a fire and 

shock hazard. The Assessment Office proposed a penalty of $655 and respondent has agreed to pay $500 for the alleged violation. Here, again, the 

Assessment Office increased the penalty substantially because a withdrawal 

order was subsequently issued. MSHA's counsel stated that the operator was 

confronted with abating a large number of alleged violations and could not 

work on all of them simultaneously. In such circumstances, MSHA's counsel 

stated that he believed the acceptance of a reduced penalty was justified 

(Tr. 643-644). 

Citation Nos. 67712 and 67713 dated May 12, 1978, alleged that respondent had violated Sections 75.515 and 75.701, respectively. Both of the 

alleged violations deal with electrical connections for the belt-drive 

motor. MSHA's counsel said that the first citation deals with the fact 

that suitable cable fittings were not provided where the power cable 

entered the metal frame of the motor. In the second citation, the alleged 

violation was that respondent had failed to provide a frame ground. Both 

alleged violations produced possible shock and fire hazards. Again, the 

Assessment Office increased the penalties substantially because withdrawal 

orders were subsequently issued for failure of the operator to abate within 

the time originally given by the inspector. The Assessment Office proposed 

a penalty of $760 for the alleged violation of Section 75.515 and respondent 

has agreed to pay $500~ MSHA's counsel was agreeable to accepting the 

reduced penalty because no worn places existed on the ~res for which 

proper fittings had not been provided. For the alleged violation of Section 

75.701, the Assessment Office proposed a penalty of $920 and MSHA's counsel 

believed that respondent's agreement to pay $500 was reasonable in view of 

the problems respondent was.having in correcting a large number of alleged 

violations (Tr. 644-645). 

Citation No. 67728 dated May 12, 1978, alleged that respondent had violated Section 75.1722 because a guard had not been provided for the chaintype control between the drive motor and the speed reducer for the No. 2 

belt drive. MSHA's counsel stated that two protective guards are required 

in this area. The operator was engaged in repairing one guard and another 

had been broken during the shift. In the opinion of MSHA'fl counsel, those 

circumstances reduced the degree of negligence and warranted accepting a 

reduced penalty of $150 instead of the penalty of $240 proposed by the 

Assessment Office (Tr. 646-647). 

Citation No. 67716 dated May 25, 1978, alleged that respondent had violated Section 75.200 by failing to maintaiu a required apron over the portal 

to prevent rocks from falling from the highwa11· on the men as they went in 

and out of the mine. MSHA's counsel stated that the supports had been dislodged and were not serving the purpose for which they had been installed. 

180 
The Assessment Office proposed a penalty of $305 and respondent has agreed 

to pay a penalty of $200. The operator claimed that' a scoop had knocked 

the supports down on the same morning during which the inspector made his 

examination. MSHA's counsel stated that the short period of time between 

the knocking down of the supports and the time the citation was written 

supported a finding of a low degree of negligence and justified accepting 

the reduced penalty (Tr. 647-648). 

Citation No. 67715 dated May 25, 1978, alleged that respondent had violated Section 75.2-02 because overhanging brows were present in the working 

section and in the outby haulage roadways. The overhanging brows had not 

been scaled or supported. Counsel for MSHA said that when an overhanging 

brow is present, it either has to be taken down or supported and that MSHA 

feels this was a serious violation. In the opinion of MSHA's counsel, 

roof brows have been the cause of both deaths and serious injuries in coal 

mines and the operator should have been aware of the condition. The operator claims that a lot of the brows were in crosscut areas where they 

would not normally have exposed miners to danger. The Assessment Office 

proposed a penalty of $920 and respondent has agreed to pay $600. MSHA's 

counsel believed that the r.educed penalty was warranted since the Assessment 

Office had increased the penalty largely on the basis that a withdrawal 

order had subsequently been issued. As has previously been stated, a large 

number of citations had been issued within a relatively short period of 

time. Respondent's mine had ceased to produce coal while the alleged violations were being corrected, but respondent was unable to abate all of the 

violations simultaneously (Tr. 648-649). 

Docket No. PIKE 79-125-P 

The Petition for Assessment of Civil Penalty in Docket No. PIKE 79-125-P 

seeks assessment of civil penalties for 11 alleged violations. Three of 

those violations were alleged in Order Nos. 66869, 66870, and 66872 which 

have already been considered in my bench decision, supra (Tr. 613-616). 

Order No. 66873 dated May 12, 1978, alleged that respondent had violated Section 75.1704 by failing to prevent the accumulation of water to a 

depth of 30 inches in the intake escapeway. The Assessment Office proposed 

a penalty of $600 and respondent has agreed to pay· $350. Counsel .for MSHA 

stated that there was some evidence that the operator had attempted to provide another escapeway around this area. The violation occurred during a 

rainy period when water could accumulate rapidly. MSHA's counsel believed 

that the circumstances justified acceptance of a reduced penalty (Tr. 650). 

Order No. 66874 dated May 12, 1978, alleged that respondent had violated Section 77.1104 in that the diesel generator was not maintained in a 

safe operating condition because oil and grease had accumulated on the 

generator and oil was standing in puddles under it. Counsel for MSHA 

stated that this particular piece of equipment was on the surface and that 

its location had the effect of reducing the danger of fire. The operator 

showed good faith in abating the condition rapidly. The Assessment Office 

181 
proposed a penalty of $400 and respondent has agreed to pay $200. MSHA's 

counsel believed that good reasons had been given for accepting a reduced 

penalty in view of the fact that respondent claimed that some of the 

puddles consisted of water and that the oil was engine-lubricating oil 

rather than diesel fuel. The engine oil was less ignitable than fuel oil 

would have been (Tr. 650-652). 

Order No. 66875 dated May 12, 1978, alleged that respondent had violated Section 77.404 in that the front-end loader was not being maintained 

in a safe operating condition because its windshield was cracked, it was 

not equipped with a fire extinguisher, and its back-up alarm was not operative. MSHA's counsel said that the mitigating circumstances were that 

the loader was not being used at the time of inspection and the fact that 

it was a surface violation made it less serious than if the equipment had 

been used in the underground mine. The Assessment Office proposed a penalty 

of $400 and respondent has agreed to pay $250 which MSHA's counsel believed 

to be appropriate for the reason stated above (Tr. 652-653). 

Order No. 66876 dated May 12, 1978, alleged that respondent had violated Section 77.202 in not maintaining the belt drive located on the surface in a safe operating condition because oil and float coal dust had 

been permitted to accumulate on the drive. MSHA's counsel stated that the 

Assessment Office had proposed a penalty of $400, but he had concluded 

that no assessment should be made because this particular alleged violation was a duplication of another citation written by a different inspector. The operator has agreed to pay the full penalty proposed by the 

Assessment Office with.respect to the overlapping citation and MSHA's 

counsel said that since the same belt drive was involved in both citations, he believed that fairness justified assessment of only one penalty. 

Therefore, MSHA's counsel requested that he be permitted to withdraw the / 

Petition for Assessment of Civil Penalty in Docket No. PIKE 79-125-P to 

the extent that it alleged a violation of Section 77.202 with respect to 

Order No. 66876. That request is hereinafter granted in the order 

accompanying this decision (Tr. 654-655). 

Order No. 67705 dated May 12, 1978, alleged that respondent had violated Section 75.701 because the cutting machine and roof-bolting machine 

had not been properly grounded. MSHA's counsel said that an effort to 

ground the machines had been made, but the inspector was not convinced 

that the machines had been adequately grounded. The Assessment Office 

proposed a penalty of $400 and respondent has agreed to pay $300. MSHA's 

counsel stated that he believed a reduced penalty was justified in light 

of the operator's strong contention that the machines had been adequately 

grounded (Tr. 655-656). 

Order No. 67726 dated May 12, 1978, alleged that respondent had violated Section 75.400 by allowing excessive· amounts of loose coal, coal dust, 

and float coal dust to accumulate in the conveyor belt entry and connecting 

crosscuts. The accumulation ranged from 1/8 inch to 10 inches in depth. 

The conveyor belt is 900 feet long. The Assessment Office believed that 

182 
the violation involved a high degree of negligence and gravity and proposed 

a penalty of $1,100 which respondent has agreed to pay in full (Tr. 656-

657). 

Order No. 67727 dated May 12, 1978, alleged that respondent had violated Section 75.1100-1 by having removed a joint in the waterline running 

parallel to Nos. 1 and 2 conveyor belts with the result that the conveyor 

belts did not have adequate fire protection. It was the contention of the 

operator that the waterlines had been temporarily disconnected so that a 

motor on the belt drive could be fixed. It was the operator's intention 

to restore the waterlines to an operable condition as soon as the repairs 

had been completed, but the inspector observed the condition before the 

necessary work had been done. The Assessment Office proposed a penalty of 

$900 and respondent has agreed to pay $500. It was the opinion of MSHA's 

counsel that a reduced penalty of $500 was adequate when the extenuating 

circumstances are taken into consideration because there is nothing to 

show that a fire was likely to occur at the time the waterline was out of 

service (Tr. 656-658). 

Order No. 67729 dated May 12, 1978, alleged that respondent had violated Section 75.200 because approximately 50 roof bolts had not been 

installed in accordance with the roof-control plan inasmuch as the bolts 

were required to be installed on 4-foot centers, whereas they had been 

installed from 4-1/2 to 6 feet apart. The Assessment Office correctly 

found that a high degree of negligence and gravity were involved and proposed a penalty of $500 which respondent has agreed to pay in full (Tr. 

658). 

Docket No. KENT 79-116 

Order No. 66871 dated May 12, 1978, alleged that respondent had violated Section 75.403 because no rock dust had been applied for a distance of 

three crosscuts beginning at a point two crosscuts inby Survey Station No. 

1708. Two samples were taken by the inspector of the area cited in his 

order and the analyses of the samples showed the incombustibility content 

of one sample to be 35 percent while the incombustibility content of the 

other sample was 79 percent. No explanation exists for the fact that one 

sample showed no violation while the other did. MSHA's counsel stated that 

the equivocal nature of the evidence justified acceptance of a reduced penalty of $400 instead of the penalty of $800 proposed by the Assessment 

Office (Tr. 658-659). 

Docket No. PIKE 79-112-P 

Order No. 66868 dated May 12, 1978, alleged that respondent had violated Section 75.400 in that the operator had allowed combustible material 

consisting of loose coal and float coal dust to accumulate on the ribs and 

floor in depths ranging from 1 inch to 24 inches. The accumulations started 

two crosscuts outby Survey Station No. 1708 in the No. 5 entry and extended 

inby for three crosscuts. The area included Nos. 1 through 7 entries and 

183 
connecting crosscuts. The Assessment Office proposed a penalty of $600 and 

respondent has agreed to pay the proposed penalty in full. 

I find that counsel for respondent and MSHA gave satisfactory reasons 

for the penalties agreed upon in their settlement conference and that the 

settlement agreements hereinbefore discussed should be accepted. 

Summary of Assessments and Conclusions 

(1) Based on all the evidence of record and the aforesaid findings of 

fact, or the parties' settlement agreements, the following civil penalties 

should be assessed: 

Docket No. PIKE 79-19-P 

Citation No. 66814 5/25/78 § 75.400 •• (Contested) . ..... $ 200.00 

Citation No. 66815 5/25/78 § 75.1704 •• (Contested) . .... 125.00 

Citation No. 66877 5/12/78 § 75.200 (Settled) . ...... 400.00 

Citation No. 67701 5/12/78 § 75.514 (Settled) . ...... 500.00 

Citation No. 67702 5/12/78 § 75.517 (Settled) . ...... 500.00 

Citation No. 67703 5/12/78 § 75.516 (Settled) . ...... 500.00 

Citation No. 67704 5/12/78 § 75.512 (Settled) . ...... 690.00 

Citation No. 67706 5/12/78 § 75.523-2 • (Settled) . ...... 125.00 

Citation No. 67707 5/12/78 § 75.503 ••• (Settled) . ...... 200.00 

Citation No. 67708 5/12/78 § 75.523-2 • (Settled) . ...... 125.00 

Citation No. 67709 5/12/78 § 75.503 ••• (Settled) . ...... 150.00 

Citation No. 6771Q 5/12/78 § 75.313-1 . (Settled) . ...... 150.00 

Citation No. 67711 5/12/78 § 75.518 (Settled) . ...... 500.00 

.Citation No. 67712 5/12/78 § 75.515 (Settled) . ...... 500.00 

Citation No. 67713 5/12/78 § 75.701 (Settled) . ...... 500.00 

Citation No. 67715 5/25/78 § 75.202 (Settled) . ...... 600.00 

Citation No. 67716 5/25/78 § 75.200 (Settled) . ...... 200.00 

Citation No. 67728 5/12/78 § 75.1722 •• (Settled) . ...... 150.00 

Total Settlement and Contested Penalties in 

Docket No. PIKE 79-19-P •••••••••••••••••••••••••• $6,115.00 

Docket No. PIKE 79-111-P 

Order No. 70617 8/14/78 § 75.603 

Order No. 70617 8/14/78 § 75.604 

Order No. 70617 8/14/78 § 75.517 

Total Penalties in Docket No. PIKE 

(Contested) 

(Contested) 

(Contested) 

79-111-P •••••••• 

Docket No. PIKE 79-112-P 

Order No. 66868 5/12/78 § 75.400 •••••• (Settled) 

Total Settlement Penalty in Docket No. 

$ 500.00 

750.00 

750.00 

$2,000.00 

$ 600.00 

PIKE 79-112-P •••••••••••••••••••••••••••••••••••• $ 600.00 

184 
Docket No. KENT 79-116 

Order No. 66871 5/12/78 § 75.403 •••••• (Settled) ••••••• $ 400.00 

Total Settlement Penalty in Docket No. 

KENT 79-116 •••••••••••••••••••••••••••••••••••••• $ 400.00 

Docket No. PIKE 79-117-P 

Citation No. 66866 5/12/78 § 75.301 •••• (Contested) 

Total Penalty in Docket No. PIKE 79-117-P ••••••••••• 

Docket No. PIKE 79-125-P 

Order No. 66870 5/12/78 § 75.316 ••••••• (Contested) 

Order No. 66873 5/12/78 § 75.1704 •••••• (Settled) ...... Order No. 66874 5/12/78 §. 77.1104 •••••• (Settled) . ..... Order No. 66875 5/12/78 § 77.404 . ...... (Settled) . ..... Order No. 67705 5/12/78 § 75.701 . ...... (Settled) . ..... Order No. 67726 5/12/78 § 75.400 ••••••• (Settled) . ..... Order No. 67727 5/12/78 § 75.1100-1 . ... (Settled) . ..... Order No. 67729 5/12/78 § 75.200 ••••••• (Settled) . ..... Total Settlement and Contested Penalties in 

Docket No. PIKE 79-125-P ••••••••••••••••••••••••• 

Total Settlement and Contested Penalties 

$ 

$ 300.00 

300.00 

350.00 

350.00 

200.00 

250.00 

300.00 

1,100.00 

500.00 

500.00 

$3,550.00 

in This Proceeding•••••••••••••••••••••••••••••• $12,965.00 

(2) Respondent was the operator of the No. 3 Mine at all pertinent 

times and, as such, is subject to the provisions of the Act and to the 

regulations promulgated thereunder. 

(3) For the reason given in my bench decision, supra (Tr. 198-199, 

and Tr. 236-238), the Petition for Assessment of Civil Penalty in Docket 

No. PIKE 79-19-P, should be dismissed to the extent that penalties are 

sought for violations of Section 75.1710 cited in Notice Nos. 2 FIJ (7-8) 

dated February 28, 1977, and 5 BHT (7-23) dated June 6, 1977. 

(4) For the reason given in my bench decision, supra (Tr. 616), the 

Petition for Assessment of Civil Penalty in Docket No. PIKE 79-125-P, 

should be dismissed to the extent that a penalty is sought for a violation 

of Section 75.200 cited in Order No. 66872 dated May 12, 1978. 

(5) For the reason given in my -decision at page 20, supra, the 

request of MSHA's counsel to withdraw the Petition for Assessment of Civil 

Penalty in Docket No. PIKE 79-125-P, should be granted to the extent that 

a penalty is sought for a violation of Section 77.202 cited in Order No. 

66876 dated May 12, 1978. 

WHEREFORE, it is ordered: 

185 
(A) The parties' request for approval of settlement is granted and 

the settlement agreements submitted in this proceeding.are approved. 

(B) Pursuant to the parties' settlement agreement and the bench decision rendered in this proceeding, respondent shall, within 30 days from 

the date of this decision, pay civil penalties totaling $12,965.00 as set 

forth in paragraph (1) above. 

(C) MSHA's Petitions for Assessment of Civil Penalty filed in Docket 

Nos. PIKE 79-19-P and PIKE 79-125-P are dismissed to the extent specified 

in paragraphs (3) and (4) above. 

(D) MSHA's request to withdraw the Petition for Assessment of Civil 

Penalty in Docket No. PIKE 79-125-P is granted and the Petition is deemed 

to have been withdrawn to the extent described in paragraph (5) above. 

Distribution: 

Richard 

Administrative 

~e.~~ C. Steffey 

Law Judge 

~ 

(Phone: 703-756-6225) 

Robert A. Cohen, Esq., and Michael C. Bolden Esq., Trial Attorneys, 

Office of the Solicitor, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arli~gton, VA 22203 (Certified Mail) 

Garred O. Cline, Esq., Attorney for C.C.C.-Pompey Coal Company, Inc., 

Farley Building, Pikeville, KY 41501 (Certified Mail) 

186 
MINE SAFETY AND HEALTH REVIEW COMMISSION 

RIO ALGOM CORPORATION, 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52<13 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 S 1980 

Applicant 

Respondent 

Application for Review 

Docket No. DENV 79-347 

Order No. 336661 

January 29, 1979 

Lisbon Mine 

DECISION 

Appearances: F. Alan Fletcher, Esq., Parson, Behle & Latimer, 

Salt Lake City, Utah,for Applicant; 

James Barkley, Esq., Office of the Solicitor, U.S. 

Department of Labor, Denver, Colorado, for Respondent. 

Before: Judge Stewart 

PROCEDURAL BACKGROUND 

The above-captioned application for review was brought by Applicant, 

Rio Algom Corporation, pursuant to section 107(e) of the Federal Mine Safety 

and Health Act of 1977 (hereinafter, the Act). Applicant sought review of 

an order issued under section 107(a) of the Act. 

The hearing in this matter was held on September 5, 1979, in Moab, 

Utah. Applicant called two witnesses. Respondent called one witness and 

introduced one exhibit. At the conclusion of the hearing, the parties 

chose to make oral argument and waived their right to submit posthearing 

briefs. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Inspector Ronald Beason issued the subject order in this case, Order 

No. 336661, on January 29, 1979, in the course of an investigation of an 

unintentional roof fall at Applicant's Lisbon Mine. The inspector issued 

the order pursuant to section 107(a) of the Act and alleged a violation of 

30 CFR 57.3-22. He described the relevant condition or practice as follows: 

The 13 north drift 90 ft. from the 4th east pillar had 

excessive weight. The 8 X 8 timbered sets were breaking the 

cap on the second cap had a 3-1/4" gap in the center of the 

187 
cap. The plates on 25 split bolts in this area were stripped. 

The 13 north & 19th west, a length of 37 feet, had. 5-8 x 8 

sets of timber which had broken caps. The 13 north and 7th 

West intersection had caved above the anchorage. This was 

the full width of the drift and extended 25 feet in 13 north. 

The mechanical bolts were pulled and several split bolts 

broken. The plates on the split bolts from 7th west to 

4 west along the 13th north haulage were stripped and the 

area taking excessive weight. 

The order of withdrawal encompassed the following areas: 13th North, 

90 feet from 4th East pillar; 13 North 19 West for 37 feet; 13 North. and 

7th West; 13 North from 7th West to 4th East. 

The unintentional roof fall which gave rise to Inspector Beason's 

investigation occurred on January 24, 1979, at 12:30 p.m. in the 18th North, 

8th West drift. Approximately 40 feet of roof collapsed after breaking above 

the anchorage point of its roof bolts. The fall had occurred near a shop 

area in which a number of employees were eating lunch, but it did not result 

in injury or death. Mr. Pearson, Applicant's Safety Supervisor, testified 

that the main haulage and travelway to the area was blocked because of the 

fall. Only the emergency access, designated as the SC manway, remained open. 

Mervyn Lawton, the manager and president of Rio Algom Corporation as 

well as the supervisor of the Libson Mine, was in the area of the fall at 

the time of its occurrence. He instructed one crew of miners to remove 

equipment from the are~· A second crew was instructed to continue driving 

an entryway in an effort to open a new entrance into that working area. It 

was estimated by Mr. Lawton that two additional blasts would be necessary to 

complete the entryway. All miners were withdrawn from the area on the 

following day, January 25, 1979, at 10 a.m., when it became evident that 

more than two blasts were needed to accomplish the breakthrough. 

All supervisory personnel were instructed to keep people out of the area 

and a sign reading "No admittance, keep out" was placed on the haulage level 

entering the SC manway. This finding was based on the testimony of both 

Mr. Pearson and Mr. Lawton, notwithstanding the inspector's testimony that 

he did not recall seeing a sign posting the area as closed. 

The fall which occurred on January 24 was not reported to MSHA until 

January 28. On the following day, Inspector Beason conducted his inspection of the area. He examined the first roof fall and discovered a second 

fall at 13th North, 7th West. This second fall extended 25 feet for the 

entire width of the entryway. As with the first fall, this break occurred 

above the anchorage point of the roof bolts. The inspector observed both 

mechanical roof bolts and split sets in the debris. Prior to the inspector's investigation, mine management had oeen unaware of the second roof 

fall. It had occurred after the company had removed its miners from the 

area. 

188 
In the 13th North, 4th East drift, the inspector observed timbers 

taking an inordinate amount of weight. These timbers measured 8 inches 

by 8 inches and had been placed 6 feet apart for a distance of 60 feet. 

Caps on approximately 10 of these timbers had been smashed by the weight 

of the roof. Some of these caps had stress cracks and had been deflected 

downward. The inspector estimated that 25 split sets in the area had been 

stripped of their plates. 

The inspector observed compression of caps and stripped plates in the 

13th North, 6th West drift. He noted that there were five sets of affected 

timbers. These timbers also measured 8 inches by 8 inches and had been 

placed at 6-foot intervals. One post had split and stress cracks were 

observed in some of the caps. Plates had been stripped from some split 

sets and some of the mechanical bolts had been pulled. 

The inspector also observed a number of split sets from which plates 

had been stripped in the 13th North, 7th West to 4th West drifts. 

Witnesses for Applicant generally corroborated the inspector's testimony relating to the conditions in those areas included in the order. Their 

testimony established that, for the most part, the conditions observed on 

January 29 did not exist on January 25 when the mining crew had been removed 

from the area. In particular, the roof fall had not yet occurred in the 

13th North, 7th West drift. Mr. Pearson, Applicant's safety supervisor, was 

in the affected areas on Thursday morning. He stated that fewer plates had 

been stripped from split sets than Inspector Beason noted later and that he 

he did not observe signs of unusual compression of timber or caps. 

All of the witnesses agreed that the roof fatls, the stripped plates 

and the c_ompression of caps were evidence of ground movement in the area. 

This movement occurred while the 13th North drift was being driven because 

the area had been developed on an incline. The inspector believed that 

retreat mining in the general area created additional pressure on the roof 

in the affected area. Retreat mining was ongoing approximately 100 feet 

straight through a pillar on the uphill side of the original roof fall. 

"Imminent danger" has been defined in section 3(j) of the Act to mean 

the "existence of any condition or practice in a coal mine which could reasonably be expected to cause death or s_erious physical harm before such 

condition or practice can be abated." The Interior Board of Mine Operations 

Appeals, with the affirmance of the Fourth and Seventh Circuits, has stated 

that "an imminent danger exists when the condition or practice observed could 

reasonably be expected to cause death or serious physical harm to a miner 

if normal mining operations were permitted to proceed in the area before the 

dangerous condition is eliminated. 11 Old Be.n Coal Corp. v. Interior Board of 

Mine Operations Appeals, 523 F.2d 25, 32-33 (7th Cir. 1975), a:ff'g, 3 IBMA 

252 (1974), Freeman Coal Mining Co. v. Interior Board of Mine Operations 

Appeals, 504 F.2d 741, 745 (7th Cir. 1974), aff'g, 2 IBMA 197, 212 (1973); 

Eastern Associated Coal Co. v. Interior Board of Mine Operations Appeals, 

189 
491 F.2d 277, 278 (4th Cir. 1974), aff'g, 2 IBMA 128, 136 (1973). In that 

case the Board enumerated the following test to be used in determining 

whether an immient danger existed: 

Would a reasonable man, given a qualified inspector's 

education and experience, conclude that the facts indicate 

an impending accident or disaster, threatening to kill or to 

cause serious physical harm, likely to occur at any moment 

but not necessarily immediately? Freeman Coal Mining Co .• v. 

Interior Board of Mine Operations Appeals, 504 F.2d 741, 

743-4, (7th Cir. 1974), 2 IBMA 197, 212 (1973). 

The conditions in the Lisbon Mine constituted an imminent danger under 

all of the criteria that should be considered in making the determination. 

Inspector Beason's finding was reasonable and proper. The conditions which 

he observed clearly indicated that ground movement had occurred recently in 

the area. There was nothing to suggest that this movement had ceased or 

that the extant roof support was sufficient. In a period of 5 to 6 days 

two unintentional roof falls had occurred and increased strain on the roof 

support system was pervasively evident. During this time, roof conditions 

had changed markedly. Moreover, only one route existed which allowed exit 

from the area. Finally, the areas encompassed by the order were ones in 

which miners would have worked regularly. If normal mining operations were 

permitted to proceed, the conditions could reasonably have been expected 

to cause death or serious harm. The order was properly issued under 

section 107(a) of the Act. 

The issuance of a ·107(a) order of withdrawal was appropriate, notwithstanding the Applicant's prior voluntary removal of miners from the areas 

covered by the order. The purpose of such an order is not only to cause 

the withdrawal of miners, but to ensure that they remain out of the 

affected areas until the condition is corrected. The Valley Coal Company, 

1 IBMA 243, 248 (1972). 

In issuing Order No. 336661 which alleged that an imminent danger 

existed, the inspector also noted that there was a violation of 30 

CFR 57.3-22. He testified that he believed the fourth sentence of the standard had been violated. This sentence reads as follows: Ground conditions 

along haulageways and travelways shall be examined periodically and scaled 

or supported as necessary." Toby Pearson, the safety supervisor at Rio Algom 

Mine, testified that he conducted such inspections along the haulageways and 

travelways in the affected area prior to the time that men were withdrawn. 

He also stated that at that time there was no need to scale or support in the 

areas encompassed by the order. The Interior Board of Mine Operations 

Appeals, however, has noted "whether a condition or practice constitutes a 

violation which was not intended to be and is not a controlling issue in a 

proceeding to review an imminent danger wi~hdrawal order." Freeman Coal 

Mining Corporation, 2 IBMA 197, 207-208 (1973).· A finding need not be made, 

therefore, as to whether a violation of section 57.3-22 existed. Such a 

finding would not be determinative of the issues in this case. 

190 
ORDER 

Accordingly, it is ORDERED that the operator's application for review 

is DISMISSED. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

F. Alan Fletcher, Esq., Parsons, Behle & Latimer, 79 South State 

Street, P.O. Box 11898, Salt Lake City, UT 84147 (Certified Mail) 

James Barkley, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 80294 

(Certified l1ail) 

191 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52Q3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 2 9 1980 

SUNBEAM COAL CORPORATION, 

Contestant 

Contests of Citations 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. PITT 79-210 

Citation No. 229432 

February 22, 1979 

Docket No. PITT 79-211 

Citation No. 229433 

February 22, 1979 

Docket No. PITT 79-212 

Citation No. 229434 

February 22, 1979 

Docket No. PITT 79-213 

Citation No. 229362 

February 22, 1979 

Docket No. PITT 79-214 

Citation No. 229363 

February 22, 1979 

Sunbeam Mine 

DECISIONS 

Appearances: Bruno A. Muscatello, Esquire, Butler, Pennsylvania, 

for the contestant; 

Eddie Jenkins, Esquire, Arlington, Virginia, for the 

respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

These proceedings concern notices of contests filed by the contestant 

(Sunbeam) on March 21, 1979, pursuant to section 105 of the Federal Mine 

192 
Safety and Health ·Act of 1977, seeking review of the captioned abated citations issued pursuant to section 104(a) of the Act, on the ground that the 

unilateral "Significant and Substantial" findings made by the inspector on 

the face of the citations was unreasonable, unjustified, and unwarranted. 

Respondent filed its answers on April 6, 1979, asserting that the citations 

were properly issued, that the violations existed as stated in the citations, and that the time fixed for abatement of the citations was reasonable and proper. At the same time, respondent filed motions to dismiss the 

contests on the ground that the conditions cited were fully abated and the 

citations terminated. In support of the motions, respondent cited a prior 

Interior Board of Mine Operations Appeals' decision under the 1969 Act, 

Reliable Coal Corporation, 1 IBMA 50, 59 (1971), and several judges' decisions pursuant to the 1977 Act, Helvetia Coal Company, PITT 78-322, 

August 23, 1978; Monterey Coal Company, VINC 78-372, June 19, 1978; Peter 

White Coal Mining Corporation, HOPE 78-371, June 16, 1978; and Itmann~~­

Coal Company, HOPE 78-356, May 26, 1978. By order issued on May 9, 1979, 

I denied respondent's motions to dismiss, and I did so on the basis of 

the Commission's decision of May 1, 1979, in Energy Fuels Corporation v. 

MSHA, DENV 78-410. Hearings were subsequently conducted in Pittsburgh, 

Pennsylvania, on October 10, 1979, and the parties appeared and participated therein. Posthearing proposed findings, conclusions, and supporting 

briefs were filed by the parties and the arguments presented therein have 

been fully considered by me in the course of these decisions. 

Issues Presented 

1. Whether the contestant is entitled to immediate review of section 

104(a) citations which have been abated and terminated. 

2. Whether the citations which were issued in these proceedings constituted violations of the cited safety standards and whether they were 

"significant and substantial" violations as found by the inspector. 

Applicable Statutory Provisions 

1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164, effective March 9, 1978, 30 U.S.C. § 801 et seq. 

2. Section 104(a) of the Act provides as follows: 

If, upon inspection or investigation, the Secretary or 

his authorized representative believes that an operator of 

a coal or other mine subject to this Act has violated this 

Act, or any mandatory health or safety standard, rule, order, 

or regulation promulgated pursuant to this Act, he shall, 

with reasonable promptness, issue a citation to the operator. 

Each citation shall be in writing and shall describe with 

particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, 

or order alleged to have been violated. In addition, the 

193 
citation shall fix a reasonable time for the abatement of the 

violation. The requirement for the issuance of a violation 

with reasonable promptness shall not be a jurisdictional prerequisite to the enforcement of any provision of this Act. 

3. Section 104(d) provides in pertinent part as follows·: 

If, upon any inspection of a coal or other mine, an 

authorized representative. of the Secretary finds that there 

has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created 

by such violation do not cause imminent danger, such violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other 

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

to be caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, he 

shall include such finding in any citation given to the-Operator under this Act. If, during the same inspection or any 

subsequent inspection of such mine within 90 days after the 

issuance of such citation, an authorized representative of 

the Secretary finds another violation of any mandatory 

health or safety standard.and finds such violation to be 

also caused by an unwarrantable failure of such operator to 

so comply, he shall forthwith issue an order requiring the 

operator to cause all persons in the area affected by such 

violation, except those persons referred to in subsection 

(c) to be withdrawn from, and to be prohibited from entering, 

such area until an authorized representative of the Secretary determines that such violation has been abated. 

[Emphasis added.] 

4. Section 105(a) provides that: 

If, after an inspection or investigation, the Secretary 

issues a citation or order under section 104, he shall, 

within a reasonable time after the termination of such 

inspection or investigation, notify the operator by certified 

mail of the civil penalty proposed to be assessed under section llO(a) for the violation cited and that the operator 

has 30 days within which to notify the Secretary that he 

wishes to contest the citation or proposed assessment of 

penalty. A copy of such notification shall be sent by mail 

to the representative of miners in such mine. If, within 

30 days from the receipt of the notification issued by the 

Secretary, the operator fails to notify the Secretary that 

he intends to contest the citation or the proposed assessment of penalty, and no notice is filed by any miner or representative of miners under subsection (d) of this section 

within such time, the citation and the proposed assessment 

194 
of penalty shall be deemed a final order of the Commission 

and not subject to review by any court or agency. Refusal 

by the operator or his agent to accept certified mail containing a ~itation and proposed assessment of penalty under 

this subsection shall constitute receipt thereof within the 

meaning of this subsection. 

5. Section 105(d) provides that: 

If, within 30 days of receipt thereof, an operator of a 

coal or other mine notifies the Secretary that he intends to 

contest the issuance or modification of an order issued under 

section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a) or (b) of this 

section, or the reasonableness of the length of abatement 

time fixed in a citation or modification thereof issued under 

section 104, or any miner or representative of miners notifies 

the Secret~ry of an intention to contest the issuance, modification, or termination of any order issued under section 104, 

or the reasonableness of the length of time set for abatement 

of a citation or modification thereof issued under section 

104, the Secretary shall immediately advise the Commission 

of such notification, and the Commission shall afford an 

opportunity for a hearing (in accordance with section 554 of 

title 5, United States Code, but without regard to subsection 

(a)(3) of such section), and thereafter shall issue an order, 

based on findings of fact, affirming, modifying, or vacating 

the Secretary's citation, order or proposed penalty, or 

directing other appropriate relief. Such order shall become 

final 30 days after its issuance. The rules of procedure 

prescribed by the Commission shall provide affected miners 

or representatives of affected miners an opportunity to 

participate as parties to hearings under this section. The 

Commission shall take whatever action is necessary to 

expedite proceedings for hearing appeals of orders issued 

under section 104. 

Discussion 

Docket No. PITT 79-210 

Citation No. 229432, issued on February 22, 1979, citing a violation 

of 30 CFR 77.1607(cc) reads as follows: "The unguarded No. 1 Wash Belt at 

Sunbeam Preparation Plant was not provided with emergency stop devices or 

cords along the walkway. The belt was energized and operating." 

MSHA's Testimony and Evidence 

MSHA inspector John E. Felichko testified that he has been a coal mine 

inspector since 1977, but has 9 years of mining experience. His primary 

195 
duties entail the inspection of electrical circuits, and he attended a 

13-week MSHA coal mine inspector's training course at Beckley, West Virginia, 

and he has also had 4 weeks additional electrical training during the past 

two summers. He confirmed that he issued the citation in question and stated 

that he did so on the ground that the conveyor belt cited failed to have the 

required emergency stop pull cord or similar device along the full length of 

the belt walkway where employees are exposed to moving belt rollers and the 

belt. The conveyor belt in question is an inclined belt which originates 

inside the coal preparation plant and extends outside where it carries washed 

coal to be loaded on railroad cars for shipment, and it was energized and 

operating when he observed the violation. 

• The inspector indicated that there is no type of emergency stop device 

located anywhere along the conveyor belt except inside the coal preparation 

plant where the control is located, and the belt posed a hazard to employees 

because there is no means of stopping the belt in the event a person should 

become entrapped either in the roller or belt. Employees, especially repairmen, clean, lubricate and repair the conveyor belt periodically. In the 

event of an accident, the operators in the control room may be able to see 

an employee on the conveyor belt, but this would depend on where the person 

is located along the conveyor belt. Since there is a window in the control 

room, if one were to look out, he may be able to determine whether an 

employee is along the conveyor. belt before he starts it (Tr. 10-19). 

Inspector Felichko testified that the citation was abated in good faith 

and he believed the condition cited was serious because there was no means 

to control the belt along the walkway. He identified a copy of a "gravity 

sheet" (Exh. M-3) which he filled out at the time the citation issued, and 

he stated that the person likely to be injured, as shown on that sheet, was 

one man who he assumed would be along the belt performing his duties, but he 

actually observed no one there at the time of the citation. Regarding the 

"S & S" or "Significant and Substantial" finding which he marked on the 

citation, he answered as follows when asked why he checked that box on the 

citation form (Tr. 21): 

Q. Thank you. When you checked significant and substantial what was going through your mind? 

A. The conditions surrounding the citation. 

Q. And? 

A. And also that it is MSHA's method of recordkeeping 

to determine whether hazard [sic] violations exist or not. 

On cross-examination, Inspector Felichko testified that the inclined 

conveyor belt is approximately 125 to 150 feet long, and the head roller 

was about 25 feet above ground level. The walkway was composed of expanded 

metal which has a guard on the outside edge facing the ground, and both 

the belt and rollers were exposed. Although he looked out of the control 

196 
room window, he could not recall whether he could see the entire length of 

the belt and did not take this fact into consideration when he cited the 

violation. He made no inquiries as to whether anyone is required to be in 

the area while the belt was running, and he observed no maintenance or 

lubrication going on while the belt was running. In his experience, such 

work is definitely not done while a belt is running. The only time someone 

would come in contact with the belt would be if they were walking along one 

side, or if the belt were shut from inside while someone was performing 

maintenance and someone inadvertently started it up with no means to shut 

it off. Although there is an alarm that is energized by hand before the 

belt starts up, the b~lts do not run in sequence and can be started independently, and with the noise level of other running belts, it is possible that 

one would not 'hear the alarm (Tr. 23-26). 

Mr. Felichko stated that there is guarding along the right side of the 

belt to prevent one from falling off the walkway to the ground below. He 

stated that the violation was serious and that is why he marked the "S & S" 

box on the citation form. He believes that all violations are serious, but 

the question of whether all violations are "significant and substantial" 

would depend on the circumstances involved. He confirmed that MSHA utilizes 

the "S & S" findings to determine whether a pattern of violations exists. 

When asked to explain his understanding of the term "significant and substantial," he answered as follows (Tr. 28): "To me significant and substantial means that the violation could be more hazardous. Whenever you check 

that box, it is a more hazardous condition. It is hard to answer exactly 

what it means." 

Mr. Felichko stated that he was concerned about all of the moving parts 

on the belt, i.e., rollers, belt, and belting, where a person could become 

trapped, caught-:- or pulled in. The belting was exposed, the plant operates 

year round, and one could slip or fall on the walkway, and while there is 

spillage at times, he observed none on the belt or walkway in question 

(Tr. 30). The required emergency stop device is not to prevent one from 

being entangled in the belt, but only to stop the belt. He confirmed that 

he issued two other citations the same day and he deemed those to be significant and substantial because they were of a serious nature (Tr. 31). 

During the first inspection quarter of 1979, he issued approximately 

35 citations, and only one of those was not a significant and substantial 

violation because it dealt with recordkeeping. He is not aware of any 

July 5, 1979, MSHA interpretative memorandum dealing with significant and 

substantial violations (Tr. 34-36). 

Mr. Felichko testified that while he was aware of injuries caused by 

moving conveyor belts and rollers, he was not aware of any injuries resulting from a failure to provide an emergency belt shut-off device, and the 

purpose of such a device is to deenergize the belt in the event someone 

wants to shut it down or someone becomes entrapped (Tr. 36-37). 

On redirect examination, Mr. Felichko identified a blank MSHA citation 

form, and reading from the reverse side concerning the issuance of a significant and substantial citation, he read the following into the record 

197 
(Tr. 38): "By checking the significant and substantial box the inspector 

has indicated that this violation could significantly and substantially 

contribute to a health or safety hazard, and that this violation will be 

considered in determining whether a pattern exists." 

In response to bench questions, Mr. Felichko testified that the belt 

in question moves "fairly fast," and he described its operation. The walkway was of a non-slip surface, and the handrailing on the right side was 

there for someone to hold onto while walking up.the incline. The tail 

roller was guarded, the head belt roller was guarded by location, and the 

entire open-type belt was required to be guarded by either stop cords or 

guards •.. A stop cord is a substitute for a guard, and while a guard would 

physically prevent one from falling into the belt, a stop cord would give 

him access to shut the belt off as he was falling in. Had a stop cord been 

installed along the entire length of the belt, he would not have issued a 

citation, and he considered the citation significant and substantial 

because of the lack of such a cord. The walkway was in fairly good condition, and general periodic maintenance has to be performed on the belt and 

the roller bearings should be greased once a day, but he does not know the 

company's maintenance schedule. Even if he did, he would still have made a 

finding that the violation was significant and substantial because of the 

injury which would result from one getting caught in a belt (Tr. 40-49). 

Contestant's Testimony and Evidence 

Nicholas DiBiase, general manager, Sunbeam Coal Corporation, described 

the belt conveyor in question as being on a 15-degree incline, and the belt 

area which concerned the inspector was the last 30 feet of the conveyor. 

The walkway in question was parallel to the ground and was not on the same 

incline as the belt, and in fact, he described it as a standing work area 

completely visible from the plant operator's station. He characterized the 

belt as a slow 30-inch belt carrying 100 tons of coal a minute. Mr. DiBiase 

indicated that he helps establish company policy regarding maintenance and 

lubrication, and stated that this work is done at the beginning of the shift 

before the plant is started or at the end or evening shift when the plant 

is down. Maintenance and lubrication never takes place while the belt is 

running, and no one is allowed near the walkway while the belt is running. 

No one has any need to be at the belt and the two operators on duty are 

at their stations (Tr. 51-56). If the operator observes someone on the 

walkway, he is instructed to shut down, but he should be able to observe 

anyone approaching the belt before he gets near it because there are 25 

or 50 steps to climb to reach the belt area (Tr. 56). The shut-off device 

was installed soon after the inspection and as soon as he could get an 

electrician, and it was installed in a day and a half. The installation 

of the device would still not prevent an accident (Tr. 57). 

On cross-examination, Mr. DiBiase testified that 30 percent of the belt 

is visible from the control room, and the catwalk area, which is the only 

area where anyone could get near the.belt, is visible and the belt is 

12 feet off the ground in some places, and one would need to use a ladder 

198 
and intentionally climb to reach the belt in those areas. If someone were 

in the other 70-percent area of the belt, he could not. be seen if he were 

caught in it. There are only two men in the plant and they both have 

speakers for communication. The main switches are locked out at noon and 

at the end of the shift (Tr. 59). He was aware of the fact that emergency 

stop devices are required, but only where there are workers in the area, 

and that is the way he interpreted the standard. In his view, the belt in 

question does not require such a device (Tr. 61). However, he did as the 

inspector requested and installed a stop cord. No one would walk up the 

incline parallel to the belt since he would have no need to (Tr. 62). He 

agreed that a stop cord along the belt would help prevent a further accident if the person caught in the belt was conscious enough to grab it (Tr. 

64). 

Mr. DiBiase drew a diagram of the belt area on a blackboard provided 

in the courtroom and he stated that the walkway described by the inspector 

did not run parallel to the belt, but rather, the area described as a 

"walkway" was in fact a platform that· intersected the belt (Tr. 65; Exh. 

ALJ-1). There is no walkway running adjacent to the full length of the 

belt, and the walkway is parallel to the ground (Tr. 66). The two people 

on duty are the only two assigned to the belt system. One main operator 

stands at the top of the wash plant and controls all the conveyor belts 

and the feeder area, and the second operator is inside the plant and he 

controls the dryer and drag tank area. If one were to climb the ladder 

off the platform, he would be exposed to some portion of the belt which 

was an exposed unguarded portion where the platform intersects the belts 

(Tr. 68). Greasing is performed by walking up the ladder, and the grease 

lines come down from the head pulley so that the greaser can reach them 

with a grease gun, but this is done when the belt is down (Tr. 69). Access 

to the head pulley is by a ladder (Tr. 70). One can touch the conveyor 

from the platform, and he could reach about 15 or 20 feet of the belt (Tr. 

72). The platform structure has been in place for some 20 years (Tr. 74). 

Inspector Felich~o was called in rebuttal and testified as to a diagram 

which he believe depicts the location of the so-called walkway (Exh. M-3-a). 

He described the area and indicated where the belt came from the plant, and 

he agreed with Mr. DiBiase's description of the location of the platform 

(Tr. 76-81). Mr. Felichko stated he remembered the unguarded portion of 

the belt where the walkway was located did not have an emergency stop device 

(Tr. 86). 

Docket No. PITT 79-211 

Citation No. 229433, issued on February 22, 1979, citing a violation of 

30 CFR 77. 701, states as follows: "The 110 V light fused disconnect box 

located in the shop of Sunbeam Preparation Plant was not frame grounded. 

The light circuit was energized." 

199 
MSHA's Testimony and Evidence 

Inspector Felichko confirmed that he issued the citation in question 

after observing that a disconnect box which controlled the lights in the 

shop area of the preparation plant was not frame grounded in that there 

was no safety ground to the frame of the box. The box was located on the 

inside of an outside wall of the shop, and it was energized because the 

lights were on and the entrance of the preparation plant was wet and 

muddy. There was no insulated mat where the switchbox was located, and 

the purpose of the frame ground is to protect a person from electric shock. 

He described a frame ground as a safety wire that carries shock currents 

through the ground wire to the earth to protect against a shock hazard. 

Although he did not measure the amperage to find out how much current was 

involved, the circuit was energized because the fluorscent lights were on. 

Based on the fact that the box frame was not properly grounded and the outer 

insulation on the cables which entered the box was frayed, he believed this 

to be a significant and substantial violation. In order for a person to be 

shocked, the box must become energized under fault conditions which entail 

several things such as dampness, a loose fuse, or physical damage. The 

citation was abated by contestant installing a grounding conductor to the 

box frame (Tr. 88-91). 

The inspector believed the violation was serious because it presented 

a potential shock hazard under· fault conditions. He believed it was significant and substantial because the fuse disconnect box was mounted on 

a wooden board, the floor was wet and muddy, and the box was not frame 

grounded. In the event someone touched the box while it was energized, 

a potential shock hazard would·exist. Although he knows of no incidents 

where such an ungrounded box resulted in an injury, he is aware of two 

fatalities in 1978 involving low-voltage circuits, and in one case a person holding a hand-held paint sprayer that faulted out and did not have 

a frame ground or double insulation was electrocuted. The other case 

involved a welder who was electrocuted by a light bulb filament which 

burst when he contacted it (Tr. 92-93). 

On cross-examination, Inspector Felichko testified that the outer insulation on the cable was frayed but the insulation on the inner conductors 

was in good shape. The box could possibly become energized if the fuse 

loosened under the load. Although contestant was cited for improper 

grounding, he did not issue a citation for substandard cable conduction. 

With the floor being wet, and the absence of an insulation mat, an electrocution was likely to. occur, especially in light of improperly-grounded electrical equipment, and a person can easily get electrocuted with 110 volts 

(Tr. 93-98). 

In response to bench questions, the inspector conceded that he did not 

test the amperage with a meter and his reason for not doing so was that 

from his past experience there is more than ample amperage to cause a 

fatality under fault conditions (Tr. 101). 

200 
Docket No. PITT 79-212 

Citation No. 229434, issued on February 22, 1979, citing a violation of 

30 CFR 77. 513, states as follows: "The 110 V light fused disconnect box 

located in the shop of Sunbeam Preparation Plant did not have an insulated 

mat or a grounded metal plate at the same potential as the grounded metal, 

non current carrying parts of the power switch box. The switch box was 

energized." 

MSHA's Testimony and Evidence 

Inspector Felichko confirmed that he issued the citation in question 

and he stated that section 77.513 required an insulated mat or a grounded 

metal plate at the same potential as a noncurrent-carrying part of the electrical installation at each disconnect switchbox where there is a shock 

hazard potential. The disconnect box in question was the same one cited 

in the previous docket. The lack of an insulated mat, coupled with the 

lack of a frame -ground, makes this violation more serious. The circuit was 

energized and the floor was wet and muddy. The outer cable insulation was 

frayed at the point where it enters the cable clamp. The violation was 

abated by installing a piece of belting on a wooden pallet which created a 

difference of potential between the earth and the box frame (Tr. 106-109). 

Mr. Felichko confirmed that he indicated on his inspector's gravity 

statement that "the occurrence of the event against which this cited standard is directed was probable," and he stated it was probable because the 

frayed insulation on the outer cable jacket would possibly cause the box 

to become energized. He marked the "S & S" box on the citation form 

because he believed the violation was serious and thought it could contribute significantly and substantially to a health or safety hazard (Tr. 

110-111). 

Contestant's Testimony and Evidence 

Mr. DiBiase testified as to both Citation Nos. 229433 and 229434, and 

stated that the failure to frame ground the switchbox in question would contribute to a possible accident, but that it was not imminent. However, 

the failure to install an insulated mat would not substantially contribute 

to the cause and effect of a potential accident. He considers electrocution to be serious, and he indicated that he has operated power tools in 

the past after removing the required ground, and knew that by doing this 

he was placing his life and health in jeopardy. He agreed "pretty much" 

with the inspector's testimony and did not dispute the fact that the box 

was not frame grounded and that there was no insulated mat provided (Tr. 

116-119). 

Docket No. PITT 79-213 

Citation No. 229362, issued on February 22, 1979, citing a violation of 

30 CFR 77.205, states as follows: "A safe means of access was not provided 

201 
and maintained to the working place in that the end of the walkway on the 

third level of the Sunbeam Preparation Plant was not protected by a railing, 

barrier, or other protective device." 

MSHA's Testimony and Evidence 

MSHA inspector James A. Magness confirmed that he issued the citation 

in question citing a violation of section 77.205 on the ground that a safe 

means of access was not provided and maintained to the working place in that 

the end of the walkway on the third level of the preparation plant was not 

protected by a railing, barrier, or other protective devices. The walkway 

was approximately 40 inches wide, and while the lighting was not inadequate, 

it was poor, but he could not be more specific since he did not use a light 

meter. The east wall of the preparation plant was on one side of the walkway, and plant machinery on the other. He considered the violation to be 

serious, and reading from the citation form, he defined a "significant and 

substantial" violation as "[a] violation could significantly and substantially contribute to the health and safety hazard and that the violation 

will be considered in determining whether a pattern exists." He believed 

that an employee walking in the area could possibly fall off a 7-foot drop 

at the end of the walkway to the next level. The walkway was level, and 

there are access stairs or ladders from level to level. He observed no one 

in the area during his inspection but indicated that it is possible that a 

repairman would be in the area. The violation was abated by installing a 

gate-type guard structure to prevent employ·ees from falling off the end. 

There was a beam some 5 feet above the walkway running parallel to the end 

of the walkway, but he observed nothing that one could grab onto to prevent 

him from falling to the lower level. There were no warning devices of any 

kind advising persons that the walkway would end by a drop to the next level 

below, and he considers the violation serious and that it is 

significant and substantial because it contributes to a safety and health 

hazard (Tr. 120-129). 

Mr. Magness confirmed that he marked "improbable" on the gravity portion of his inspector's statement, and he stated that the reason he did so 

was the fact that while he observed no one in the area at the time of his 

inspection, it was still significant and substantial because "it could 

happen to anybody at any time." If one were to fall over the end of the 

unguarded walkway, serious injuries could result (Tr. 130). 

On cross-examination, Mr. Magness testified that the only written 

directive he has received on the meaning of the term "significant and substantial" is the instruction printed on the back of the citation form. He 

denied that he made the "S & S" finding with the intent or the possibility 

of establishing a pattern of violations (Tr. 130-131). He candidly admitted 

that he has received oral instructions to treat all violations as significant 

and substantial (Tr. 130-135). Regarding the overhead beam at the end of 

the walkway, Mr. Magness stated that it would not keep anyone from walking 

off the end of the walkway. He did not discuss with anyone the purpose 

for and the use made of the walkway in question, and he observed no safety 

belts or lines in the area (Tr. 137). 

202 
In response to bench questions, Mr. Magness testified that he considered the location cited a working place because the walkways are used to 

support the machinery in the plant. He was concerned with subsection (e) 

of section 77.205, and he would accept any type of a barrier as compliance 

as long as it prevented one from going off the end of the drop-off. The 

walkway was not a "communication travelway" frequently used by men to get 

around the plant, but someone could possibly be there for maintenance purposes. Even if one were to go there only once a year, the fact that he 

might fall off the end that one time makes it a significant and substantial violation. He believes that any violation which is going to create a 

hazard to an employee is significant and substantial (Tr. 139-141). 

Contestant's Testimony and Evidence 

Mr. DiBiase described the overhead beam in question and stated that it 

was part of the superstructure of the building and some 4-1/2 feet from the 

walkway, shoulder height, and some 18 inches or 2 feet from the end of the 

platform. One would have to dip or stoop under the beam to get to the end 

of the platform. The platform is used to raise equipment up from the lower 

levels for maintenance, and it is normally used when there is a major breakdown or repairs once a month, but in the last year it has not been used at 

all. Safety belts are required to be worn at anytime persons are working 

on an unguarded platform. He pelieved the lighting was sufficient because 

it was not an area where an employee normally stands to work, and if he is 

in the area working he will use a trouble light. When the plant is operating there is no reason for anyone to be working at the end of the platform. However, when maintenance is being performed or materials are being 

hoisted, it sometimes is necessary to get near the end (Tr. 143-148). 

On cross-examination, Mr. DiBiase testified that safety belts are provided anywhere work is performed in heights, and that he was aware of the 

fact that there was no handrail at the end of the walkway. The reason for 

not having one at that location is that equipment is moved on and off the 

end of the walkway and such a rail would not provide enough clearance. The 

walkway is used only for maintenance, and in the past this has been approximately once a month (Tr. 148-149). 

Inspector Magness was recalled and testified that his interpretation 

of the term "safe means of access" is that one can travel in a working area 

in safety without falling off the end. Had there been a handrail, chain, 

barricade, partition, etc., installed there, he would not have cited a violation. He indicated that he went to the edge of the walkway but he did 

not hit anything overhead and he is 5 feet 11 inches tall. Abatement was 

achieved by the installation of a guard railing (Tr. 151-156). 

Docket No. PITT 79-214 

Citation No. 229363, issued on February 22, 1979, citing a violation of 

30 CFR 77 .400, states as follows: "A guard was not provided on the conveyor 

drive head of the clean coal (stoke) belt at the Sunbeam Preparation Plant." 

203 
MSHA's Testimony and Evidence 

Inspector Magness confirmed that he issued the citation in question and 

stated that the purpose of the conveyor belt guard is to protect an employee 

from becoming entangled between the belt and metal roller which is powered 

by an electric motor. There is little or no space between the belt and 

roller, and at the entry of the belt over the drive head roller there is a 

pinch point, but he could not state whether any employees would be at that 

location. Although the belt was not in operation when he cited the violation, it was not disconnected. He considered the violation to be serious 

and significant and substantial because people have been caught in similar 

belts. To abate the citation, a metal and wire guard was installed around 

the belt to substantially protect a man from being caught in it (Tr. 157-

160). Mr. Magness stated that he marked his gravity statement "improbable" 

because the belt was not running and the mine foreman advised him that the 

belt was seldom used since it was a special one used only for stoker coal. 

Although there is always a chance of someone being caught in a belt, 

in this case there was less chance of this event happening (Tr. 160). 

On cross-examination, Mr. Magness stated that while he made no measurement, the end of the conveyor was within his extended reach of some 5 feet 

11 inches off the ground and he could reach the drum and belt pinch point 

by standing. One could not inadvertently be caught in the pinch point 

unless they fell or were working on the parts, and he could recall no 

extended greas~ fittings. If one were working on the equipment, it is 

possible that the guards would be removed, and if he is working on a belt 

roller the power will be disconnected completely. He observed no one working in the area on the day he issued the citation and he did not know how 

frequently the belt was used (Tr. 162-167). 

In response to bench questions, Mr. Magness stated that there was no 

guard of any kind at the cited belt location, and if the motor had been 

disconnected altogether there would be no violation because there would 

not have been a functioning piece of equipment that could do damage to anyone. However, if it were merely deenergized he would still cite a violation. He considered the violation to be significant and substantial 

because the belt was functional and probably operated on previous occasions without a guard and someone could inadvertently catch their hand in 

the pinch point (Tr. 167-170). 

Contestant's Testimony and Evidence 

Mr. DiBi~se testified that he did not believe one could inadvertently 

become entangled in the conveyor belt in question, and in order for this 

to happen, a person would have to make an effort to reach in or someone 

flipped the switch on. However, the disconnect switch is pulled and 

locked out whenever someone is working on the belt. The belt in question 

is used infrequently or 5 to 10 percent of the time. He did not believe 

the violation was significant and substantial because it is not an obvious 

violation which presented an obvious risk of injury to a worker and the 

204 
plant had been inspected for years and no one ever pointed the violation 

out to him in the past (Tr. 174-177). 

On cross-examination, Mr. DiBiase stated that due to the fact that the 

head pulley was located shoulder-high, he did not believe someone could 

inadvertently fall into it even though he agreed with the inspector that 

someone could trip on the adjacent walkway. The belt had guards installed 

where he believed they were needed, and chain guards were installed in the 

gear box to the drive motor on the head pulley. There was a physical metal 

can-type guard covering the gear sprocket drive, but the conveyor belt was 

not guarded (Tr. 171-181). 

Respondent's Arguments 

In its posthearing brief, MSHA argues that the term "significant and 

substantial" is found in substantially identical form in two sections of the 

1977 Act, namely, sections 104(d)(l) and 104(e)(l). Section 104(d)(l) deals 

with citations and orders for violations of the Act, and in that context 

"significant and substantial" refers to one element which must be present 

for the proper issuance of a 104(d)(l) citation. Section 104(e)(l) also 

deals with violations of mandatory health and safety standards, but in 

particular with instances where a pattern of violations exists. 

In analyzing the meaning of the term in either section, MSHA asserts 

that it must be remembered that "significant and substantial" is really a 

shorthand expression, and for that reason it must not be divorced from the 

language which surrounds it. The term can only be effectively understood 

by viewing it in the context in which it appears. In either section it 

refers to a violation which is of "such nature as could have significantly 

and substantially contributed to the cause and effect of coal or other 

mine health or safety hazards***·" (Emphasis in original.) Once it 

is appreciated that the term "significant and substantial" cannot be 

treated in isolation, the importance of the surrounding language becomes 

clear. 

In support of its arguments, MSHA points out that the first observation 

one makes in a contextual analysis is that the nature of the violation need 

only be such as "could have" significantly and substantially contributed to 

the cause and effect of a mine health or safety hazard. The term "could 

have" suggests far less certainty than other language such as "would have" 

infers. In this context, "could have" means "possibly, but not necessarily 

have" significantly and substantially contributed to the cause and effect 

of a mine health or safety hazard. Citing the case of Alabama By-Products 

Corporation, 7 IBMA 85, November 23, 1976, MSHA states that the term "could 

have" means less than probable, and that the violation need only significantly and substantially contribute to the cause and effect of a mine safety 

or health hazard. That is, the cited violation need only contribute to the 

hazard in terms of playing a role in its cause and effect and need not 

cause the hazard. However, the nature of such contribution must be significant and substantial. 

205 
With respect to the meaning of the term "significant and substantial," 

MSHA maintains that as defined in Alabama By-Products, the phrase refers to 

all violations except those which are purely technical or those where any 

Tii]ury could result but there is only a remote or speculative chance o~ 

that injury coming to fruition. Citing the legislative history of the 1977 

Act, MSHA quotes the following statement which it believes supports its 

interpretation that the construction of the term "significant and substantial" applies to all violations except those that are purely technical: 

"The Committee notes with approval that the Board of Mine Operations 

Appeals has reinterpreted the 'significant and substantial' language in 

Alabama By-Products Corp., 7 IBMA 85, and ruled that only notices for 

purely technical violations could not be issued under Sec. 104(c)(l)." 

S. Rep. No. 181, 95th Cong., 1st Sess., 31 (1977 Senate Report). 

In summary, MSHA argues that applying the rationale of Alabama 

By-Products, the significant and substantial contribution to the cause and 

effect of a mine health or safety hazard means that the cited violation 

could play a role in the creation or existence of a hazard, and that the 

role it could play would be neither technical, remote nor speculative. 

On that basis, two questions should be asked in making this determination: 

1. Could the cited violation contribute to the cause and effect of a 

mine health or safety hazard? 

2. If the answer is yes, is the nature of the contribution such that 

its role as contributor would be neither technical, remote, nor speculative? 

An affirmative answer to both questions should mandate a finding that 

the cited violation is "significant and substantial." 

Contestant's Arguments 

In its posthearing brief, contestant takes the position that the "significant and substantial" block used by MSHA on the citation form should only 

be used when a condition exists that increases the likelihood of an accident 

occurring. Since all standards are promulgated with the hope that a potential accident could be avoided, and since citations are issued for failure 

to comply with the requirements of a standard, contestant asserts that the 

additional finding by an inspector that the mere violation of a standard 

would significantly and substantially contribute to a health or safety hazard is not justified in every case. Further, contestant argues that the 

significant and substantial criteria should only be used when the likelihood of a mining accident is greatly increased by the failure of the operator to comply with the standard, and that the use of the criteria in a 

section 104(a) citation is not justified since neither the Act nor MSHA's 

regulations issued thereunder permit an inspector to unilaterally determine that an alleged violation could significantly and substantially contribute to the cause and effect of a mine safety hazard. 

With respect to each of the citations issued in these proceedings, 

contestant argues that the only reasonable interpretation of the criteria 

206 
of "significant and substantial" is one of cause and effect, and that a 

simple "but for" test should be applied to the question. That is, "but 

for" the absence of the protective device required by the cited safety 

standard, would an accident have happened. Contestant maintains that the 

seriousness of the injuries that might result from the failure to comply 

with the criteria is not relevant to the question of whether a condition 

could cause an accident. Since the inspector who issued the citations 

testified that he had received instructions to mark all violations "significant and substantial," contestant concludes that an inspector is 

given no discretion to determine this criteria on a case-by-case basis. 

Additional arguments presented by the contestant with regard to each citation are discussed in my following findings and conclusions. 

Findings and Conclusions 

Reviewability of the Citations 

Although MsHA's posthearing brief does not address the question of the 

reviewability.of an abated section 104(a) citation, during the course of 

the hearing MSHA's position was stated to be as follows (Tr. 7, 8): 

MR. JENKINS: It is ~he Secretary's position that the 

105 review which is permitted in the Federal Mine Safety and 

Health Act of 1977 does not establish the right by the Applicant to contest the box marked S and S of a 104(a) citation. 

The 105 review is for citations of proposed assessments. 

1he Secretary believes that the Applicant has contested 

neither, but contested MSHA's recordkeeping box designated 

S and S. 

We feel that 105(a) does not require a finding of significant and substantial. Any challenge to the significant 

and substantial box on the citation is irrelevant and 

immaterial to the review of a 104(a) citation. 

Sand S is part of MSHA's recordkeeping system. An 

inspector may find in the cases before court today, will 

testify that these violations are serious, but the S and S 

is part of the recordkeeping process to the finding of a 

104(e) pattern. 

Since there has been no finding of a 104(e) pattern, the 

violation is a challenge to S and S and is premature and not 

ripe for this proceeding. Similar to a probable cause by 

a police officer, the S and S is MSHA' ·s recordkeeping 

process, and is not reviewable until the adversary proceeding of a 104(e) is at issue. 

207 
In this particular case there has been no charge, formal 

charge of a 104(e). Therefore, this type of action within a 

105 proceeding is inapplicable. 

Energy Fuels Corporation v. MSHA, DENV 78-410, decided by the Commission on May 1, 1979, concerned a section 104(a) citation which contained 

section 104(d)(l) findings of a "significant and substantial" and "unwar-. 

rantable failure" violation. The question presented in that case was 

whether an operator served with a citation for a violation that has been 

abated may immediately contest the allegation of violation in that citation. The Commission answered the question in the affirmative. After a. 

somewhat exhaustive discussion of the legislative history, during which it 

noted that reliance on the uncertainties in the legislative history makes 

reliance on it an uncertain matter, the Commission concluded that the safety 

and health of the miners would not be adversely affected by immediate review 

of an abated citation, and that any adverse impact on the interests of the 

Secretary by immediate contestability were not entirely clear. In discussing the potential adverse impact on an operator which would result if he 

were not afforded an opportunity for immediate review, the Commission at 

several points in its discussion (pages 9 and 10) alluded to the fact 

that the citation which was issued contained special findings under .section 104(d), and it seems clear that this fact influenced the Commission 

in concluding that review of the citation was in order. 

Helvetia Coal Company v. MSHA and Rochester & Pittsburgh Coal .Company 

v. MSHA, Docket Nos. PITT 78-322 and PITT 78-323, decided by the Commission 

on May 1, 1979, both involved review petitions seeking review of section 

104(a) citations issued pursuant to the 1977 Act, and the conditions were 

abated and the citations terminated at the time the review petitions were 

filed. In addition, contrary to the instant proceedings in Sunbeam, neither 

citation contained any special findings under sections 104(d) or (e) of the 

Act. Judge Merlin dismissed the applications for review of the citations on 

the ground that the citations were not reviewable until after the Secretary 

proposed civil penalties. On October 11, 1978, the Commission granted discretionary review, and on May 1, 1979, reversed. and remanded the .. cases to 

Judge Merlin and in so doing followed its decision of that same date in 

Energy Fuels Corporation v. MSHA, Docket No. DENV 78-410. 

In Helvetia and Rochester & Pittsburgh, the Commission took note of the 

fact that in Energy Fuels, the 104(a) citation contained special findings 

under section 104(d) and thus exposed the operator to a possible withdrawal 

order before a penalty could be proposed. Although the citations in 

Helvetia and Rochester & Pittsburgh had no special findings, the Commission 

nevertheless held that permitting the immediate contests of the citations 

would not "unduly burden others." Further, while commenting that it was 

arguably unlikely that Helvetia and Rochester & Pittsburgh will need a 

hearing before a penalty is proposed, and while taking particular note of 

the fact that the citations in question were abated and contained no special 

findings, the Commission nevertheless noted that it would be desirable for 

a hearing to be quickly scheduled if the conditions cited often recur, if 

208 
abatement efforts are expensive, or if another case is being heard on the 

same issue and early consolidation would be beneficial. 

In view of the foregoing, I believe it is clear that the Commission 

recognized that under certain circumstances and conditions, immediate review 

of abated citations is in order. In Energy Fuels, the special findings made 

under section 104(d) exposed the operator to a possible withdrawal order 

before a penalty could be proposed. In Helvetia and Rochester & Pittsburgh, 

while no special findings were made in connection with the section 104(a) 

citation, the Commission was obviously concerned with circumstances such as 

recurring violations, expensive abatement efforts, and consolidation of 

similar issues. 

In the instant cases, all of the citations were issued pursuant to section 104(a) of the Act. In addition to the narrative description of the 

condition on the face of the ci-tation, which prompted the inspector to cite 

the specific mandatory safety standard allegedly violated, the inspector 

checked the "significant and substantial" box on the face of the citation 

form and thus made the special findings in this regard referred to in _ 

section 104(d) as an additional finding in support of the section 104(a) 

citation. 

Inspector Felichko indicated that the term "significant and substantial" 

means a "serious violation," that when he checks the "S & S" box on the 

citation form he considers the "conditions surrounding the citation," and 

that the "S & S" finding "is MSHA's method of recordkeeping to determine 

whether a violation was significant and substantial" (Tr. 21). He also 

believes that all violations are serious but that the circumstances presented in each--case would determine whether a violation was significant 

and substantial (Tr. 27). He defined the term as follows (Tr. 28): "To 

me significant and substantial means that the violation could be more 

hazardous. Whenever you check that box, it is a more hazardous condition. 

It is hard to answer exactly what it means." 

Inspector Magness testified that the only directive available to him as 

to the meaning of "significant and substantial" is the statement imprinted 

on the back of the citation form and that his intent was not to attempt to 

establish a pattern of violations. He indicated that he issued the citations on the basis of "what I thought could possibly create a hazard" and 

that his primary consideration when issuing citations is to prevent health 

and safety hazards (Tr. 130-132). He candidly admitted that he has 

received oral instructions that all health and safety violations are significant and substantial (Tr. 135-136). 

It seems to me that Congress must have had something in mind when it 

enacted the 1969 Act, and the 1977 Amendments thereto, and provided a varied 

enforcement scheme which encompasses the issuance of citations and withdrawal 

orders for violations of mandatory standards (104(a)); withdrawal orders for 

failure to timely abate a violation (104(b)); unwarrantable failure citations and withdrawal orders (104(d)(l) and (2)); imminent danger orders 

209 
pursuant to section 107(a); and "almost" imminent danger citations and orders 

pursuant to sections 107(b)(l) and (2). Unfortunately, the legislative 

history of both the 1969 and 1977 Acts has little substance insofar as the 

construction of the term "significant and substantial" is concerned. The 

Board in the Alabama By-Products case simply read into the D.C. Circuit's 

opinion in UMWA v. Kleppe a theory of construction on which the court had 

nothing to say, and the Senate Committee simply gave it its blessing by 

noting with approval the Board's conclusion that· "significant and substantial" does not include purely "technical" violations. From that point on, 

it is obvious to me that MSHA has instructed its inspector force to mark 

all citations "S & S" without any real considerations being given to the 

facts and circumstances which prompted the inspector to cite a violation 

in the first place. In short, MSHA has lifted from section 104(d) a construction of the term "significant and substantial" so as to apply it automatically to virtually all citations, transposed it to section 104(a), and 

once a citation is issued, will use that section 104(a) citation as the 

basis for again citing a mine operator with a pattern violation notice 

which, in turn, will leave him vulnerable to a summary closure order if 

another 104(a) citation is issued within 90 days of the pattern notice. 

The "pattern of violation" provision of the 1977 Act is an additional 

and exceptional enforcement tool available to MSHA. Section 104(e) requires 

that an operator be given a notice that a "pattern of violations" exists 

in his mine if the violations could "significantly and substantially" contribute to the cause and effect of a health and safety hazard. The issuance of a notice that a pattern of violations exists at the mine not only 

alerts the mine operator of serious health and safety problems in his mine, 

but also triggers a series of subsequent MSHA enforcement actions which 

could result in the issuance of withdrawal orders and the closing down of 

the mine. The chain of "pattern" citations and withdrawal orders can only 

be broken if, pursuant to section 104(e)(3), an inspection of the entire 

mine discloses no "significant and substantial" violations. However, if 

any such citations are issued, the operator is deemed to have reestablished 

a "pattern" and the mine reverts to the "chain" provisions of sections 

104(e)(l) and (2). 

It should be noted that while an unwarrantable failure citation issued 

pursuant to section 104(d) must be of a "significant and substantial" nature 

and must be the result of an operator's "unwarrantable failure" to comply, 

°i"pattern" citation issued pursuant to section 104(e), need only be based 

on a "significant and substantial" finding, and there is no requirement 

that the violations establishing the pattern be the result of the operator 1 s "unwarrantable failure" to comply. Leg. Hist., S. Rep. No. 95-181, 

95th Cong., 1st Sess., 33 (1977). Further-:-While section 104(a) contains 

no specific provision for a finding of "significant and substantial" in 

conjunction with the issuance of a citation under that section, section 

104(d) authorizes an inspector to make such a finding in any citation given 

to the operator under this Act. Thus, while it may be argued that the lack 

of any specific mention of the term "significant and substantial" in section 

104(a) is a clear indication that Congress did not intend to authorize such 

210 
a finding in connection with a citation issued under that section, but only 

intended such a finding to be made in connection with unwarrantable failure 

citations under subsection (d), the statutory language "in any citation 

given to the operator under this Act," coupled with the legislative history 

and judicial decisions dealing with the construction of "significant and 

substantial," indicates Congressional approval of the practice of making 

such findings in a section 104(a) citation. It also seems clear that 

citations issued pursuant to section 104(a) which contain "significant 

and substantial" findings by an inspector will serve as the basis for the 

issuance of subsequent "pattern" citations pursuant to section 104(e), 

and the reverse side of the MSHA citation form confirms this. The 

pertinent portion of the form reads as follows: "NOTE: By checking the 

significant and substantial box, the Inspector has indicated that this 

violation could significantly and substantially contribute to a health or 

safety hazard and that this violation will be considered in determining 

whether a pattern exists." 

Section 104(e)(4) of the Act mand~tes that the Secretary shall make 

such rules as he deems necessary to establish criteria for determining when 

a pattern of violations exists. As reported in a recent October 14, 1979, 

issue of the Mine Safety and Health Reporter, published by the Bureau of 

National Affairs, at page 233, MSHA's Director for Civil Penalty Assessments 

indicated that MSHA is in the .Process of preparing guidelines for determining when a pattern exists. In light of MSHA's assertions in these proceedings that the marking of the "S & S" box on the citation form is merely a 

"recordkeeping" function, and in view of the inspector's testimony that his 

instructions are to check the "S & S" box on every citation which he issues, 

the promulgation of such guidelines should be----oft"op priority in order to 

assure even-handed enforcement by communicating the ground rules to those 

mine operators being regulated under the Act. To do otherwise would subject an operator to serious sanctions and penalties based on arbitrary and 

unreasonable actions by an inspector who automatically, and without any considered judgment, makes "findings" that a violation is significant and 

subtantial by merely checking a box on a citation form. This becomes particularly critical, from a due process point of view, when the groundwork 

for the issuance of pattern citations and withdrawal orders is begun by an 

inspector who mechanically checks the "S & S" box for every section 104(a) 

citation which he issues without any serious consideration being given to 

all of the prevailing facts and circumstances which prompted him to make 

that judgment in the first instance. 

Following Energy Fuels and the foregoing discussion, I conclude that 

since an operator is vulnerable to serious consequences resulting from an 

"S & S" finding, the contestant is entitled to a review of both the fact 

of violation and the inspector's additional finding of "significant and 

substantial," notwithstanding the fact that the citations were abated. I 

further conclude that the burden of proof is on the Secretary to establish 

the existence or occurrence of the violation as well as the burden of producing facts to support the conclusion that the citations were significant 

and substantial. 

211 
Significant and Substantial 

The "significant and substantial" provision found in section 104(d) of 

the 1977 Act is identical to that found in section 104(c) of the 1969 Act. 

In interpreting the meaning of this provision under the 1969 Act, the former 

Interior Board of Mine Operations Appeals in Eastern Associated Coal Corporation, 3 IBMA 331 (1974), took a rather restrictive view of the test of "significant and substantial" when it held that a violation could significantly 

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

health hazard if the evidence shows that the condition or practice cited 

as a violation posed a probable risk of serious bodily harm or death, 

3 IBMA 355. The Board noted that "if we thought that the hazard in question had only a speculative possibility of occurring, we would of course 

conclude otherwise." (Emphasis added.) 

In Zeigler Coal Company, 4 IBMA 139 (1975), the Board reexamined its 

prior interpretation of the term "significant and substantial" and characterized it as a "phrase of art," 4 IBMA 154; and at 4 IBMA 156 stated as 

follows: 

If we were to give each of the words of that clause an 

ordinary meaning, it would become a superfluous truism; by 

definition, the violation of any mandatory standard could 

significantly and substantially contribute to the cause and 

effect of a mine safety or health hazard. However, since it 

is plain that the Congress intended by these words to enact 

one of several discriminating criteria designed to separate 

those violations that merit 104(c) treatment from those that 

do not, such a literal interpretation would be squarely at 

odds with the apparent congressional intent. Such interpretation would render the phrase nugatory when the Board is 

obliged under the usual norms of statutory construction to 

give meaning to all the terms of a statute, Sutherland, 

Statutes and Statutory Construction, § 46.06 (4th ed. 1973). 

Commenting on its prior Eastern Associated Coal Corporation decision, 

the Board stated further at 4 IBMA 160, 161: 

Against this background and in order to give effect to 

all the statutory terms, we held and still believe that the 

clause "* * * could significantly and substantially contribute to the cause and effect of a mine safety or health 

hazard * * *" is a phrase of art. The key word of that 

clause is "hazard" which in our view refers not to just any 

violation, but rather to violations posing a risk of serious 

bodily harm or death. The part of the clause which reads 

"* * * could significantly and substantially contribute to 

the cause and effect * * *" states a probability requirement, 

designed in our opinion, to prevent application of section 

104(c) to largely speculative ''hazards." 

212 
In Alabama By-Products Corporation, 6 IBMA 168 (1976), the Board · 

affirmed a judge's decision vacating two section 104(c)(l) withdrawal orders 

issued pursuant to the 1969 Act. The judge held that the underlying notice 

was improperly issued because the violation cited did not pose a "probable 

risk of serious bodily harm or death" and therefore did not meet the "significant and substantial" test previously laid down in Eastern and Zeigler. 

In affirming the judge's decision, the Board rejected the UMWA arguments 

that the definition of "significantly and substantially" should be given 

its ordinary meaning which needs no definition and that the Board's construction of the term only deters the violation of a few of the mandatory 

health and safety standards while the UMWA's "ordinary meaning" construction of the term would deter violations of many more mandatory standards. 

In Alabama By-Products Corporation, 7 IBMA 85, November 23, 1976, the 

Board reconsidered its prior determinations and construction of the term 

"significant and substantial," and it did so on the basis of the D.C. 

Circuit Court of Appeals' decision in International Union, United Mine 

Workers of America (UMWA) v. Kleppe, 532 F.2d 1403 (1976), cert. denied, 

sub nom. Bituminous Coal Operators' Association, Inc. v. Kleppe, 429 U.S. 

858 (1976), reversing Zeigler Coal Company, supra, and holding that there 

was no implied gravity prerequisite for the issuance of a section 104(c)(l) 

withdrawal order. Noting the asserted narrowness of the court's holding 

and its silence on the Board's. construction of "significant and substantial," the Board nevertheless held that the court's opinion had broader 

implications and compelled a change in the Board's prior construction, and 

it stated as follows at 7 IBMA 92: 

The reason that the· appellate court's holding and supporting reasoning is important here is quite simply that our 

construction of the "significant and substantial" language 

in section 104(c)(l) was the product of virtually the same 

reasoning that the Court rejected in reversing Zeigler. When 

we construed that language to mean "probable risk of serious 

bodily harm or death," we disregarded the plain semantical 

meaning of that phrase in favor of a more restrictive reading 

of the statutory words which fitted in with our overall concept of the enforcement scheme. The emphasis of the D.C. 

Circuit on literalism which promotes wider operator liability 

and its rejection of our holding and the underlying reasoning 

in support thereof have undermined the "probable risk" test 

completely. An honest reading of the Court's opinion thus 

compels us to overrule Eastern Associated Coal Corp. * * *, 

and Zeigler Coal Compa~y, * * * insofar as they validate 

the "probable risk" test. [Footnote omitted.] 

The Board's reconstructed interpretation of the term "significant and 

substantial," as enunciated in its second Alabama By-Products' decision, is 

set forth at 7 IBMA 94 as follows: 

Section 104(c)(l), it should be recalled, mandates the 

issuance of a notice when an inspector finds that "* * * a 

213 
violation is of such nature as could significantly and substantially contribute to the cause and effect of a mine 

safety or health hazard** *·" Our position now is that 

these words, when applied with due regard to their literal 

meanings, appear to bar issuance of notices under section 

104(c)(l) in two categories of violations, namely, violations posing no risk of injury at all, that is to say, 

purely technical violations, and violations posing a source 

of any injury which has only a remote or speculative chance 

of coming to fruition. A corollary of this proposition is 

that a notice of violation may be issued under section 

104(c)(l) without regard for the seriousness or gravity of 

the injury likely to result from the hazard posed by the 

violation, that is, an inspector need not find a risk of 

serious bodily harm, let alone of death. [Emphasis in 

original.] 

Commenting on the enforcement ramifications of its new interpretation, 

the Board stated as follows at 7 IBMA 95: 

The inspector's judgment as to whether a given violation 

is "* * * of such nature as could significantly and substantially contribute to the cause and effect of a mine safety 

or health hazard * * *" must be reasonable. The reasonableness of such a judgment is dependent upon the peculiar facts 

and circumstances of each case, and it is up to an Administrative Law Judge initially, and the Board ultimately, to 

determine whether an inspector was reasonable in so finding 

in any given case. 

We recognize that our interpretation today means that 

federal coal mine inspectors have a very wide area of discretion to issue section 104(c) notices with all the attendant 

liability to summary withdrawal orders which necessarily 

follows upon even the most trivial of violations after issuance of such a notice. However, with the present controversy 

is viewed in the reflected light cast by the D.C. Circuit on 

section 104(c) in UMWA v. Kleppe, supra, no other conclusion 

can sensibly be drawn. 

Considering the foregoing judicial evolution of the construction of the 

term "significant and substantial," I conclude and find that practically all 

or most violations occurring at a mine are of a "nature as could significantly and substantially contribute to the cause and effect of a mine 

safety or health hazard," except in two categories: 

1. Those violations which pose no risk of injury at all, such as the 

so-called "purely technical violations"; and 

2. Those violations which pose a source of injury which has only a 

remote or speculative chance of happening. 

214 
Further, it also seems clear that the term can apply to a violation 

without regard to the seriousness or gravity of any injury for which the 

violation poses a risk of occurrence, that is, there need not be a finding 

that the violation poses a risk of serious bodily injury or death for the 

term to apply. 

The present construction of· the term "significant and substantial" as 

it evolved in the aforementioned cases is favorably reflected in the legislative history of the 1977 Act as follows: 

The Interior Board of Mine Operations Appeals has until 

recently taken an unnecessarily and improperly strict view 

of the "gravity test" and has required that the violation be 

so serious as to very closely approach a situation of "imminent danger", Eastern Associated Coal Corporation, 3 IBMA 

331 (1974). 

The Committee notes with approval that the Board of 

Mine Operations Appeals has reinterpreted the nsignificant 

and substantial" language in Alabama By-Products Corp., 

7 IBMA 85, and ruled that only notices for purely technical 

violations could not be issued under Sec. 104(c)(l). 

The Board there held that "an inspector need not find a 

risk of serious bodily harm, let alone death" in order to 

issue a notice under Section 104(c)(l). 

The Board's holding in Alabama By-Products Corporation 

is consistent with the Committee's intention that the unwarranted failure citation is appropriately used for all violations, whether or not they create a hazard which poses a 

danger to miners as long as they are not of a purely technical nature. The Committee assumes, however, that when 

"technical" violations do pose a health or safety danger to 

miners, and are the result of an "unwarranted failure" the 

unwarranted failure notice will be issued. 

S. Rep. No. 181, 95th Cong., 1st Sess., 31 (1977). 

Docket No. PITT 79-210 

Citation No. 229432, 30 CFR 77.1607(cc) 

30 CFR 77.1607(cc) states as follows: "Unguarded conveyors with walkways shall be equipped with emergency stop devices or cords along their full 

length." 

The citation issued in this case charges that the No. 1 wash belt was 

not provided with emergency stop devices or cords along the belt walkway. 

The inspector testified that he issued the citation because the conveyor 

215 
belt in question is required to have an emergency stop pull cord along 

the full length of the walkway where a person might be exposed to the moving belt rollers and the belting itself (Tr. 12). He described the belt 

as being inclined from inside the plant to the outside, that it had an 

inclined walkway along its full length from ground level to the head 

roller, and that the purpose of the belt was to carry washed coal from 

inside the plant to the outside where it vas loaded (Tr. 13). He estimated the length of the belt to be 125 to 150 feet, and indicated that the 

walkway was to the right of the belt and that it was composed of expanded 

metal, and while he looked out of the window of the control room inside 

the plant, he could not recall whether he could see the entire belt length 

(Tr. 23-24). He observed one around or on the belt, made no inquiries as 

to whether anyone is required to be in the belt area while it was running, 

and did not know whether the plant maintenance schedule provided for work 

and lubrication of the belt while it was running (Tr. 25). The belt tail 

roller was guarded, and the head roller was guarded by location because 

the walkway only went up to the front of it (Tr. 41). 

The unguarded portion of the belt which concerned the inspector consisted of the idler rollers and the belting itself (Tr. 42). The stop 

cord was a suitable substitute for a physical guard, and a person would 

have,access to the stop cord to shut the belt off as he was falling into 

it (Tr. 43). He believed that under certain conditions it would be a 

hardship on an operator to require a physical guard along the entire 

length of the belt, but the installation of a stop cord is not such a 

hardship (Tr. 44). The walkway was in fairly good condition and he 

observed no spillage (Tr. 46). 

Mine Manager DiBiase testified that the so-called belt "walkway" was 

in fact a work area or platform which was parallel to the ground and did 

not run along the same incline as the belt (Tr. 53, 58, 65, 66; ALJ Exh. 

1). The exposed unguarded portion of the belt was at the point where the 

inclined belt intersected the platform and the belt did not have a walkway 

adjacent to its entire length (Tr. 66, 68). He assumed that it was what 

the inspector had in mind when he cited the violation (Tr. 72). 

In an attempt to resolve the discrepancy in the testimony concerning 

the existence of the alleged conveyor belt walkway, Inspector Felichko was 

recalled in rebuttal. His testimony in rebuttal reflects that the walkway 

he previously described as being along the entire length of the conveyor 

belt was in fact the platform area described by Mr. DiBiase (Tr. 80; Exh. 

M-3(a)), and he indicated that the walkway was not adjacent and parallel 

to the belt along its entire length (Tr. 81). MSHA's counsel believed 

that the inspector had in mind a portion of the belt near the platform 

and counsel conceded that his testimony was confusing (Tr. 82, 83). The 

inspector added to the confusion when he indicated that the platform "ran 

parallel with the belt," and that one "could walk along that platform and 

be next to this belt for the full length of the walkway" (Tr. 84). 

216 
After careful review and consideration of the testimony presented with 

respect to this citation, I conclude and find that the inspector was confused as to what he actually observed on the day the citation issued. While 

his direct testimony clearly indicated to me that there was a walkway along 

the entire length of the conveyor belt which was not guarded by a stop cord 

and that he was concerned that someone walking that walkway could possibly 

trip or fall into the belt and become caught in a belt idler roller, it 

turns out that what he apparently had in mind was an exposed unguarded belt 

area at a point where the belt intersected a work platform which was apparently used as a maintenance station and as a belt crossover point. Subsection (cc) of section 77.1607 requres the installation of stop cords on 

conveyors equipped with walkways. In this case, I cannot conclude that the 

conveyor belt in question had a walkway along its full length which exposed 

anyone to a possible hazard, and I find that MSHA has not established that 

this was in fact the case. I accept Mr. DiBiase's testimony as credible 

and find that MSHA has failed to establish by any credible evidence that 

the belt conveyor in question had a walkway. This being the case, I find 

that the cited standard does not apply in the situation here presented and 

the citation is VACATED. 

Docket No. PITT 79-211 

Citation No. 229433, 30 CFR 77..701 

30 CFR 77. 701 provides as follows: "Metallic frames, casings, and 

other enclosures of electric equipment that can become 'alive' through 

failure of insulation or by contact with energized parts shall be 

grounded by methods approved by an authorized representative of the 

Secretary." 

Contestant admitted that the shop area switchbox in question was not 

frame grounded as charged in the citation (Tr. 118; Brief, p. 5). Its 

defense is that another suitable means for grounding the box was used and 

Mine Manager DiBiase's testimony that the absence of the frame ground would 

not make the likelihood of an accident imminent. This defense is rejected. 

Mr. DiBiase candidly admitted that the lack of a frame ground could contribute to a possible accident, and he also indicated that he had removed tool 

grounds in the past even though he realized he was jeopardizing his health 

and life (Tr. 116, 117). As for the alternative use of a ground to the 

fuse, Mr. DiBiase admitted that this was not a proper ground. 

The inspector testified that the 110-volt circuit was energized, there 

was no insulation mat on the floor, and the floor was muddy and wet, and 

coupled with what he described as "frayed" outer insulation of the cables, 

he believed that there was a shock or electrocution hazard presented by the 

condition cited. Under fault conditions, the box could become energized, 

and the inspector believed that the lack of a frame ground, aggravated by 

the frayed outer cable insulation, constituted a significant and substantial 

violation. In addition, the box was located in a shop area by an entrance 

door and one could just walk up to it (Tr. 89). 

217 
I find that MSHA has established the fact of violation and I also find 

that the violation was not technical. To the contrary, I find that the lack 

of a proper frame ground, coupled with the other prevailing conditions and 

the proximity of the box at the entrance of the shop, presented a real shock 

and electrocution hazard which could have resulted in serious injuries or 

death and the absence of the frame ground increased the likelihood of those 

events happening. Accordingly, I conclude that the violation was significant and substantial, and the citation is AFFIRMED. 

Docket No. PITT 79-212 

Citation No. 229434, 30 CFR 77.513 

30 CFR 77.513 states as follows: 

Dry wooden platforms, insulating mats, or other electrically nonconductive material shall be kept in place at 

all switchboards and power-control switches where shock 

hazards exist. However, metal plates on which a person 

normally would stand and which are kept at the same potential as the grounded, metal, non-current-carrying parts 

of the power switches to be operated may be used. 

Contestant does not dispute the fact that there was no insulation at 

the switchbox in question (Tr. 117; 118; Brief, p. 6). The box in question 

was the same one for which the inspector issued Citation No. 229433 for 

lack of a proper frame ground. The inspector believed the violation was 

significant and substantial because the lack of an insulation mat aggravated or added to the potential for a shock or electrocution, particularly 

in light of the prevailing conditions such as a wet and muddy floor, lack 

of a frame ground on the box, and the frayed cable which he described (Tr. 

107)~ I agree with the inspector and find that the violation has been 

established and that it was significant and substantial and not technical. 

The citation is AFFIRMED. 

Docket No. PITT 79-213 

Citation No. 229362, 30 CFR 77.205(e) 

30 CFR 77.205(a) and (e) provide as follows: 

(a) Safe means of access shall be provided and maintained to all working places. 

* * * * * * * 

(e) Crossovers, elevated walkways, elevated ramps, 

and stairways shall be of substantial construction provided with handrails, and maintained in good condition. 

Where necessary toeboards shall be provided. 

218 

* 
The citation (Exh. M-12) charges the contestant with a violation of 

subsection (a) of section 77.205 for failure to provide and maintain a safe 

means of access to the working place in that the end of a third level walkway of the preparation plant was not protected by a railing, barrier, or 

other protective device. By motion filed on December 12, 1979, 2 months 

after the evidentiary hearing, MSHA seeks to amend its pleadings to reflect 

a citation of subsection (e) rather than (a). In support of its motion, 

MSHA asserts that the original citation described with particularity the 

conditions and practices which constitutes a violation of subsection (e), 

that contestant was in fact informed of the violation and is not unduly 

prejudiced, and that Rule 15(b) of the Federal Rules of Civil Procedure 

liberally permits a party to amend its pleadings to conform to the 

evidence. 

The inspector's testimony is somewhat confusing as to what he intended 

to cite, and what he apparently had in mind was the fact that the surface 

area of an elevated platform or balcony in the preparation plant did not 

have a protective barrier or barricade installed at one end of the edge 

so as to preclude someone from falling off the next level below for a 

distance of some 7 feet. The area in question was approximately 

3-1/2 feet wide, with a wall on one side and plant machinery on the other. 

Access to the platform was gained by a stairway leading up from the level 

below the area cited. Although subsection (e) specifically requires the 

installation of handrails, the· inspector testified that he would have 

accepted a removable chain rail, barricade, wire, boarding or a partition 

as compliance, and he likened the hazard presented to someone walking off 

the end of an apartment balcony (Tr. 138, 152). It seems obvious to me 

from his testimony, and from the way the condition is described on the 

face of the citation, that the inspector intermingled the requirements of 

subsections (a) and (e). Stated another way, he apparently intended to 

apply a standard which would read: "Safe means of access shall be provided and maintained to all working places, and in the case of elevated 

walkways or working places where work is to be performed, compliance 

shall be achieved by the installation of a handrail or other substantial 

barrier." The problem with this is that the inspector's function is not 

to rewrite safety standards. His function is to cite conditions or 

practices which he believes constitutes a violation of a standard as 

promulgated. 

MSHA's counsel indicated that the substance of the citation deals 

with subsection (e) in that the inspector was concerned that someone would 

fall off the unprotected edge of the elevated platform where there was 

room for him to walk up to the edge (Tr. 138, 150-151), and the inspector 

attempted to clarify his position when he testified that: 

My interpretation and understanding of safe means of 

access is that a man can travel in that working area, and 

a safe means of access to that working area is that he can 

travel through that working area, and that is the whole 

working area, in safety without falling off the end (Tr. 

153). 

219 
The inspector conceded that there was a safe means of access up to 

the point of the end of his trip when he falls off the edge (Tr. 153). 

Contestant has filed no response or opposition to MSHA's motion to 

amend, nor did it raise any objection at the hearing during the colloquy 

and questioning of the inspector by the parties. As correctly pointed out 

by MSHA in its motion, Rule 15(b) of the Federal Rules of Civil Procedure 

is liberally construed, and in a case decided under the Occupational Health 

and Safety Act, National Realty Company, Inc. v. Occupational Safety and 

Health Review Commission, 489 F.2d 1257 (D.C. Cir. 1973), the court observed 

as follows at 489 F.2d 1264: 

So long as fair notice is afforded, an issue litigated 

at an administrative hearing may be decided by the hearing 

agency even though the formal pleadings did not squarely 

raise the issue. This follows from the familiar rule that 

administrative pleadings are very liberally construed and 

very easily amended. The rule has particular pertinence 

here, for citations under the 1970 Act are drafted by nonlegal personnel, acting with necessing dispatch. Enforcement of the Act would be crippled if the Secretary were 

inflexibly held to narrow construction of citations 

issued by his inspectors. 

Anendments of pleadings to conform to the evidence is one thing, but 

attempts to rewrite or reissue citations is another. On the facts here presented, it seems obvious that MSHA's motion seeks to amend the citation to 

reflect a violation of subsection (e) rather than (a). In effect, MSHA is 

seeking to issue a new citation so as to take advantage of the inspector's 

oral testimony which I believe supports neither a violation of subsections 

(a) or (e) of section 77.205. See Tilden Coal Company, 7 IBMA 57 (1976). 

On the facts presented in this cas.e, it seems obvious to me that the 

inspector confused the two subsections since the narrative portion of the 

condition or practice as described on the face of the citation parrots the 

exact requirements of subsection (a); that is, the inspector did not believe 

a safe means of access was provided to the working place because of the lack 

of a railing on the so-called "walkway." However, the evidence establishes 

that the only access to the platform was by means of the stairway from the 

lower level up to the platform and there is no evidence that the st~irway 

was unsafe. Further, in response to a question as to whether the area 

cited was a travelway used by personnel as a means of going through the 

plant, the inspector answered "[i]t is not a communication travelway, a 

necessary communication travelway," and he indicated that part of the reason for the structure being there was for maintenance purposes (Tr. 140). 

The term "working place" is not further defined by Part 77. However, 

I believe it is reasonable to conclude that since work is performed on the 

platform area in question from time-to-time, that the area may be considered a working place for purposes of subsection (a) of section 77.205. 

However, since I have concluded that MSHA has not established by any 

220 
credible evidence that access to that area was unsafe, I also find that a 

violation of that subsection has not been established. 

With regard to the application of subsection (e) of section 77.205, I 

am not convinced by any credible evidence that the area cited was in fact a 

walkway within the meaning and intent of the standard. The area cited was 

more of a platform and work station used for maintenance purposes and it 

was not a walkway used by employees to travel in and through the plant and 

the inspector candidly admitted as much. It seems obvious to me that the 

inspector attempted to apply a standard which simply, does not fit the 

factual circumstances here presented. The protection of personnel from 

falling from unprotected elevated work platforms and work stations appears 

to be a most obvious situation which should be covered by a mandatory standard, and subsection (b) of section 77.205 comes close. However, that 

standard only requires the area to be kept clear of stumbling or slipping 

hazards and by including it among "travelway" standards, its application 

becomes all the more confusing. It seems to me that if MSHA desires to 

provide barriers and other protective devices to prevent personnel from 

falling off an elevated platform, it should promulgate a precise standard 

to cover that situation. In the instant case, the inspector attempted to 

apply a walkway handrail requirement to a factual situation which I believe 

is not covered by that requirement, and the inspector's acknowledgement that 

he would accept chains, wires, .boards, or partitions as suitable barricade 

substitutes for the handrail emphasizes my point. Subsection (e) on its 

face only requires handrails, and what may suit one inspector as suitable 

for compliance may not suit another. I find that MSHA has not established 

that the area cited. was in fact a walkway within the meaning and intent of 

subsection (e), and that it has not established a violation of that standard. 

Since I have found that MSHA has failed to establish a violation of 

either subsections (a) or (e) of section 77.205, its motion to amend its 

pleadings is moot. However, even if I were to grant it, I would limit it 

to permit MSHA to amend its pleadings to the extent that it wishes to cite 

subsection (e) rather than (a), but would not permit MSHA to reissue or 

reconstruct the condition or practice cited by the inspector. In the final 

analysis, I conclude that MSHA is bound by the conditions or practices 

described by the inspector on the face of his citation and that MSHA has 

failed to establish a violation of either subsection (a) or (e). The citation is VACATED. 

Docket No. PITT 79-214 

Citation No. 229363, 30 CFR 77.400(c) 

30 CFR 77.400 provides as follows: 

(a) 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. 

221 
(b) Overhead belts shall be guarded if the whipping 

action from a broken line would be hazardous to persons 

below. 

(c) Guards at conveyor-drive, conveyor-head, and 

conveyor-tail pulleys shall extend a distance sufficient to 

prevent a person from reaching behind the guard and becoming caught between the belt and the pulley. 

(d) Except when testing the machinery, guards shall be 

securely in place while machinery is being operated. 

Fact of Violation 

1he citation (Exh. M-15), and the inspector's testimony (Tr. 157), 

clearly indicates that the inspector cited subsection (c) of section 77.400 

as the alleged violation. However, that subsection requires that guards 

at conveyor heads be extended for a sufficient distance to prevent a person from reaching behind it and becoming caught between the belt and the 

pulley. In my view, this subsection is applicable in a situation where 

a guard is already installed but does not adequately provide protection. 

The citation here was issued because no guard was provided at the drive 

head location and contestant does not dispute this fact. Under the circumstances, the inspector should have cited subsection (a) which specifically 

requires that head pulleys be guarded. However, the fact that he did not 

does not in my view vitiate the citation. Although each subsection of section 77.400 constitutes a separate requirement and may serve as the basis 

of separate citations, in this case, contestant is charged with one violation of section 77.400(c), and since the head pulley had no guard at all 

installed, I believe the facts support a finding of a violation. In addition, contestant does not claim prejudice or surprise, knew what it was 

charged·with, abated it, had an ample opportunity to present its defense, 

and does not dispute the fact that the head pulley was not guarded. In 

the circumstances, I find that MSHA has established a violation. 

Was the Violation Significant and Substantial 

MSHA's support for a finding of a significant and substantial violation 

rests on its assertion that a worker's limb could become entangled between 

the belt and metal roller, the existence of pinch points at the entry of 

the belt over the drive head roller, and the inspector's belief that a 

worker could reach straight into the drive head or inadvertently fall in 

and seriously injure himself-:--Since the belt was operable, MSHA argues 

that all that .was necessary to energize it was to push a button. 

Mine Manager DiBiase testified that the belt in question is not frequently used, that one cannot inadvertently trip into the pinch point, and 

that the belt is locked out with a lock when maintenance is being performed 

(Tr. 174). He. installed guards where he believed they were required, and 

in the 20 years the plant has been in operation and inspected, no one has 

222 
ever advised him that the location cited required a guard. He conceded 

that the conveyor belt did not have a guard, but indicated that the gear 

box sprocket to the drive motor on the head pulley was guarded and the 

inspector agreed this was the case (Tr. 179-180). 

Contrary to MSHA's assertion that a person could reach straight into the 

drive head, the inspector's testimony is that one would have to stand and 

extend himself into the area, that it was within his extended reach, and that 

he is 5 feet 11 inches tall (Tr. 162). His testimony reflects that one would 

have to deliberately reach into the pinch point while performing work there 

and that one would not inadvertently get caught in the pinch point unless 

he fell or tripped (Tr. 163-164). In addition, the gravity portion of the 

inspector's statement prepared at the time the citation issued (Exh. M-17) 

contains a notation by the inspector that the belt in question was "seldom 

used" and that the occurrence of the event against which the cited standard 

is directed was "improbable." He also indicated that one person would be 

affected if the event occurred or were to occur, and he described the "event" 

which would have to occur before an accident would have resulted from the 

violation as "a miner would have to be caught between the belt and the 

drive pulley." Further, as to the presence of any conditions or circumstances which might have increased the likelihood or severity of that happening, he indicated "none." When asked about these notations, the 

inspector conceded that the belt was seldom used, that it was not in operation at the time the citation.issued, and he justified his significant and 

substantial finding by the fact that "there was less chance of a man becoming involved, although there was always a chance of a man becoming involved," 

and the fact that "something could happen if someone inadvertently got their 

hand caught in the pinch point" (Tr. 160, 170). MSHA's counsel conceded 

that all citations issued for unguarded belt drive pulleys are not necessarilY:-and as a general rule, significant and substantial (Tr. 181). 

After careful consideration of the inspector's testimony with respect 

to this citation, I cannot conclude that the violation was significant and 

substantial. To the contrary, based on the totality of the prevailing conditions at the time the citation issued, I find that the hazard presented 

by the·unguarded conveyor drive head pulley presented a situation which at 

most exposed miners to a remote or speculative possibility of an accident 

occurring. The evidence establishes that chain guards were instaped at the 

gear box head pulley drive, the gear sprocket guard was properly guarded, 

contestant's evidence that the belt is locked out before maintenance is 

performed is unrebutted, the belt was seldom used and was not in operation, the inspector believed that an injury was improbable, and the probability of someone falling into the precise pinch point, which was at an 

extended vertical reach approximating 6 feet is ~emote. Under the circumstances, I conclude that the violation was not significant and substantial. 

ORDER 

All briefs and proposed findings and conclusions filed by the parties 

have been considered, and to the extent they are inconsistent with the 

223 
foregoing findings and conclusions, they are rejected. In view of my findings and conclusions made herein, IT IS ORDERED THAT: 

1. Citation No. 229432, February 22, 1979, issued in Docket No. PITT 

79-210, is VACATED. 

2. Citation No. 229433, February 22, 1979, issued in Docket No. PITT 

79-211, is AFFIRMED as a significant and substantial violation. 

3. Citation No. 229434, February 22, 1979, issued in Docket No. PITT 

79-212, is AFFIRMED as a significant and substantial violation. 

4. Citation No. 229362, February 22, 1979, issued in Docket No. PITT 

79-213, is VACATED. 

5. Citation No. 229363, February 22, 1979, issued in Docket No. PITT 

79-214, is AFFIRMED, but the violation is not significant and substantial. 

~-!~ Administrative Law Judge 

Distribution: 

Bruno A. Muscatello, Esq. , Brydon & Stephanian, 228 South. Main Street, 

Butler, PA 16001 (Certified Mail) 

Eddie Jenkins, Trial Attorney, Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Standard Distribution 

. ft 

• 

224 
FEDER.Al MINE SAFETY AND HIE.Al.TH REVIEW COMMISSION 

FMC CORPORATION, 

v. 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Notice of Contest 

Applicant 

Docket No. WEST 79-419-RM 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Citation No. 575882; 

August 24, 1979 

Respondent FMC Mine 

ORDER APPROVING SETTLEMENT 

AND 

DISMISSING THE PROCEEDING 

On September 24, 1979, FMC Corporation (Applicant) filed a notice of 

contest in the above-captioned proceeding pursuant to section 105 of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 815 (1978). Subsequent thereto, an answer was filed by the Mine Safety and Health Admin·-

istration (MSHA). 

Pursuant to notices of hearing, the hearing convened at l p.m., 

Tuesday, November 6, 1979, in Salt Lake City, Utah, at which time counsel 

for both parties apprised the Judge that a settlement had been negotiated 

in the form of an agreement by the Applicant to withdraw its notice of 

contest in return for certain stipulations. 

The agreement was filed subsequent to the hearing i.n the form of a 

document styled "stipulation of settlement and joint motion to approve 

settlement agreement." This document, filed on January 7, 1980, states 

the following: 

Appli.cant and respondent, by and through their respective counsel of record, hereby stipulate to the following 

facts and agree as follows: 

1. On August 24, 1979, an inspector of the Mine Safety 

and Health Administration ("MSHA"), United States Department 

of Labor, issued Citation No. 0575882 to FMC Corporation for 

violation of the He~lth and Safety Standard contained in 

30 C.F.R. §57.4-29 ("Standard 4-29"). 

2. MSHA has not and does not in~end to interpret Standard 4-29 to require that fire extinguishi'ng equipment be 

located within arm's length of a welder during all welding 

225 
and cutting operations regardless of the fire hazard, or lack 

thereof, presented by all circumstances at the work site. 

3. MSHA intends to use as a guideline for the enforcement of Standard 4-29 that fire extinguishing equipment 

should be located within 50 feet of a welder during welding 

and cutting operations unless the familiarity of the welder 

with fire extinguishing equipment locations or an immediate 

fire hazard peculiar to the work site warrants a closer 

placement of the fire extinguishing equipment. 

4. Citation No. 0575882 issued by MSHA Inspector 

William W. Potter on August 24, 1979, was properly issued 

based upon the facts then known to the inspector. Additional facts, however~ have subsequently been made known to 

MSHA which demonstrate that FMC Corporation was in compliance with the application and guidelines described in 

Paragraphs 2 and 3 above at the time the Citation was issued. 

Therefore, it now appears that Citation No. 0575882 should be 

withdrawn. 

5. FMC Corporation hereby agrees to withdraw its Notice 

of Contest. 

6. MSHA hereby agrees to withdraw.Citation No. 0575882. 

Based upon the foregoing Stipulation, the parties jointly 

move the Commission to approve this Settlement Agreement. 

Based on the representations made by counsel for the parties, it appears 

that a disposition approving the settlement will adequately protect the 

public interest. Accordingly, the settlement negotiated by the parties is 

herewith APPROVED and the above-captioned proceeding is herewith DISMISSED. 

____.,/,n.,_F 7:r-~-

Distribution: 

Clayton J. Parr, Esq., and Robert G. Holt, Esq., Martineau, Rooker, 

Larsen & Kimball, 1800 Beneficial Life Tower, 36 South State Street, 

Salt Lake City, UT 84111 (Certified Mail) 

James L. Abrams, Esq., Henry Mahlman, Esq., Office of the Solicitor, 

U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, 

Denver, CO 80294 (Certified Mail) 

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

NW., Washington, DC 20005 (Certified Mail) 

Mr. Albert Battisti, P. O. Box 1315, Rock Springs, NY 82901 (Certified 

Mail) 

226 
UNITED STATES OF AMERICA 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

.JAN 2 9 1980 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSUA) , . 

v. 

Petitioner, 

BRUBAKER-MANN, INCORPORATED, 

Respondent. 

) 

) 

) CIVIL PENALTY PROCEEDING 

) 

) DOCKET NO. WEST 79-193-M 

) 

) ASSESSMENT CONTROL NO. 04-00030-0500i 

) 

) MINE NAME: BRUBAKER-MANN 

) QUARRY AND MILL 

) 

~~~~~~~~~~~~~~~~~~) 

DECISION 

APPEARANCES: 

Linda R. Bytof, Esq. and Marshall P. Salzman, Esq., Office of Daniel W. 

Teehan, Regional Solicitor, United States Department of Labor, 

San Francisco, California, 

for the Petitioner, 

Jennifer Mann and William J. Mann, of Barstow, California, appearing pro se, 

for Respondent. 

Before: Judge John J. Morris 

Respondent is charged with failing to guard the edge of its elevated access 

road, with failing to barricade a walkway, and with failing to require the use of 

a safety belt at its grizzly dump. Petitioner contends these conditions violate 

standards promulgated under the authority of the Federal Mine Safety and Health 

Amendments Act of 1977, (30 U.S.C. 801 et seq). 

ISSUES 

The issues are whether the violations occurred; whether the fines adversely 

affect respondent; whether "instant.fines" are legally permissible and finally, 

whether the California Occupational Safety and Health Administration (CAL-OSHA) 

pre-emμ:sthe Federal Mine Safety and Health Administration (MSHA). 

227 
CITATION 376433 

This citation alleges a violation of 30 CFR 56.9-22. lf 

The uncontroverted evidence on this issue establishes the following facts. 

1. Respondent's front end loaders use an elevated access road, 25 to 

30 feet wide, to reach a diesel pump (Tr 14-16, Rl). 

2. There is a 25 foot drop off within 6 feet of the pump (Tr 16~19). 

3. The roadway lacks berms or guards on its outer edge (Tr 15). 

4. A berm or guard consists of material such as rocks or dirt that 

could restrain a vehicle from overturning or from rolling off of an elevated 

roadway (Tr 15). 

This citation should be affirmed. 

Respondent asserts it abated the condition and that no accidents have occurred 

on its road. Further, respondent contends the compliance officer admitted being 

unfamiliar with the safety devices on the truck. 

I reject these arguments. 

Abatement of a violation is an element to be considered in assessing a penalty 

under the Act, '!:_/ but subsequent abatement cannot excuse prior noncompliance. 

The mere fact that no accidents have occurred is not dispositive of whether 

respondent violated the standard. The purpose of a safety regulation is to prevent 

the first accident, Lee Way Motor Freight, Inc. v. Secretary of Labor, 511 F.2d 864 

(10th Cit., 1975). 

lf The standard provides as follows: 

56.9-22 Berms or guards shall be provided on the outer bank of 

elevated roadways. 

'!:_/ Section llO(i), 30 U.S.C. 820(i). 

228 
Respondent's argument concerning safety devices on the vehicles is likewise 

rejected. Guardrails would be a safety feature completely apart from any safety 

devices on the truck. 

CITATION 346434 

This citation alleges a violation of 30 CFR 56.11.2. 'l./ 

The evidenc.e is conflicting and I find the following facts on this citation. 

5. Respondent's bulk tank is constructed from an old railroad car; it 

sits 35 feet high (Tr 22-23, R-2). 

6. There was no reason for anyone to be on the top of the bulk tank; 

the operator diverts materials from a guarded railed platform (Tr 54-55). 

7. Respondent's president had never seen an employee on top of the 

tank (Tr 56). 

This citation should be vacated. There is sufficient evidence in petitioner's 

case to infer that workers used the walkway (Tr 27-28), but this directly conflicts 

with the testimony of the quarry operator. Inasmuch as the operator should be more 

.familiar with his company's work activities, I find his testimony more credible 

than that of the inspector. 

Petitioner's post trial brief argues those facts most favorable to his 

position. However, as indicated, I have rejected those facts for the reasons 

stated. 

]./ The standard provides as follows: 

56.11-2 Crossovers, elevated walkways, elevated ramps, and sta.irways 

shall be of substantial construction provided with handrails, and 

maintained in good condition. Where necessary, toeboards shall be 

provided. 

229 
CITATION 376435 

This citation alleges a violation of 29 CFR 56.15-.5. !!_/ 

The evidence is uncontroverted. 

8. A front end loader moves limestone to the grizzly dump (Tr 30, R3, R4). 

9. A set of grizzlies are rails 7 to 8 feet long and set 13 1/4 inches 

apart. The grizzlies are 4 to 5 feet above a conveyor which moves material (Tr 30-31). 

10. A worker, without a safety belt and life lines, pushes the rock 

through the grizzly dump opening. If the pieces are too large, the worker. breaks 

them up with a sledge hammer (Tr 30). 

11. If a person fel~ through the grizzlies, he would fall onto a 

conveyor moving toward a crusher (Tr 31). 

This citation should be vacated. The gravamen of this citation revolves on th~ 

single issue of whether a worker could fall through the 13 1/4 inch grizzly opening. 

The evidence is in conclusory form. Petitioner's evidence show that a normal 

size worker could fall through this space (Tr 31, 71); however, respondent shows 

that the crusher operator could not fall through the opening (Tr 63). The evidence 

is at best evenly balanced. Accordingly, the petitioner has not sustained his 

burden of proof. 

CIVIL PENALTIES 

Respondent contends that harassment, fines, paperwork, and the like, will make 

it so costly to produce its product that it can no longer remain in business. 1/ 

Further, respondent contends "instant fines" are unjust. 

!±) This standard provides as follows: 

56.15-5 Safety belts and lines shall be.worn when men work where there 

is danger of falling; a second person shall tend the lifeline when bins, 

tanks, or other dangerous areas are entered. 

11 The.proposed penalty for the citation not vacated is $84. 

230 
I reject these arguments. Respondent presented no evidence in support of 

its "harassment" argument. The inspection appears to be of a rout.ine nature to 

which members of the regulated industry are subjected. 

In addition, the imposition of civil penalties in furtherance of the congressional policies is generally constitutional. Frank Irey, Jr., Inc. v. OSHRC 

519 F.2d 1200 Cert'granted-affirmed 97 S. Ct. 1261, 430 U.S.C. 442. 

Respondent alleges the impos-ition of "instant fines" is unjust. Respondent's 

views overlook the pertinent provisions of the Federal Mine Safety and Health 

Amendments Act of 1977. Under Section llO(i) ~/ the Commission has the authority 

to assess "all civil penalties" provided in the Act. The "instant fines" referred 

to by the respondent are, in law, merely proposals of MSHA. 

CAL-OSHA JURISDICTION 

Respondent's contention that the California Occupational Safety and Health Act 

pre-empts the Mine Safety and Health Act lacks merit. 

CAL-OSHA derives its authority from the Federal Occupational Safety and Health 

Act (29 U.S.C. 651 et seq). That legislation applies generally to employers 

engaged in a business affecting conunerce. 29 U.S.C. 652(5). 

The Federal Mine Safety and Health Act derives its authority from the Federal 

Mine Safety and Health Amendments Act of 1977. 30 U.S.C. 801 et~· The latter 

Act defines in part a "coal or other mine" as an area of land from which minerals 

are extracted. 30 U.S.C. 802(h)(l). 

Inasmuch as the Federal Mine Safety Act is more specific as it relates to 

miners, it is applicable over the more general statute. 

§} 30 u.s.c. 820(i) 

231 
FINDINGS OF FACT 

I find the facts as outlined in paragraphs 1 through 11 of this decision. 

CONCLUSIONS OF LAW. 

1. Respondent violated 30 CFR 56.9-22 and Citation 376433 should be 

affirmed (Facts 1, 2, 3, 4). 

2. Petitioner failed to prove a violation of 30 CFR 56.11-2 and 

Citation 346434 should be vacated (Facts 5, 6, 7). 

3. Complainant failed to prove a violation of 30 CFR 56.15-5 and 

Citation 376435 should be vacated (Facts 8, 9, 10, 11). 

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

following: 

ORDER 

1. Citation 376433 and the proposed penalty of $84 are affirmed. 

2. Citation 346434 and all penalties therefor are vacated. 

3. Citation 346435 and all penalties therefor are vacated. 

Distribution: 

Ms. Linda R. Bytof, Esq. 

Mr. Marshall P. Salzman, Esq. 

Office of the Solicitor 

U. S. Department of Labor 

Room 10404 Federal Building, Box 36017 

450 Golden Gate Avenue 

San Francisco, CA 94102 

Mr. William J. & Ms. Jennifer Mann 

Brubaker-Mann, Incorporated 

30984 Soapmine Road 

Barstow, CA 92311 

232 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520 3 LEESBURG PIKE 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

FREEPORT KAOLIN COMPANY, 

FALLS CHURCH, VIRGINIA 22041 

JAN 3 O 1900 

Petitioner 

Respondent 

Civil Penalty Proceedings 

Docket No. BARB 79-219-PM 

A/O No. 09-00231-05001 

Docket No. BARB 79-280-PM 

A/O No. 09-00231-05003 

Docket No. BARB 79-281-PM 

A/O No. 09-00231-05004 

Docket No. BARB 79-282-PM 

A/O No. 09-00231-05002 

Griffin Mi 11 

DECISION 

Appearances: Thomas P. Brown IV, Esq., W. Thomas Truett, Esq., Office of 

the Solicitor, U.S. Department of Labor, for Petitioner; 

Gene B. Strauss, Personnel Manager, Freeport Kaolin Company, 

Gordon, Georgia; and Alexander E. Wilson III, Esq., and 

Thomas J. Hughes, Jr., Esq., Jones, Bird & Howell, Atlanta, 

Georgia, for Respondent. 

Before: Judge Cook 

I. Procedural Background 

The Mine Safety and Health Administration (MSHA) filed petitions for 

assessment of civil penalty against Freeport Kaolin Company (Freeport) in 

the above-captioned cases pursuant to section llO(a) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.9. § 820(a) (1978) (1977 Mine Act). 

The petition in Docket No. BARB 79-219-PM was filed on January 17, 1979. 

The petitions in the remaining cases were filed on February 9, 1979. 

Freeport filed its answer in Docket No. BARB 79-219-PM on February 21, 

1979, and filed answers in the remaining cases on March 12, 1979. 

An order was issued on June 8, 1979, consolidating the above-captioned 

cases for hearing and decision. Pursuant to notice of hearing issued on 

June 5, 1979, a hearing on the merits was conducted on June 21 and June 22, 

1979, in Macon, Georgia. Representatives of both parties were present and 

participated. During the course of the hearing, the representatives of the 

parties informed the undersigned Administrative Law Judge that a settlement 

233 
had been reached ·as relates to three of the alleged violations in Docket No. 

BARB 79-281-PM and as relates to five of the alleged vio.lations in Docket 

No. BARB 79-282-PM. The motion to approve settlement pertaining to those 

eight alleged violations was filed on October 22, 1979. A decision and 

order approving the proposed settlements is included herein. 

A schedule for the submission of posthearing briefs was agreed upon at 

the conclusion of the hearing. The original briefs were to be filed simultaneously by both parties on August 22, 1979, with reply briefs due on 

September 6, 1979. On August 21, 1979, counsel for the Respondent requested 

a 30-day extension of time from August 22, 1979, for the filing of its 

brief, which request was granted by an order dated August 22, 1979. Under 

the revised schedule, both parties were accorded until September 21, 1979, 

to file their briefs, with reply briefs due on October 5, 1979. MSHA and 

Freeport filed their posthearing briefs on September 24, 1979, and 

September 25, 1979, respectively. No reply briefs were filed. The final 

filing of information necessary to consider approval of settlement in 

Docket Nos. BARB 79-281-PM and BARB 79-282-PM occurred on December 27, 1979. 

II. Violations Char~ed 

A. Docket No. BARB 

Citation No. 

96161 

B. Docket No. BARB 

Citation No. 

96162 

96173 

96174 

96179 

96181 

96184 

c. Docket No. BARB 

Citation No. 

96191 

96194 

96200 

97202 

97205 

79-219-PM 

Date 

July 20, 

79-280-PM 

Date 

July 20, 

July 25, 

July 25, 

July 26, 

July 26, 

July 26, 

79-281-PM 

Date 

July 26, 

July 26, 

July 26, 

July 27, 

July 27, 

1978 

1978 

1978 

1978 

1978 

1978 

1978 

1978 

1978 

1978 

1978 

1978 

30 CFR Standard 

55.12-16 

30 CFR Standard 

55 .• 14-26 

55.14-1 

55.12-30 

55.12-34 

55.14-6 

55.12-30 ];./ 

30 CFR Standard 

55.14-1 

55.12-30* 

55.14-8(b)* 

55.12-34* 

55.4-18 

1/ During the hearing,.the Judge granted MSHA's motion to withdraw the 

petition for assessment of civil penalty as relates to Citation No. 96184, 

·July 26, 1978, 30 CFR 55.12-30 (Tr. 258). 

2 34 
D. Docket No. BARB 79-282-PM 

Citation No. Date 30 CFR Standard 

96145 July 18, 1978 55 .11-2* 

96149 July 18, 1978 55.14-1* 

96398 July 18, 1978 55.20-3* 

96399 July 18, 1978 55.20-3 

96156 July 19, 1978 55.14-1* 

96158 July 19, 1978 55.14-1* 

96159 July 20, 1978 55.17-1 

96160 July 20, 1978 55.17-1 

[NOTE: Citations accompanied by an astPrisk are P-ncompassed in the 

October 22, 1979, motion to approve settlement.] 

III. Evidence Contained in the Record 

A. Stipulations 

At thP- commencement of the hP-aring, the parties entered into stipulations which are set forth in the findings of fact, infra. 

B. Witnesses 

MSHA called as its witnesses MSHA inspector Spencer Lindbeck; MSHA 

supervisory inspector Reino Mattson; and Bruce Dial, an MSHA employee who 

accompanied Inspector Lindbeck on his July 1978, inspection of Freeport as 

a trainee. 

Freeport called as its witnesses Ronnie D. Amerson, a mechanic's helper 

for Freeport at the time of the hearing, and who had been the Nos. 8 and 9 

dryer operator on July 20, 1978; Paul H. Bacon, vice president and general 

manager of Freeport at the time of the hearing, and manager of production 

and shipping in July 1978; William Wharton, Freeport's supervisor of safety 

and health; Ray Crumbley, Freeport's manager of production and shipping at 

the time of the hearing, and production superintendent of section No. 1 in 

July 1978; L. E. Scandlyn, Freeport's maintenance superintendent;·and 

James V. Turner, Jr., the president of Welding Supply and Service Company, 

Inc. 

C. Exhibits 

1. MSHA introduced the following exhibits into evidence: 

M-1 is a computer printout prepared by the Office of Assessments 

listing the history of previous violations for which Freeport had paid 

assessments beginning July 27, 1976, and ending July 27, 1978. 

235 
M-2 is a computer printout prepared by the Office of Assessments 

listing the history of previous violations for which Freeport had paid 

assessments beginning July 20, 1976, and ending July 20, 1978. '!:./ 

M-3, page 1, is a copy of Citation No. 96161, July 20, 1978, 

30 CFR 55.12-16. 

M-3, page 2, is a copy of the inspector's statement pertaining to 

Citation No. 96161. 

M-4, page 1, is a copy of Citation No. 96173, July 25, 1978, 

30 CFR 55.14-1. 

M-4, page 2, is a copy of the termination of Citation No. 96173. 

M-4, page 3, is a copy of the inspector's statement pertaining to 

Citation No. 96173. 

M-5, page 1, is a copy of Citation No. 96162, July 20, 1978, 

30 CFR 55.14-26. 

M-5, page 2, is a copy of the termination of Citation No. 96162. 

M-5, page 3, is a copy of a modification pertaining to Citation 

No. 96162. 

M-5, page 4, is a copy of the inspector's statement pertaining to 

Citation No. 96162. 

M-5, page 5, is a copy of a modification of M-5, page 3. 

M-6, page 1, is a copy of Citation No. 96174, July 25, 1978, 

30 CFR 55.12-30. 

M-6, page 2, is a copy of the termination of Citation No. 96174. 

M-6, page 3, is a copy of the inspector's statement pertaining to 

Citation No. 96174. 

M-7, page 1, is a copy of Citation No. 96179, July 26, 1978, 

30 CFR 55.12-34. 

M-7, page 2, is a copy of the termination of Citation No. 96179. 

2/ All entries on Exhibit M-2 also appear on Exhibit M-1. All of the 

-;iblations recorded thereon occurred in July of 1978. Accordingly, the 

exhibits confirm the parties' stipulation that no evidence exists establishing a history of prior violations. 

236 
M-7, page 3, is a copy of the inspector's statement pertaining to 

Citation No. 96179. 

M-8, page 1, is a copy of Citation No. 96181, July 26, 1978, 

30 CFR 55.14-1. 

M-8, page 2, is a copy of the termination of Citation No. 96181. 

M-8, page 3, is a copy of the inspector.' s statement pertaining to 

Citation No. 96181. 

M-9, page 1, is a copy of Citation No. 96184, July 26, 1978, 

30 CFR 55.12-30. 

M-9, page 2, is a copy of the termination of Citation No. 96184. 

M-9, page 3, is a copy of the inspector's statement pertaining to 

Citation No. 96184. 

M-10, page 1, is a copy of Citation No. 96191, July 26, 1978, 

30 CFR 55.14-1. 

M-10, page 2, is a copy of the termination of Citation No. 96191. 

M-10, page 3, is a copy of the inspector's statement pertaining to 

Citation No. 96191. 

M-11, page 1, is a copy of Citation No. 97205, July 27, 1978, 

30 CFR 55.4-18. 

M-11, page 2, is a copy of the termination of Citation No. 97205. 

M-11, page 3, is a copy of the inspector's statement pertaining to 

Citation No. 97205. 

M-12, page 1, is a copy of Citation No. 96399, July 18, 1978, 

30 CFR 55.20-3. 

M-12, page 2, is a copy of the termination of Citation No. 96399. 

M-12, page 3, is a copy of a m~dification of M-li, page 2. 

M-12, page 4, is a·modification of M-1.2, page 3. 

M-12, page 5, is a copy of the inspector's statement pertaining to 

Citation No. 96399. 

M-13, page 1, is a copy of Citation No. 96159, July 20, 1.978, 

30 CFR 55.1.7-1. 

M-13, page 2, is a copy of the termination of Citation No. 96159. 

237 
M-13, ·page 3, is a copy of the inspector's statement pertaining to 

Citation No. 96159. 

M-14, page 1, is .a copy of Citation No. 96160, July 20, 1978, 

30 CFR 55 .17-1. 

M-14, page 2, is a copy of the termination of Citation No. 96160. 

M-14, page 3, is a copy of the inspector's statement pertaining to 

Citation No. 96160. 

2. Freeport introduced the following exhibits into evidence: 

0-1 is a drawing of a drum dryer. 

0-2 is a letter concerning lock-out procedures established for 

Freeport's production and shipping department. 

0-3 is a photograph. 

0-4 is a photograph. 

o-5 is an engineering drawing. 

o-6 is a photograph. 

0-1 is a photograph. 

0-8 is a photograph. 

0-9 is a booklet entitled "Welding, Cutting & Heating Guide. II 

0-10 is a gauge. 

0-11 is a photograph. 

0-12 is a photograph. 

0-13 is a photograph. 

3. X-1 is a drawing. 

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 

238 
business; (3) whether the operator was negligent; (4) effect of the penalty 

on the operator's ability to continue in business; (5) gravity of the violation; and (6) the operator's good faith in attempting rapid abatement of the 

violation. 

V. Opinion and Findings of Fact 

A. Stipulations. 

1. Between July 17, 1978, and July 27, 1978, the Respondent, Freeport 

·Kaolin Company, was the operator of a kaolin mine in the State of Georgia 

known as the Griffin Mine, and with accompanying mills known as the Griffin 

Mill and the Savannah Mill. In addition, Freeport operates a research lab 

at the same location (Tr. 4). 

2. Between July 17, 1978; and July 27, 1978, Freeport was subject to 

the provisions of the Federal Mine Safety and Health Act of 1977 with 

respect to said operations (Tr. 4). 

3. Freeport is a large operator. During 1978, the size of said operation was rated at 909,699 man-hours (Tr. 4). 

4. There is no evidence of a history of prior violations (Tr. 5). 

5. Any penalty that may be assessed may not affect the Respondent's 

ability to continue in business (Tr. 6). 

B. Opinion and Findings of Fact 

Between July 18, 1978, and July 27, 1978, MSHA inspector Spencer 

Lindbeck conducted an inspection of the Freeport Kaolin Company (Tr. 9-10). 

The subject citations were issued during the course of the inspection (Exhs. 

M-3, p. l; M-4, p. l; M-5, p. l; M-6, p. l; M-7, p. l; M-8, p. l; M-9, p. l; 

M-10, p. l; M-11, p. l; M-12, p. l; M-13, p. l; M-14, p. 1). The various 

citations are addressed individually, herein. 

I. Docket No. BARB 79-219-PM 

Citation No. 96161, July 20, 1978, 30 CFR 55.12-16 

Inspector Lindbeck issued Citation No. 96161 on July 20, 1978, citing 

Freeport for a violation of the mandatory safety standard codified at 30 CFR 

55.12-16, when he observed Mr. Ronnie D. Amerson, an employee of Freeport, 

cleaning the screw conveyor on the No. 8 drum dryer without having the controls locked out (Exh. M-3, p. l; Tr. 11, 19). The inspector recorded in 

the body of the citation that Mr. Amerson had the door on the screw conveyor 

open with his arm inside cleaning clay from the screw (Exh. M-3, p. 1). 

The machine in question was a double drum Buffalo Vac atmospheric drum 

dryer employed to process kaolin by a technique known as thermal evaporation 

239 
(Tr. 12-13, 42). Thermal evaporation was accomplished through the use of two 

rotating cast iron drums, each approximately 3-1/2 feet in diameter and 

approximately 10 feet in length, heated by steam to a temperature of approximately 300 degrees Fahrenheit (Tr. 42, 4S). The sequential steps employed 

in pro~essing kaolin with the drum dryers is set forth as follows: Clay 

slurry, or slip, consisting of approximately SS to 60 percent solid material, 

is introduced into a pan located beneath the two rotating drums (Tr. 42). 

Two splash shafts throw clay slurry up onto the underside of the drums (Tr. 

21, 42). The heated drums rotate, removing the moisture from the mixture, 

and eventually reach a point at which a doctor blade, or drum blade, removes 

the dried product from the drums (Tr. 42). The dry product falls into a 

trough where the screw conveyor mentioned in the citation is located (Exh. 

0-1; Tr. 21-22, 42). The door mentioned in the citation was a hinged door, 

described as a drop-out chute, covering a 12-inch by 16-inch opening in the 

trough (Tr. 72, 76; Exhs. 0-1, 0-3, 0-4). 

Mr. Amerson testified that he had changed the blades on the drum dryer 

approximately 30 minutes before Inspector Lindbeck arrived (Tr. 28-29), but 

admitted that he had not locked out the machine while changing the blades 

(Tr. 30). The machine was not locked out when the inspector arrived and 

observed Mr. Amerson working on the drum dryer, although the magnetic 

switch, located approximately 2S feet from where Mr. Amerson was working, 

was off (Tr. 11, 18, 29, 34, 76-77). The evidence clearly establishes that 

Mr. Amerson had his hand inside the screw conveyor (Tr. 11, 13, 17, 92), and 

Freeport's own vice president and general manager testified that under the 

company's lock-out procedure (Exh. 0-2) the machine should have been locked 

out if a worker had to place his hand inside the screw conveyor (Tr. 69). 

Freeport advances two theories contending that 30 CFR SS.12-16 is 

inapplicable to the facts presented. In its answer to the petition for 

assessment of civil penalty, Freeport contends that the regulation deals 

with working on "electrical equipment." Freeport characterizes the equipment involved in the instant proceeding as "mechanical equipment," and not 

"electrical equipment." Accordingly, Freeport argues, the machine operator 

was not performing work on any kind of electrical equipment within ~he meaning of the cited regulation. In its proposed findings of fact and conclusions of law, Freeport argues that 30 CFR SS.14-29 is the regulation applicable to the facts presented. According to Freeport, 30 CFR SS.14-29 

permits the machinery to be in motion when such motion is necessary to make 

adjustments during repair and maintenance. Freeport argues that the evidence convincingly demonstrated that machinery ma,t,ion was absolutely neces- . 

sary during maintenance and adjustment of the drum dryer (Respondent's 

Proposed Findings of Fact and Conclusions of Law, p. 4). 

30 CFR SS.12-16, the provision in the Code of Federal Regulations cited 

by the inspector, provides: 

Mandatory. Electrically powered equipment shall be deenergized before mechanical work is done on such equipment. 

Power switches shall be locked out or other measures taken 

240 
which shall prevent the equipment from being energized 

without the knowledge of the individuals working on it. 

Suitable warning notices shall be posted at the power switch 

and signed by the individuals who are to do the work. Such 

locks or preventive devices shall be removed only by the 

persons who installed tbem or by authorized personnel. 

30 CFR 55.14-29, the regulation upon which Freeport relies, provides: 

"Mandatory. Repairs or maintenance shall not be performed on machinery 

until the power is off and the machinery is blocked against motion, except 

where machinery motion is necessary to make adjustments." 

I am unable to agree with either theory advanced by Freeport. The purported distinction between "electrical equipment" and "mechanical equipment, 11 

as set forth in Freeport's answer to the petition for assessment of civil 

penalty, does not have a bearing on the issue of whether the cited condition 

constitutes a violation of 30 CFR 55.12-16. The regulation, insofar as it 

applies to the facts presented in the instant case, requires the use of 

lock-out devices or other measures to prevent electrically-powered equipment 

from being energized without the knowledge of the individuals performing 

mechanical work on such equipment. The reference is to "electrically-powered 

equipment" and to "mechanical" wqrk done on it, a reference that fails to 

support the "electrical/mechanical" distinction advanced by Freeport. The 

evidence in the record, and the inferences drawn therefrom, establishes that 

the No. 8 drum dryer was electrically-powered equipment within the meaning 

of the cited regulation (Tr. 11-12, 13-14, 26, 29-30, 34). 

Freeport's reliance on 30 CFR 55.14-29 is misplaced. 3/ The testimony 

germane to this issue reveals that the drum dryer had to b; in operation in 

order to adjust the blade subsequent to the blade's replacement (Tr. 23-24, 

27, 43-45, 56), and that during this operation both the drums and the screw 

conveyors are in motion (Tr. 42-43). Although the inspector indicated to 

Mr. Amerson that the machine did not have to be locked out while adjusting 

the blade (Tr. 29-30, 37), the evidence in the record reveals that a lockout procedure should have been observed at other stages of the bladechanging operation. Accor.ding to Mr. Crumbley, the Respondent's manager of 

1/ As relates to the reference to 30 CFR 55.14-29 it should also be pointed 

out that the Respondent in its own safety lock-out procedure (Exh. 0-2) 

makes reference to 30 CFR 57-.12-16 which regulation relates to electrical 

equipment as does 30 CFR 55.12-16, which is the regulation involved herein. 

It should also be pointed out that 30 CFR 55.12-16 and 30 CFR 57.12-16 were 

changed such that the first sentence thereof, on the date of the violation 

herein, read: "Electrically powered equipment shall be deenergized before 

mechanical work is done on such equiJ?lllent" (emphasis added); whereas prior 

thereto the first sentence read: "Electrical equipment shall be deenergized 

before work is done on such equipment." The changes were reported in the 

October 31, 1977~ issue of the Federal Register. 42 Fed. Reg. 57040, 57043 

(October 31, 1977). 

241 
production and shipping, the machine should have been locked out while the 

machine operator was changing the blade (Tr. 83), a safety precaution which 

Mr. Amerson had failed to observe (Tr. 30). 

Mr. Amerson and Mr. Bacon testified that rust develops on the drums 

during the blade-changing procedure, rust that would contaminate the product 

if permitted to reach the product bin (Tr. 22, 45). Since the clay produced 

while adjusting the blade contains contaminants, it is necessary that the 

door on the screw conveyor dropout chute be open while the screw conveyor is 

running in order to prevent the contaminated material from reaching the 

product bin (Tr. 22-23, 45). The testimony of Mr. Bacon indicates that the 

door is somewhat larger than the dropout chute opening. Accordingly, a 

buildup of clay on the door will prevent obtaining a tight fit when the door 

is closed (Tr. 45). 

Mr. Amerson was not adjusting the blade when the inspector arrived at 

the No. 8 drum dryer. He was waiting for feed, and the blade adjustment was 

not completed (Tr. 30). Neither the drum nor the screw conveyor was running 

at the time (Tr. 30, 32-33, 76). Mr. Amerson testified that he was in the 

process of cleaning the door on the screw conveyor when the inspector 

arrived (Tr. 25, 32-33; Exhs. 0-1, 0-3). He indicated that the next step 

in the operation would have been to turn on the machine, finish adjusting 

the blade, and obtain a sample of the material inside the screw conveyor in 

order to check the moisture (Tr. 34-35). Mr. Amerson indicated that it was 

not necessary to place his hand inside the screw conveyor since the sample 

material would simply fall through the opening (Tr. 35-36). The next 

sequential step would have been to clean and close the door (Tr. 36). 

Under the procedure instituted subsequent to the issuance of the citation, the cleaning of the door occurred with the machine locked out (Tr. 

38-39). According to Mr. Amerson, this procedure did not produce a satisfactory product (Tr. 39), a statement confirmed by Mr. Bacon's assertion 

that the screw conveyor must be in operation in order to clean the flap and 

maintain a good product (Tr. 58). 

Although it may be true that machine motion was necessary during certain stages of the blade adjustment process, the evidence establishes that 

machine motion was not required at the point in time when the inspector 

observed the violation. As noted above, Mr. Amerson was cleaning the flap 

and the machine was not in motion. Mr. Bacon confirmed that machine motion 

was not necessary for the performance of these activities (Tr. 64-65). At 

one point in his testimony, Mr. Bacon indicated that shutting down the 

machine in order to close the dropout chute door would permit the heated 

drums to expand sufficiently to ride against the blade holders (Tr. 57-58). 

However, he indicated that this problem would not occur with neither the 

drum nor the conveyor turning and no product being processed (Tr. 61). 

Assuming for purposes of argument that 30 CFR 55.14-29 applies to the 

facts presented, the above-noted considerations reveal that the machine 

should have been locked out both while changing the blade and while the 

242 
machine operator was engaged in the door-cleaning activities observed by 

the inspector. Machine motion was not necessary for the performance of 

these steps. 

Accordingly, I conclude that a violation of 30 CFR 55.12-16 has been 

established by a preponderance of the evidence in that the No. 8 drum dryer 

was not locked out while the operator was performing mechanical work on the 

machine. 

Negligence of the Operator 

Exhibit 0-1, dated May 31, 1977, mandates a lock-out procedure for the 

No. 8 drum 9ryer. The existence of this document establishes not only that 

Freeport was aware of the importance of locking out electrically-operated 

equipment prior to performing work on the equipment, but also that Freeport 

was aware of this for more than 1 year prior to the issuance of the citation. 

The evidence in the record indicates that the company's lock-out procedure had not been effectively communicated to the employees. Inspector 

Lindbeck testified that when the violation was observed, he querried 

Mr. Amerson as to the lock-out procedure. Not only did Mr. Amerson have no 

idea of what the lock-out procedures were, but Mr. Scandlyn, the maintenance 

superintendent, and Mr. Wharton, the supervisor of safety and health, had to 

show Mr. Amerson how to use the lock-out device after one had been obtained 

(Tr. 12). The inspector's testimony was confirmed by Mr. Amerson, who 

testified that he was not told that he was required to lock out the machine 

while changing the blades until the day the citation was issued (Tr. 30-31). 

In fact, Mr. Crumbley opined that it was unnecessary to use a lock-out and 

that Mr. Amerson was following the normal procedure for the piece of equipment involved (Tr. 77). Mr. Bacon testified that the failure to lock out 

the machine was a common practice, stating that no danger was involved since 

the workman would be accustomed to working near moving parts (Tr. 62-63). 

Although Mr. Bacon stated that the lock-out procedure was posted on the 

bulletin boards and was covered with the section foremen and the section 

superintendents (Tr. 46), he could not state affirmatively that each 

employee received a copy (Tr. 63). He testified that the foremen were 

supposed to distribute them, but noted that the company did not have them 

signed and that no meeting was held (Tr. 63). Although Mr. Amerson had seen 

a copy of the letter, he testified that he was left to interpret it on his 

own (Tr. 104-105). 

In light of these considerations, I conclude that Freeport demonstrated 

gross negligence. 

Gravity of the Violation 

As noted previously, Mr. Amerson's hand was inside the screw conveyor 

(Tr. 11, 13, 17, 92). Although the screw conveyor was not in operation at 

the time (Tr. 33, 76), the evidence establishes that Mr. Amerson was exposed 

243 
to a danger of serious injury or death. Inspector Lindbeck testified that 

a man could lose his life or an arm in the screw conveyor.in the event the 

machine was started inadvertently (Tr. 13-15). Mr. Bacon conceded that an 

individual would sustain an injury to the portion of his body inside the 

screw conveyor if the machine was turned on (Tr. 49). The evidence clearly 

showed that the screw conveyor would be in motion if the machine started. 

Even under Mr. Crumbley's definition of "dangerous," Mr. Amerson was in a 

hazardous situation. According to Mr. Crumbley, "dangerous" means "near 

moving parts" (Tr. 81). In such cases, the machine should be locked out 

(Tr. 81). 

Accordingly, I conclude that the violation was extremely serious. 

Good Faith in Attempting Rapid Abatement 

Abatement was achieved by providing a lock-out device, and abatement 

was completed in approximately 5 minutes (Exh. M-3, p. l; Tr. 14-15). 

Accordingly, In conclude that Freeport demonstrated good faith in 

attempting rapid abatement. 

II. Docket No. BARB 79-280-PM 

Citation No. 96162, July 20, 1978, 30 CFR 55.14-26 

Inspector Lindbeck issued Citation No. 96162 citing the following condition as a violation of 30 CFR 55.14-26: "The glass coverings are broken 

on the oxygen and acetylene guages [sic] on the service truck at the selas 

building" (Exh. M-5, p. l; Tr. 113).--

The evidence reveals that two gauges were present on the oxygen cylinder 

and two gauges were present on the acetylene cylinder. One gauge on each 

cylinder was a high pressure gauge, monitoring the pressure inside. the 

cylinder (Tr. 288). These high pressure gauges indicate the contents of the 

cylinders (Tr. 305). The remaining gauge on each cylinder was a low pressure 

gauge used to indicate the pressure on the hose and torch (Tr. 305). · 

At the time of the inspection, the glass was broken out and missing 

from the high and low pressure gauges on both the oxygen and acetylene 

cylinders (Tr. 301). Inspector Lindbeck testified that the indicator 

needle was bent on one of the gauges on the oxygen cylinder. He believed 

that the bent needle was on the low pressure gauge (Tr. 301). He did not 

recall the condition of the needles on the acetylene tank gauges (Tr. 301-

302). 

The regulation in question, 30 CFR 55.14-26, is a mandatory safety 

standard which provides: "Unsafe equipment or machinery shall be removed 

from service immediately." The question presented is whether MSHA has established a violation of the regulation by a preponderance of the evidence. 

29 CFR 2700.48 (1978) (interim procedural rules). For the reasons set forth 

below, I answer this question in the negative. 

244 
In order to establish a violation of 30 CFR 55.14-26, MSHA must 

affirmatively establish that the welding equipment was unsafe and that it 

had not been removed from service immediately. 

The threshold question is whether MSHA has established that the welding equipment was unsafe. In this regard, it is important to bear in mind 

that the low pressure gauges and the high pressure gauges perform different 

functions, as set forth above, and that each type of gauge presents separate 

considerations from the standpoint of safety. 

Inspector Lindbeck, at one point in his testimony, indicated that the 

absence of the glass coverings and the presence of the bent indicator needle 

rendered the gauges defective in that their absence interfered with the 

operator's ability to obtain accurate pressure readings (Tr. 118-119, 128-

130, 132-133). The testimony of Inspector Lindbeck further reveals his 

opinion that the inability to obtain accurate pressure readings renders the 

welding equipment unsafe by presenting an explosion hazard (Tr. 137). 

According to Inspector Lindbeck, if the welding equipment operator is obtaining a different pressure than the one indicated by the gauges, an explosion 

can occur when the welder lights the cutting torch (Tr. 138). 

Both Inspector Lindbeck and Inspector Mattson indicated that safe welding procedure envisions the welder adjusting this oxygen/acetylene mixture 

with reference to the pressure gauges, a procedure that requires him to stand 

near the regulator (Tr. 139, 262-263, 284-290). The photograph on page 22 

of Exhibit 0-9 reveals that the regulator is attached to the tank. According 

to Mr. 'Scandlyn, the regulator, not the gauge, is what controls the flow of 

gas from the tank (Tr. 197). According to Inspector Mattson, a welder 

adjusts his pressure for both oxygen and acetylene by monitoring the gauges 

while turning the valve controls on the respective regulators (Tr. 284-290). 

Inspector Mattson associated two safety hazards with the defective 

gauges. First, it was his position that too much pressure in the lines 

running from the oxygen tank and the acetylene tank to the torch can cause a 

hose to rupture since the hoses are designed to withstand pressures less than 

the maximum pressure that can pass through the regulator (Tr. 287-290). 

Second, improperly functioning gauges induce welders to take shortcuts having 

an adverse effect on safety. According to Inspector Mattson, a welder should 

"back up" the regulator by turning it counterclockwise upon completion of his 

welding to prevent a sudden burst of pressure from rupturing the diaphragm 

when the tank valve is subsequently opem~d (Tr. 262-263, 270-271, 290-295). 

The absence of properly-functioning gauges induces workers not to "back up" 

the regulators. The inspector stated that rupturing the diaphragm can result 

in an explosion occurring at the gauge (Tr. 290-291). 

Mr. James V. Turner, an individual with 26 years of experience in welding (Tr. 303) and the president of the Welding Supply and Service Company, 

Inc., the supplier of Freeport's welding equipment, testified on behalf of 

Freeport. His description of the equipment and its functioning is germane 

to the issue of safety raised in the instant proceeding. According to 

245 
Mr. Turner, the regulator has a safety device that opens and vents the gases 

should the pressure exceed permissible levels inside the regulator (Tr. 309, 

339). This venting system exists to prevent explosions (Tr. 340). The type 

of regulators used by Freeport are 175 pourds. The hoses are 300 psi test 

hoses. Accordingly, the regulator will not build up sufficient pressure to 

burst the hose (Tr. 309, 311). The safety valve is designed to activate if 

a sudden burst of pressure enters the regulator (Tr. 309-310). According to 

Mr. Turner, the regulator will not pass enough pressure to ignite the acetylene because 175 pounds is the maximum pressure that the adjusting screw will 

allow to enter the oxygen hose (Tr. 326). It is recommended that acetylene 

not be used at a pressure exceeding 15 pounds (Tr. 326). A gauge is not 

needed to prevent the equipment operator from exceeding 15 pounds because the 

spring inside the acetylene regulator prevents exceeding this pressure (Tr. 

326-327). No evidence was presented establishing that the spring was 

defective. 

Mr. Turner conceded that if the diaphgram ruptured, the 2,200 pounds of 

pressure in the tank could escape through the regulator, notwithstanding the 

fact that the regulator is rated at 175 pounds. However, he indicated that 

this gas would escape through the vents, not the hoses, and further indicated that an explosion hazard was not present (Tr. 340-341). 

I am unable to conclude that a preponderance of the evidence establishes that the gauges in question were unsafe. The testimony addressing 

the possibility of rupturing one of the hoses clearly refers to the low 

pressure gauge, since that type of gauge monitored the pressure in the 

hoses. 

As relates to rupturing the diaphgram, the crucial consideration is the 

failure of a welder to "back up" the regulator upon completion of his welding operations, not the proper functioning of the pressure gauge per se. I 

am not persuaded that an accurate reading from this gauge· is necessary from 

a safety standpoint. As noted by Inspector Mattson, the gas released from 

the pressure tanks into the regulator will "shoot fast" irrespective of how 

slowly the tank valve is opened (Tr. 294-295). 

MSHA's witnesses sought to establish that a properly functioning low 

pressure gauge is necessary to avoid rupturing a hose at a given point in the 

welding operation. The Government has failed to show that the absence of the 

glass on both guages and the bent needle on the oxygen tank gauge rendered 

the low pressure gauges unsafe per se. The most persuasive testimony by 

the Respondent's well qualified expert totally rebutted MSHA's claim that the 

condition was unsafe. 

His experience and knowledge was much greater than that of MSHA's 

witnesses. Much greater weight must be accorded his opinions as to the 

safety issue. 

In light of these consideration, it cannot be found that a violation 

of 30 CFR 55.14-26 has been established by a preponderance of the evidence. 

246 
Citation No. 96173, July 25, 1978, 30 CFR 55.14-1 

This citation was issued ·because covers were not provided on the screw 

conveyor at the spray dryer bagging building (Exh. M-4, p. l; Tr. 140). The 

missing cover was approximately 6 feet long and 14 inches in width (Tr. 141), 

and was lying on the floor beside the screw conveyor (Tr. 143). The screw 

conveyor was open at the time (Tr. 141). Although none of the witnesses 

affirmatively stated that the screw conveyor was in operation; the fact that 

the inspection party heard an air leak emanating from the back of the machine 

renders it more probable than not that it was in operation (Tr. 143). 

Mr. Scandlyn agreed that the cover was, in fact, off the conveyor (Tr. 

206). His testimony further reveals that the "floor" mentioned by the 

inspector was a maintenance walkway or maintenance platform 12 to 15 feet 

above the ground (Tr. 202-203; Exh. 0-5). Access to the platform was provided by a ladder located inside the building and by a stairway located outside the building ·(Tr. 211). Although it was not a normal operating area in 

the sense that an employee would not go there to perform a routine function 

such as bagging clay (Tr. 202), employees would be in the area in the event 

of a breakdown or to perform some other maintenance function (Tr. 202). A 

man's arm could be tangled up in the open screw conveyor (Tr. 142). 

The mandatory safety standard embodied in 30 CFR 55.14-1 states that: 

"Gears; sprockets; chains; * * * and similar exposed moving machine parts 

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

shall be guarded." · 

The location of the screw conveyor, coupled with the fact that employees 

would be in the area to perform maintenance work on occasion, indicates that 

the exposed moving screw conveyor should have been covered. Accordingly, I 

conclude that a violation of 30 CFR 55.14-1 has been established by a preponderance of the evidence. 

Negligence of the Operator 

Mr. Scandlyn believed that a malfunction in the vent indicator, or bin 

indicator, in the bagging bin caused the clay to pile up in the screw conveyor and force the cover off (Tr. 203-204, 208). A bin indicator. is a 

device used to measure the flow into a particular bin, cutting off a line 

when the bin is full (Tr. 206). 

Mr. Scandlyn testified that he remembered "a report of a problem with 

the bin indicator at the beginning of the shift," i.e., at approximately 

8 a.m. (Tr. 206-207). The citation in question wasTssued at approximately 

10 a.m. (Tr. 203; Exh. M-4, p. 1). 

According to Mr. Scandlyn, once it has been discovered that the bin 

indicator is not working, the normal procedure is to request the electrical 

foreman to check it and to discover and correct the problem (Tr. 207). It 

is routine to check the entire line to determine whether the malfunction 

247 
of the bin indicator could have caused flow problems down the line, an 

inspection encompassing the subject screw conveyor (Tr. 207). However, 

Mr. Scandlyn could not state that it had been checked (Tr. 207-208). 

Based on the foregoing, I conclude that if this routine practice had 

been followed, it is more probable than not that Freeport knew or 

should have known of the condition. The 2-hour time period between 8 and 

10 a.m. afforded sufficient time to dis~over the problem. 

Accordingly, I conclude that Freeport demonstrated ordinary negligence. 

Gravity of the Violation 

Inspector Lindbeck testified that one employee was in the area when the 

violation was observed (Tr. 141-142). Mr. Scandlyn indicated uncertainty as 

to the identity of this employee. He believed that a foreman had been summoned to the area, and thought that the foreman had been the employee (Tr. 

204). A maintenance man would pass by the area. Accordingly, I conclude 

that one employee would be exposed to the hazard. 

A man could have been injured by getting his arm tangled in the 

machinery or by getting his clothing caught in it (Tr. 142). Although the 

inspector testified that an occurrence could prove fatal (Tr. 142), I 

believe the statement contained in the inspector's statement (Exh. M-4, 

p. 3), which was made closer in time to the actual occurrence, to be more 

probative. It indicates that the contemplated injury could reasonably be 

expected to be permanently disabling, and that an occurrence was probable. 

Accordingly, I conclude that the violation was serious. 

Good Faith in Attempting Rapid Abatement 

The violation was abated by Mr. Scandlyn. He picked up the cover lying 

on the floor and placed it on the screw conveyor (Tr. 142). Accordingly, 

I conclude that Freeport demonstrated good faith in attempting rapid 

abatement. 

Citation No. 961.74, July 25, 1978, 30 CFR 55.12-30 

This citation was issued when the inspector observed that: "The conduit is broken loose at the damper valve at the 'No. 2 dryer" (Exh. M-6, 

p. 1). According to Mr. Scandlyn, the conduit is not a rigid pipe, but a 

spiral-wound rubber or plastic-coated conduit providing a flexible connection 

(Tr. 220). Inspector Lindbeck indicated that the conduit was composed of 

metal (Tr. 146). The break was caused by deterioration of the conduit (Tr. 

220). 

The inspector testified that he did not notice any break in the wiring's 

insulation (Tr. 150). Mr. Scandlyn testified that the power conductor was 

248 
visible, but that it was still insulated (Tr. 220). lbe inspector was uncertain of the precise voltage, but testified that it was either 110 or 120 volts 

(Tr. 147). The power conductor was energized (Tr. 156). 

According to the inspector, vibration could cause the insulation to rub 

against the conduit and wear through, thus posing an electrocution hazard 

(Tr. 147, 154-155). 

The question presented is whether this condition constitutes a violation 

of 30 CFR 55 .12-30, which provides: "Mandatory. When a potentially dangerous condition is found it.shall be corrected before equipment or wiring is 

energized." (Emphasis added.) Although the condition was potentially dangerous, this fact, standing alone, is insufficient to establish a violation 

of the mandatory safety standard. I interpret the regulation as requiring 

MSHA to prove knowledge of the condition before a violation can be found to 

have occurred, as demonstrated by the regulation's use of the word "found." 

In essence, the regulation proscribes the knowing use of electrical equipment 

or wiring once a potentially dangerous condition is discovered. lbere is no 

indication in the.record that Freeport had knowledge of this condition prior 

to the issuance of the citation. 

Accordingly, I conclude that a violation has not been established by a 

preponderance of the evidence. 

Citation No. 96179, July 26, 1978, 30 CFR 55.12-34 

lbis citation was issued when Inspector Lindbeck observed that: "There 

are several lights along the upper walkway that are not provided with guards" 

(Exh. M-7, p. 1). The inspector did not recall the number of unguarded 

lights (Tr. 15 7). The walkway in question, located at the .Savannah Plant 

(Exh. M-7, p. 1), was above the bin storage area (Tr. 157) and served as an 

accessway for maintenance personnel and operators (Tr. 222). lbe inspector 

did not recall the dimensions of the walkway in terms of width and height, 

but opined that the height was less than 6 feet in some places because he 

and Mr. Scandlyn "had to bend over to walk through it." Mr. Bacon testified 

that all of the lights are probably within striking distance of a person 

wearing a hardhat (Tr. 157; Exh. 0-7; Tr. 227). The testimony of 

Inspector Lindbeck and Mr. Bacon establish the existence of a shock or burn 

hazard (Tr. 158, 229). 

30 CFR 55.12-34, the cited mandatory safety standard, provides that: 

"Portable extension lights, and other lights that by their location present 

a shock or burn hazard, shall be guarded." It is clear that the bulbs in 

the walkway area were located in such a manner as to present a shock or 

burn hazard. They should have been guarded in order to comply with the 

regulation's requirements. The fact that the evidence failed to establish 

the precise number of unguarded bulbs does no·t prevent finding a violation. 

One unguarded bulb would have been sufficient for this purpose. 

Accordingly, I conclude that a violation of 30 CFR 55.12-34 has been 

established by a preponderance of the evidence. 

249 
Negligence of the Operator 

Mr. Bacon testified that company practice, in recent years, had been to 

provide guards for lights located in "normal walkways" (Tr. 224). The fact 

that Mr. Bacon did not deem the cited area a "normal walkway" (Tr. 223) is 

not controlling. He stated that it is used by maintenance personnel and 

operators of equipment (Tr. 222). The fact that the company practice of 

providing guards existed indicates that the company was aware of the need to 

provide guards in areas open to access by its employees. Accordingly, I 

conclude that Freeport demonstrated a high degree of ordinary negligence. 

Gravity of the Violation 

One employee was observed in the area, and he was wearing a hardhat 

(Tr. 158, 160). The inspector testified that an employee could sustain an 

electric shock causing a fall and could be exposed to an electrocution hazard as a result of breaking a bulb (Tr. 158). The fact that the walkway 

was less than 6 feet in some places would aggravate the hazard (Tr. 157). 

The area was dry (Tr. 161). Additionally, the testimony of Mr. Bacon 

indicates that a burn hazard was present and that employees carried metal 

parts for screw conveyors through the area (Tr. 229-230). 

Although the inspector's testimony implies that an occurrence could 

prove fatal, the entry contained in the inspector's statement indicates that 

the contemplated injury could reasonably be expected to be lost workdays or 

restricted duty (Exh. M-7, p. 3). I am inclined to accord greater probative 

value to the entry in the inspector's statement since it was made at a point 

in time closer to the observation of the condition than was his testimony. 

An occurrence was classified as "probable" (Tr. 158; Exh. M-7, p. 3). 

Based on the foregoing, I conclude that the violation was moderately 

serious. 

Good Faith in Attempting Rapid Abatement 

The inspector's testimony implies that the violation was abated expeditiously (Tr. 159). Accordingly, I conclude that Freeport demonstrated 

good faith in attempting rapid abatement. 

Citation No. 96181, July 26, 1978, 30 CFR 55.14-6 4/ 

This citation was issued when Inspector Lindbeck observed a loose 

guard over the metal saw's drive belts (Exh. M-8, p. l; Tr. 161). The saw 

4/ The citation was written alleging a violation of 30 CFR 55.14-1. However, during the course of the hearing, the Judge granted MSHA's motion to 

amend the petition for assessment of civil penalty as relates to Citation 

No. 96181 to charge a violation of 30 CFR 55.14-6 instead of 30 CFR 

55.14-1. 

250 
in question was located in the auto repair shop (Tr. 161-162). The best 

available evidence indicates that the piece of equipment in question was a 

continuous motorized hacksaw used for cutting steel pipes and steel bars 

(Exh. 0-8; Tr. 232, 235-236). Mr. Scandlyn's testimony confirms the presence of the loose guard (Tr. 249). Although the equipment was not in operation when the inspector observed the loose guard (Tr. 347), his testimony 

reveals that it is more probable than not that an employee was using the 

equipment immediately prior to the issuance of the citation (Tr. 162, 166, 

352). 

30 CFR 55.14-6, the applicable mandatory safety standard, provides 

that: "[e]xcept when testing the machinery, guards shall be securely in 

place while machinery is being operated." No evidence was presented by 

Freeport rebutting the inspector's testimony that the equipment was in 

operation immediately prior to.the issuance of the citation, and no evidence was presented by Freeport indicating that the employee in question 

was merely testing the equipment. 

Accordingly, in view of the foregoing, I conclude that a violation of 

30 CFR 55.14-6 has been established by a preponderance of the evidence. 

Negligence of the Operator 

The maintenance supervisor was present in the shop when the inspector 

arrived on the scene (Tr. 162), but the inspector admitted that he did not 

know whether the supervisor knew of the condition (Tr. 166). The record 

contains no evidence indicating how long the condition had existed (~, 

~. ~. , Tr • 16 2) • 

The fact that a supervisory employee was present in the shop indicates 

that Freeport should have known of the violation. Freeport demonstrated 

· ordinary negligence in connection with the violation. 

Gravity of the Violation 

The area was a normal work area (Tr. 163). The hazard posed by the 

violation was that the guard could make contact with the drive belts 

causing them to break and strike an employee (Exh. M-8, p. 3). The 

inspector classified the probability of occurrence as "slightly remote" 

(Tr. 163). One employee was exposed to the hazard (Exh. M-8, p. 3). 

Accordingly, I conclude that moderate gravity was associated with the 

violation. 

Good Faith in Attemtping Rapid Abatement 

The condition was corrected immediately (Tr. 236). In fact, the condition was corrected while the inspector was present (Tr. 166). Accordingly, 

I conclude that Freeport demonstrated good faith in attempting rapid 

abatement. 

251 
III. Docket No. BARB 79-281-PM 

Citation No. 96191, July 26, 1978, 30 CFR 55.14-1 

This citation was issued when the inspector observed a guard missing 

from the end shaft on the No. 4 calciner (Tr. 358; Exh. M-10, p. 1). The 

testimony of Mr. Scandlyn reveals that the cited piece of equipment was 

located on a bin discharge drive located under a bin which supplies the 

feed for the No. 4 calciner. He testified that the drive shaft connection 

was approximately 3 inches in diameter. The variable speed drive shaft 

rotated at 10 to 20 revolutions per minute (Tr. 400). The unguarded portion 

of the shaft was approximately 3 to 4 inches in length (Tr. 400). A keyway 

was present on the end of the shaft. A keyway is a slot in the shaft for 

the placement of a key (Tr. 402). The inspector testified that the end of 

the shaft was burred, and that the shaft was in operation when he observed 

the condition (Tr. 362). 

According to Mr. Scandlyn, maintenance employees could perform maintenance work near the shaft (Tr. 407-408). The testimony of both Inspector Lindbeck and Mr. Scandlyn establishes that the condition presented a 

possibility of injury to employees (Tr. 359, 361, 402-403). 

30 CFR 55.14-1 provides: "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." 

Based on the 

I conclude that a 

ponderance of the 

Ne~li~ence of the 

foregoing 

violation 

evidence. 

Oeerator 

testimony of Inspector Lindbeck and Mr. Scandlyn, 

of 30 CFR 55.14-1 has been established by a preThe inspector testified that the operafor should have known of the condition because it was in a frequently-traveled area (Tr. 359). The inspector's assertion that supervisors travel in the area daily (Tr. 361) was 

never rebutted by Freeport's witnesses. However, there is no evidence in 

the record indicating how long the condition had existed. Without such 

evidence, it is impossible to determine that the condition had existed long 

enough for one of Freeport's supervisory personnel to have observed it. 

Accordingly, I conclude that operator negligence has not been established by a preponderance of the evidence. 

Gravity of the Violation 

A cleanup or maintenance man working in the area could be near the 

exposed shaft (Tr. 361, 407-408). According to the inspector, burrs or a 

keyway on the end of the shaft could get a man's clothing entangled in the 

shaft (Tr. 359). As noted previously in this decision, the shaft possessed 

both characteristics. I therefore conclude that an occurrence was probable. 

252 
Mr. Scandlyn described the potential harm as ranging from a torn pair 

of pants to a small scratch or cut, but not a deep laceration (Tr. 402-403). 

Based,on the fact that the shaft rotated at a low rate of speed, I find his 

testimony on this point credible. 

Based on the foregoing, I conclude that the violation was accompanied 

by moderate gravity. 

Good Faith in Attempting Rapid Abatement 

Mr. Scandlyn testified that the guard was replaced immediately (Tr. 

402). Although the inspector believed that the condition was abated on 

July 27, 1978, the day after the issuance of the citation, he nevertheless 

testified that the operator attempted rapid compliance after notification 

of the condition (Tr. 360). Accordingly, I conclude that Freeport demonstrated good faith in attempting rapid compliance. 

Citation No. 97205, July 27, 1978, 30 CFR 55.4-18 

The citation alleges, in pertinent part, that oxygen was being stored 

in an area where grease, paint and oils were stored (Exh. M-11, p. 1). The 

testimony reveals that the "oxygen" in question consisted of a fully-charged 

oxygen cylinder on an oxyten-ac;etylene welding set loc,ated in part of the 

pilot plant (Tr. 363-364, 409). 

According to Mr. Scandlyn, the pilot plant building was probably 

60 feet in width, 100 to 150 feet in length and approximately 25 to 30 feet 

in height (Tr. 408). According to the inspector, the building was basically 

a large open room which he described as an operating area (Tr. 367). 

Two areas screened off by wire mesh, and each measuring approximately 

10 feet by approximately 15 to 20 feet, were located inside the building 

(Tr. 409). According to Mr. Scandlyn, the first wire cage area was a workshop area. He testified that it "has power tools, drill presses, I believe 

a band saw, and tools of various nature, a work table, a sorting iron, this 

type of thing, what we call a lazy susan for part storage approximately 

four feet in diameter with several rotating shelves on it" (Tr. 409). 

Mr. Scandlyn confirmed that an oxygen-acetylene tank set mounted ·on a hand 

truck was in the area on July 27, 1978 (Tr. 409). Mr. Scandlyn classified 

the area as a "normal work place," and would not classify the area as a 

storeroom (Tr. 410). 

The inspector, however, classified the area as a storage area containing tools, paint, grease, oil, and solvent, in addition to the oxygen 

cylinder (Tr. 363). The inspector testified that at least a dozen cans of 

paint and oil were present (Tr. 363-364). 

Mandatory safety standard 30 CFR 55.4-18 states that "{o]xygen cylinders 

shall not be stored in rooms or areas used or designated for oil or grease 

storage. 11 The, question presented is whether the evidence establishes 

253 
"storage" within the meaning of the regulation. At the outset, it cannot 

be found that the paint observed by the inspector was· "oil" within the meaning of the regulation. Such a finding would have to be based on probative 

evidence establishing the presence of oil-based paint in the subject area 

of the pilot plant building. The record contains no evidence establishing 

this fact. Accordingly, only the grease and oil observed by the inspector 

are germane to a resolution of the issues presented. 

I am inclined to accept the inspector's characterization that the oxygen 

was at the time in question being "stored" with the oil and grease cans due 

to the dimensions of the wire mesh area, and the volume and types of materials observed there and the fact that it was locked. This conclusion is 

bolstered by inferences drawn from the testimony of Mr. Scandlyn, which indicate that the time the oxygen would be in the cage area between uses could 

be days; and therefore the area was used as a "short-term" storage area (Tr. 

414-415). 

Accordingly, I conclude that a violation of 30 CFR 55.4-18 has been 

established by a preponderance of the evidence. 

Negligence of the Operator 

Regular supervision was attached to this area of the plant and the condition was in plain view (Tr. 364). Inferences drawn from the testimony of 

Mr. Scandlyn (Tr. 411-412) indicate that it is more probable than not that 

the condition had existed for an appreciable period of time prior to July 27, 

1978. However, considering the fact that the area was used periodically as 

a workshop, and the other surrounding circumstances, it cannot be found that 

Freeport demonstrated gross negligence. 

Accordingly, I conclude that Freeport demonstrated ordinary negligence. 

Gravity of the Violation 

An occurrence was probable (Exh. M-11, p. 3; Tr. 364). The resulting 

injury could reasonably be expected to produce lost workdays or restricted 

duty (Exh. M-11, p. 3). The record contains no evidence relating to the 

number of employees exposed to the hazard. 

Accordingly, I conclude that moderate gravity was associated with the 

violation. 

Good Faith in Attempting Rapid Abatement 

Abatement was accomplished by expeditiously moving the combustibles to 

another area (Tr. 365; Exh. M-11, p. 2). Accordingly, I conclude that 

Freeport demonstrated good faith in attempting rapid compliance. 

254 
IV. Docket No. BARB 79-282-PM 

Citation No. 96399, July 18, 1978, 30 CFR 55.20-3 

This citation was issued when Inspector Lindbeck observed "several 

holes in [the] walkway on top of storage tank I~T-17 that need to be covered" 

(Exh. M-12, p. 1). The subject walkway was constructed of expanded metal 

(Tr. 371). The cited holes were three or four in number (Tr. 372). Estimates as to the size of the holes varied. Inspector Lindbeck estimated that 

the holes were approximately 6 inches by 8 inches or 8 inches by 8 inches 

(Tr. 372), while Mr. Scandlyn's estimate was "4 to 6 inches*** to about 

6 to 8 inches" (Tr. 421, 426). However, it is significant to note that 

Mr. Scandlyn believed, as a general proposition, that holes over 4 inches 

"probably should be covered" (Tr. 422). 

Mr. Scandlyn testified that the walkway in question was located above a 

holding tank (Tr. 419). The platform was reached by a spiral stairway (Tr. 

424). The tank was approximately 32 feet in height and 37 feet in diameter 

and was used to·hold a mixture consisting of clay and water (Tr. 419, 426). 

He further testified that an agitator gearbox and grind motor was located 

atop the tank which operated a large shaft extending toward the bottom of 

the tank. A rake arm on the shaft prevents mixed material from "settling 

out and becoming semi-solid in·the bottom of the tank" (Tr. 419-420). 

Mr. Scandlyn testified that the holes had been cut in the walkway around 

the "periphery· of the base of the agitator gear box" to provide access to a 

support chain used to stabilize the agitator shaft (Tr. 420, 429). The testimony of Mr. Wharton indicates that the walkway was 3 to 4 feet wide (Tr. 

430-431). 

Mandatory safety standard 30 CFR 55.20-3 provides, in part, as follows: 

"Mandatory. At all mining operations: * * * (c) Every floor, working place, 

and passageway shall be kept free from protruding nails, splinters, holes, or 

loose boards, as practicable." It is undisputed that the holes existed in 

the subject walkway. Furthermore, the evidence establishes that it was 

practicable to keep the walkway free of holes. There is no indication that 

the holes performed any function essential to the daily operation of the 

agitator mechanism, outside of providing periodic access to the support 

chain. This conclusion is confirmed by the testimony of Mr. Scandlyn, 

wherein he expressed his belief that the, employees had permitted the platform to remain in the condition observed by the inspector "because they knew 

they would be back there someday to do that same job over, and they would 

need that same access" (Tr. 424-425). Furthermore, the steps taken to abate 

the condition, infra, reinforce the view that it was practicable to keep the 

walkway free of"""'"h'OI'es. 

Accordingly, it is found that a violation of 30 CFR 55.20-3 has been 

established by a preponderance of the evidence. 

255 
Negligence of the Operator 

Two employees were observed performing maintenance functions on the 

walkway, but the inspector's testimony reveals that those employees were not 

engaged in alleviating the violation (Tr. 371-372, 374). The inspector did 

not know how long the holes had been present in the walkway (Tr. 373, 376). 

He testified, however, that Mr. Scandlyn and a foreman indicated that either 

a motor or its base had been replaced and that the resulting hole had not 

been covered (Tr. 379), a statement which differs radically from 

Mr. Scandlyn's previously-mentioned testimony wherein he indicated that the 

holes had been made to provide access to the agitator shaft stabilizing 

chain. Having been afforded the opportunity to assess the credibility of 

the witness, I conclude that Mr. Scandlyn's testimony accurately reflects 

the circumstances surrounding the cutting of the subject holes. 

It can be inferred from Mr. Scandlyn's testimony that the condition not 

only existed for a long period of time but also would have been permitted 

to exist for a period of several months or several years into the future (7r. 

425). Furthermore, Mr. Scandlyn stated that holes greater than 4 inches 

should be covered and even acknowledged the presence of a tripping hazard 

(Tr. 422). 

In view of these considerations, I conclude that Freeport demonstrated 

gross negligence. 

Gravity of the Violation 

Two maintenance employees were present on the walkway when the inspector arrived (Tr. 371). Additionally, an employee visited the area daily to 

check the tank level (Tr. 423-424). 

The inspector indicated that a man's foot could enter one of the holes 

and he could either suffer a broken leg or stumble and fall into a storage 

tank (Tr. 373; Exh. M-12, p. 5). However, I conclude that the presence of 

the handrail around the outside of the walkway (Exhs. 0-13, X-1) would render 

improbable falling into the storage tank. Considering the size of the holes, 

the dimensions of the walkway, and the extent of employee exposure, I conclude that a broken leg hazard existed. An occurrence was probable. An 

occurrence could reasonably be expected to result in lost workdays or 

restricted duty (Exh. M-12, p. 5). 

Accordingly, I conclude that the violation was moderately serious. 

Good Faith in Attempting Rapid Abatement 

The condition was abated immediately by covering the holes with steel 

plates (Tr. 373). Accordingly, I conclude that Freeport demonstrated good 

faith in attempting rapid compliance. 

256 
Citation No. 96159, July 20, 1978, 30 CFR 55.17-1 

On July 20, 1978, Inspector Lindbeck conducted a night inspection at 

Freeport's Griffin Mill facility (Exh. M-13, p. l; Tr. 380). The subject 

citation was issued, citing Freeport for a violation of 30 CFR 55.17-1 as 

follows: "The lighting in the warehouse area does not illuminate all 

areas - 6 large overhead lights are not working" (Exh. M-13, p. 1). 

The condition was observed in the warehouse storage area (Tr. 380). 

The building was approximately 100 feet in length and approximately SO feet 

in width (Tr. 380). The lights were approximately 20 to 25 feet above the 

floor (Tr. 436). According to Mr. Scandlyn, they were basically 300-Watt 

incandescent lamps with reflectors (Tr. 436). 

Six lights were unlit out of a total of approximately 20 lights (Tr. 

380-381, 435-436). Four were in the vicinity of the inspection party and two 

were toward the other end of the building (Tr. 436). Approximately five or 

six employees were working in the area. At least one forklift was operating 

in the area (Tr. 380). 

Mandatory safety standard 30 CFR 5S.17-l provides that: "[i]llumination 

sufficient to provide safe working conditions shall be provided in and on all 

surface structures, paths, walkways, stairways, switch panels, loading and 

dumping sites, and work areas." The question presented is whether a preponderance of the evidence establishes that the illumination in the cited area 

was inadequate to provide safe working conditions. The record clearly 

reflects that the inspector's opinion as to inadequate lighting was based 

solely on his visual observation (Tr. 38S-386). The inspector testified that 

he cited the condition because he was unable to see all employees working in 

the work area, and indicated that he was unable to see individuals approximately 30 to 40 feet away (Tr. 388-389). He further testified that shadows 

in the area prevented forklift operators from seeing the men (Tr. 381). This 

testimony is contradicted by the tenor of Mr. Scandlyn's testimony wherein he 

indicated that he was fairly certain that he was able to see a good SO feet 

and distinguish color (Tr. 433). 

Freeport argues that the regulation in question "is unduly and 

unenforceably vague in that there are no objective criteria or parameters of 

illumination by which an operator can reasonably be expected to measure its 

levels of illumination for purposes of compliance" (Respondent's Proposed 

F~ndings of Fact, Conclusions of Law, p. 21; see also Respondent's Brief in 

Support of Proposed Findings of Fact and Conclusions-of Law, p. 3). I am 

unable to agree with Freeport's contention. It may be desirable as a matter 

of policy to promulgate a regulation specifying with particularity the level 

of illumination necessary to provide safe working conditions. But simply 

because such action is desirable from a policy standpoint does not mean that 

the existing regulation is unenforceably vague as a matter of law. Whether 

a given level of illumination is sufficient to provide safe working conditions presents a question of fact, and there is no indication in the record 

that such factual issue cannot be resolved by presentation of evidence of 

257 
some recognized scientific test with an objective standard as to adequate 

lighting in the work place. An objective standard is necessary to prevent 

enforcement actions initiated solely on the basis of an inspector's subjective evaluation. It should be pointed out that certain occasions will arise 

where the evidence will establish inadequate lighting even absent reference 

to an objective standard. But this will be limited to cases where reasonable 

minds cannot be expected to differ as to the adequacy of the lighting, such 

as cases involving a complete absence of lighting or cases where other evidence clearly establishes an inadequacy of illtunination. 

In the instant case MSHA has failed to present enough objective evidence to sustain its burden of proof as to the warehouse area in general. 

The inspector's testimony that he was unable to see individuals at a distance 

of approximately 30 to 40 feet was rebutted by Mr. Scandlyn's assertion that 

he could distinguish color at approximately 50 feet. In addition, the fact 

that'approximately 14 lights with 300-Watt incandescent bulbs and reflectors were present and alight in and of itself implies adequate illtunination. 

However, MSHA has sustained its burden of proof as to one specific area 

of the warehouse. The inspector, at· one point in his testimony, indicated 

that Mr. Bruce Dial, the MSHA trainee who accompanied the inspector, stepped 

onto the edge of a large hole in the floor due to the inadequate lighting 

(Tr. 389-392). Since it was established that the inspector could not see the 

hole and the circtunstances almost lead to an accident, it is considered that 

this is the kind of evidence which clearly establishes inadequate illtunination at that one location. . 

Accordingly, I conclude that a violation of 30 CFR 55.17-1 has been 

established by a preponderance of the evidence. 

Negligence of the Operator 

The fact .that six lights were not operating in the warehouse and the 

lack of sufficient lighting near a refuse hole in the warehouse should have 

been known to the supervisors for the Respondent. 

Accordingly, the Respondent has demonstrated ordinary negligence. 

Gravity of the Violation 

The potential hazard in the specific situation is a fall leading to a 

possible broken leg or lesser injury. Accord~ngly, I conclude that the 

violation was moderately serious. 

Rapid Abatement 

The violation was abated the next day. Therefore, I conclude that 

Freeport demonstrated good faith in attempting rapid abatement. 

258 
Citation No. 96160, July 20, 1978, 30 CFR 55.17-1 

This citation was issued by Inspector Lindbeck during his July 20, 

1978, night inspection at the Griffin Mill (Tr. 393; Exh. M-14, p.l). 

The citation states that "there is not sufficient illumination at rail 

load out area (tank car). Lights were not in working order at time of 

inspection." The condition allegedly constitutes a violation of 30 CFR 

55.17-1. 

As noted previously in this decision, 30 CFR 55.17-1 mandates that 

illumination sufficient to provide safe working conditions be provided on 

all surface structures, paths, walkways, stairways, switch panels, loading 

and dumping sites, and work ·areas. Although the citation, as incorporated 

into the petition for assessment of civil penalty, appears to be confined 

to an allegation that the illumination was insufficient only in a loading 

area, the testimony of the inspector sought to characterize the area not 

only as a loading area but also as a walkway (Tr. 394). However, certain 

statements contained in the inspector's statement (Exh. M-14, p. 3) reveal 

that Inspector Lindbeck cited the area solely on the basis of its use as 

a load-out area. Under the heading of "Gravity," the inspector wrote 

that "poor lighting in the area could cause a slip or fall from either 

cars or loading platform." Accordingly, I conclude that the allegation in 

the petition is confined to the use of the area as a rail load-out area. 

The testimony of both Inspector Lindbeck and Mr. Scandlyn reveals that 

no employees were working in the cited area at the time of the inspection 

(Tr. 393, 437-438). According to the inspector, bulk loading of the railroad cars occurs in the area at night (Tr. 393-394). However, he admitted 

that he did not see either tank car movement nor switching activities that 

night (Tr. 396). Additionally, Mr. Scandlyn testified that no cars were 

being loaded in the area on the night in question (Tr. 437). 

Since the record reveals that work was not being performed in the rail 

load-out area at the time, I conclude that a violation of 30 CFR 55.17-1 has 

not been established by a preponderance of the evidence. 

Even assuming for purposes of argument that the petition can be construed to allege a violation of 30 CFR 55.17-1 based on insufficient illumination in a walkway, or that this issue has been tried with the implied 

consent of the parties, I conclude that the evidence fails to establish a 

violation. First, the deficiences in evidence of some scientific test with 

an objective standard, noted previously in this decision, presents a substantial obstacle to the finding of a violation. Logically, the objective 

standards should be set forth in the regulation. Second, the evidence 

reveals that residual lighting from surrounding buildings provided enough 

illumination to permit a man to walk through the area without the use of a 

flashlight (Tr. 397, 438, 440, 443-444). Accordingly, I am unable to conclude that a preponderance of the evidence establishes that the illumination 

in the cited area was insufficient to permit its safe use as a walkway. 

259 
VI. History of Previous Violations 

The parties stipulated that no evidence exists to establish a history 

of prior violations (Tr. 5). 

VII. Size of the Operator's Business 

The parties stipulated that Freeport is a large operator. During 1978, 

the size of the operator was rated at 909,699 man-hours (Tr. 4). 

VIII. Effect on the Operator's Ability to Continue in Business 

The parties stipulated that any penalty that may be assessed may not 

affect Freeport's ability to continue in business (Tr. 6). 

Furthermore, the Interior Board of Mine Operations Appeals has held that 

evidence relating to whether a civil penalty will affect the operator's 

ability to remain in business is within the operator's control, resulting in 

a rebuttable presumption that the operator's ability to continue in business 

will not be affected by the assessment of a civil penalty. Hall Coal Company, 

1 IBMA 175, 79 I.D. 668, 1971-1973 OSHD par. 15,380 (1972). Therefore, I 

find that penalties otherwise properly assessed in these proceedings will not 

impair the operator's ability to continue in business. 

IX. Conclusions of Law 

A. Freeport Kaolin Company and its Griffin and Savannah Mills have 

been subject to the provisions of the 1977 Mine Act at all times pertinent 

to this proceeding. 

B. The Administrative Law Judge has jurisdiction over the subject 

matter of, and tpe parties to, these proceedings. 

C. MSHA inspector Spencer Lindbeck was a duly authorized representative of the Secretary of Labor at all times relevant to the issuance of the 

citations which are the subject matter of these proceedings. 

D. The ruling in Docket No. BARB 79-280-PM granting MSHA's motion to 

amend the petition for assessment of civil penalty as relates to Citation 

No. 96181 to allege a violation of 30 CFR 55.14-6 instead of 30 CFR 

55.14-1 is affirmed. 

E. The ruling in Docket No. BARB 79-280-PM granting MSHA's motion to 

withdraw the petition for assessment of civil penalty as relates to Citation No. 96184, July 26, 1978, 30 CFR 55.12-30 is affirmed. 

F. The violations described in the following citations are found to 

have occurred as alleged: 

(1) Docket No. BARB 79-219-PM (Citation No. 96161, July 20, 1978, 

30 CFR 55.12-16); 

260 
(2) Docket No. BARB 79-280-PM (Citation Nos. 96173, July 25, 1978, 

30 CFR55.14-l; 96179; July 26, 1978, 30 CFR 55.12-34; 96181, July 26, 1978, 

30 CFR 55.14-6); 

(3). Docket No. BARB 79-281-PM (Citation Nos. 96191, July 26, 1978, 

30 CFR 55.14-1; 97204; July 27, 1978, 30 CFR 55.4-18); 

(4) Docket No. BARB 79-282-PM (Citation No. 96399, July 18, 1978, 

30 CFR 55.20-3; No. 96159, July 20, 1978, 30 CFR 55.17-1). 

G. MSHA has failed to prove the violations charged as relates to the 

following citations: 

(1) Docket No. BARB 79-280-PM (Citation Nos. 96162, July 20, 1978, 

30 CFR 55.14-26; 96174, July 25, 1978, 30 CFR 55.12-30); 

(2) Docket No. BARB 79-282-PM (Citation No. 96160, July 20, 1978, 

30 CFR 55 .17-1) 

H. All of the conclusions of law set forth in Part V, supra, are 

reaffirmed and incorporated herein. 

X. Proposed Findings of Fact and Conclusions of Law 

Freeport and MSHA submitted posthearing briefs. Neither party submitted reply briefs. Such briefs, insofar as they can be considered to 

have contained proposed findings and conclusions, have been considered 

fully, and except to the extent that such findings 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. 

XI. Penalties Assessed 

Upon consideration of the entire record in these cases and the foregoing findings of fact and conclusions of law, I find that the assessment 

of penalties is warranted as follows: 

Docket No. BARB 79-219-PM 

Citation No. Date 

96161 July 20, 1978 

261 

30 CFR 

Standard 

55 .12-16 

Penalty 

$255 
Docket No. BARB 79-280-PM 

Citation No. Date 

96173 July 25, 

96179 July 26, 

96181 July 26, 

Docket No. BARB 79-281-PM 

Citation No. Date 

96191 July 26, 

97205 July 27, 

Docket No. BARB 79-282-PM 

Citation No. Date 

96399 July 18, 

96159 July 20' 

XII. Approval of Settlement 

1978 

1978 

1978 

1978 

1978 

1978 

1978 

30 CFR 

Standard 

55.14-1 

55.12-34 

55.14-6 

30 CFR 

Standard 

55.14-1 

55.4-18 

30 CFR 

Standard 

55.20-3 

55.17-1 

Total 

Penalty 

$ 60 

so 

40 

Penalty 

$ 40 

75 

Penalty 

$ 75 

40 

$635 

During the hearing on June 22, 1979, the representatives of the parties 

informed the undersigned Administrative Law Judge that a settlement had been 

negotiated as relates to eight of the 13 citations at issue in Docket Nos. 

BARB 79-281-PM and BARB 79-282-PM. It was further stated that a motion 

requesting approval of settlement would be filed at a later date (Tr. 344-

346). On October 22, 1979, the parties filed a joint motion to approve 

settlement and dismiss addressing the eight above-noted citations. 

Information as to the six statutory criteria contained in section 110 

of the 1977 Mine Act has been submitted. This information has provided a 

full disclosure of the nature of the settlement and the basis for the 

original determination. Thus, the parties have complied with the intent of 

the law that settlement be a matter of public record. 

The alleged violations and the settlements are identified as follows: 

Docket No. BARB 79-281-PM 

30 CFR 

Citation No. Date Standard Assessment Settlement 

96194 July 26, 1978 55.12-30 $ 38 $ 38 

96200 July 26, 1978 SS.14-8(b) 60 60 

97202 July 27, 1978 55.12-34 48 48 

Totals $146 $146 

262 
Docket No. BARB 79-282-PM 

30 CFR 

Citation No. Date Standard Assessment Settlement 

96145 July 18, 1978 55 .11-2 $ 24 $ 24 

96149 July 18' 1978 55 .14-1 48 48 

96398 July 18' 1978 55.20-3 34 34 

96156 July 19' 1978 55.14-1 66 66 

96158 July 19, 1978 55.14-1 48 48 

Totals $220 $220 

The parties set forth the following reasons in support of the proposed 

settlements: 

After a review of all available evidence, the parties 

hereby agree that the settlement set out in this motion would 

be proper because: 

1. There is no reduction in the proposed assessment. 

2. The respondent has paid the $366.00, which is the 

proposed assessment and s~ch payment will have no effect on 

its ability to remain in business. 

3. Respondent is a large operator. 

4. The violations were moderately serious. 

5. Respondent demonstrated good faith by attempting 

to achieve required compliance after notification of the 

alleged violation. Respondent represents that the conditions cited were immediately abated. 

6. Respondent has no history of previous violations 

at this mine. 

7. Respondent withdraws its request for a hearing. 

It is the parties belief and conviction that approval of 

this settlement is in the public interest and will further 

the intent and purpose of the Federal Mine Safety and Health 

Act of 1977. 

The reasons given above by the representatives of the parties for the 

proposed settlement have been reviewed in conjunction with the information 

submitted as to the six statutory criteria contained in section 110 of the 

Act. After according this information due consideration, it has been found 

to support the proposed settlement. It therefore appears that a disposition approving the settlement will adequately protect the public interest. 

263 
XIII. Order 

A. The ruling in Docket No. BARB 79-280-PM granting MSHA's motion to 

amend the petition for assessment of civil penalty as relates to Citation 

No. 96181 to allege a violation of 30 CFR 55.14-6 instead of 30 CFR 55.14-1 

is AFFIRMED. 

B. The ruling in Docket No. BARB 79-280-PM granting MSHA's motion to 

withdraw the petition for assessment of civil penalty as relates to Citation 

No. 96184, July 26, 1978, 30 CFR 55.12-30 is AFFIRMED. 

C. The settlement outlined in Part XII of this decision is herewith 

APPROVED. Since Freeport has paid ~he agreed-upon settlement figure of 

$336, IT IS ORDERED that the petitions for assessment of civil penalty 

be, and hereby are, DISMISSED.as they relate to the citations encompassed 

by the settlement. 

D. IT IS FURTHER ORDERED that the citations set forth in Part IX(G) of 

this decision be, and hereby are, VACATED and the various petitions for 

assessment of civil penalty be, and hereby are, DISMISSED as they relate to 

those citations. 

E. IT IS FURTHER ORDERED that Freeport pay civil penalties in the 

amount of $635 within 30 days of the date of this decision. 

Distribution: 

Administrative 

obn F, Coo~ Law Judge 

w. T. Truett, Esq., and Thomas P. Brown IV, Esq., Office of the 

Solicitor, U.S. Department of Labor, 1371 Peachtree Street, NE., 

Room 339, Atlanta, GA 30309 (Certified Mail) 

Gene B. Strouss, Personnel Manager, Freeport Kaolin Company, P.O. 

Box 37, Gordon, GA 31031 (Certified Mail) 

Alexander E. Wilson III, Esq., and Thomas J. Hughes, Jr., Esq., Jones, 

Bird & Howell, Haas-Howell Building, 75 Poplar Street, Atlanta, GA 

30303 (Certified Mail) 

Administrator for Metal and Nonmetal Mine Safety and Health, U.S. 

Department of Labor 

Standard Distribution 

264 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520J LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

JAN 3 1 1980 

LOCAL UNION NO. 6843, DISTRICT 28, 

UNITED MINE WORKERS OF AMERICA, 

Applicants 

Complaint for Compensation 

Docket No. VA 80-17-C 

v. 

Amonate No. 31 Mine 

WILLIAMSON SHAFT CONTRACTING COMPANY, 

Respondent 

DECISION 

Appearances: Mary Lu Jordan, Esq., United Mine Workers of America, 

Washington, D.C., for Applicants; 

Before: 

Timothy J. Parsons, Esq., Loomis, Owen, Fellman & Howe, 

Washington, D.C., for Respondent. 

Judge Charles C. Moore, Jr. 

Applicants United Mine Workers filed a complaint for compensation under 

section 111 of the Act (Federal Mine Safety and Health Act of 1977), based 

upon events which transpired during a roof control inspection conducted 

by MSHA inspector Carl E. Boone on August 9, 1979, at Consolidation Coal 

Company's Amonate No. 31 Mine. 

lhe facts not in issue show that Inspector Boone conducted a roof control inspection of "the main headings being turned off the ventilation 

shaft" (Complaint, para. III). The shaft and headings in question were 

being constructed by Respondent Williamson Shaft Contracting Comppny pursuant to a contract with Consolidation Coal Company. After this, the facts 

are disputed. 

In a report filed by Inspector Boone with his supervisor, 1/ the 

inspector states that upon inspecting the roof bolt installation near the 

bottom of the shaft in question he found that the majority of the roof 

]} Attached to Applicants' Statement in Opposition to Respondent's Motion 

to Dismiss as Exhibit A (sent under separate cover). I do not consider 

this report to be determinative of the facts but treat it as relevant evidence. Any denials by Respondent as to the contents of the inspector's 

report are dul-y noted, infra. 

265 
bolts installed against the coal roof had less torque than that required 

by Consolidation Coal Company's approved roof control plan. This alleg~­

tion is denied by Respondent. 

Inspector Boone wrote that "the company" was also checking the roof 

bolts and makes further reference to "management." It is unclear whether he 

is referring to the management of Consolidation Coal Company or to William 

Shaft Contracting Company but for the purposes of this decision I will 

assume he means Consolidation Coal Company. The report further states that 

when management asked for Inspector Boone's recommendations concerning the 

roof bolts, he informed them that they could either rebolt the area using 

mechanical bolts with adequate anchorage or use resin rods. The company 

decided to use resin rods, to be installed within 1 or 2 days after the 

proper materials were ordered and delivered. At this point, Inspector Boone 

told the company that the only work that they should do in the area would 

be to install one of the roof support methods he had recommended in order 

to comply with safety precaution No. 12(c) of their approved roof control 

plan. As a result of this recommendation, several miners were idled during 

the day and afternoon shifts on August 9, 1979. 

Section 111 of the Act (30 U.S.C. § 821) entitles miners to compensation at varying rates for the time they are idled when a mine or a portion 

of a mine is closed pursuant to an order issued under sections 103, 104 or 

107 of the Act (30 U.S.C. §§ 813, 814 and 817, respectively). Applicants 

claim that Inspector Boone's recommendation amounted to a verbal withdrawal 

order under sectin 107(a) of the Act (Complaint, para. IX). That section 

reads as follows: 

If, upon any inspection or investigation of a coal or 

other mine which is subject to this Act, an authorized representative of the Secretary finds that an imminent danger 

exists, such representative shall determine the extent of the 

area of such mine throughout which the danger exists, and 

issue an order requiring the operator of such mine to cause 

all persons, except those referred to in section 104(c), to 

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

area until an authorized representative of the Secretary 

determines that such imminent danger and the conditions or 

practices which caused such imminent danger no longer 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. 

Thus, an inspector may issue withdrawal orders under this section where 

he or she determines that an imminent danger exists. However, subsection 

(d) of section 107 specifically requires such orders to be in writing. J:../ 

J} Section 107(d) provides as follows: 

"Each finding made and order issued under this section shall be given 

promptly to the operator of the coal or other mine to which it pertains 

266 
Construing.the facts in a light most favorable to the Applicants, 3/ 

there is no evidence in this case of a specific verbal.finding of imminent 

danger by the inspector, nor of a written finding of imminent danger nor, 

as both parties concede, of a written withdrawal order pursuant to section 

107. 

Applicants point out that Inspector Boone's st~tement had the same 

effect as a withdrawal order by causing a temporary cessation of mining 

activities. Applicants then use a "but for" test to create a causal nexus 

between the Inspector's statement and their claims for compensation. 

Assuming that Inspector Boone's statement did cause a cessation of 

mining activities, idling some miners, it is necessary to determine whether 

section 111 or any other section of the Act anticipates an award of compensation in such a case. 

As to other than imminent danger orders, subsections (a) through (f) 

of section 103 of the Act authorize the Secretary to inspect mines, investigate accidents, require operators to maintain records, and provide for a 

representative of the miners to accompany inspectors during inspections. 

Section (g) provides for miner-initiated inspections upon a written notice 

to the Secretary alleging a violation of the Act or an imminent danger. 

These inspections may be conducted independently or may be incorporated 

into a regular inspection by the Secretary. There is no evidence in this 

case that the inspection which took place was initiated by a miner or by 

a representative of the miners. 

Subsections (h) through (j) of section 103 provide for the maintenance 

of certain records, prescribe a minimum number of inspections of mines containing explosive gases and set forth the Secretary's powers in the event 

of an accident. Subsection (k) authorizes the Secretary to issue appropriate orders in accident situations. The alleged order in this case was not 

connected to an accident in the mine. 

Section 104(b) authorizes the Secretary to issue orders where an 

operator has failed to abate a violation for which he was cited within the 

time allowed and the Secretary determines that the abatement time should 

not be extended. There is no evidence of a prior citation in this case. 

Section 104(d) allows withdrawal orders to issue in two cases. In the 

fn. 2 (continued) 

by the person making such finding or order, and all of such findings and 

orders shall be in writing, and shall be signed by the person making them. 

Any order issued pursuant to subsection (a) may be modified or terminated 

by an authorized representative of the Secretary. Any order issued under 

subsection (a) or (b) shall remain in effect until vacated, modified, or 

terminated by the Secretary, or modified or vacated by the Commission pursuant to subsection (e), or by the courts pursuant to section 106(a)." 

(Emphasis added.) 

3/ As required by Federal Rules of Civil Procedure Rule 56, 28 U.S.C.A. 

(note 124), advisory for purposes of Commission decisions. 

267 
first case, the Secretary must issue a withdrawal order under section 

104(d)(l) where an operator violates, unwarrantably, any mandatory health 

and safety standard within 90 days of the issuance of an unwarrantable 

failure citation. In the second case, an order must promptly issue under 

section 104(d)(2) where the Secretary, upon subsequent inspection, finds 

violations similar to those in the original unwarrantable failure citation 

and no interim inspection has verified abatement of the original violations. 

Again, there is no evidence of a citation in this case so that the alleged 

order could not have been issued pursuant to section 104(d). Section 104(e) 

allows the Secretary to issue withdrawal orders where it finds that an operator has a pattern of violating mandatory health or safety standards. There 

is no evidence of such a pattern in this case. Section 104(f) allows the 

Secretary to issue withdrawal orders where it finds that the atmosphere of 

a mine contains an excessive amount of respirable dust. There is no evidence 

that the order alleged here was such an order. 

The statutory scheme outlined above anticipates that withdrawal orders 

would be issued subsequent to the issuance of a citation where the operator 

either has not abated the condition described in the citation or the condition has recurred, except in the case of imminent danger orders which may 

be issued without reference to particular health and safety standards. 

While sections 103 and 104 of the Act do not specifically require orders 

issued thereunder to be in writing, there are other references in the Act 

to publishing orders and making them available for public inspection which 

assumes that the orders would be in writing. Although section 107 is the 

only section which specifically requires orders to be in writing, it 

appears that all orders under the 1977 Act are expected in all cases to 

be in writing. The legislative history is in accord. 

Section 111 of the 1977 Act entitling miners to compensation for idle 

time was taken directly from its counterpart in the Federal Coal Mine Health 

and Safety Act of 1969 ("1969 Act"): section llO(a). (See Legislative 

History of the Federal Mine Safety and Health Act of 197"'f""'at 1337.) Section llO(a) of the 1969 Act entitled a miner to compensation for time lost 

when a mine was closed by an order issued under section 104 of the 1969 

Act. Section 104 in turn described the various withdrawal orders the Secretary could have issued upon finding violations of the Act and imminent 

dangers and required, inter alia, in subsection (f) that "all such notices 

and orders shall be in writing." Thus, the requirement of a writing is 

clearly stated under the 1969 Act. 

Applicant further offers the case of Alabama By-Products Corporation 

v. Mining Enforcement and Safety Administration and United Mine Workers of 

America, BARB 76-153, 76-220 and 76-221 (August 19, 1976), in support of 

its position that a verbal recommendation can constitute an order of withdrawal. It should be noted that the administrative law judge in that case 

was considering a written citation and specifically confined his decision 

to the facts presented (at 19). 

Based upon the foregoing, the only type of withdrawal order the inspector could have issued would have been for imminent danger and he clearly 

did not do that. 

268 
ORDER 

Respondent's motion to dismiss 

is hereby GRAN;; j//~ f 

~lloore, Jr. '( 

Administrative Law Judge 

Distribution: 

Mary Lu Jordan, Esq., United Mine Workers of America, 900-15th St., 

NW., Washington, DC 20005 (Certified Mail) 

Timothy J. Parsons, Loomi~ Owen, Fellman & Howe, 2020 K St., NW., 

Washington, DC 20006 (Certified Mail) 

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

Arlington, VA 22203 (Certified Mail) 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

L 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11/12 

JAN 3 1 198) 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. LAKE 79-24 

A.O. No. 33-01173-03036 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent · 

Meigs No. 2 Mine 

DECISION AND ORDER 

.In response to the order to show cause of December 6, 1979, 

the Secretary has filed a motion for summary disposition and 

the operator a response that is in effect a cross-motion for 

summary disposition or to dismiss based on the legal defense 

raised in its pretrial submission of September 17, 1979. 

Oral argument on the motions was heard on January 17, 1980. 

The operator claims its defense challenging the validity of 

Citations Nos. 278700, 278801 and 278802, 1/ is timely and 

may be raised under sections 105(a) and (d} of the Act, 30 

U.S.C. 815(a), (d), Rule 22 of the Commission's Rules of 

Procedure, and the Commission's decision in Ener~y Fuels Corporation, 

DENV 78-410, 1 BNA MSHC 2013, 2020, 1 FMSHRC Decisions 299, 

315 (May 1, 1979) (dissenting opinion of Commissioner Lawson). 

I agree that as interpreted by the Commission in Energy Fuels, 

the Act permits an operator to challenge the validity of an 

abated citation either within thirty days of its issuance or 

1/ The other two citations involved in this proceeding 

are sUbject of a motion to approve settlement filed 

November 29, 1979. 

270 
thirty days after receipt of a notice of proposed penalty 

assessment. 2/ On the other hand, the Commission has held 

the validity-of closure orders must be challenged immediately 

or not at all. Pontiki Coal Corp., PIKE 78-420-P, 1 BNA 

MSHC 2208, CCH 1979 OSHD ,[23, 979, 1 FMSHRC Decisions 1476 

(October 25, 1979); Wolf Creek Collieries, PIKE 78-70-P, 

FMSHRC 79-3-11 (March 26, 1979). This anomaly results from 

the fact that the Commission has interpreted section 105(a) 

of the Act as permitting a challenge to the issuance (validity) 

of a section 104(a) citation after receipt of a notice of 

proposed penalty assessment. Energy Fuels, supra; Rule 22. 

For the reasons set forth in Commissioner Lawson's dissenting 

opinion in Energy Fuels, I believe the Commission should 

reconsider and eliminate this anomaly in the review procedure. 

Compare Beckley Coal Mining Co., HOPE 79-35, et al, (November 27, 1978). 

Assuming therefore, without deciding, that a challenge 

to the issuance of a citation includes a challenge to its 

validity on the ground that the inspection giving rise to 

its issuance was unauthorized, 3/ I will proceed to consider 

the operator's motion on its merits. ~/ 

2/ The challenge to validity was not filed until 

September 17, 1979. This was much longer than thirty days 

after receipt of the notice of proposed penalty assessment. 

The Rules, however, do not provide at what stage of a civil 

penalty proceeding a challenge to validity other than 

a general denial must be filed. Compare Rule 22 with Rule 28. 

In view of the uncertainty in the Commission's statement of 

its procedures, I will assume for the purpose of this 

disposition that the challenge was timely. 

3/ Since an ultra vires inspection does not result in 

automatic application of the exclusionary rule, the fact that 

an inspection is found to be unauthorized may not retroactively 

invalidate the use of the citation as the predicate for a 

valid penalty proceeding. See Savina Home Industries v: Secretary, 

594 F.2d 1358, 1361-1365 (10th Cir. 1979); Todd Shipyards Corp. 

v. Secretarr, 586 F.2d 683, 690 (9th Cir. 1978). As noted in 

the text in ra, the inspector here acted pursuant to clear 

congressional authorization. It is obvious, therefore, that 

enforcement of the instant citations will not contravene the 

imperative of judicial integrity that calls for application of the 

exclusionary rule. See, United States v. Peltier, 422 U.S. 531, 

536 (1975). 

4/ 

assumed 

request 

Act, 30 

For purposes of disposing of the operator's motion, I 

that the inspection and citations were the result of a 

for special inspection made under section 103(g)(l) of 

U.S.C. 813(g)(l). Transcript p. 14. 

271 

have 

the 
The undisputed facts show that during a closeout 

conference following a regular inspection of the Meigs 

No. 2 Mine on December 21, 1978, Inspector.,_Petit received 

an oral request from a representative of the miners to 

examine the are~s referred to in the challenged citations. 

(Wilson Deposition at 34). As a result of the inspector's 

observations, three citations issued charging the operator 

with failure to comply with its approved roof control plan 

and the mandatory safety standard set forth in 30 CFR 

75.200. The conditions cited were promptly abated and 

thereafter the Secretary proposed a penalty of $325.00 for 

each citation. 

Section 103(g)(l) of the Mine Act, 30 U.S.C. 813(g)(l), 

provides that at the written request of a miner or representative 

of miners who has reasonable grounds to believe that an 

imminent danger or a violation of the Ac·t or a mandatory 

standard exists MSHA shall perform an immediate special 

inspection to determine the existence of the complained 

of condition or practice, except that if the complaint 

indicates an imminent danger the operator shall be notified 

"forthwith" so that action can be taken to abate the condition 

or withdraw the miners even before the inspection. 5/ 

30 CFR Part 43 (1978); Legislative History, Mine Sarety and 

Health Act of 1977, 95th Cong., 2d Sess. at 1324 (July 1978). 

Section 103 (g) (1) further provides that a copy of the n·otice 

given MSHA by the miner or his representative ."shall be 

provided the operator or his agent no later that at the time 

of the inspection." Id. 

~/ Section 103(g)(l), 30 U.S.C. 813(g)(l) provides: 

Whenever a representative of the miners or a 

miner in the case of a coal or other mine where ·there 

is no such representative has reasonable grounds to 

believe that a violation of this Act or a mandatory 

health or safety standard exists, or an imminent danger 

exists, such miner or representative shall have a right 

to obtain an immediate inspection by giving notice to 

the Secretary or his authorized representative of such 

violation or danger. Any such notice shall be reduced 

to writing, signed by the representative of the miners 

or by the miner, and a copy shall be provided the operator 

or his agent no later than at the time of inspection, 

except that the operator or his agent shall be notified 

forthwith if the complaint indicates that an imminent 

danger exists. The name of the person giving such notice 

and the names of individual miners referred to therein 

shall not appear in such copy or notification. Upon 

receipt of such notification, a special inspection shall 

be made as soon as possible to determine if such violation 

or danger exists in accordance with the provisions of this 

title. If the Secretary determines that a violation or 

danger does not exist, he shall notify the miner or 

representative of the miners in writing of such determination. 

272 
Respondent claims the failure of the inspector to 

furnish this copy to its agent at the time of the inspection 

requires a finding that the inspection was unauthorized and 

that citations issued as a result are null and void. I do 

not agree. 

Sections 103(g)(l) and (2) 61 originated as sections 

104(f)(l) and (2) of the Senate ~ill, S. 717. Leg. Hist., ~. at 531-532. With reference to the requirement for 

rurnfshing a copy of the miner's written notice to the 

operator, the Senate Report states: 

While Section 104(f)(l) requires that such complaints 

be written, and signed by the complaining party, the 

Committee does not intend to preclude the Secretary's 

response to unwritten or unsigned complaints. The 

Committee notes that MESA currently maintains an inward 

WATS line (an "800'.' number) for the express purpose 

of receiving complaints about hazardous conditions 

in the mines. The Secretary must respond to appropriate 

complaints ~nder section 104(f)(l), but need not 

necessarily follow up on complaints that do not meet 

the requirements of that section. Leg. Hist., supra, 

at 617. II 

It appears therefore that while an inspector is not 

required he is authorized to make a special spot inspection 

"to determine if such violation or danger exists in accordance 

with the provisions of" Title 1 of the Act. 

~I Section 103(g)(2), 30 U.S.C. 813(g)(2) provides: 

Prior to or during any inspection of a coal or 

other mine, any representative of miners or a miner 

in the case of a coal or other mine where there 

is no such representative, may notify the Secretary 

or any representative of the Secretary responsible 

for conducting the inspection, in writing, of any 

violation of this Act or of any imminent danger 

which he has reason to believe exists in such mine. 

The Secretary shall, by regulation, establish procedures 

for informal review of any refusal by a representative 

of the Secretary to issue a citation with respect 

to any such alleged violation or order with 

respect to such danger and shall furnish the representative of miners or miner requesting such rei.(iew a written 

statement of the reasons for the Secretary's final 

disposition of the case. 

II Resort to legislative history may be had even where the 

statutory language seems clear and unambiguous because "while 

the clear meaning of statutory language is not to be ignored, 

'words are inexact tools at best' ... and hence it is essential 

that we place the words of a statute in their proper context by 

resort to legislative history." Tidewater Oil Co. v. United States, 

409 U.S. 151, 157 .(1972). 

273 
This construction is consonant with section 103(g)(2) 

which does not require that a copy of the request for inspection 

be furnished the operator where the request is made prior to 

or during an inspection. While the failure of the miner to 

reduce his request for inspection to writing may justify 

a refusal by the inspector to make either a (g)(l) or (g)(2) 

inspection, it does not render the inspection performed an 

illegal or unauthorized search or furnish any ground for 

complaint by the operator of a violation of any procedural 

or substantive rights conferred by the Act. 

Reference to the Conference Report, S. Rep. 95-461, 95th 

Cong., 1st Sess., at 46, Leg. Hist., supra, at 1324, shows 

that the purpose of the requirement that the "request for an 

inspection be served on the mine operator no later than the 

commencement of the inspection" was "to protect [the complaining] 

miners from possible retribution" by the operator. This 

echoes the statement by the Senate Committee that "the Committee 

is aware of the need to protect miners against possible 

discrimination because they file complaints. . " Leg. Hist. , supra, at 617. 

Finally, with respect to the requirement that MSHA 

notify an operator or his agent "forthwith" if the complaint 

indicates an imminent danger, ~/ the Conference Report states: 

The failure of the Secretary to notify the operator 

or his agent under this provision will not nullify any 

citation or order that may be issued as the result 

of the inspection in response to the request under 

this section, even if such inspection discloses the 

existence of an imminent danger situation in the mine. 

Leg. Hist., supra, at 1324. 

The corollary of this is that the inspector's failure to 

give a copy of the written notice to the operator at the time 

of the inspection does not invalidate any citation issued under 

section 103(g) because (1) an operator----r8 not entitled to 

advance notice of a compliance inspection; (2) the purpose of 

furnishing a copy of the miner's complaint is for the miner's 

8/ Supra, note 5. 

274 
protection n6t the operator's; (3) the inspector is authorized 

to make the inspection even where the request is oral; and 

(4) there is no requirement for furnishing a copy of the notice 

where the request for inspection is made prior to or during 

the course of a regular inspection. Leg. Hist., supra, at 617, 

1324; 30 CFR part 43. 

What was fashioned by Congress as a shield against 

retaliation should not by an exercise in literalism be 

converted into a sword of nullification. 

I conclude therefore that the purpose of furnishing a copy 

of the miner's complaint to the operator is to put the operator 

on notice that the complainant was engaged in a protected. 

activity in filing the complaint. The operator acts then at 

his peril if he retaliates because the copy of the notice 

lays the foundation for a finding of willful and knowing 

violation of the anti-discrimination provisions of the Act. 

Section lOS(c)(l), 30 U.S.C. 815(c)(l). Such a violation 

may be subject to the civil and criminal sanctions of sections 

llO(c) and (d), 30 U.S.C. 820(c), (d). 

For these reasons, I find the failure to furnish a copy 

of a request for a special inspection does not invalidate 

the inspection or nullify the citations issued as a result 

of the inspection. It is ORDERED therefore that the operator's 

motion for summary disposition or to dismiss be, and hereby is, 

DENIED. 

Following oral argument on the motions, counsel for both 

parties moved that in the event respondent's legal defense 

was overruled settlement of the three violations involved be 

approved at the amount originally assessed for each violation, 

$325.00. The remaining two violations charged are subject 

of a motion for approval of settlement in the amount of $160.00 

each filed November 29, 1979. For the reasons set forth in 

the parties' submissions and based on an independent evaluation 

and de novo review of the circumstances, I find the proposed 

settlement in accord with the purposes and policy of the Act. 

Accordingly, it is FURTHER ORDERED that the motions to 

approve settlement be, and hereby are, GRANTED, and that the 

operator pay the penalty agreed upon, $1295.00, on or before 

Wednesday, February 20, 1980, and tha ubject to payment 

the captioned petition be DISMISSED. 

275 
Distribution: 

Linda Leasure, Esq., U.S. Department of Labor, Office of the 

Solicitor, 881 Federal Office Building, 1240 E. Ninth St., 

Cleveland, OH 44199 (Certified Mail) 

David Cohen, Esq., American Electric Power Service Corp., 

P.O. Box 700, Lancaster, OH 43130 (Certified Mail) 

276 *U.S. GOVERNMENT PRINTING OFFICE: 1980-0-311-143/3312