INDEX MAY 1980 

Commission Decisions 

5-16-80 

5-23-80 

5-28-80 

Peabody Coal Co, MSHA v. 

Capitol Aggregates Inc, MSHA v. 

Valley Camp Coal Co, Ronald McCracken v. 

Administrative Law Judge Decisions 

5-05-80 

5-05-80 

5-30-80 

5-05-80 

5-06-80 

5-07-80 

5-07-80 

5-07-80 

5-09-80 

5-13-80 

5-13-80 

5-14-80 

5-15-80 

5-20-80 

5-21-80 

5-22-80 

5-22-80 

5-22-80 

5-22-80 

5-23..,...80 

5-29-80 

5-29-80 

5-29-80 

5-30-80 

Peabody Coal Co, MSHA v. 

Lone Star Industries, MSHA v. 

Lone Star Industries, MSHA v. 

Consolidation Coal Co, MSHA & Timothy 

P. Scott v. 

Kessler Coals, MSHA v. 

Northern Aggregates, MSHA v. 

Northern Aggregates, MSHA v. 

Peabody Coal Co, MSHA v. 

Consolidation Coal Co, MSHA v. 

Sierra Ready Mix & Contracting Co, MSHA v. 

Schneiders Ready Mix Inc, MSHA v. 

FMC Corp., MSHA v. 

Medusa Cement Co, MSHA v. 

U S Steel Corp, MSHA v. 

Peabody Coal Co, MSHA v. 

Missouri Gravel Co, MSHA v. 

Mountain Top Fuel Inc, MSHA v. 

Middle Kentucky Construction, MSHA v. 

McCoy Elkhorn Coal Corp v. MSHA 

Peabody Coal Co., MSHA v. 

The Hoke Co. Inc, MSHA v. 

Hastie Mining Co,MSHA v. 

B V Hedrick Gravel & Sand Co., MSHA v. 

Consolidation Coal Co v. MSHA 

LAKE 80-25 

DENV 79-163-PM 

WEVA 79-116-D 

VINC 78-457-P 

VA 79-83-M 

VA 79-83-M 

LAKE 80-78-D 

WEVA 80-38 

YORK 79-79-M 

WILK 79-144-PM 

CENT 79-29 

PENN 80-16-R 

WEST 79-250-M 

WEST 79-69-M 

WEST 79-167-M 

SE 79-75 

PENN 79-123 

LAKE 80-36 

LAKE 80-15-M 

KENT 79-161-D 

KENT 79-7 

KENT 80-122-R 

LAKE 80-247 

BARB 79-327-P 

LAKE 79-191-M 

SE 79-88-M 

WEVA 80-13-R 

Pg. 1035 

Pg. 1040 

Pg. 1044 

Pg. 1045 

Pg. 1050 

Pg. 1055 

Pg. 1056 

Pg. 1060 

Pg. 1062 

Pg. 1065 

Pg. 1072 

Pg. 1084 

Pg. 1086 

Pg. 1092 

Pg. 1098 

Pg. 1105 

Pg. 1115 

Pg. 1122 

Pg. 1124 

Pg. 1126 

Pg. 1137 

Pg. 1143 

Pg. 1153 

Pg. 1156 

Pg. 1163 

Pg. 1169 

Pg. 1173 

Ccrrmission Decisions 

May 1 - 31, 1980 

MAY 

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

Secretary of Labor, MSHA v. Capitol Aggregates, Inc., DENV 79-163-PM, 

etc. (Judge Moore, April 14, 1980) 

Ronald H. McCracken v. Valley Camp Coal Company, WEVA 79-116-D. 

(Judge Melick, April 18, 1980) 

Review was Denied in the following cases during the month of MAY: 

Secretary of Labor, MSHA v. The Valley Camp Coal Company, WEVA 79-111, 

HOPE 79-318-P. (Judge Merlin, March 28, 1980) 

Hecla Mining Company v. Secretary of Labor, MSHA, WEST 79-251-M. 

(Judge Carlson, April 1, 1980) 

Secretary of Labor, MSHA v. Jim Walter Resources, Inc., & Cowin and 

Company, Inc., BARB 77-266-P, BARB 76X465-P. (Judge Koutras, April 1, 

1980 Order) 

Secretary of Labor, MSHA v. Morton Salt Division, Morton-Norwich 

Products, Inc.; Frontier-Kemper Constructors, CENT 80-59-M. (Judge 

Kennedy, April 14, 1980 Order) 

Secretary of Labor, MSHA v. Cowin and Company, HOPE 76-210-P through 

HOPE 76-213-P. (Judge Broderick, March 27, 1980 Order) 

Secretary of Labor, MSHA v. Duval Corporation, WEST 79-194-M. (Judge 

Morris, March 4, 1980) 

Heldenfels Brothers, Inc. v. Secretary of Labor, MSHA, DENV 79-575-PM, 

DENV 79-576-PM. (Judge Stewart, April 8, 1980) 

Secretary of Labor, MSHA v. Leeco, Incorporated, KENT 79-112. (Judge 

Koutras, April 14, 1980) 

Island Creek Coal Company v. Secretary of Labor, MSHA and UMWA, 

WEVA 79-242-R. (Judge Cook, April 22, 1980) 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, p.C. 20006 

May 16, 1980 

. MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket Nos. LAKE 

v. 

PEABODY COAL COMPANY 

DECISION 

80-25 

80-26 

80-27 

80-36 

80-77 

The primary question before us is whether the administrative law 

judge erred in summarily assessing a penalty for an alleged violation of 

30 CFR §75.400. 1/ For the reasons discussed below, we hold that he 

erred. We therefore vacate the judge's decision assessing a penalty, 

and remand the case for further proceedings consistent with this opinion. 

On May 3, 1979, a Mine Safety and Health Administration ["MSHA"] 

inspector issued to Peabody Coal Company a withdrawal order under section 

104 of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. §801 et 

seq. (Supp. II 1978)["the Act"]. The order alleged the existence of 

loose coal and coal dust from 4 to 20 inches in depth for a distance of 

about 900 feet in violation of 30 CFR §75.400. 

This penalty litigation began when MSHA issued to Peabody a 

notification of proposed assessment of penalty under section 105(a) for 

the alleged coal accumulations violation, and Peabody filed a notice of 

contest under section 105(d) of the Act. 2/ Under Conunission Rule 

27(a), 29 CFR §2700.27(a), the Secretary then filed with the Commission 

a proposal for a penalty. Peabody filed an answer in effect denying it 

had violated the prohibition in 30 CFR §75.400 against accumulations of 

1./ That section provides: 

§75.400 Accumulations of combustible materials. 

Coal dust, including float coal dust deposited on rock-dusted 

surfaces, loose coal, and other combustible materials, shall be 

cleaned up and not be permitted to accumulate in active workings or 

on electric equipment therein. 

Section 105 provides in part: 

(d) 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 ••• of an order issued under section 104 ••• the Secretary 

shall immediately advise the Conunission of such notification, and 

the Commission shall afford an opportunity for a hearing (in accordance with section 554 of title 5, United States Code, ••• ) and 

thereafter shall issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's ••• proposed penalty, 

or directing other appropriate relief •••• 

80-5-10 

1035 
loose coal and coal dust. In its response to the administrative law 

judge's pre~hearing order, Peabody reiterated this denial. It admitted 

that some "spillage" had occurred, but specifically denied that the 

spillage constituted an "accumulation" within the.meaning of the standard, 

as interpreted by the Commission in Old Ben Coal Co., 1 FMSHRC 1954, 1 

BNA MSHC 2241, 1979 CCR OSHD ,124,084 (1979). Before an evidentiary 

hearing was scheduled, motions to approve a settlement were filed. The 

Secretary proposed that the judge approve a penalty settlement in the 

amount of $550 for the alleged violation of 30 CFR §75.400; the 

Secretary in separate motions also proposed settlements for several 

alleged respirable dust violations involved in the consolidated dockets. 11 

In a document entitled "Decision and Order," issued on March 5, 

1980, the judge granted the motions to approve a settlement for the four 

respirable dust violations, but disapproved the proposed settlement of 

$550 for the alleged violation of 30 CFR §75.400. The judge did not 

find that Peabody admitted or was specifically called upon to deny, that 

the depths of the spillage were those alleged in the withdrawal order. 

The judge did not accord the parties an opportunity to be heard, and 

immediately assessed a penalty of $1,000. Peabody filed a petition for 

discretionary review, which we granted on April 14, 1980. !±./ 

Section 105(d) of the Act, together with section 5(b) of the 

Administrative Procedure Act, 5 U.S.C. §554(c) (1976), 5/ and the 

Commission's rules, require that unless a case is settl~d or the respondent defaults, an administrative law judge must afford the parties .an 

opportunity for a hearing on disputed issues of material fact. Commission Rule 63(b), 29 CFR §2700.63(b); 6/ also cf. Commission Rule 64, 

29 CFR §2700.64. J_/ Because Peabody denied that--;:n "accumulation" had 

11 The coal dust accumulation case (Docket No. LAKE 80-77) is consolidated 

with four respirable dust cases (Docket Nos. LAKE 80-25, 80-26, 80-27, 

and 80-36). 

!!../ Peabody filed on April 18, 1980, a motion to withdraw its petition 

for discretionary review. We need not rule on that motion because we 

now grant Peabody all the relief it sought in its motion. 

2_/ Section 5(b) provides: 

The agency shall give all interested parties opportunity for--

(1) the submission and consideration of facts, arguments, 

offers of settlement, or proposals of adjustment when time, the 

nature of the proceeding, and the public interest permit; and 

(2) to the extent that the parties are unable so to determine 

a controversy by consent, hearing and decision on notice and in 

accordance with sections 556 and 557 of this title. 

&../ Rule 63(b) provides: 

Penalty proceedings. When the Judge finds the respondent in default 

in a civil penalty proceeding, the Judge shall also enter a summary 

order assessing the proposed penalties as final, and directing that 

such penalties be paid. 

J_/ Rule 64 provides in pertinent part: 

(a) Filing of motion for summary decision. , At any time after 

commencement of a proceeding and before the scheduling of a hearing 

on the merits, a party to the proceeding may move the Judge to 

render summary decision disposing of all or part of the proceeding. 

(cont.) 

1036 
occurred, and the judge did not find that the depth of the spillage was 

admitted; a disputed issue of material fact remained unresolved. Accordingly, the judge erred in not granting the parties an opportunity to be 

heard on at least that issue. A remand is therefore necessary. ~/ 

Peabody's petition for discretionary review also raises several 

questions concerning the judge's order of March 25, 1980, in which the 

judge denied Peabody's motion for reconsideration. We do not pass upon 

the merits of these issues, for we find that the judge had no jurisdiction to enter that order. Inasmuch as the judge's decision of March 5 

constituted "his·final disposition of the proceedings" within the 

meaning of section 113(d)(l) of the Act, the judge's jurisdiction terminated on that date. Commission Rule 65(c), 29 CFR §2700.65(c). 2/ He 

therefore had no power to rule on the motion to reconsider. Secretary 

on behalf of Pasula v. Consolidation Coal Co., 1 FMSHRC 25, 1 BNA MSHC 

2030, 1977 CCR OSHD ,[23,465 (1979). See also Penn Allegh Coal Co., 

March 1979 FMSHRC No. 3, 1979 CCR OSHD ,[23,439 (1979), in which we 

cautioned that the issuance of multiple opinions "threatens the smooth 

functioning of the Commission's review process." 10/ 

n. 7/ cont. 

- (b) Grounds. A motion for summary decision shall be granted only if 

the entire record, including the pleadings, depositions, answers to 

interrogatories, admissions, and affidavits shows: (1) that there 

is no genuine issue as to any material fact; and (2) that the 

moving party is entitled to summary decision as a matter of law. 

~ We need not pass upon whether other disputed issues of material fact 

remain. We leave that to the administrative law judge to resolve on 

remand. 

2./ Rule 65(c) provides in pertinent part: 

(c) ••. The jurisdiction of the judge terminates when his 

decision has been issued by the Executive Director [of the 

Commission]. 

10/ In that order, we stated: 

The filing by the judge of multiple opinions impedes the 

efforts of the aggrieved parties to timely comply with the 

requirements for petitions, encourages "the hasty drafting of 

inferior petitions, and thus impairs the usefulness of this 

crucial document to the Commission. Moreover, the judge's 

action may create confusion as to the status of the issues, 

the deadlines for filing and granting of petitions and the 

exercise by the Commission of its power to direct review on 

its own motion. In short, the judge's action threatens the 

smooth functioning of the Commission's review process. 

1037 
Accordingly, we remand this case to the judge for proceedings 

consistent with this opinion. We also strike the judge's order of March 

25, 1980, denying the motion for reconsideration, and his subsequent 

orders of April 8 and 15, 1980. 

Marian Pearlman Nease, Commissioner 

1038 
DistribuLiOn 

David S. Hemenway 

301 N. Memoral Drive 

P.O. Box 235 

St. Louis, Missouri 63166 

Cynthia A. Attwood, Esq. 

Thomas A. Mascolino, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

Arlington, Va. 22203 

Administrative Law Judge Joseph B. Kennedy 

Federal Mine Safety and Health Review Commission 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Churcn, Virginia 22041 

1039 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR . 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CAPITOL AGGREGATES, INC. 

WASHINGTON, D.C. 20006 

May 23, 1980 

Docket Nos. DENV 79-163-PM 

DENV 79-240-PM 

DECISION 

The question in this case is whether the administrative law judge 

had authority to stay the effect of and reconsider his final decision. 

We hold that he did not. 

On January 8 and 9, 1980, an evidentiary hearing was held before an 

administrative law judge. At the end of the hearing, the judge ordered 

the parties to file any post-hearing briefs within thirty days after 

receipt of the transcript. The transcript was received by the judge on 

February 8. When, after two months had passed and the parties had still 

not filed briefs, the judge transmitted his decision to the Executive 

Director, who promptly issued it on April 14. 

The judge was later informed that, although the parties had ordered 

transcript copies from the reporting company, neither party had received 

them. On April 22, the judge issued an order purporting to stay the 

effective date of his April 14 decision until he had received affidavits 

from the parties and a statement from the reporting company, and, 

possibly, until he had considered the parties' briefs on the merits. 

The judge was careful to caution the parties that he may lack the 

authority to issue such a stay. After receiving' affidavits of counsel 

and a statement from the reporting company, the judge announced that his 

stay would remain in effect until he had an opportunity to study the 

briefs on the merits. He then·set a briefing schedule and suggested 

that the parties direct their arguments to his April 14 decision. 

80-5-13 

1040 
On May 14, the thirtieth day after the issuance of the judge's 

decision, Capitol Aggregates filed a petition for discretionary review 

of the judge's decision; the petition was filed to protect its right to 

discretionary Commission review if the judge lacked the power to stay 

his decision. On that same day, the Commission directed review of the 

judge's decision on its own motion; the issues for review included 

whether the judge had the authority to stay the effect of and reconsider 

his decision. On May 20, 1980, the petition for discretionary review, 

which raises issues concerning the correctness of the judge's April 14 

decision, was granted. 

The judge's decision of April 14 constituted his "final disposition 

of the proceedings" within the meaning of section 113(d)(l) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et~· 

(Supp. II 1978), and Commission Rule 65(a), 29 CFR §2700.65(a). Commission Rule 65(c), 29 CFR §2700.65(c), which codifies Commission case 

law, states that "[t]he jurisdiction of the judge terminates when his 

decision has been issued by the Executive Director." The judge therefore had no authority to stay the effect of his decision or to reconsider 

it. Peabody Coal Co., 2 FMSHRC __ , 1 BNA MSHC __ , 1980 CCR OSHD ,I __ (No. Lake 80-25, May 16, 1980). Cf. Penn Allegh Coal Co., March 1979 

FMSHRC No. 3, 1979 CCH OSHD ,123,439 (1979) (issuance of multiple opinions 

"threatens the smooth functioning of the Commission's review process"). 1/ 

The judge's order of April 22, 1980, is therefore vacated. -

1./ Rule 65(c) codifies Secretary on behalf of Pasula v. Consolidation 

Coal Co., 1 FMSHRC 25, 1 BNA 2030, 1979 CCR OSHD ,123,465 (1979). In his 

order of April 22, 1980, the judge questioned the continuing vitality of 

Pasula. The judge noted that a judge had in another case reconsidered 

his final decision and that the Commission had not directed review. The 

judge also interpreted our decision in Valley Camp Coal Co., 1 FMSHRC 

791, 1 BNA MSHC 2083 (1979), as holding that the judge there should 

have, and thus may have, reconsidered his decision. 

In view of Rule 65(c)'s clarity, and its obvious purpose of codifying 

the Pasula precedent, the continuing vitality of Pasula is plain. That 

a contrary decision of another judge went unreviewed should not have 

cast doubt on the matter. A failure to direct review of a judge's 

decision inconsistent with Commission case law does not necessarily 

indicate that the Commission concurs in that judge's decision. A 

judge's decision may also go unreviewed because it does not raise an 

issue deserving plenary Conunission review, or raises one in a posture 

unsuitable for efficient resolution by the Commission. It -is partly for 

this reason that Commission Rule 73 states that "[a]n unreviewed decision of a judge is not a precedent binding upon the Commission." 

Finally, Valley Camp does not hold that the judge in that case should 

have reconsidered his final decision. That decision holds only that 

adequate cause to excuse a late filing had been shown. 

1041 
Our rules and precedents should not be construed to mean that an 

administrative law judge can do nothing if he discovers that he erred in 

his decision or that the case should be returned to him for other reasons. 

The judge may, by a letter placed in the record, inform the Commission 

of the circumstances and suggest that his decision· be directed for 

review and the case remanded to him. Commission Rule 65{c) also states 

in some detail the procedure to be followed to correct clerical errors 

and mistakes in a judge's decision. 

Finally, we conclude that, with the case in this posture, Commission review of the other issues should not be undertaken. The judge 

sought to give the parties an opportunity to file briefs, and Capitol 

Aggregates evidently wishes to file a brief with the judge. We consider 

it prudent to permit the administrative law judge to first consider the 

parties' arguments. In this way, the new decision of the judge may be 

more sharply focused upon the issues of concern to the parties, and may 

so squarely resolve them that discretionary review by the Commission may 

not be sought again. 

Accordingly, the judge's decision of April 14 is vacated, and the 

case is remanded for further proceedings. 

1042 
Distribution: 

Charles C. Moore, Jr. 

Administrative Law Judge 

No. 2 Skyline, Ste 1000 

5203 Leesburg Pike 

Falls Church, VA 22041 

Cynthia L. Attwood, .Esq. 

U.S.Department of Labor 

Counsel, Appellate Litigation 

4015 Wilson Boulevard 

Suite 400 

Arlington, VA 22203 

Sandra D. Henderson, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

555 Griffin Square Building 

Dallas, Texas 75202 

Robert W. Wachsmuth, Esq. 

311 Bank of San Antonio 

One Romano Plaza 

San Antonio, TX 78205 

Richard L. Reed, Esq. 

2600 Tower Life Building 

San Antonio, TX 78205 

1043 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

RONALD H. McCRACKEN 

v. 

VALLEY CAMP COAL COMP ANY 

1730 K STREET NW, GTH FLOOR 

WASHINGTON, D.C. 20006 

May 28, 1980 

Docket No. WEVA 79-116-D 

DIRECTION FOR REVIEW AND ORDER 

The petition for discretionary review filed by Mr. McCracken is 

granted. The case is remanded to the administrative law judge for a 

ruling on Mr. McCracken's claim that newly-discovered evidence 

warrants re-opening of the record and further proceedings. 

Richard V. Backley, 

A. E. Lawson, Commissioner 

~\JillJ, ~lCt~Q WO..Ll \c1a_.t.c 

Marian Pearlman Nease, Commissioner 

80-5-18 

1044 
Administrative Law Judge Decisions 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52C3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

5 MAY 1980 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. VINC 78-457-P 

Petitioner A.O. No. ll-00598-02040V 

Vo 

Eagle No. 2 Mine 

PEABODY COAL COMPANY, 

Respondent 

DECISION 

Appearances: Inga Watkins, Attorney, Office of the Solicitor U.S. Department of Labor, Arlington, Virginia, for the Petitioner; 

Thomas Gallagher, Esquire, St. Louis, Missouri, for the 

Respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns proposals for assessment of civil penalties 

filed by the petitioner on August 17, 1978, against the respondent pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. § 820(a), charging the respondent with two violations of mandatory safety standards, namely, 30 C.F.R. §§ 75.200 and 75.202. The alleged 

violations were served on the respondent by MSHA coal mine inspector Harold 

Gulley in two section 104(c)(2) orders issued on August 1 and 29, 1977, pursuant to the 1969 Act. Petitioner seeks an assessment of civil penalties 

for the alleged violations in the amount of $10,000 for each citation, for 

a total assessment of $20,000. 

Respondent filed a timely notice of contest denying that it has violated the cited mandatory safety standards and requested a hearing. The 

hearing was initially scheduled for February 13, 1979, but was continued 

on motion by the respondent and by agreement of the parties because of 

the unavailability of respondent's sole witness. In addition, the parties 

engaged in discovery, and petitioner responded to certain interrogatories 

served on it by the respondent and they are a matter of record. The case 

was subsequently redocketed for hearing at St. Louis, Missouri, March 25, 

1980, and although petitioner's counsel advised me by telephone late Friday, 

March 21, 1980, that the parties had engaged in settlement negotiations, 

1045 
the parties were directed to appear at the hearing as scheduled and were 

informed that they would be given an opportunity to argue any proposals 

for settlement on the record. · 

The parties appeared at th~ hearing on March 25, and at that time 

informed me that their prior settlement negotiations were finalized and 

they sought leave to present them on the record for my consideration pursuant to Commission Rule 30, 29 C.F.R. § 2700.30. After reminding the 

parties of the fact that the hearing notice in this matter was issued by 

me more than sixty (60) days in advance of the scheduled hearing of 

Harch 25, 1980, and after advising them that I considered petitioner's 

notification to me by telephone that the parties were in the midst of 

settlement negotiations to be untimely, they were permitted to present 

their proposed settlement and supporting arguments on the record for my 

consideration. 

Discussion 

The citations at issue in this proceeding and the conditions and practices cited by MSHA inspector Harold Gulley are as follows: 

Citation No. 7-0161, August 1, 1977, citing a violation of 30 C.F.R. 

§ 75.200, states: 

The roof control plan was not being followed on section 

008, 3 north off 3 mains east in that the entries were to 

[sic] wide. No. 5 entry 23 feet in width, No. 2 crosscut 

outby face between No. 4 and 5 entries 24 feet in width, 

No. 4 entry 60 feet outby face 26 to 30 feet in width, 

No. 3 entry 27 feet in width. Sketch 1 in roof bolting 

plan development entries states 20 feet width in entries 

and crosscuts. 

Citation No. 7-0199, August 29, 1977, citing a violation of 30 C.F.R. 

§ 75.202, states: 

Overhanging ribs were observed in rooms and crosscuts 

Nos. 1 thru 6 and first crosscuts outby face (No. 1 room, 

52 to 86 inches) (No. 2 room 71 inches) (Crosscuts between 

No. 1 and 2 room 49 inch) (crosscuts between 2 & 3, 

76 inches) (No. 3 room 53 inch and crosscut between 3 & 

4 room 65 .inch) (No. 4 room 51 to 71 inch undercut and 

crosscut 4 & 5, 48 inch) No. 5 and 6 room and crosscuts 

6 inch to 55 inches undercut. 

The parties stipulated to the following (Tr. 5): 

1. Respondent is a large coal mine operator and the Eagle No. 2 Mine 

is a large mining operation. 

1046 
2. Respondent is subject to the 1969 Federal Coal Mine Health and 

Safety Act, as well as the 1977 Amendments thereto. 

3. MSHA inspector Harold Gulley was, at all times relevant to this 

proceeding, an authorized representative of the Secretary, the citations 

were properly served on the respondent, and the conditions and practices 

described on the face of the citations did not constitute an imminent 

danger. 

4. The proposed civil penalty assessments aqd settlement amounts will 

not adversely affect res.pondent 's ability to remain in business. 

The parties propose a settlement in the amount of $2,000 for Citation 

No. 7-0161, issued on August 1, 1977, and $3,500 for Citation No. 7-0199, 

issued on August 29, 1977. In support of the proposed settlement disposition of the citations, petitioner's counsel indicated that Inspector Gulley 

was present in the courtroom and concurred in the proposed disposition of 

the matter. Counsel summarized his testimony if it were necessary for him 

to testify in the matter, and counsel also introduced for the record 

Exhibits M-1 through M-12, which are copies of the citations, inspector's 

statements, notes, the applicable mine roof-control plan, sketches of the 

entries in question, the termination notices, and a computer printout of 

the prior history of violations issued at the mine in question. 

Respondent introduced copies of its Exhibits, R-1 through R-8 pertaining to one citation, and R-1 through R-4, pertaining to the second citation. 

These documents consist of notes, sketches, preshift reports, photographs, 

and the mine ventilation and roof-control plans. In addition, respondent's 

counsel summarized its position with respect to the merits of the citations, 

as well as certain factual and legal defenses he would advance in defense of 

the citations, and he concurred in the proposed settlement disposition of 

the matter. 

In further support of the proposed settlement, petitioner's counsel 

asserted that the initial proposed civil penalty assessments resulted from 

an application of a "special assessment" procedure and policy which is no 

longer being followed by MSHA. The initial assessments of $10,000 for each 

of the violations in question resulted from a finding that the citations 

were "unwarrantable failure" citations, and coupled with the fact that 

respondent is a large operator, the civil penalty would "automatically be 

iq the range of $5,000 to $10,000 unless there were other strong and mitigating factors" (Tr. 6). Counsel stated that this policy is no longer 

followed by MSHA, and counsel requested that I consider the matter de ~· 

Further, counsel asserted that MSHA's Office of Assessments is in agreement with the proposed settlement of the two citations in question and that 

the inspector who issued the citations is also in agreement with MSHA's 

proposed disposition of the citations (Tr. 26, 29). 

In addition to the foregoing, MSHA's counsel presented arguments with 

respect to the circumstances surrounding the issuance of the citations in 

1047 
question, and in particular presented information with respect to the 

statutory criteria set out in section llO(i) of the Act. 

Good Faith Compliance 

MSHA asserted that respondent exercised rapid compliance in achieving 

abatement of the conditions cited (Tr. 8, 11). 

Gravity 

With regard to Citation No. 7-0161, 30 C.F.R. § 75.200, MSHA stated 

that while the roof areas where the widths of the entries were in fact 

driven to excessive widths as noted in the citation, the roof areas themselves were not loose (Tr. 7). However, if called to testify, the inspector 

would state that the hazard created by the condition would pose a risk of a 

roof fall created by a strain placed on the roof by the excessive widths in 

the entries in question (Tr. 8). 

With regard to Citation No. 7-0199, charging a violation of 30 C.F.R. 

§ 75.202, MSHA asserted that whi+e the conditions cited were serious, most 

of the overhanging ribs were outby the face and were fairly solid (Tr. 10-

11). Respondent's arguments regarding this citation reflect that the 

overhanging ribs would have been taken down during the shift in which the 

citation was issued, that this procedure was in accord with the approved 

mining plan, that the ribs in question were "tight," and in fact had to 

be drilled and shot down (Tr. 12-13). 

Negligence 

With regard to both citations, MSHA advanced the argument that the 

conditions cited were visually obvious, that preshift or onshift examinations were required to be conducted, and that the conditions cited existed 

for at least one shift prior to the time they were cited (Tr. 6-7, 10). 

Respondent advanced the argument that corrective action had begun 

to correct the wide entry violation prior to the issuance of the citation 

alleging a violation of section 75.200, and that with respect to the alleged 

violation of section 75.202, its evidence would show that in the course of 

the normal mining cycle, the overhanging ribs cited would have been taken 

down during the shift in which the citation issued, and that this procedure 

was in accord with respondent's approved ribcontrol plan (Tr. 8, 10-13). 

History of Prior Violations 

Petitioner's evidence reflects that a total of 504 violations were 

issued at the mine during the 2-year period prior to the issuance of the 

citations in question, that 24 of these were for violations of section 

75.200, and 19 were for violations of section 75.202 (Tr. 14-15). Considering the size and scope of respondent's mining operations at the 

1048 
mine in question, petitioner argued that _while these citations were serious, 

respondent's overall prior history of violations is not extraordinarily 

bad (Tr. 16). 

Conclusion 

Taking into account the fact that the citations in question were issued 

over 2-1/2 years ago, that the initial assessments were arrived at through 

the application of a "special assessment" procedure and policy which is no 

longer in use, and the fact that MSHA's Office of Assessments is in accord with 

the proposed settlement, I conclude and find that the proposed settlement is 

reasonable. Further, I am persuaded by the arguments presented by counsel 

with respect to the factors of negligence, gravity, and good faith compliance, as supported by the documentary evidence presented in support of these 

statutory criteria, that the agreed-upon payment of $5,500 for the two citations, which have been vigorously contested by the respondent, is in the 

public interest and will effectuate the deterrent purposes of the Act and 

the mandatory safety standards in issue in this proceeding. 

ORDER 

Pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, the proposed 

settlement is APPROVED and respondent is ORDERED to pay civil penalties in 

the amount of $5,500 in satisfaction of the two citations in issue in this 

proceeding, payment to be made to MSHA within thirty (30) days of the date 

of this decision and order. Upon receipt of payment by MSHA, this matter 

is DISMISSED. 

~·~~ Administrative Law Judge 

Distribution: 

Inga Watkins, Esq., Office of the Solicitor, U.S. Department of Labor, 

4015 Wilson Boulevard, Arlington, VA 22203 (Certified Mail) 

Thomas Gallagher, Esq., Peabody Coal Company, P.O. Box 235, St. Louis, 

MO 63166 (Certified Mail) 

1049 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR · 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LONE STAR INDUSTRIES, INC., 

Respondent 

May 5, 1980 

Civil Penalty Proceeding 

Docket No. VA 79-83-M 

A.O. No. 44-02422-05002 

Curles Neck Pit Barge 

and Dredge 

DECISION 

Appearances: Barbara Krause Kaufmann, Esq., Office of the 

Solicitor, U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

David S. Smith, Esq., Kilcullen, Smith & Heenan, 

Washington, D.C., for Respondent. 

Before: Chief Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

Two citations are involved in this proceeding. The parties 

have agreed to settle one of them and have submitted a motion to 

approve the settlement agreement. With respect to the other citation, the parties have filed a joint stipulation of facts and have 

submitted the matter for decision based upon those facts. The 

stipulation was submitted to Administrative Law Judge Michels. 

Upon his retirement, the case was assigned to me. 

THE SETTLEMENT AGREEMENT 

On April 21, 1980, Petitioner filed a motion to approve a settlement agreement and dismiss the proceeding with reference to Citation No. 301581 which charged a violation of 30 C.F.R. § 56.14-1. 

The initial assessment was $60 and the parties propose to settle for 

$20. 

In support of the motion, Petitioner states that the condition--

alleged failure to guard a coupling for a crusher drive motor--was 

not serious in that it was largely guarded by location. It appeared 

1050 
highly unlikely that the coupling would contact any of the crusher 

mechanisms. The settlement agreement is in accordance with a decision of Judge Koutras in Docket No. VINC 79-21-PM. Having considered 

the statutory criteria in section llO(i) of the Act, I conclude that 

the settlement agreement should be approved. 

STIPULATIONS 

The parties have stipulated as follows: 

1. Citation No. 301578 was issued to Responde.nt by Federal 

mine inspector Charles W. Quinn on February 13, 1979,,charging a violation of 30 C.F.R. § 56.11-2. 

2. The citation states in part: "There was no handrail on the 

water side of the catwalk from land to the No. 12 plant. Employees 

entering this area are exposed to this unsafe condition." 

3. Inspector Quinn's "Inspector's Statement" reads in part: 

"Handrail provided for one side of the catwalk but not the water 

side." 

4. The structure characterized as a "catwalk" is made of 

wooden planks and is supported on both sides by dolphins or pilings. 

5. The specific area where the inspectQr required handrails to 

be placed in the subject citation is about 45 feet long and is used 

by the company as a dock where persons and supplies are loaded and 

unloaded from Respondent's tug boats. This structure is-utilized, 

on a daily basis, by Respondent's "puffer tugs" as the onJ.y available docking facility for such tugs, due to the placement of sand 

barges ("sand scows") around the dredge for loading purposes. At 

the time of the inspection, handrails existed at all areas other 

than those used for access to boats. 

6. A photograph attached to the stipulation shows a tug boat 

approaching the area at low tide. 

As may be observed from the water line on the dolphins or pilings, at high tide the bow of the tug boat rises to approximately 

the same height as the handrails which have been installed. 

7. On at least one occasion subsequent to installation of the 

handrails pursuant to the inspector's citation, they have been 

knocked down by an approaching tug boat. 

8. The part of the dock in question also serves as a walkway 

for persons who work on a dredge which is used as a preparation 

facility or plant. 

1051 
9. Persons who work in the vicinity routinely wear life 

preservers. 

10. Respondent abated the condition in good faith although it 

expressed its position that the regulation cited is not applicable 

to the facility in question. 

11. There is no history of prior safety violations at the 

operation. 

12. A handrail was provided on the side of the dock away from 

the water. 

13. The dock was icy at the time the citation was issued. 

14. There is no history of any accident or injury at the area 

in question. 

15. Five to six men use the dock as a walkway on a daily basis 

to get to and from the processing dredge. Cleanup and maintenance 

people use the dock as a walkway from time to time. 

The stipulation is accepted and I find the facts set out 

therein. 

REGULATION 

30 C.F.R. § 56.11-2 provides: "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." 

ISSUES 

1. Whether the facility involved herein is an elevated walkway 

within the meaning of the regulation. 

2. If so, whether the facts show a violation of the regulation. 

3. If so, what is the appropriate penalty for the violation. 

CONCLUSIONS OF LAW 

1. The area covered by the citation in question was an 

elevated walkway subject to the safety standard set out in 30 C.F.R. 

§ 56.11-2. 

DISCUSSION 

Part 56 contains health and safety standards for sand, gravel 

and crushed stone operations. Section 56.11 applies to travelways, 

1052 
and section 56.11-2 applies to, among other things, elevated walkways. A walkway is a passage for pedestrians. The stipulations and 

findings of fact state that the area in question "serves as a walkway for persons who work on a dredge which is used as a preparation 

facility or plant" and "cleanup and maintenance people also use the 

dock as a walkway from time to time." The fact that the area is 

also used as a dock for loading and unloading tugboats does not 

negate its character as a walkway. 

The photograph showing the area at low tide clearly indicates 

that the walkway is higher than the water level. The stipulation 

states that at high· tide, the bow of the tugboat rises to approximately the same height as the handrails. It is clear that during 

at least some of the time the area is used as a walkway, it is 

elevated. The hazard which the standard seeks to address is the 

hazard of falling from a walkway. This hazard exists even if the 

water level is at or near the height of the walkway. The use of the 

facility for loading and unloading does not lessen the hazard for 

those using it as a walkway. The fact that boats are apt to knock 

down the rail does not excuse its absence. 

2. The parties agree that a handrail was not provided for the 

area in question on February 13, 1979. Therefore, a violation of 

30 C.F.R. § 56.11-2 was shown. 

3. The violation was moderately serious. The facts do not 

show that Respondent was negligent. 

4. Based on my finding that a violation occurred and on a consideration of the criteria set out in section llO(i) of the Act, an 

appropriate penalty for the violation is $90. 

ORDER 

Therefore, IT IS ORDERED that Respondent pay the following penalties within 30 days of the date of this decision: 

Citation No. 301581 

Citation No. 301578 

$ 20 

$ 90 

Total $110 

. .., 

'f--i I / , ' , . . t. ·7 './.. ' • 

;J.}/'.-,~ ... -5 , ._J ', . (, ( .. \ 

James A. Broderick 1 Chief Administrative 

. 1053 

.• (· f<._ « 

Law Judge 
Distribution: By certified mail. 

David S. Smith, Esq., Attorney for Lone Star Industries, Inc., Kilcullen, 

Smith & Heenan, 1800 M Street, N.W., Washington, DC 20036 

Barbara K. Kaufmann, Attorney, Office of the Solicitor, U.S. Department of 

Labor, 3535 Market Street, Philadelphia, PA 19104 

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

Arlington, VA 22203 

1054 
FED'ERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MESA), 

Petitioner 

v. 

LONE STAR INDUSTRIES, INC., 

Respondent 

May 30, 1980 

Civ.il Penalty Proceeding 

Docket No. VA 79-83-M 

A.O. No. 44-0242205002 

Curles Neck Pit Barge 

and Dredge 

ORDER CORRECTING DECISION 

On May 27, 1980, Respondent filed a motion to correct the decision 

entered herein on May 5, 1980, which found as the appropriate penalty 

for the violation charged in citation No. 301578 to be $90. This finding was based in part on the stipulation of facts submitted by the parties which stated that the MSHA assessment office assessed a $90 penalty 

for the violation. In fact the assessed penalty was $78. Petitioner 

does not oppose the motion. 

Therefore, IT IS ORDERED that the decision issued herein on May 5, 

1980 IS CORRECTED to find that the appropriate penalty for the violation 

charged in citation No. 301578 is $78. 

Respondent is ORDERED to pay the following penalties for the violations covered by this docket number within 30 days of the date of this 

decision: 

Citation No. 301581 $20 

Citation No. 301578 78 

Total $98 

._.,,/ .. icJ-A/Vv?? James A. ~ Broderick j,1:J ~"1/f- ~ Chief Administrative Law Judge 

Distribution: By certified mail. 

Davids. Smith, Esq., Attorney for Lone Star Industries, Inc., Kilcullen, 

Smith & Heenan, 1800 M Street, N.W., Washington, DC 20036 

Barbara K. Kaufmann, Attorney, Office of the Solicitor, U.S. Department 

of Labor, 3535 Market Street, Philadelphia, PA 19104 

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

Arlington, VA 22203 

1055 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

5 MAY 1980 

SECRETARY OF LABOR, Complaint of Discharge, 

Discrimination or Interference 

and Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), On its 

Own Behalf and On Behalf of 

TIMOTHY P. SCOTT 

Complainants 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. LAKE 80-78-D 

No. 60 Mine 

DECISION 

Appearances: Miguel Carmona, Esq., Office of the Solicitor, U.S. 

Before: 

Department of Labor, Chicago, Illinios, for Complainants; 

John Vernon Head, Esq., Pittsburgh, Pennsylvania, for 

Respondent. 

Administrative Law Judge Melick 

This case is before me upon the complaint of the Secretary of Labor, 

Mine Safety and Health Administration (MSHA), on behalf of Timothy P. Scott 

alleging discrimination under section 105(c) of the Federal Mine Safety and 

Health Act of 1977 (30 U.S.C. § 801 et seq., hereinafter referred to as the 

"Act"). MSHA also petitions on its own behalf for a civil penalty to be 

assessed against the Consolidation Coal Company (Consolidation) under section llO(a) of the Act for the alleged discriminatory acts. An evidentiary 

hearing was held on April 1, 1980, in Wheeling, West Virginia. 

The issue in this case is whether Consolidation discriminated against 

Scott in violation of section 105(c) of the Act and, if so, what is the 

appropriate relief to be awarded Scott and what are the appropriate civil 

penalties to be assessed against Consolidation for such discrimination. 

Section 105(c)(l) of the Act provides in part that no person shall in any 

manner discriminate against, or cause discrimination against, or otherwise 

interfere with the exercise of th.e statutory rights of any miner or representative of miners because of the exercise by such miner or representative 

of miners of any statutory right afforded by the Act. 

1056 
The essential facts are not in dispute. At all times relevant Timothy 

Scott was a scraper (pan) operator for Consolidation at its No. 60 Mine. 

Scott was also an authorized representative of miners and in this capacity 

spent 21-1/4 hours on March 5,.6 and 7, of 1979, accompanying an MSHA inspector in a regular inspection of the mine in accordance with section 103(f) 

of the Act. Under section 103(f) an authorized representative of miners 

such as Scott, is entitled to ~ccompany an.MSHA inspector in the course of 

his inspection (commonly referred to as a "walkaround"). It also provides 

that·"such representative of miners who is also an employee of the operator 

shall suffer no loss of pay during the period of hi~ participation in the 

inspection made under this subsection." In commenting on the.provisions 

of section 103(f), the Senate Human Resources Committee in its report on 

Senate ~ill 717, the bill which was the basis for the 1977 Act, stated 

that: "to encourage such miner participation, [in walkaround activities] 

it is the committee's intention that tJ:ie miner that participates in such 

inspection and conferences be fully compensated by the operator for time 

thus spent. To provide for other than full compensation would be inconsistent with the purpose ·of the Act and would unfairly penalize the miner 

for assisting the inspector in performing his d1.lties~" Senate Report 

No. 181, 95th Congress, 1st Session reprinted in U.S. Code Congressional 

and Administrative News 3428-3429 (1977). Within this framework it is 

clear that if Scott suffered a loss Qf pay as a result of his statutorily 

protected walkaround ·activities then he suffered discriminat.ion under 

section 105(c)(1). 

Scraper operators such as Scott are paid in accordance with the 

National Bituminous Coal Wage Agreement of 1978 (Wage Agreement) at the 

grade 3 rate, then $64.61 per day, when performing classified work, and for 

vacation pay, extra days, graduated days, floating days, holiday pay, and 

4 hour show-up time. Under the Wag~ Agreement, however, the scraper operators are paid at a grade 5 level, then $71.97 per day, when the machines 

are "engaged in the removal of over burden as an integral part of the 

overburden removal.process." Consolidation compensated Scott for the 

21-1/4 hours spent in walkaround activities at the grade 3 rate claiming 

that the Wage Agreement requires that grade 5 pay need only be awarded 

when the specified overburden removal is actually perJormed by the employee. 

It cites a number of arbitration decisions which it claims supports its 

position. MSHA and Scott contend that he should have been paid at the 

grade 5 rate and maintain that he was therefore discriminated ·against 

in violation of section 105(c) of the Act. · 

Scott testified without contradiction that on the morning of March 5, 

1979, he was told that he was to perform overburden removal work (grade 5 

work) and in preparation for such work began his preshift examination of the 

scraper at around 7 a.m. . Later notified of the MSHA inspection, he began his 

walk around activities at 7:30 that morning and continued thereafter in that 

capacity for a total of 21-1/4 hours on March 5, 6, and 7. It is undisputed 

that other scraper operators performed overburden removal work d,uring this 

period of time and, were in fact paid, for this work at the grade 5 rate. 

At least one of these operators performed that work for the same 21-1/4-hour 

period at issue herein and was paid for those hours at the grade 5 r.ate. 

1057 
Clearly there is no way to determine the amount of time Scott would 

have spent in grade 5 overburden removal work had he not performed his 

walkaround duties. Whether such work is actually performed is subject to 

a great many variables including weather conditions, equipment functioning, 

availability of operators and work priorities. Moreover from the records 

of other members of Scott's work crew, it is apparent that the amount of 

time spent by each in overburden removal varied widely during this time. 

Some of the operators performed no grade 5 work and at least one performed 

grade 5 work for the entire 21-1/4-hour period at issue. Therefore while 

it is impossible to determine precisely how much time Scott would have spent 

working at the grade 5 level, it is apparent that he could have spent the 

entire 21-1/4-hour period engaged in such work. 

Under the circumstances I find that Scott was unfairly penalized in 

performing his walkaround duties as a representative of miners because he 

was therefore deprived of the opportunity to perform overburden removal 

work at the grade 5 rate of pay. In order to assure that Scott is not 

unfairly penalized for having perfomed his duties as a representative of 

miners, I find that he must be compensated in an amount equivalent to the 

grade 5 rate for the maximum time worked in that mine by any other single 

employee in the capacity of a grade 5 scraper operator during the time 

Scott was engaged in his walkaround activities. To provide him anything 

less would discourage his participation in these important functions, 

contrary to law and the clear intent of Congress. Since the evidence 

indicates that at least one other scraper operator employed at this mine 

performed the grade 5 work during the entire 21-1/4-hour period at issue, 

Scott is entitled to the grade 5 pay differential for the ent~re period. 

I therefore order Consolidation to pay Scott within 30 days of this decision the amount of $21.47 (the hourly differential in pay between grade 3 

and grade 5 of $1.01 x 21-1/4 hours) plus interest computed at the rate of 

10 percent per annum from the date he would ordinarily have received that 

pay to the date on which it is actually paid. 

Since I have found that Consolidation did discriminate against Scott 

I must, in accordance with section 105(c)(3) of the Act, determine the 

appropriate civil penalty to be assessed under the relevant criteria set 

forth in section llO(i) of the Act. The operator is large in size but 

has no history of discrimination violatio~s under section 105(c) of the 

Act. I find that the violation herein was serious because of its potential 

chilling effect on miner participation in walkaround and other health and 

safety related functions. I find only slight negligence however, because 

I believe the operator was acting in the good fait~ belief that it was 

awarding Scott the appropriate rate of walkaround pay. Thus only a 

nominal penalty is warranted. I therefore order th~t a penalt~f $1 be 

paid by Cou.olidation within 30 days of the date o~ \is decis"o • { 

)' " \ \}',c\_ ~v "-

Gary Me "ck 

Adminislt 

I 

! 

1058 

Judge 
Distribution: 

Miguel Carmona, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified Mail) 

John V. Head, Esq., Counsel, Consolidated Coal Company, Consol Plaza, 

Pittsburgh, PA 15241 (Certified Mail) 

1059 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

& MA'f 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEVA 80-38 

Petitioner A/O No. 46-04774-03010 

v,. 

Kessler No. 3 Mine 

KESSLER COALS, INC., 

Appearances: 

Before: 

Respondent 

DECISION 

Barbara K. Kaufmann, Esq., Office of the Solicitor, U.S. 

Department of Labor, Philadelphia, Pennsylvania, for 

Petitioner; 

C. Lynch Christian III, Esq., Jackson, Kelly, Holt 

& O'Farrell, Charleston, West Virginia, for Respondent. 

Judge Stewart 

The above-captioned case is a civil penalty proceeding brought pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 820(a), hereinafter referred to.as the Act. 

On November 26, 1979, Petitioner filed with the Mine Safety and Health 

Review Commission a petition for assessment of civil penalty in this case. 

Respondent filed its answer to the petition on December 26, 1979. The 

hearing in these matters was commenced on April 15, 1980, in Charleston, 

West Virginia. 

Citation No. 0637464 issued by the Federal mine inspector on April 11, 

1979, citing a violation of 30 C.F.R. § 75.509 stated that "Work was being 

performed on the continuous miner on 2 Right section (001-2) while the 

continuous miner was energized." 

At the hearing, Petitioner stated on the record that there was insufficient proof that the continuous miner was energized and moved that the 

citation be vacated. The motion was granted and the citation was vacated 

from the bench. 

1060 
ORDER 

The vacation of the citation is affirmed •. The proceeding is dismissed. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Barbara K. Kaufmann, Esq., Office of the Solicitor, U.S. Department of 

of Labor, Room 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

C. Lynch Christian III, Esq., Jackson, Kelly, Holt & O'Farrell, 

P.O. Box 553, Charleston, WV 25322 (Certified Mail) 

1061 
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 

'l MAY 1980 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), : Docket No. YORK 79-79-M 

Petitioner A.c. No. 30-01267-05005 

v. 

NORTHERN AGGREGATES, INC., 

Respondent 

Fulton Plant 

DECISION AND 

ORDER OF DISMISSAL 

Apearances: Jithender Rao, Esq., Office of the Solicitor, U.S. Department 

of Labor, Rm, 3555, 1515 Broadway, New York, New York, for 

Petitioner; 

Paul A. Germain, Esq., Germain & Germain, Syracuse, New York, 

for Respondent. 

Before: Administrative Law Judge Melick 

This case is before me upon a petition for assessment of civil penalty 

under section llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 u. s.c. § 801 _!! ~·, her~inafter reJ;erred to as the "Act." At hearings 

commencing February 20, 1980, in Syracuse, New York, Petitioner moved to 

dismiss this proceeding on the grounds that the operator, Northern Aggregates, 

Inc. (Northern), did not file its notice of contest to the proposed assessment of penalty within 30 days of its receipt. Petitioner asserts that under 

section 105(a) of the Act, such failure to timely contest the proposed 

assessment caused the citation and proposed assessment to become a final 

order of the Commission not subject to review by any court or agency. 

Section 105(a) provides in relevant part, as follows: 

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 * * .''!t. 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 

1062 
or the proposed assessment of penalty, * * * the citation 

and the proposed assessment of penalty shall be deemed a 

final order of the Commission and not subject to review by 

any court or agency * * *· 

The parties have stipulated, and therefore there is no dispute, that 

Northern received the proposed assessment of penalty in this case on 

May 19, 1979, and that it filed its notice of contest on August 9, 1979, 

more than 2-1/2 months later. Northern contends, however that under the 

Commission's Rules of Procedure, 29 C.F.R. § 2700.63 and 29 C.F.R. § 2700.9, 

the administrative law judge has the discretionary authority to permit late 

filing for good cause. Rule 2700.9 does provide for good cause extensions 

of time but it also requires that a request for an extension of time be 

filed S days before the expiration of the time allowed for its filing. 

Since no such request was made in this case Rule 2700.9 would in any event 

be inapplicable. Rule 2700.63 requires that before the entry of any order 

of default or dismissal for failure of a party to comply with an order 

of a judge or the rules, an order to show cause must first be directed 

to the party. Northern has in this case however failed to comply with 

a statutory filing requirement as distinguished from a requirement in the 

rules or under a judge's order. Rule 2700.63 (as well as Rule 2700.9) is 

therefore inapplicable to this proceeding. 

Since there are no provisions for consideration of good cause for late 

filing under section lOS(a), but only a precise statutory directive that upon 

failure to timely file a notice of contest the citation and the proposed 

assessment of penalty "shall be deemed a final order of the Commission 

and not subject to review by any court or agency," it is apparent that the 

Petitioner's motion to dismiss must be granted as a matter of law. I have 

no jurisdiction to consider the merits of the case or to even consider 

whether good cause existed for the late filing. Similar provisions under 

section lO(a) of the Occupational Safety and Health Act 29 u. s. C. § 659(a), 

have been interpreted similarly. */ Secretary v. American Airlines, Inc., 

BNA 2 OSHC 1326 (1974), CCH/OSHD l8,908 (1974-1975). 

Under the circumstances, the citation and proposed assessment dated 

May 14, 1979, and received by the operator on May 19, 1979, became the final 

order of the Commission 30 days after its receipt by the operator. Since a 

jurisdictional defect cannot be waived it is immaterial that the Secretary 

erroneously initiated these proceedings before the Commission. Consolidation 

Coal Co., 1 IBMA 131 at 137 (1972). This case is therefore dismissed for 

lack of jurisdiction. 

'!:_/ 29 u. s. c. § 659(a) provides as here relevant: 

"If, within fifteen working days from the receipt of the notice * * * 

the employer fails to notify the Secretary that he 'r.tends to contest * * * 

the citation and the assessment * * * shall be deem μ a final of the 

Commission and not subject to reviewlby a agewncy." ;• 

L I 

y elick * · Admin;t! trativ aw u'dge 

1063 
Distribution: 

Jithender Rao, Esq., Office of the Solicitor, U.S. Department of Labor, 

Rm. 3555, 1515 Broadway, New York, NY 10036 (Certified Mail) 

Paul A. Germain, Esq., Germain & Germain, 314 East Fayette Street, 

Syracuse, NY 13202 (Certified Mail) 

1064 
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 

'l MAY 1980 

Petitioner 

Civil Penalty Proceedings 

Docket No. WILK 79-144-PM 

A.C. No. 30-01267-05003 

NORTHERN AGGREGATES, INC., 

Respondent 

Docket No. WILK 79-145-PM 

A.C. No. 30-01267-05004 

Fulton Mine 

DECISION 

Appearances: Jithender Rao, Esq., Office of the Solicitor, U.S .•. Department 

of Labor, Rm, 3555, 1515 Broadway, New York, New York, for 

Petitioner; 

Paul A. Germain, Esq., Germain & Germain, Syracuse, New York, 

for Respondent. 

Before: Judge Melick 

These cases are before me upon petitions for assessment of civil penal ties under section llO(a) of the Federal Mine Safety and Health Act of 

1977 (30 U. S.C. § 801 ~ ~·, hereinafter referred to as the "Act"). In 

the ca.se designated WILK 79-144-PM, Petitioner filed a proposal for assessment of civil penalties on September 10, 1979, and the Respondent, Northern 

Aggregates, Inc. (Northern), filed its notice of contest on September 20, 

1979. In case No. WILK 79-145-PM, Petitioner filed its proposal for assessment of civil penalty on September 14, 1979, and Northern filed its notice 

of contest on September 20, 1979. The cases were consolidated for hearing 

which was held in Syracuse, New York, on February 20 and 21, 1980. 

The issues in these cases are whether Northern has violated the provisions of the Act and implementing regulations as alleged in the petitions 

for assessment of .civil penalties filed herein, and, if so, the appropriate 

civil penalties to be assessed for the alleged violations. In determining 

the amount of a civil penalty that should be assessed for a violation, the 

law requires that six factors be considered: ( 1) his.tory 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. 

1065 
I. Docket No. WILK 79-144-PM 

The following eight citations charge violations of mandatory safety 

standard 30 C.F.R. § 56.14-1 which requires that "[g·]ears; 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. 

Citation No. 210526 specifically charged that the return idler rollers 

on the main feed belt were not guarded. These rollers were located only 2 to 

3 feet from the ground floor. MSHA inspector Robert Kinterknecht saw loose 

material and a partially filled wheelbarrow and shovel directly below an 

exposed roller. It is reasonable to conclude that a worker was cleaning up 

this loose material. He would have been. directly below the belt and would 

have been exposed to the hazard. The operator's witness admitted that the 

rollers were unguarded and admitted that ordinarily two employees would be 

in that vicinity twice a day for 5 to 6 minutes to clean up around the belts. 

He claimed, however, that the same general area had been inspected before by 

another inspector who said nothing about the exposed rollers while citing an 

exposed tail pulley only 18 to 20 inches away. I do not, however, consider 

the failure of a previous inspector to have cited this condition, standing 

alone, as having any probative value. 

Citation No. 210527 charged that the tail pulley on the "piggy-back" 

belt was not guarded. The tail pulley was at ankle or knee height from the 

ground. The south side of the tail pulley was exposed and the operator conceded that employees would be on that side of the pulley once a week to 

grease it. The operator contended, however, that a previous guarding violation on the north side of the pulley had been abated by a previous MSHA 

inspector and the inspector did not cite the south side. The contention is 

without merit and no reduction in the operator's negligence is warranted. 

Citation No. 210532 charged that the idler rollers were unguarded the 

entire length of the feed conveyor. The two strands of No. 9 wire (about 

the thickness of a ballpoint pen) suspended by angle irons being used as a 

guard was felt to be inadequate to prevent someone from slipping or falling 

into the rollers or getting an arm or sleeve caught in the rollers. The 

operator admitted that the catwalk alongside the rollers was used by 

employees to grease, maintain, and inspect the operation of the belt, but 

asserted that this area had previously been cited by an MSHA inspector for 

having been unguarded and that that citation was abated by the same method 

found by inspector Kinterknecht to be a violation. While, if true, this 

assertion could have some bearing on the case I find that Northern has 

failed in its proof. Cf. Secretary v. Standard Building Material Co., 

1 FMSHRC 702 at P• 703. (June 1979). In the absence of any corroborative 

evidence such as a copy of the earlier citation or testimony or an admission 

from the former inspector, I can give but little weight to the hearsay allegations. Inspector Kinterknecht had, moreover, checked MSHA's records and 

found no evidence to support the assertion. Since the wire did provide some 

protection however, a slight reduction in penalty is warranted. 

1066 
Citation No. 210534 alleged that the idler rollers on the secondary 

conveyor were not guarded and were exposed to people walking on an adjacent 

catwalk. The operator claimed that the two strands of No. 9 wire had been 

accepted as abating an earlier violation but failed to prove his claim. 

Since the wire provided some protection however, a slight reduction in the 

penalty is warranted. 

Citation No. 210539 charged that the idler rollers in the wash plant 

house were not guarded. The rollers were located along a walkway on the 

floor. The operator admitted that one side of the roller was easily 

accessible, but claimed that the other side was not easily accessible and 

would expose only one employee once a week while he greased the rollers. 

I find the extent of the hazard to be accordingly slightly reduced. 

Citation No. 210556 charged that the tail pulley on the sand conveyor 

from the wash plant to the stockpile was not guarded. The pulleys were 2 

to 3 feet from the base of the catwalk and the belt was running at the 

time of the inspection. Ross Fox, the operator's representative, admitted 

that an employee would be in the area periodically to check the belt. 

Citation No. 210555 charged that the idler rollers on the sand conveyor 

from the wash plant to the stockpile were not guarded. The full length of 

the sand conveyor was inadequately guarded with only two strands of No. 9 

wire. The pinch points on the conveyor were about waist-high and adjacent 

to a catwalk where employees would pass. The operator claimed that the 

use of the No. 9 wire had been approved by the previous inspector, but 

failed to prove his claim. Since the wire provided some protection however, 

a slight reduction in the penalty is warranted. 

Citation No. 210569 charged that the takeup pulley was unguarded under 

the feeder conveyor. The operator pointed out, however, that this was not 

in fact an area in which anyone worked. The backhoe was used to clean under 

that area and the backhoe operator would not be exposed to the hazard. I 

,accept this testimony, but in light of the inspectors testimony that the 

pulley was in an area in which contact could be made, I find that a violation 

nevertheless occurred. Under the circumstances, the likelihood of injury was 

less than thought by the inspector and some reduction in the penalty is 

therefore warranted. 

With respect to each of these previous violations, Kinterknecht testified that the particular hazard presented by the violations was the potential breakage, crushing or loss of limbs or breaking one's neck after being 

caught by the shirt sleeves and dragged into a pinch point. The inspector 

concluded that the operator should have noticed these violations on making 

his routine daily inspections. Few employees would have been exposed to 

the hazards and even then only infrequently. I accept the inspector's testimony in this regard. 

Citation No. 210554 charged a violation of 30 C.F.R. §. 56.14-6 (guards 

shall be securely in place) in that the guard was broken over the drive 

pulley on the electric motor operating the sand conveyor thereby exposing 

1067 
an area of about 6 inches by 2 feet. Contact could be made with the drive 

pulley and V-belt while the motor was running. The operator alleged that 

no one had brought the problem to his attention before this time, but I find 

that he was nevertheless negligent since he should have seen the broken guard 

on his daily inspection of the plant. It was readily visible. Resulting 

injuries could have been permanently disabling caused by a crushed or broken 

arm. 

The following four citations relate to violations of mandatory standard 

30 C.F.R. § 56.9-2 (requiring that equipment defects affecting safety be 

corrected before the equipment is used). 

Citation No. 210565 alleged that the backup alarm on a front-end loader 

was not working. Inspector Kinterknecht observed trucks dumping in the area 

in which the front-end loader was operating and saw others parked nearby. 

He opined that someone could have been run over because the operator could 

not see behind him, thereby causing disabling or fatal injuries. The machine 

operator told Kinterknecht that the alarm had not been working for a couple 

of days. In any event, the operator should have observed the defect in 

making his daily rounds. Northern did not deny the violation but·alleged 

that it then had a procedure for correcting defective equipment whereby the 

equipment operator would write up a work order for any malfunction. There 

is no evidence that such a work order was filed with respect to this incident. Under the circumstances, I give but little weight to the alleged 

corrective procedures and no reduction of negligence. 

Citation No. 210571 alleged that the backup alarm in dump truck No. 53 

was not working. Kinterknecht could not recall whether any other personnel 

were in the area in which the truck was operating, but noted that the driver 

could not see behind him while backing up and that management should have 

known of the defect when making its daily rounds. The truck driver told 

Kinterknecht that he did not know of the malfunction. Since the malfunction 

could have occurred only moments before, I feel some reduction in negligence 

is warranted. 

Citation No. 210572 charges that the backup alarm on the Terex frontend loader was not working. Kinterknecht observed that two other trucks 

were waiting in the pit area while another truck was being loaded and that 

the drivers of these trucks were standing around talking to each other. It 

was likely that the front-end loader could have run over someone, thereby 

causing injury or death. The alarm had been working a few days before. 

There is no evidence as to when it first malfunctioned. Some reduction in 

negligence is therefore warranted. 

Citation No. 210573 alleges that the backup alarm on the No. 68 dump 

truck was not working. Although Kinterknecht could not recall precisely 

where it was operating, he testified that wherever it was operating, either 

at the stockpile or at the pit, there were always trucks around, thereby 

creating a potential hazard to the drivers. Management should have known 

of this condition based on its routine daily examinations. 

1068 
Citation No •. 210568 charged a violation of 30 C.F.R. § 56.9-22 which 

requires that berms or guards be provided on the outer bank of elevated 

roadways. The evidence shows that the area in question was actually a 

ramp variously described as from 12 to 20 feet long, 14 feet wide, and 5 

to 7 feet high at the highest point. The evidence shows that it would 

only be used in the event of a breakdown in the primary crusher. It was a 

backup hopper used by payloaders only infrequently. It was likely that 

a truck might run off the outer edge of the bank and turn over, thereby 

causing fatal injuries. The condition should have been known to the 

operator from his daily routine inspections of the plant area. 

Citation No. 210570 charged a violation of 30 C.F.R. § 56.9-71 

(requiring that traffic rules, including speed, signals, and warning signs 

be standardized at each mine and posted). It was specifically charged that 

there were no speed or warning signs posted anywhere in the mine area. 

Employees could have been seriously injured in an accident because of excess 

speed and obstructed vision. 

Citation No. 210540 charged a violation of 30 C.F.R. § 56.12-32 

(requiring that inspection and cover plates on electrical equipment and 

junction boxes be kept in place at all times except during testing or 

repairs). The operator admitted that the junction box cover was missing 

as charged and that the junction box was energized, but claimed that the 

switch was not then in use and that exposure was unlikely. The operator 

conceded, however, that screens were stored in the switchhouse and 

employees entered the area to remove the screens. Fatal injuries were 

probable because the area was dark and a person could stumble into the 

junction box. The operator should have observed this condition since it 

was plainly visible. A slight reduction in gravity is warranted, inasmuch 

as Kinterknecht was not aware that the junction box was not then in use as 

a switch. 

Citation No. 210561 also charged a violation of 30 C.F.R. § 56.12-32 

alleging that the junction box on an air compressor was not covered. 

Although no wiring was exposed, the insulation could be knocked off or the 

electrical tape and "quick connectors" could become undone by vibration 

from the compressor. Permanent disabililty or fatal injuries could result 

from contact with exposed wiring. It was probable that such injuries could 

occur. The operator should have seen the defect on his daily routine inspection of the area. 

Citation No. 210575 charged a violation of 30 C.F.R. § 56.12-2 

(requiring that electrical equipment and circuits be provided with switches 

or other controls). The citation alleged that in the same room as the compressor there was a light without a switch. In order to turn the light off, 

one had to unscrew the bulb from the socket. Injuries such as burning or 

shock were probable and employees would be exposed to that bulb two or three 

times a day. The operator should have known of this condition on his daily 

rounds. 

1069 
Citation No. 210559 charged a violation of 30 C.F.R. § 56.12-34 

(requiring guarding of portable extension lights and other lights that by 

their location present a shock or burn hazard). The citation alleged that 

a bare light bulb in pump house No. 2 was not guarded. It was at face 

level upon entering the building. Injury was probable to the one or two 

employees who might enter the premises. The operator was negligent in that 

the problem was plainly visible. 

Citation No. 210533 charged a violation of 30 C.F.R. § 56.11-2 (requiring 

t~at toeboards be provided where necessary). The citation alleges that a toebdard was not installed around the platform on the No. 1 tower. Maintenance 

was performed at this location about 30 feet above ground level. With people 

walking beneath the platform, it was probable that they would be struck with 

falling rocks or tools. Resulting injuries could result in lost work days as 

a result of bruised shoulders or arms. The operator should have known of this 

condition. The operator conceded that no toeboard existed on the platform at 

the time of the inspection, but claimed the catwalk had just recently been 

extended and that they had insufficient time to erect the toeboard. The 

operator conceded, however, that the catwalk had been extended in the spring 

of 1978 and no explanation was given as to why toeboards had not been 

installed as of September 27, 1978, the date of the inspection. 

II. Docket No. WILK 79-145-PM 

Citation No. 210576 charges a violation of section 109(a) of the Act 

alleging that the citations that had been issued during the inspection on 

September 27, 1978, had not been posted on the mine bulletin board. Inspector Kinterknecht had informed the operator on September 27, 1978, the date 

the citations had been issued, that those citations had to be posted. The 

operator conceded that he failed to post the citations. The condition was 

abated immediately. 

With respect to all the violations in both cases discussed herein, the 

Gov.ernment concedes that the cited conditions were corrected within the time 

specified for abatement. It is also stipulated that the operator's business 

is small in size. I observe that the operator's history of previous violations prior to September 27, 1978, was minimal and therefore is given minimal consideration with respect to the violations cited on September 27, 

1978. I note, however, that a more significant series of violations occurred 

on September 27, 1978, that have become final as of this date and for which 

I have given consideration in assessing penalties for violations that were 

cited on dates subsequent to September 27, 1978. There is no contention in 

these cases that the operator's ability to continue in business will be 

affected by the penalties. 

Upon consideration of the entire record and the foregoing findings and 

conclusions, and in light of the criteria set forth in section llO(i) of the 

Act, I find that the following penalties are warranted: 

1070 
I. Docket No. WILK 79-144-PM 

Citation No. Date 

210526 09/27/78 

210527 09/27/78 

210532 09/27/78 

210533 09/27/78 

210534 09/27/78 

210539 09/27/78 

210540 10/18/78 

210554 10/18/78 

210555 10/18/78 

210556 10/18/78 

210559 10/18/78 

210561 10/18/78 

210569 10/18/78 

210565 10/18/78 

210568 10/18/78 

210570 10/18/78 

210571 10/18/78 

210572 10/18/78 

210573 10/18/78 

210575 10/18/78 

II. Docket No. WILK 79-145-PM 

Citation No. Date 

210576 11/28/78 

30 C.F.R. 

Standard 

56.14-1 

56.14-1 

56.14-1 

56.11-2 

56.14-1 

56.14-1 

56.12-32 

56.14-6 

56.14-1 

56.14-1 

56.12-34 

56.12-32 

56.12-34 

56.9-2 

56.9-22 

56.9-71 

56.9-2 

56.9-2 

56.9-2 

56.12-2 

30 C.F.R. 

Standard 

109(a) 

ORDER 

Penalty 

.c. $195 

.L 195 

150 

122 

150 

150 

95 

150 

150 

150 

114 

114 

100 

150 

150 

150 

125 

125 

150 

114 

Penalty 

$ 72 

Paul A. Germain, Esq., Germain & Germain, 314 East Fayette Street, 

Syracuse, NY 13202 (Certified Mail) 

1071 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52o3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

'l MAY 1980 

Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. CENT 79-29 

A.C. No. 23-00402-03005 

v. 

PEABODY COAL COMPANY, 

Petitioner 

Respondent 

Docket No. CENT 79-221 

A.C. No. 23-00402-03011 

Power Mine 

DECISION 

Appearances: Robert s. Bass, Esq., Office of the Solicitor, U.S. Department 

of Labor, Kansas City, Missouri, for Petitioner; 

Thomas Gallagher, Esq., St. Louis, Missouri, for Respondent. 

Before: Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This matter involves two proceedings filed by the Secretary of Labor, 

Mine Safety and Health Administration (hereinafter, MSHA) under section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 820(a), to assess civil penalties against Peabody Coal Company (hereinafter, Peabody) for violation of a mandatory safety standard. The cases 

were consolidated prior to hearing. The petitions allege a total of five 

violations of 30 C.F.R. § 77.1607(aa), failure to properly trim trucks 

which are loaded higher than their cargo space. A hearing was held in 

Kansas City, Missouri, on February 6 and February 7, 1980. Lester Coleman 

1072 
testified on behalf of MSHA. Larry Womble, Fred Gallo, and Ron Kelly testified on behalf of·Peabody. Both parties waived their rights to file 

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

made oral arguments at the conclusion of the taking of testimony. 

This matter involves the alleged violation of 30 C.F.R. § 77.1607(aa), 

failure to properly trim haulage trucks which are loaded higher than their 

cargo space. Three citations were isued for this alleged violation on 

November 27, 1978, and two orders of withdrawal were issued for the same 

alleged violation on February 27, 1979. MSHA contends that, at all times, 

large chunks of coal were found above and near the edge of the cargo area. 

Peabody does not dispute the testimony concerning the size and location of 

the coal chunks but contends that there are no published guidelines or standards for trimming haulage trucks and, therefore, the industry standard of 

loading the trucks until the coal seeks its "angle of repose" applies.' 

ISSUES 

Whether Peabody violated the Act or regulations as charged by MSHA and, 

if so, the amount of the civil penalties which should be assessed. 

APPLICABLE LAW 

30 C.F.R. § 77.1607(aa) provides as follows: "Railroad cars and all 

trucks shall be trimmed properly when they have been loaded higher than the 

confines of their cargo space." 

Section llO(i) of the Act provides in pertinent part as follows: 

1073 
In assessing civil monetary penalties, the Commission 

shall consider the operator's history of previous violations, 

the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in 

business, the gravity of the violation, and the demonstrated 

good faith of the person charged in attempting to achieve 

rapid compliance after notification of a violation. 

STIPULATIONS 

The parties stipulated the following: 

1. The Commission has jurisdiction of this proceeding; 

2. Respondent is an operator within the meaning of the Act; 

3. Respondent's mine is a mine within the meaning of the Act; 

4. Any objections to the foundation of exhibits to be offered are 

waived; 

5. The only issue of fact is whether or not respondent properly 

trimmed its haulage trucks on the dates in question; 

6. The only issues of law are whether the standard applies to 

respondent and, if so, did respondent violate the standard; 

7. The coal on all five haulage trucks was no more than 3 feet above 

the confines of the cargo areas. 

SUMMARY OF THE EVIDENCE 

In response to an anonymous written complaint, MSHA inspector Lester 

Coleman was directed to make an inspection of Peabody's Power Mine, a surface mine, concerning an allegation of coal falling off haulage trucks due 

to overloading. On November 27, 1978, he arrived at the mine. On the 

haulage road between the pit and the dumping area, he stopped and inspected 

three 100-ton haulage trucks. On each truck, he observed that coal was 

1074 
piled higher than the confines of the cargo area. The highest point of the 

coal was in the center of the cargo area and was described as a "graveyard 

hump." On each truck, he observed large chunks of coal weighing up to 

30 pounds at various places above the confines 9f the cargo area. None of 

the trucks had any "free board" or unloaded areas around the edge of the 

cargo area. He concluded that the three trucks were not properly trimmed 

since any of these large chunks of coal could fall off the truck and strike 

miners or small vehicles using the roadway. He described the haulage road 

as well-maintained, but it crossed two railroad tracks and two paved county 

roads. The haulage road went over hills and around curves. The only person 

who might be struck by falling coal was the miner who worked on foot in 

the dumping area. He issued three citations for a violation of 30 C.F.R. 

§ 77.1607(aa). 

On February 27, 1979, Inspector Coleman returned to the Power Mine for 

a regular inspection. On this occasion, he stopped two haulage trucks and 

found the same conditions concerning large chunks of coal piled above the 

-confines of the cargo area with no "freeboard." Thereupon, he issued two 

orders of withdrawal pursuant to section 104(d)(2) of the Act. 

Inspector Coleman admitted that he did not observe any chunks of coal 

on the haulage road during either of his inspections. There were chunks of 

coal on the back of the truck beds. Although the inspector's statement 

covering Citation No. 390749 indicates that persons on foot in the pit area 

where coal is loaded may be exposed to falling coal, he conceded that he did 

not visit the pit on November 27, 1978, and did not know if there were 

1075 
persons on foot there. He never witnessed any coal falling off haulage 

trucks at this mine. He believed that the haulage t:rucks vibrated "heavily." 

He conceded that such vibrations were not visible. He believed that the 

failure to trim the trucks should have been detected by the pit foreman. 

Inspector Coleman testified that compliance with the regulation in controversy required the operator to leave an area of "freeboard" if large 

chunks of coal are piled higher than the confines of the cargo area or to 

remove or break up the large chunks of coal if there is no "freeboard." He 

conceded that there were no written MSHA guidelines to support his opinion 

concerning "freeboard" and the removal or breaking up of large chunks of 

coal. 

Larry Womble, a health and safety supervisor for Peabody, testified 

that he accompanied Inspector Coleman on his inspection. He confirmed that 

the coal was heaped in the center of the cargo space and sloped downward 

until the coal came to rest on the edge of the cargo space. He described 

this as the "angle of repose" of the coal. The peak in the center of the 

cargo area was estimated to be approximately 3 feet above the cargo space 

in all the trucks. The loader operators at the pit load the truck from front 

to rear until coal rests on the outer edges of the cargo body. No miners 

work on foot in the immediate loading area. At no time, did he observe any 

coal falling off the trucks. He testified that the haulage road was approximately 6 miles long and was 50 to 70 feet wide. The width of the road 

resulted in 7 to 20 feet of clearance between passing vehicles. He knew of 

no accidents caused by coal falling from a truck. Prior to August 1978, the 

Power Mine had 332 mandays of inspection prior to the issuance of the first 

1076 
citation for a violation of 30 C.F.R. § 77.1607(aa). He did not agree with 

the inspector's interpretation of the regulation. He did not believe that 

it was feasible to use a loader to remove large chunks of coal or trim the 

load. 

Fred Gallo, assistant superintendent of the Power Mine, testified that 

he observed the same conditions of the haulage truck as were described by 

Inspector Coleman and Larry Womble. It had been Peabody's practice to leave 

no "freeboard" in loading its haulage trucks. He believed that compliance 

with Inspector Coleman's interpretation of the regulations was costing 

Peabody 5 to 8 tons on each load. He testified that the loading equipment 

was not sufficiently mobile to remove large chunks of coal from the truck. 

It would be extremely hazardous to place a miner on the truck bed to trim 

the load manually. He believed that Peabody was following the industry 

standard in loading its trucks. He did not believe that Peabody's loading 

procedures presented a danger to anyone. 

While Mr. Gallo testified that a loader could tamp large pieces o~ coal 

and break them up, this procedure would "destroy the load" because it would 

push coal to the side away from the loader. However, he conceded that if a 

large piece of coal was sticking up out of the load, such a piece could be 

picked out by the loader. To his knowledge, this process of picking out 

large chunks of coal was not known to exist anywhere in the industry. 

Ron Kelly, safety manager for Peabody's West Central Division, testified that he requested and obtained a computer printout of all falling material accidents in 1978 from MSHA. He received this printout (Exh. R-9) and 

1077 
: found only two reports of accidents involving coal falling off a haulage 

truck. In Mr. Kelly's 11 years of coal mine safety experience, he never 

· .. beard of an accident at Peabody involving falling coal from a haulage truck. 

· ln his opinion, the Peabody practice of loading haulage trucks did not 

present a hazard to anyone. 

MSHA introduced in evidence descriptions of large chunks of coal pre- · .. ·• .. 

pared by Inspector Lester Coleman at the time of his inspection. These 

chunks of coal were estimated to be 24 inches by 18 inches and 20 inches by 

. 16 inches (Exb. G-4). MSHA also introduced a computer printout of the. bistory of Peabody's Power Mine for the 10-year period prior to November 27, 

·> 1978, and February 27, 1979. That document showed one prior violation of 

·. 30 C.F.R. I 77.1607(aa) (Exh. G-5). Peabody presented evidence that the 

height of the top of the cargo area on its haulage trucks varied from 

11 feet 4 inches to 14 feet 7 inches (Exhs. R-7, R-8). Peabody also intro-

·duced in evidence MSHA's admission that there are no written memoranda, 

guidelines, opinions, or other written instructions concerning the construe-

·. tion, application, or implementation of 30 C.F .R. § 77 .1607(aa) (Exh. R-10). 

EVALUATION OF THE EVIDENCE 

All of the testimony, exhibits, stipulations, and arguments of counsel 

have been considered. The evidence shows that on November 27, 1978, and 

February 27, 1979, MSHA inspector Larry Coleman inspected a total of five 

haulage trucks at Peabody's Power Mine and found each of them to be in viola-

· tion of 30 C.F.R. § 77.1607(aa). It is undisputed that each of the trucks· 

vas loaded with coal higher than the confines of the cargo space. It is also 

1078 
undisputed that there were large chunks of coal weighing up to 30 pounds each 

on the slope above the confines of the cargo space and no area of freeboard 

around the edge of the cargo area which would have prevented any chunk of 

coal from falling out of the cargo area. Under these facts, MSHA alleges a 

violation of 30 C.F.R. § 77.1607(aa) in failing to properly trim the trucks. 

The regulation on its ·face applies to "all trucks." Peabody asserts that 

these facts fail to establish a violation of the above regulation because 

there are no published guidelines or standards concerning the regulation and, 

therefore, MSHA must accept the industry standard of loading the trucks until 

the coal reaches its "angle of repose." Peabody further asserts that the 

inspector's requirement of allowing "freeboard" or, in the alternative, 

removing large chunks of coal above the confines of the cargo area is 

infeasible. In conclusion, it is Peabody's position that a haulage truck is 

"trimmed properly" when the coal reaches its "angle of repose." 

The "angle of repose" is defined as follows: "[T]he maximum slope at 

which a heap of any loose or fragmented solid material will stand without 

sliding or come to rest when poured or dumped in a pile or on a slope." 

Dictionary of Mining, Mineral, and Related Terms, Bureau of Mines, U.S. 

Department of the Interior (1968). In essence, Peabody argues that a 

haulage truck may be ·loaded to its maximum slope where no loose coal will 

slide down the slope. Acceptance of this argument would render the regulation in controversy meaningless since there would be no duty to properly 

trim any load. Moreover, it ignores the fact that this heap of coal will 

not remain stationary. The undisputed evidence shows that the haulage 

trucks at the Power Mine traverse hills, curves and railroad tracks. It 

1079 
is also undisputed that the trucks vibrate while in transit. While it is 

true that there is no direct evidence of any chunks of coal falling off 

any of the involved trucks, MSHA is not required to await the occurrence 

of an accident before promulgating regulations to prevent such accidents. 

The documentary evidence offered by Peabody establishes at least one 

personal injury accident when a miner was struck by coal falling from a 

haulage truck. Peabody's proposed construction of 30 C.F.R. § 77.1706(aa) 

that haulage trucks may be loaded to their "angle of repose" is rejected. 

Rather, the reg~lation, on its face, permits loading haulage trucks above 

the confines of their cargo space only if they are "trimmed properly." 

The term "trimmed properly" is not defined in the Act or regulations. 

"Trim" is defined as "to free of excess or extraneous matter by or as if 

by cutting." Webster's New Collegiate Dictionary (1979). Hence, the term 

"trimmed properly" as used in 30 C.F.R. § 77.1607(aa) means that excess 

coal must be removed from trucks which are loaded higher than the confines 

of their cargo space to prevent such coal from falling off the trucks. The 

evidence of record indicates that there are several ways to properly trim 

a truck, to wit, leaving an area of "freeboard" around the cargo area to 

confine falling chunks of coal, removing large chunks of coal from the top 

of the pile above the cargo area, and breaking up large chunks of coal. 

Therefore, Peabody's assertion that it is not feasible to comply with the 

regulation is rejected. 

I conclude that MSHA has established five violations of 30 C.F.R. 

§ 77 .1607(aa) by Peabody in that the haulage trucks were not "trimmed properly." This is so because in each instance, coal was loaded higher than 

1080 
the cargo area with large chunks of coal weighing up to 30 pounds on top 

of the pile with no freeboard to confine such coal within the cargo area. 

Since violations have been established, the next issue is the amount of 

the civil penalties to be assessed for such violations. Section llO(i) of 

the Act sets forth six criteria to be considered in determining the amount 

of the civil penalty. 

Peabody's prior history shows 49 violations in the 2 years prior to 

November 27, 1978, and 66 violations in the 2 years prior to February 27, 

1979. Of those numbers, only one violation was of the regulation in 

controversy here. 

Peabody is a large operator. The assessment of civil penalties herein 

will not affect its ability to continue in business. 

Peabody was negligent in failing to properly trim its haulage trucks 

when such a procedure was mandated by the regulation in controversy. Under 

all the facts of this case, Peabody's negligence amounts to ordinary 

negligence. 

In determining the gravity of the violations, consideration must include 

the following: (1) the likelihood of injury; (2) the number of workers 

exposed to su~h potential injury; and (3) the severity of potential injuries. 

In the instant case, the likelihood of injury as a result of coal falling 

from a haulage truck is slight. Only one worker was exposed to such a risk. 

Considering the fact that a 30-pound chunk of coal could fall from a 

1081 
distance of more than 15 feet, the severity of potential injuries is moderate. Hence, the gravity of these violations is in the range of slight to 

moderate. 

After notification of the first three violations, Peabody promptly 

abated those violations. However, it resumed its prior practice of not 

trimming the trucks and two withdrawal orders were issued 3 months later. 

While these facts do not demonstrate good faith compliance, I find that 

Peabody challenged these violations on the good faith belief that its trucks 

were properly trimmed. 

Based upon all of the evidence of record and the criteria set forth in 

section llO(i) of the Act, I conclude that civil penalties should be imposed 

for the violations found to have occurred as follows: 

Citation or 

Order No. 

390749 

390750 

390751 

792415 

792416 

Date 

11-27-78 

11-27-78 

11-27-78 

02-27-79 

02-27-79 

30 C.F.R. 

Standard 

77.1607(aa) 

77.1607(aa) 

77 .1607(aa) 

77.1607(aa) 

77 .1607(aa) 

Total 

ORDER 

Penalty 

$ 200 

200 

200 

200 

200 

$1,000 

Wherefore, it is ORDERED that respondent pay the sum of $1,000 within 

30 days of the date of this decision as a civil penalty for five violations 

of 30 C.F.R. § 77.1607(aa). 

1082 
Distribution: 

Robert S. Bass, Esq., Office of the Solicitor, U.S. Department of Labor, 

911 Walnut St., Room 2106, Kansas City, MO 64106 (Certified Mail) 

Thomas R. Gallagher, Esq., Peabody Coal Company, P.O. Box 235, 

St. Louis, MO 63166 (Certified Mail) 

1083 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11 /12 

9 MAY 1980 

Contest of Order 

Docket No. PENN 80-16-R 

Order No. 0618634 

May 25, 1979 

Renton Mine 

Civil Penalty Proceeding 

Docket No. PENN 80-18 

A.O. No. 36-00807-03029V 

Renton Mine 

DECISION AND ORDER 

The captioned consolidated contest/penalty proceeding came on for 

a prehearing/settlement conference on May 8, 1980, in the United States 

Courthouse in the District of Columbia. 

On the basis of concessions made by the mine inspector in the 

course of prehearing disclosure, counsel for the operator, at the 

invitation of the Presiding Judge, moved to vacate the subject unwarrantable 

failure closure order and to dismiss the proposal for civil penalty. 

After hearing argument from counsel for both parties, the motion 

was granted. The Presiding Judge found a mine foreman's statement of 

intent at some future time to use a mining method violative of the operator's 

approved roof control plan is legally insufficient to support a charge 

of violation of the plan under 30 C.F.R. 75.200. 

Accordingly, it is ORDERED th~t the bench decision be, and hereby is, 

ADOPTED and CONFIRMED as the final decision in this matter. It is FURTHER 

ORDERED that the Order No. 618634 is VACATED, and the 

proposal for penalty DISMISSED. 

Joseph B. Kennedy 

Administrative Law Judge 

1084 
Distribution: 

Michel Nardi, Esq., Consolidation Coal Company, Consol Plaza, 1800 Washington 

Road, Pittsburgh, PA 15241 (Certified Mail) 

Barbara K. Kaufmann, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) 

1085 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

1 3 MAY 19BO 

SECRETARY OF LABOR, 

MINE SAFETY AND 

HEALTH ADMINISTRATION 

(MSHA), 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CIVIL PENALTY PROCEEDING 

Petitioner, 

v. 

SIERRA READY MIX AND CONTRACTING 

COMPANY, 

Respondent. 

~~~~~~~~~~~~~~~~~~-

DOCKET NO. WEST 79-250-M 

A/O NO. 02-01746-05003 

Mine: Sand and Gravel Operation 

) 

DECISION 

Before: Administrative Law Judge Vail 

Statement of the Case 

The proceeding arose upon the filing of a petition for the 

assessment of civil penalty (now called a proposal for a penalty, 29 CFR 

2700.27) for five alleged violations of Mandatory Safety Standards contained 

in 30 CFR Part 56. The violations were charged in citations issued to 

Respondent following an inspection of the Sierra Ready Mix Sand and Gravel 

operation in Cochise County, Arizona on February 13 and 14, 1979. 

Pursuant to notice, a hearing on the merits was held in Tuscon, 

Arizona, on February 8, 1980. Mildred L. Wheeler, Esq., Office of the 

Solicitor, United States Department of Labor, San Francisco, California 

appeared as Counsel for the Petitioner. Peter Ranke, Comptroller for the 

Respondent, attended the hearing solely for the purpose of requesting a 

continuance thereof stating the reason being that the Respondent had not 

received adequate notice of the date of hearing. 

1086 
The request for a continuance of the hearing was denied for the 

reason that two written notices of hearing had been mailed to the Respondent . '::· 

advising it of the date, time, and place of hearing as well as several 

telephone conversations held between Mr. Ranke and an employee of the 

Judge's office in Denver, Colorado. The original notice of jurisdiction 

dated January 2, 1980 was sent to the Respondent advising him that the case: 

had been assigned to the undersigned in the Denver, Colorado office. A 

subsequent Notice of Hearing setting the date, time, and place was sent to · 

the Respondent on January 18, 1980. An Amended Notice of Hearing was mailed 

to the Respondent on January 18, 1980 more specifically advising it of the 

room number where the hearing was to be held. Several telephone 

conversations were held with Mr. Ranke prior to the hearing and also with a 

representative of Congressman Udall's office regarding the hearing. Mr. 

Ranke maintains he did not receive the two notices of hearing and that he 

::) 

did not have time to secure an attorney or prepare his witnesses. These 

arguments are rejected as the two notices were mailed to the address stated. 

on the Respondent's letterhead used in filing an Answer to the Petition. 

This is also the town where the plant is located. Further, the Petition was 

mailed to the Respondent on August 27, 1979 and Notice of Jurisdiction on 

January 2, 1980 affording the Respondent adequate time to secure an attorney· 

and prepare his defense in this matter. On the date set for the hearing, 

the counsel for the Petitioner appeared with her witnesses ready to proceed 

with the hearing. For all of the above reasons the request for a 

continuance was denied and the Petitioner presented its case. 

The record establishes that the area of Respondent's plant inspected on· 

February 13 and 14, 1979 involved the wash plant located in the north part 

I. 

1087 
of Sierra Vista, Arizona. There were three employees located at that 

location and according to Exhibit ''A'' of the proposal for assessment of 

civil penalties, the size of the Respondent is determined to involve 63968 

tons or man hours. per year. 

Findings of Fact 

1. Citation No. 378663, issued on February 13, 1979, alleged a 

violation of mandatory standard 30 CFR 56.9-7 which requires emergency stop 

devices or cords along the full length of unguarded conveyors with walkways. 

Mine inspector Thomas Aldrete testified that he was the inspector who viewed 

the Respondent's premises on the dates involved herein and that regarding 

Citation No. 378663, he observed a walkway, approximately 10 feet long, next 

to the main feed conveyor belt which was not guarded or supplied with a stop 

cord. He issued the above citation. The violation was abated by having a 

stop cord installed. 

2. Citation No. 378665, issued on February 13, 1979, alleged a 

violation of mandatory standard No. 30 CFR 56.12-32 which requires that 

inspection and cover plates on electrical equipment and junction boxes shall 

be kept in place at all times except during testing or repairs. Inspector 

Aldrete testified that a vibrator motor junction box cover was missing on 

the main feed conveyor for the wash plant. This violation was abated by 

installing a cover on the junction box. 

3. Citation No. 378667, issued on February 13, 1979, alleged a 

violation of mandatory safety standard 30 CFR 56.09-7 which requires 

emergency stop devices or cords along the full length of unguarded conveyor 

.with walkways. Inspector Aldrete testified that in this situation the 

1088 
/ 

walkway along the conveyor to the scale shed was not equipped with an 

emergency stop cord. This citation was abated by installing a stop cord. 

4. Citation No. 378669, issued February 13, 1979, alleged a violation 

of 56.12-28 which requires that continuity and resistance of grounding 

systems be tested innnediately after installation, repair, and modification, 

and annually thereafter. A record of the resistance measured during the 

most recent test shall be made available on a request by the Secretary or 

his duly authorized representative. Inspector Aldrete testified that no 

records could be found by the Respondent at the t_ime of his inspection of 

the electrical continuity checks. The violation was abated by a continuity 

and resistance of grounding check being performed on February 20, 1979 and 

record made thereof. 

5. Citation No., 378672, issued on February 14, 1979, alleged a 

violation of mandatory standard 30 CFR 56. 5-50 which restricts the noise 

level to wh:ich employees may be exposed. Inspector Aldrete testified that 

an employee operator of a tractor was exposed to 161.4 percent noise of the 

permissible time limit value allowable. This violation was abated by the 

installation of a lexan windshield, extension of the exhaust pipe of the fan 

loader on top of the cab of the tractor, and installation of acoustical 

material on the floorboards. 

Appropriate Penalties 

The Respondent, in its letter dated September 13, 1979, contested the 

above described citations and assessments. However, Respondent failed to 

submit evidence to refute the testimony of the Petitioner's witnesses. I 

find that the violations existed. In considering the amount of the penalty, 

I have determined that the operator is small in size (having only three 

1089 
' 

employees _at the site involved) that it has a history of one prior 

violation, and that the penalties would have no affect on its ability to 

remain in business. Each of the cited violations was promptly abated. 

Citation Nos. 378663 and 378667 each charge one violation of 30 CFR 

56.9-7 (requiring that unguarded conveyors with walkways be equipped with 

emergency stop devices along their full length). I find that the likelihood 

of injury here was probable in that an employee could easily slip or fall 

against the conveyor and be caught in the rollers. Resulting injuries could 

be serious, involving potential disability. Negligence existed in that the 

operator should readily have seen the unguarded conveyor. A penalty of 

$24.00 for Citation No. 378663 and $34.00 for Citation No. 378667 is 

appropriate. 

Citation No. 378665 charges one violation of 30 CFR 56.12-32 (requiring 

inspection and cover plates on electrical equipment and junction boxes be 

kept in place except during testing or repairs). A vibrator motor junction 

box cover was missing on the main feed conveyor exposing the electrical 

wires inside which could allow the wires to rub on the outer rim of the open 

junc~ion box and possibly tear the insulation. This could eventually cause 

the junction box and frame work nearby to become energized, which could 

result in serious and possibly fatal injury due to electrical shock to an 

employee coming in contact with this. Negligence existed in that the 

operator should have seen that this cover was off. A penalty of $30.00 is 

appropriate. 

Citation No. 378669 charges one violation of 30 CFR 56.12-28 (requiring 

continuity and resistance test of the grounding system and a record kept 

thereof). The hazard involved here is that any modification, repair, or 

installation of a new electrical motor requires that the electrical system 

1090 
be checked for continuity of grounding and resistance for if it is 

improper, employees can be exposed to electrical shock and serious or fatal 

injury. Negligence existed in that the operator should have performed this 

function and kept proper records thereof. A penalty of $30.00 is 

appropriate. 

Citation No. 378672 charges one violation of 30 CFR 56.5-50 (relating 

to exposure of employees to noise in excess of specified amounts). I find 

that the employee checked for noise level on the front end loader was 

exposed to excessive noise levels. The operator abated this condition with 

appropriate modifications and the negligence was slight. A penalty of 

$18.00 is appropriate. 

ORDER 

WHEREFORE, it is ordered that Respondent pay the penalty of $136.00 

within 30 days of the date of this decision. 

Distribution: 

Virgil' E. Vail 

Admi~istrative Law Judge 

Mr. Peter Ranke, Controller, Sierra Ready Mix and Contracting Company, P. O. 

Box 520, Sierra Vista, Arizona 85635. 

Mildred Wheeler, Esq., United States Department of Labor, 11071 Federal 

Building, 450 Golden Gate Avenue, Box 36017, San Francisco, California 

94102 

1091 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. CC:LF AX AVENUE 

DENVE'i, ~L~~o9dffljo4 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

SCHNEIDERS READY MIX, INCORPORATED, 

Respondent. 

) 

) 

) 

) Civil Penalty Docket 

) 

) DOCKET NO. WEST 79-69-M 

) MSHA CASE NO. 05-01027-050051 

) 

) Mine: Schneiders Pit and Plant 

) 

~~~~~~~~~~~~~~~~~-> 

APPEARANCES: 

Phyllis K. Caldwell, Esq., Office of the Regional Solicitor, United 

States Department of Labor, 1585 Federal Building, 1961 Stout Street, 

Denver, Colorado 80294 

for the Petitioner, 

Frank J. Woodrow, Esq., 144 South Uncompahgre Avenue, P.O. Box 327, 

Montrose, Colorado 81401 

for the Respondent. 

BEFORE: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

The Petitioner seeks to assess a penalty against the Respondent for 

its ~lleged violation of 30 CFR § 56.14-11

• The Petitioner attached as an 

exhibit to the proposal for penalty citation number 328084, issued September 

13, 1978, in which it is stated that the troughing rollers on the main feeder 

conveyor belt were not guarded and an employee was injured when his arm was 

pulled into the rollers. 

By way of answer the Respondent admits that an employee of the Respondent 

was injured on August 17, 1978, but alleges that the injury involved was caused 

by the intentional misconduct of the employee and not by a dangerous condition 

or by unprotected equipment. 

_!/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. 

1092 
Pursuant to notice a hearing was held on the merits on March 19, 

1980, at Montrose, Colorado. At the conclusion of the hearing the 

parties agreed that they would not prepare any post hearing submissions 

for filing and that written decision would be issued after the transcript 

of the proceeding was filed. The transcript having been received, I 

issue the following decision. 

ISSUE 

Did the conveyor and rollers constitute equipment with exposed 

moving machine parts which might be contacted by persons and might cause 

injury and thus constitute a violation of 30 CFR § 56.141? 

FINDINGS OF FACT 

The following findings of fact are uncontroverted: 

1. At all times relevant to these proceedings and in the course of 

its business the Respondent conducted a gravel and rock crushing operation. 

2. One structure referred to as the feeder house had a hopper next 

to a loading ramp (Exhibit 2) and the rock and gravel material were fed 

through the hopper onto a conveyor belt in the feeder house. 

c 3. The conveyor belt unit within the feeder house compartment 

allowed clearance of a maximum of 2 1/2 to 3 feet (Tr. 12, 13) where an 

individual could walk around three sides of the conveyor belt and it was 

approximately 6 feet from the level of the floor to the ceiling. 

4. The end of the conveyor belt unit under the feeder or hopper is 

approximately 3 feet above the level of the floor and after traveling an 

incline distance of approximately 5 1/2 feet the conveyor is approximately 

5 feet 4 inches above the floor level and is approximately at ceiling 

level 6 feet above the floor at the point that tffe conveyor leaves the 

feeder house compartment. 

1093 
5. On August 17, 1978, an employee of the Respondent was injured 

when his left hand and arm were pulled into the operating conveyor belt 

and a supporting roller approximately 5 feet 4 inches above the floor 

level in the feeder house. 

6. After the citation was issued on September 13, 1978, the Respondent 

installed a guard made of plywood approximately 1/2 inch thick, 2 feet 

wide, and 6 to 8 feet long, and installed it onto the conveyor belt 

unit. 

DISCUSSION AND CONCLUSIONS OF LAW 

There is no evidence to support the allegations of the Respondent 

that the injury to Lee A. Pinover, the employee of the Respondent, was 

caused by the intentional misconduct of Mr. Pinover. The only witness 

to the incident was Mr. Pinover himself since no other personnel were 

present in the feeder house at the time of the injury. I found the 

testimony of Mr. Pinover entirely credible. 

Mr. Pinover testified that he had spent- several minutes in the area 

of the conveyor belt using a large square shovel to clean up rocks from 

the concrete floor.'~· When he attempted to scrape off an accumulation 

from the conveyor frame his shovel became lodged in the framework and 

when he reached with his left hand to free the shovel, his hand got 

caught between the roller and the conveyor belt. His hand and arm were 

pulled through the roller and belt up to his shoulder. Although Mr. 

Pinover screamed and shouted for help (Tr. 46) no one could see or hear 

him due to the noise and the fact that the person who could shut off the 

conveyor belt was not within sight of Mr. Pinover. With his left arm 

caught, Mr. Pinover reached for a switch box on the wall and started 

pushing buttons in order to turn off the power. His arm was caught for 

1094 
a minute or so before the belt finally stopped. It was turned off by 

the crusher operator after he discovered Mr. Pinover's predicament (Tr. 

78). 

Even if Mr. Pinover had not gotten caught in the conveyor belt and 

roller, a dangerous condition was shown to exist for anyone working 

around the conveyor because of the exposed moving machine parts which 

might be contacted by persons and might cause injury. Any person working 

with a shovel cleaning up around the conveyor had only 2 1/2 to 3 feet 

of room as working space at the side or end of the conveyor. Because of 

this condition the conveyor belt should have been guarded in order to 

protect those persons who might get caught in the conveyor or rollers. 

The foreman and part owner of the Respondent testified that it did 

not occur to him to install guard material on the conveyor even after 

Mr. Pinover was injured because he did not consider the condition a 

hazard. He testified further that he had been around equipment all his 

life and "you just don't get into these situations." (Tr. 69.) The 

injured employee, Mr. Pinover, was 15 years old at the time of the 

accident and 16 years old at the time of the hearing, although the 

Respondent may not have known of Mr. Pinover's age when he was hired 

part-time (Tr. 53). Mr. Pinover stated at the time of the hearing that 

he was 6 feet 3 inches tall and weighed 230 pounds and that he had grown 

some since the accident. Whether or not the 15 year old employee was 

careless and caused his own injury is not relevant. The question is 

whether or not there were exposed machine parts which might be contacted 

by persons and which might cause injury. The precise purpose of installing 

1095 
the guard is to prevent the accidental injury to persons near the machinery 

such as occurred to this employee. Therefore, I conclude that the 

Respondent did violate 30 CFR § 56.14-1 as set forth in citation number 

328084. 

PENALTY ASSESSMENT 

Stipulation as to size, history and ability to continue. 

The parties stipulated to the following: (1) The company size is 

11,054 man hours per year, (2) the history is eight assessed violations 

in the previous 2 years during three inspection days, and (3) the penalty 

assesed will not effect the operator's ability to continue business. I 

therefore conclude that the Respondent's gravel and rock crushing business 

is a small sized operation and that there is a history of a small number 

of violations. 

Gravity 

The gravity of a safety violation must be measured by: (1) the 

likelihood that it will result in injuries, (2) the number of workers 

potentially exposed to such injuries, and (3) the severity of potential 

injuries Cleveland Cliffs Iron Company v MSHA, et al, Docket No. VINC 

79-68-M, December 3, 1979. 

The number of workers exposed is not large in that only one person 

would be working in the cleanup area. Only seven persons worked in the 

entire gravel and rock crushing operation. However, the severity of 

potential injuries likely to result is high. I conclude the violation 

was moderately severe. 

Negligence and Good Faith 

I find the operator was negligent. The operator did not consider 

that there was a hazard present and thus did not install guards until 

after the citation was issued on September 13, 1978, even though a 

1096 
serious injury occurred to a worker on August 17, 1978. The operator 

demonstrated good faith in attempting to achieve rapid compliance after 

notification of the violation by promptly installing plywood guards 

along the conveyor unit. 

Based on the testimony and exhibits introduced at the hearing and 

considering the criteria set forth in Section llO(i) of the Federal Mine 

Safety and Health Act of 1977, I conclude that a civil penalty of $800 

should be imposed for the violation found to have occurred. 

ORDER 

It is ordered that the Respondent pay a penalty of $800 within 30 

days from the date of th~s decision. 

Distribution: 

IJ<Sn D. Boltz 

vAdministrative Law Judge 

Phyllis K, Caldwell, Esq. Office of the Regional Solicitor, United 

States Department of Labor, 1585 Federal Building, 1961 Stout Str·eet, 

Denver, Colorado 80294 

Frank J. Woodrow, Esq., 144 South Uncompahgre Avenue, P.O. Box 327, 

Montrose, Colorado 81401 

1097 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND 

HEALTH ADMINISTRATION 

(MSHA), 

v. 

FMC CORPORATION, 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

1 4 MAY 1980 

Petitioner, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CIVIL PENALTY PROCEEDING 

DOCKET 'NO. WEST 79-167-M 

A/O NO. 48-00152-05006 

Mine: FMC Mine 

~~~~~~~~~~~~~~~~~~ 

APPEARANCES: 

DECISION 

James H. Barkley, Esq., Office of the Regional Solicitor, 

United States Department of Labor, 1585 Federal Building, 

1961 Stout Street, Denver, Colorado 80294 

for the Petitioner, 

Clayton J. Parr, Esq., Martineau, Rooker, Larsen and 

Kimball, 1800 Beneficial Life Tower, 36 South State 

Street, Salt Lake City, Utah 84111 

for the Respondent. 

Before Judge Jon D. Boltz 

Statement of the Case: 

Petitioner seeks an order assessing civil penalties against. the 

Respondent for Respondent's alleged violations of 30 CFR 57.9-321 and 30 

CFR 57.21-782. These penalties were proposed pursuant to proceedings 

provided for by provisions of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 80l~seq. 

1/ 

2/ 

"Mandatory. Dippers, buckets, scraper blades, and similar movable parts 

sha 11 be secured or lowered to the ground when not in use. 11 

"Mandatory. Only permissible equipment maintained in permissible 

condition shall be used beyond the last open crosscut or in places 

where dangerous quantities of flanunable gases are present or may enter 

the air current." 

1098 
The Respondent is charged in Citation 336428 with having 

violated 30 CFR 57.9-32 in that its roof bolter was parked with the boom 

elevated. In addition, Respondent is charged in Citation No. 336443 with 

failure to maintain its loading machine in a permissible condition in 

violation of 30 CFR 57.21-78. 

The Respondent contends that standard 57.9-32 is not applicable to the 

roof bolter because that equipment is used to drill holes and set roof bolts 

and not used for "loading, hauling, and dumping" consistent with the heading 

of section 57.9. Also, Respondent contends that it did not violate section 

57.21-78 because the loading machine in question had been tagged and was 

voluntarily taken out of service for repairs prior to the inspection and 

issuance of the citation by Petitioner's mine inspector. 

Pursuant to notice, a hearing was held on the merits in Salt Lak~ City, 

Utah on February 20, 1980. The transcript of the proceedings was filed. with 

my office on March 7, 1980. Respondent filed its post-hearing brief on 

April 4, 1980. Petitioner waived the filing of a post-hearing brief. 

Issues: 

1. In regard to Citation No. 336428, the issue is whether the roof 

bolter is the type of equipment contemplated in 30 CFR 57.9-32, and, if so, 

whether its "movable parts" were properly secured or lowered to the ground 

when not in use. 

2. In regard to Citation No. 336443, the issue is whether the 

Respondent's loading machine, which was tagged out of service and thus not 

"permissible equipment" at the time of the inspection, had been used by the 

Respondent in such condition prior to the inspection. 

1099 
CITATION 336428 

Findings of Fact: 

1. During the course of a regular inspection of Respondent's coal mine 

on December 21, 1978, a MSHA inspector observed an unattended roof bolting 

machine in a working area of the mine. (Tr. 14). 

2. The roof bolter is an electrically powered machine used fo·r 

installing roof bolts in a mine and roof bolts are used as a means of 

support for the roof. (Tr. 12). 

3. A boom approximately 8 feet long is mounted on the roof bolter so 

that the operator can move the "drill around and drill holes at various 

angles in the mine. 11 (Tr. 13). 

4. Attached to the boom is the "rack" (Tr. 20) which is about 6 feet 

long and contains the drilling and bolting machinery. 

5. The rack may be rotated from the boom to a vertical position in 

order in install roof bolts. 

6. The MSHA inspector observed the roof bolter with the boom raised 

approximately 4 feet off the floor of the mine (Tr. 13) with the rack in a 

horizontal position. (Tr. 20). 

7. In order to abate the citation issued, the rack was rotated to a 

vertical position and placed on the ground. (Tr. 74). 

8. If the boom suddenly fell from its raised position 4 feet above the 

ground, it would drop only t foot (Tr. 21, 22) due to a stop built into the 

roof bolter. 

Discussion: 

The provisions of 30 CFR 57.9-32, cited as having been violated, are 

not applicable to the roof bolting machine in this case. 

1100 
The above regulation is included under the general heading of 30 

CFR 57.9, entitled "Loading, Hauling, Dumping." These general words suggest 

the intent of including situations in which earth, minerals, or other matter 

is moved, loaded, hauled, or dumped. 

The words "dippers, buckets, and scraper blades" contained within 

section 57.9-32 suggest equipment used to move earth. (Tr. 25). However, 

the roof bolter is equipment used simply to drill holes and set roof bolts 

and does not have the function of moving earth materials. Additionally, by 

the design of the machine utilized by the Respondent, the boom cannot be 

lowered any nearer than 3 feet above the ground. 

"In the construction of laws ... and other instruments, the 

'ejusdem generis rule' is, that where general words follow an 

enumeration of ..• things, by words of a particular and specific 

meaning, such general words are not to be construed in their 

widest extent, but are to be held as applying only to •.. things 

of the same general kind or class as those specifically 

mentioned". Black, Interp. of Laws, 141; Goldsmitti v U.S., 

C.C.A.N.Y., 42 F. 2d 133, 137 (2d Cir. 1930). 

Thus, the general words "and similar movable parts" contained in section 

57.-9-32 should be construed as applying only to the specifically mentioned 

words "dippers, buckets, scraper blades", al 1 of which are used for the 

purpose of "loading, hauling, and dumping." This would not include the 

function of the roof bolting machine in question. 

CITATION 336443 

Findings of Fact: 

9. During the course of inspecting Respondent's mine on January 17, 

1979, a MSHA inspector observed a loading machine not in use or operating, 

in a crosscut, with a tag or sign on the equipment stating "danger--do not 

operate" or words to that effect. (Tr. 90). 

1101 
10. A ... loading machine" is used at the working face of the mine to 

load blasted material into shuttle cars which transfer the ore back to a 

dumping point. (Tr. 87). 

11. The Respondent's mine was a gassy mine (Tr. 93, 94) in that there 

was methane gas present. 

12. At the time the loading machine was examined by the MSHA inspector 

it could not be safely operated within a methane atmosphere due to loose 

junction or control boxes which could cause live electrical wires to be 

exposed to the methane atmosphere. (Tr. 95, 96, 97, 98, 99). 

13. At the time of the inspection, the junction or control boxes on the 

loader were warm (Tr. 103), and the inspector concluded that the loader had 

• 

recently been used in the condition in which it was found. 

DISCUSSION 

Petitioner has the burden of proving by a preponderance of the· evidence 

that the loader was not maintained in a permissible condition and was used 

beyond the last open crosscut or in places where dangerous quantities of 

flammable gases were present or might enter the air current. The 

preponderance of evidence is defined as the greater weight of evidence or 

evidence which is more credible and convincing to the mind. Button v 

Metcalf, 80 Wis. 193, 49 N.W. 809 (1891). It is also defined as that 

evidence which best accords with reason and probability. U.S. v McCaskill, 

200 F. 332 ( Cir. 1912). Petitioner's evidence falls short of a 

preponderance. 

The MSHA inspector testified that he had no intention of writing the 

citation because the loader had been "tagged out", but when he discovered 

~hat the electrical boxes on the loader were still warm, this indicated to 

him that the machine "had been operating recently." (Tr. 91). Thus, he 

1102 
concluded that the machine had been operated while not in a permissible 

condition in violation of 30 CFR 57.21-78. The Petitioner also argues: 

"[w]e essentially think they (Respondent's employees) saw him (the MSHA 

inspector) coming and tagged it (the loader) out, but it had been operating 

up to that point in time." (Tr. 157). Since the MSHA inspector had not 

witnessed the loader in operation, in violation of the cited regulation, it 

was necessary to prove the case by circumstantial evidence. Petitioner's 

evidence of violation of the regulation is speculative and insufficient. 

Respondent freely admits that it did operate the machine during the previous 

shift, before the citation was issued (Tr. 159), and that the machine was 

not in a permissible condition when the inspector saw it. (Tr. 160). 

However, because the equipment was tagged out of service by the 

Respondent before the inspection took place, I conclude that the Respondent 

recognized the deficiencies in the machine and took it out of service, 

requiring repairs before it could again be utilized. Had the equipment not 

been posted with the "danger--do not operate" tag and removed from service I 

might conclude otherwise, but in this case I do not believe that the 

evidence presented by the Petitioner outweighs that presented by the 

Respondent. The evidence presented by the Respondent shows that the loader 

was operated during the shift that ended at 7:00 a.m. on the date of the 

inspection. There is no credible evidence upon which to base a conclusion 

that the loader was used after that time, up until the inspection was made 

at about 9: 55 a. m. The Respondent alleges that the equipment was "tagged 

out" during the last shift, and the Petitioner alleges that the loader 

continued to be used in its impermissible condition up until the time that 

the inspection was made. Although the MSHA inspector testified that the 

electrical junction boxes on the loader were still warm when inspected, 

1103 
there is no evidence to show how long it takes after the loader is used 

before those electrical junction boxes are cold. 

FINDINGS OF FACT 

I find the facts to be as stated in paragraphs 1 through 13 of this 

decision. 

CONCLUSIONS OF LAW 

1. The provisions of 30 CFR 57.9-32, cited as having been violated, 

are not applicable to the roof bolting machine in this case and Citation 

No. 336428 should be vacated. 

2. The Petitioner failed to prove by a preponderance of the evidence 

that the Respondent operated it s loader while it was not in a permissible 

condition, in violation of 30 CFR 57.21-78, and thus Citation No. 336443 

should be vacated. 

ORDER 

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

Citations No. 336428 and 336443 and any penalties proposed therefore are 

vacated. 

Distribution: 

James H. Barkley, Esq., Office of Regional Solicitor, United States 

Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

Colorado 80294 

Clayton J. Parr, Esq., Martineau, Rooker, Larsen and Kimball, 1800 

Beneficial Life Tower, 36 South State Street, Salt Lake City, Utah 84111 

1104 
FEDERAL Mi~~ SAFETY AND HEALTH REYIE¥i'COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

1 5 MAY 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. SE 79-75 

Petitioner A/O No. 09-00053-05003 

v. Clinchf ield Mine & Mill 

MEDUSA CEMENT COMPANY, 

Appearances: 

Before: 

Respondent 

Natalie Nelson, Attorney, U.S. Department of Labor, 

Atlanta, Georgia, for the petitioner; 

Tom w. Daniel, Esquire, Perry, Georgia, for the 

respondent. 

Judge Koutras 

DECISION 

Statement of the Proceedings 

These proceedings concern proposals for assessment of civil penalties 

filed by the petitioner against the respondent on August 27, 1979, pursuant 

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

§ 820(a), charging the respondent with one alleged violation of mandatory 

safety standard 30 C.F.R. § 56.9-2. Respondent filed a timely answer contesting the citation, and a hearing was held in Macon, Georgia, on February 26, 

1980. Posthearing briefs were filed by the parties, and the arguments 

presented therein have been conside~ed by me in the course of this decision. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164, 30 u.s.c. 

§ 801, et~· 

2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 29 C.F.R. § 2700.1 et ~· 

ISSUES 

The principal issues presented in these proceedings are (1) whether 

respondent has violated the provisions of the Act and implementing regulations as alleged in the proposal for assessment of civil penalty filed, 

1105 
and, if so, (2) the appropriate civil penalty that should be assessed 

against the respondent for the alleged violation based upon the criteria 

set forth in section HO(i) of the Act. Additional issues raised by the 

parties are identified and disposed of where appropriate in the course of 

these decisions. 

In determining the amount of a civil penalty assessment, section llO(i) 

of the Act requires consideration of the following criteria: (1) the 

operator's history of previous violations, (2) the appropriateness of such 

penalty to the size of the business of the operator, (3) whether the operator 

was negligent, (4) the effect on the operator's ability to continue in 

business, (5) the gravity of the violation, and (6) the demonstrated good 

faith of the operator in attempting to achieve rapid compliance after 

notification of the violation. 

DISCUSSION 

The section 104(a) Citation, No. 096981, April 3, 1979, cites a violation of 30 C.F.R. § 56.9-2, and states as follows: "On the D-562 road 

grader, the right steering control arm block was badly worn and needed 

to be replaced. There was too much play for safe operation." 

Mandatory safety standard 30 C.F.R. § 56.9-2, provides as follows: 

"Equipment defects affecting safety shall be corrected before the equipment 

is used." 

Stipulations 

The parties stipulated to the following (Tr. 5-7): 

1. The size of the respondent company and the mining operation at 

the Clinchfield Mine & Mill stated in terms of annual man hours. The 

mine employs approximately 200 people and the respondent company employs 

approximately 1,500 and operates four cement plants, including the operation 

in question. 

2. Payment of the penalty assessed by MSHA will not adversely affect 

respondent's ability to remain in business. 

Testimony adduced by the parties. 

Petitioner 

MSHA inspector Steve Manis testified that he conducted an inspection 

at the mine in question April 3 through 5, 1979. Upon inspection of 

the road grader in question, he observed that on the righthand side, the 

steering arm block connected to the drag length was completely worn out. 

1106 
He confirmed his observations by instructing the operator to move the 

steering wheel and .by hand-inspecting the steering drag length, he 

observed that the bearings around the pins that fit into the steering 

block mechanism were worn, and that the bushings in the steerfng block 

were completely worn out. As an experienced grader operator, it was 

his opinion that if the pin had broken or fallen out, a loss of steering 

on the right-hand side would occur, the wheel would become detached 

from the drag length bar and the wheel would go in either direction. 

The inspector indicated that the grader is primarily used to keep 

the main haulage roads smooth and free of rocks and to grade the roads 

and pit area, and it travels across a railroad crossing and a highway 

when it travels to the plant area. The principal hazard which would 

result in the event the steering mechanism failed would be the inability 

of the operator to stay out of the way of trucks, cars, and other equipment, and the operator of the grader or any other vehicle would be 

exposed to such a hazard. In addition, loss of steering around an embankment or near the high walls would also expose the grader to the possibility 

of going over such an area, and various injuries could result from any 

faulty steering (Tr. 11-19). 

Inspector Manis testified that when he called the conditiori of the 

grader to the attention of mine management, the grader was immediately 

taken to the shop for inspection and repairs. Later that day he was 

informed that repairs had been made and he went to the shop and confirmed 

this fact. He observed the old parts, and confirmed that new parts had 

been installed, and upon hand-testing the drag length found no movement. 

Upon observation of the old parts, he saw that they were badly worn, that 

the pin was almost completely worn out, and that the bushings and bearings 

around the pin were completely worn away. After noting his observations, 

he issued the citation the next day, April 4, 1979, citing a violation 

of section 56.9-2, which requires that all equipment defects be corrected 

before the equipment is put into operation for that day or for that shift 

(Tr. 20-23). 

Inspector Manis indicated that the condition cited was visible upon 

inspection, and that it should have been detected during the daily inspection or during a regularly scheduled maintenance or servicing period. The 

wear on the steering mechanism was not an "overnight" problem and it may 

have taken a month or two for the condition to develop. He discussed the 

citation with mine management during a conference and no questions were 

raised (Tr. 24). 

On cross-examination, Inspector Manis identified a copy of his citation, and his "inspector's statement" (Exhibit R-1). In explanation of 

his conclusion that "there was too much play for safe operation" of the 

steering control arm block, he indicated that it was so badly worn that 

under certain conditions it could fall off. In his opinion the driver 

could not safely operate the vehicle in the condition it was in, particularly when he has to steer around other equipment. The roads where the 

grader operates is wide enough for two vehicles to pass, but he has never 

1107 
observed a road grader at the mine getting out of the way of a truck 

(Tr. 24-31). He explained the operation of the steering mechanism and 

stated that steering loss would not occur to the left wheel in the event 

the right-hand block fell off. While the left wheel would still turn 

left or right, steering the grader would be difficult because of the loss 

of control over the right wheel. He has never driven a grader with a broken 

block, and could not state with any certainty whether it could be guided 

by the use of only the left wheel. Although he is not a mechanic, he 

indicated knowledge as to the mechanics of the steering mechanism on the 

grader and how it operates (Tr. 31-36). He believed that loss of steering 

would result on the right wheel if the block in question fell out, and 

that the grader would be unable to maneuver quickly in an emergency. The 

grader was on the main haul road coming towards the pit when he observed 

it, and it was approximately one mile from the shop. He permitted the 

grader to be driven to the shop, but had he believed the condition were 

worse, he would have issued an imminent danger withdrawal order, but that 

was not the case (Tr. 37-40). 

In response to questions from the bench, Inspector Manis stated that 

at the time the citation issued, section 56.9-1, requiring inspection of 

equipment each shift and the reporting of any defects found was an advisory 

standard and not mandatory. He made no check of any inspection books and 

could not recall checking any records regarding the grader. He believed 

the condition of the loose steering mechanism could have resulted in an 

injury if it was left unattended •. The operator exercised good faith in 

rapidly abating the citation and immediately took the grader to the shop. 

He could think of no grader equipment defects which would not affect safety. 

The travel speed of the grader depends on whether it is actually grading 

roads or moving from location to location. When the blade is down, it 

moves at slow speed, and the machine in question operates only on mine 

property and not on public roads. The grader in question is an older grader 

and is not required to be equipped with roll-over protection or seat b!'!lts. 

The grader was in operation at the time he stopped it for an inspection 

(Tr. 46-54). 

Respondent's testimony and evidence 

Shep Bass, motor grader operator, testified that he was operating the 

grader smoothing off the dump when Inspector Manis stopped him to inspect 

the machine. He did not have any steering or operating problems with the 

grader that day. Although he has ope·rated the grader on prior occasions, 

Mr. Bass did not operate the grader the day before the inspection took place, 

and he is required to fill out an inspection form at the end of every shift 

regarding the safety condition of the grader (Tr. 55-57). 

On cross-examination, Mr. Bass testified that he inspects the grader 

when he greases the steering block mechanism about once a week. The last 

time he greased the grader was a week prior to the citation. At that time, 

he noticed that the steering link was somewhat worn (Tr. 58). 

1108 
In response to bench questions, Mr. Bass testified that the steering 

block mechanism is readily observable. If the steering arm falls off, 

there are wheel tilts to control the grader. As an operator, he is not 

that concerned about worn steering because the grader cannot operate over 

15 miles per hour, and it is never operated on hills, but only on the 

haul road and dump. He operates the grader alone and there are no helpers 

around. Although there is no pedestrian traffic, there are truck drivers 

in the area (Tr. 58-61). 

Virgil Jones, diesel mechanic, testified that he replaced the defective 

steering mechanism block on the day in question. As a demonstration, 

Mr. Jones identified a new block, the pin, and the bushing, and he explained 

how they are assembled and operate. He indicated that the block which was 

replaced had part of the bearing race still intact, but that the needle 

bearings were worn. While installing a new steering mechanism block, he 

observed that the top pin and the bushings were in good condition. The bushings were partially off of the bearing race. Although some of the needle 

bearings were missing, the needle bearings that were intact were worn. It is 

his opinion that if the steering block mechanism fell off or disintegrated, 

he could safely operate the grader because of its low rate of speed and tilt 

controls. If the steering block mechanism becomes loose, the .. operator can 

use the tilt controls to regulate the inner and outer plate of the wheel. 

An operator can use the tilt controls to throw the wheel to the left and take 

pressure off of the right wheel. In short, the two controls act as a dummy 

guide, and the grader can operate on one wheel. Approximately a week 

before the citation issued, he performed maintenance on the left wheel and 

observed the worn block on the right side, and since he had ordered 

parts they were readily available to replace the worn block. However, he 

did not believe it was worn to the point where it created a safety hazard 

or was about to fall off or break apart, and in his view, the grader could 

operate in a safe condition (Tr. 63-69). 

In response to bench questions, Mr. Jones testified that he was with 

Inspector Manis when he conducted the equipment inspection, and that 

Mr. Manis told him that he had a "sloppy bushing." The grader was then 

taken to the shop, and Mr. Jones repaired it. After making the necessary 

repairs, he observed that the pin had very little wear and tear on it, 

The pin would have to be at least one-eighth of an inch before it was in 

danger of breaking. He indicated that the grader could operate with one 

wheel missing by means of the tilt controls, and he would have no reservations in operating the grader in the condition it was in at the time 

it was cited (Tr. 70-74). 

John Fowler, quarry supervisor, testified that he was present when 

the motor grader was inspected. Inspector Manis told him that he had a 

"sloppy bushing," and parts were available to repair the bushing which 

did have "some play in it." He identified photographs of the grader in 

question, as well as the bushing (Exhibits R-2 through R-6) (Tr. 75-81). 

He stated that company policy requires that defective operating equipment 

be reported to a supervisor immediately, and equipment operator's are 

required to fill out a daily operator's report, Exhibit R-7, and to submit 

it at the end of every shift. They are also required to shut the machine 

down (Tr. 81-84). 

1109 
On cross-examination, Mr. Fowler testified that the equipment report 

(Exhibit R-7)-, has been in use for the past 12 years, and maintenance files 

are maintained on all equipment. Employees are required to indicate on 

the report that a·part needs repair (Tr. 84-85). 

In response to bench questions, Mr. Fowler testified that respondent 

has an equipment checkup system. Although there is no specific steering box 

section, employees should note any steering defects on the report. Steering 

is one of those areas of normal operation and normal check. During his 

employment, there have been cases where motor grader operators do not fill 

out nor submit the required report to mine management (Tr~ 85-87). 

Richard P. Kistler, plant manager, expressed the opinion that the 

citation is improper because it is based on conjecture that the condition 

would lead to an unsafe act. There was. some wear on the top bushing 

and assembly, but the bottom pin and bush assembly was tight and there was 

no danger of the parts falling apart. Although conceding there was some 

wear on the parts, he believed the operator could stop the motor grader 

instantly. The normal operating speed for the motor grader with the blade 

down is 3 to 5 miles per hour, and the normal speed for the grader with 

the blade up is 10 to 12 miles per hour. Company policy dictates that in 

the event an employee observes a worn steering condition, that employee must 

cease operating the motor grader, inform his supervisor, and correct it. 

Management, as well as all employees, are involved in an extensive safety 

program (Tr. 91-96). Mr. Kistler identified the photograph, Exhibit R-2, 

and indicated that the grader which was cited is the one depicted "on the 

right-hand side" (Tr. 101). 

Billy Barrett, employed as an administrative assistant by the respondent, testified that he took the pictures identified as Exhibits R-2 through 

R-6, and that they were taken during the latter part of January, 1980. He 

identified Exhibit R-2 as the Cleveland motor grader which was cited, and 

indicated that the roll bar shown has been on the grader for six to seven 

years (Tr. 106). 

Inspector Manis was called in rebuttal and stated that while the photograph (Exhibit R-2) is a grader, similar to the one he cited, he was unsure 

as to whether it is in fact the specific one which he cited (Tr. 113-115). 

He did recall that the pin he observed was badly worn, that it was loose 

between the pin and the block, and that there was no bushing between the 

pin and the block (Tr. 115-116). As for the "burnt" block area, he did 

recall that the pin may have had burned places on it (Tr. 119). 

Virgil Jones was recalled, and identified Exhibit R-2 as a photograph 

of the grader cited, and he stated that the roll protection was installed 

during late 1974, that only one grader was at the mine, and that he has 

performed maintenance on it since 1972 (Tr. 121). He again identified 

the pin he removed and stated that the burned bottom portion resulted when 

he cut it out with a torch. He no longer had the bottom portion of the 

pin which he cut out in April, 1979, because it was destroyed in the cutting 

process, but he explained how it fit into the block and sleeve (Tr. 123). 

He confirmed that the play was between the pin and the block (Tr. 124). 

1110 
Arguments presented by the parties 

Petitioner 

In its posthearing brief, petitioner asserts that the testimony of 

inspector Manis establishes that the grader steering drag link pin bearings 

were completely worn and defective, and that in such a condition a loss of 

steering could occur on the right side. If this were to occur, the resulting loss of steering would cause the right wheel to turn abruptly, thereby 

exposing the grader operator to a hazard of being struck by an oncoming 

vehicle or cause him to strike a pedestrian. Further, petitioner argues 

that the inspector verified the loose defective steering mechanism by 

observation and by manually manipulating the worn part, and that once 

repairs were effected and new parts installed, the steering arm had no 

movement with the new parts in place. 

Since the defect in question was in the steering mechanism, petitioner 

argues that it is obvious that such a defect could affect the safe operation of the grader as it might cause the operator to travel into the path 

of oncoming vehicles or pedestrians. 

Respondent 

Respondent argues that the worn condition of the steering control 

arm block in question was not such as to render the part defective and 

that both the grader operator and the mechanic were aware of the worn 

condition, did not believe it was worn badly enough to warrant replacement, and could have replaced it at any time since the part was in stock. 

Respondent takes the position that all machinery in use will wear and that 

the question of whether the degree of wear is such as to require the 

replacement of a part is a subjective judgment to be made not only by 

an inspector, but also by the grader operator and the mechanic. Respondent 

asserts that it was the collective judgment of the operator and mechanic 

that the wear to the part did not render it defective. 

Assuming that the worn part in question can be considered to be defective, respondent argues that the resulting condition was not dangerous. In 

support of this conclusion, respondent argues that the use of the grader in 

question is confined to mine property and it is primarily used for dressing 

the roads and leveling some of the spoil piles. Even assuming that the 

alleged defect caused the particular bushing to disintegrate and fall off, 

respondent maintains that the grader could still be driven and the steering 

of the left front wheel would be sufficient to control its direction. Further, respondent argues that if the grader was in the process of grading, 

it could be stopped almost instantly by use of both the brakes and the 

braking power of the blade. Finally, respondent asserts that the mechanic 

testified that even though the bushing has nothing to do with the attachment of the wheel, the grader could even be operated and driven with one 

of the front wheels missing. 

1111 
Findings and Conclusions 

Respondent is charged with a violation of section 56.9-2, a rather 

broad and general standard which provides that "[E]quipment defects affecting safety shall be corrected before the equipment is used." In order to 

support a violation of this standard, MSHA must first establish by a preponderance of the evidence that the cited piece of equipment was somehow 

defective or contained a defective part. It next must establish that the 

asserted defect affected the safe operation of the equipment or exposed 

miners to a safety hazard. 

In this case, the asserted defect is described by the inspector on the 

face of his citation as a "badly worn right steering control arm block" on 

a road grader used on the surface for maintaining the mine roads and pit 

areas. The inspector concluded that the "badly worn" part needed to be 

replaced because "there was too much play for safe operation." It se~ms 

obvious to me from the inspector's testimony in support of his citation 

that his principal concern was the fact that in his judgment the grader in 

question could not be safely operated with a worn steering mechanism. The 

inspector believed that the condition of the "worn" control arm in question 

was such as to present a hazard to the grader operator in that in the event 

of a steering failure, he would be unable to maneuver out of the way of 

oncoming traffic. He was also concerned over the fact that a loss of 

steering near an embankment would expose the operator to the risk of going 

over the embankment. 

I have carefully reviewed and considered the testimony presented by the 

parties in support of their respective positions in this case, and I 

conclude and find that the respo~dent has the better part of the argument, 

both as to its interpretation of the application of the cited standard as 

well as the facts and evidence adduced through the testimony of the witnesses 

who testified in this proceeding. I conclude and find that MSHA has not 

established that the worn control arm in question was defective to the point 

where it presented a real safety hazard. In short, I believe MSHA's theory 

of the case seems to be that any wear and tear on a steering control arm 

should be corrected immediately so as to preclude further deterioration 

which may at some future time cause a problem. If I were to accept this 

theory of interpretation of the cited standard, the subjective judgments of 

an inspector would dictate ipso facto when a change-out is required on any 

piece of equipment. In order to prevail on this subjective interpretation 

of the standard, I believe that an inspector must first establish a nexus 

between the asserted defect and its affect on the safe operation of the 

equipment cited. I cannot accept the theory that any worn part in and of 

itself affects safety. If this is the intent of the standard, then I believe 

that MSHA should promulgate a precise standard that requires that all worn 

parts be replaced. On the evidence presented in this case, I can only 

conclude that MSHA has failed to establish by a preponderance of the evidence 

that the worn control arm bushing in question adversely affected the safe 

operation of the grader, and my reasons for this conclusion follow. 

1112 
Although Inspector Manis alluded to his past experience in operating 

equipment, he candidly admitted that he has never operated a grader with 

a broken bushing of the type in question and could not state with any degree 

of certainty whether the grader could be controlled by use of the left wheel 

only. Further, while he exhibited some degree of knowledge with respect 

to the mechanics of steering mechanisms, it is clear that he is not a 

qualified mechanic. Therefore, I believe that his conclusions with respect 

to the loss of steering in the event the loose and worn control arm in 

question failed completely is conjecture. This is not to say that he is not 

qualified·to state his opinion in this regard. However, on the basis of the 

testimony presented by.the respondent from.the operator of the grader, and 

the experienced mechanic who serviced and operated the grader over a period 

of years, I conclude that the respondent has rebutted the conclusions by 

the inspector and has established that the extent of the worn part cited did 

not render the grader unsafe. 

I find Mr. Jones' testimony regarding the steering mechanism of the 

grader to be credible and I accept his explanation that any loss of steering 

caused by a defective control arm would not adversely affect the control of 

the grader and cause it to expose an operator to a hazard of striking other 

vehicles or run over an embankment. There is absolutely no evidence that the 

grader was otherwise defective, that it had faulty brakes or was otherwise in 

such a condition as to render it unsafe to operate. Further, respondent has 

established to my satisfaction that the grader in question was equipped with 

roll-over protection at the time the citation issued, and I conclude that the 

inspector's theory in issuing the citation in the first place was an effort 

on his part to force the respondent to replace a worn part which in the final 

analysis was a "preventive maintenance" item. In short, I conclude that the 

inspector believed that any worn part is on its face defective and therefore 

should be replaced. The problem with this is that the standard as written 

does not require the.replacement of worn parts ~r se. 

In support of its case, petitioner cites a recent decision by Judge 

Merlin rendered from the bench on October 22, 1979, in MSHA v. Phelps 

Dodge Corporation where he affirmed a violation of section 55.9-2, on the 

basis of the testimony of two inspectors who found that loose lug nuts on 

a truck wheel could cause the wheel to come off and thus directly affect 

braking. While it is true that Judge Merlin found a violation of the cited 

standard, his decision was based on the particular facts of that case as 

supported by the credible testimony of two mine inspectors. However, 

Phelps Dodge involved a truck which had all of its wheel lugs loose, and 

that condition was shown to have directly affected the braking of the truck. 

The testimony presented in that case established that all of the wheel lugs 

were loose, and based on the inspectors testimony that should the wheel come 

off, proper braking might not occur. Judge Merlin concluded that this condition obviously rendered the truck unsafe to operate. Further, Judge Merlin 

was also influenced by the fact that respondent's own mechanical foreman 

conceded that loose wheel lugs presented a serious hazard. In the instant 

case, I conclude that respondent's testimony and evidence satisfactorily 

rebuts the inspector's conclusions as to the unsafe condition of the grader 

in question. 

1113 
Although it is not a matter of record in this case, the attention of 

the parties is invited to a recent article which appeared in the Mine 

Safety & Health Reporter, published by BNA, Vol. 1, No. 22, April 9, 

1980, discussing a 197-page Bureau of Mines Study entitled "Analysis of 

Mobile Mining Equipment Pivot Pin Wear." While I am not particularly 

influenced by this article, I take note of the fact that it specifically 

alludes to the fact that the cited study apparently concludes that the 

wear of the large pins which hold pivot joints together on mobile surfacemining equipment is not a hazard to miners as had been suspected. The 

article also states the the Bureau of Mines has concluded that pivot pins 

"are not currently a suitable target for regulatory standards," and that 

the Bureau has concluded that "setting standards for the maximum allowable 

wear of pin systems is impractical because the amount of permissible wear 

for pins is affected by so many variables, including pin composition and 

operating temperatures." 

In summary, on the basis of all of the evidence and testimony adduced 

in this proceeding, I cannot find or conclude that MSHA has established a 

case. Accordingly, the citation issued in this matter is VACATED, and this 

case is DISMISSED. 

• Koutras l/,~-i.. Law Judge 

Distribution: 

Tom w. Daniel, Esq., Hulbert, Daniel & Lawson, 912 Main Street, 

P.O. Box 89, Perry, GA 31069 (Certified Mail) 

Natalie Nelson, Esq., u.s. Department of Labor, Office of the 

Solicitor, 1371 Peachtree St., N.E., Room 339, Atlanta, GA 

30309 (Certified Mail) 

1114 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFE~~AND HEALTH 

ADMINISTRATION {MSHA), 

Petitioner 

v. 

U. S. STEEL CORPORATION, 

Respondent 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11/12 

MAY 2 O 1980 

Civil Penalty Proceedings 

Docket No. PENN 79-123 

A.O. No. 36-05018-03022F 

Cumberland Mine 

DECISION AND ORDER 

After intensive prehearing preparation, this matter came on for 

a prehearing conference ir:t'he U.S. Courthouse, Washington, D.C. on 

May 16, 1980. The first order of business was a consideration of the 

operator's motion to dismiss the charge that the operator failed to 

mark and identify shuttle car trailing cable plugs as required by 30 CFR 

75.601. On the basis of a statement for the record by Inspector Davis, 

the Presiding Judge found this was a marginal, nonserious, no fault 

violation and suggested that in the interest of expedition the matter 

be settled with the payment of a $100 penalty. The parties agreed and 

so moved. 

The next order of business was a lengthy discussion and consideration 

of the charge that a qualified electrician's failure to lock out a 

trailing cable plug as required by 30 CFR 75.511 was the effective cause 

of the electrocution of another miner. On the basis of an indepedent 

evaluation and de novo review of (1) the parties' investigative reports, 

(2) the statements~experts for both parties, (3) an examination of 

the relevant physical evidence, and (4) a review of the time-line analysis 

of pertinent events (copy attached as Appendix), the Presiding Judge found 

this was an extremely serious violation that resulted from the gross 

negligence of Kenneth R. Blystone, a qualified electrician employed by 

the operator in the 3 Butt Section of the Cumberland Mine on January 2, 1979. 

It appeared that under the stress of knowing the shift was about to end 

with no production and two shuttle cars down, Mr. Blystone lost his 

composure and ability to think clearly. This led to a hasty decision to 

bypass the Femco ground sentinel monitor without disconnecting the trailing 

cable plug for the number 105 shuttle car. As a consequence, when the 

circuit breaker closed and energized the cable another electrician, 

Mr. Feather, who was splicing the cable, received a fatal shock. 

1115 
On the basis of the facts appearing in the record and upon a 

consideration of the applicable law, the Presiding Judge further found 

the employee's negligence was imputable to the operator. See, National 

Realty and Construction Co. v. OSHRC, 480 F.2d 1257, 1266 (D.C. Cir. 1973); 

Pocohantas Fuel Co. v. Andrus, 8 IBMA 136 (1977), aff'd 590 F.2d 95 (4th Cir. 

1979); Secretary v. Ace Drilling Co., 2 FMSHRC ~-'PITT 75-1-P, decided 

April 24, 1980; Secretary v. Warner Co., 2 FMSHRC ~-' PENN 79-161-M, decided 

April 28, 1980; Prosser, Law of Torts, §§ 31, 32, pp. 145, 158 (4th ed. 1971). 

More specifically, the Presiding Judge concluded the Assistant Maintena~ce 

Foreman's failure to exercise the high degree of care imposed by the Act 

in supervising the conduct by his subordinates of hazardous work under 

conditions of stress that were or should have been known to him warrants 

imputation of the subordinate employee's negligence to the operator 

without diminution. 

After taking into account (1) MSHA'.s statement that the.facts did 

not warrant action against the individual involved under section llO(c) or (d) 

of the Act, (2) the operator's extensive efforts to insure against any 

repetition of the circumstances giving rise to this violation, (3) the 

operator's overall safety record, and (4) the absence of any request or 

showing of need for an evidentiary hearing, the Presiding Judge recommended 

the matter be settled with the payment of a penalty of $7,000. The parties 

agreed and so moved. 

Whereupon each of the motions to approve settlement was granted by 

a decision from the bench and the operator directed to pay the penalties 

agreed upon within ten days. 

The premises considered, it is ORDERED that the bench decision be, 

and hereby is, ADOPTED and CONFIRMED. It is FURTHER ORDERED that the 

operator pay the penalty agreed upon, $7,100 on or before Tuesday, 

May 27, 1980 and that subject to payment the captioned proposal for 

penalty be DISMISSED. 

Attachment: Appendix 

Distribution: 

Louise Q. Symons, Esq., U.S. Steel Corporation, 600 Grant Street, Pittsburgh, 

PA 15230 (Certified Mail) 

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

3535 Market Street, Room 14480, Philadelphia, PA 19104 (Certified Mail) 

1116 
APPENDIX 

TIME LINE ANALYSIS 

Location: 3 Butt, 006 Section, Cumberland Mine 

Room 11, Nos. 2 and 3 Entries 

Day Shift, Tuesday, January 2, 1979 

Fatal Accident Occurred at 3:25 p.m. 

1:00 p.m. - Shuttle Car (S/C) 105 located in No. 3 entry developed 

to 

2:00 p.m. 

trouble with its trailing cable. 

Kenneth R. Blystone, age 58, a qualified electrician with 

18-1/2 years experience removed the S/C 105 trailing 

cable plug from the Load Center (LC) receptacle in the 

#3 entry of the 006 Section and locked it out with his 

Blystone and George Cook, Jr., an electrician trainee 

(Grade 4), with ~ years' experience made a splice 

in the S/C 105 trailing cable. 

Blystone then gave Cook the key to unlock the padlock 

on the S/C 105 trailing cable plug. 

Cook unlocked the lock from the S/C 105 trailing cable 

plug and placed the lock along with the key on top of 

the LC. 

Cook then inserted the S/C 105 trailing cable plug into the 

LC receptacle, and tried to energize the circuit breaker in 

the LC several times without success. 

1117 
Each tine Cook threw in the circuit breaker the Femco ground 

sentinel system kicked it back out. This meant the short in 

the S/C 105 trailing cable was not corrected. 

Cook, at the direction of Blystone, then removed the S/C 105 

trailing cable plug from the LC and Blystone ran additional 

tests in an effort to locate the trouble. JH:;sl a Aid &Qt 

2:00 p.m. - 106 S/C trailing cable shorted out. ~is ace uaa merk.ee 

to Fr/:9 i+@• Blystone removed the S/C 106 trailing cable plug 

2:15 p.m. fron the LC receptacle and locked it out using the lock that 

Cook had removed from the S/C 105 trailing cable plug and 

placed on top of the LC. ~is padlock was Ken Blystone's 

lock that he had on his belt at the time he locked out the 

S/C 105 trailing cable~ Blystone failed to lock out the 

S/C 105 trailing cable plug that Cook had removed from the 

LC receptacle. Instead Blystone placed a danger tag in the 

S/C 105 trailing cable plug. Blystone could have locked out 

the S/C 105 trailing cable plug with a lock from his tool box. 

2:15 p.m. - Blystone notified William Jiblits, Assistant Maintenance 

to Foreman of the breakdown of the two S/C's. Jiblits directed 

2:30 p.m. Ted Chapman, a Grade. 4 electrician trainee with 3 years' 

experience, and Joe Julian, another Grade 4 electrician trainee _,. 

with ..;) years' experience, to leave the 2 Butt section and 

1118 
go to the 3 Butt section to assist Blystone. In the meantime, 

Blystone and Cook gave first priority to working on the S/C 106 

trailing cable splice, because the brakes were bad on S/C 105 

and h~d to be repaired before it could be used. 

2:30 p.m. - Julian and Chapman arrived on the 3 Butt section and Blystone 

to 

3:00 p.m. 

directed them to help him troubleshoot the problem on the 

S/C 105 trailing cable while Cook continued to work on the 

S/C 106 trailing cable problem. At 2:50 p.m., Jiblits 

directed William Feather, a qualified electrician with 1 year 

3 mortths' experience in this classification, to leave the 

2 Butt section and proceed to the 3 Butt section to help 

Blystone. At the time Feather arrived at the No. 2 entry 

of the 3 Butt section, Blystone, Julian and Chapman had cut 

a 10-foot section out of the S/C 105 trailing cable. When 

Feather took over from Blystone, at approximately 3:00 p.m., 

the S/C 105 trailing cable had been cut apart and one end 

had the cable insulation peeled back. Blystone then left to 

return to #3 entry to work with Cook on the S/C 106 trailing 

cable problem. 

3:00 p.m. - Blystone proceeded to help Cook put a splice in the S/C 106 

to 

3:30 p.m. 

trailing cable in the #3 entry. A short time later, Chapman 

came over from the #2 entry and told Blystone he thought 

Feather had found an opening in the S/C 105 trailing cable. 

Blystone told Chapman to stay with Cook, while he went over 

to assist Feather and Julian. Blystone determined there was 

1119 
an opening in the S/C 105 trailing cable and then returned 

to the #3 entry to help Cook and Chapman splice the S/C 106 

trailing cable. At approximately 3:25 p.m., the splice in 

the S/C 106 trailing cable was completed. Leaving Cook at 

the splice, Blystone and Chapman proceeded to the load center 

in the #3 entry. There the plug for the S/C 106 trailing 

cable was lying locked out. Beside it was the plug for the 

S/C 105 trailing cable with the danger tag :~1-~tt: .... ~~~tt.~(~~n 

placed there by Blystone earlier. Ignoring.I the ·danger tag;J 

Blystone picked up the S/C 105 trailing cable plug and plugged 

it into the No. 1 receptacle thinking it was the S/C 106 

trailing cable plug. The Femco ground check monitor circuit 

light indicated an open circuit. The plug was then removed 

by Blystone and inserted in LC receptacle No. 2 with the same 

result. At this point Blystone became agitated, and thinking 

the problem might be in the LC, ~old Chapman to depress the 

ground check monitor test switch to the unit check position 

and activate the circuit breaker while he observed the lights 

on S/C 106. (Safe practice requires that all plugs be removed 

from the LC before bypassing the Femco Ground Sentinel II 

ground monitor). When the test switch is depressed, the 

ground sentinel system is bypassed, and the circuit breaker 

and trailing cable become energized. As instructed by 

Blystone, Chapman depressed the test switch and activated 

the circuit breaker. As soon as Chapman saw the circuit 

1120 
breaker close, he released .the test switc,h and energized the 

trailing cable. At this point, Julian and Feather were both 

holding the exposed S/C 105 trailing cable. Feather was 

holding the cable on both sides of the splice, while Julian 

was taping a phase lead connection they had completed. Three 

of the five remaining conductors were folded back along the 

cable. When Chapman depressed the Femco test switch and activated the circuit breaker the trailing cable.became energized. 

When Julian felt the surge of power he screamed, and when the 

power hit Feather it knocked him unconscious• Cardio-pulmonary 

resuscitation was started immediately and continued until 

arrival at the Waynesburg Hospital, where Feather was 

pronounced dead on arrival. 

The floor of th~ no. 2 entry, 11 crosscut, varied from damp 

to wet and muddy. Feather was wearing leather boots and 

was not wearing gloves. A padlock in the closed position 

was found on Feather's belt. Feather never knew whether or 

not anyone had locked out and tagged the S/C 105 trailing 

cable. No faults were found in the LC when subsequently 

tested by Inspector Davis. 

1121 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR,· 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11 /12 

2 1 MAY 1980 

Civil Penalty Proceedings 

Docket No. LAKE 80-36 

A.O. No. 11-01008-03029 

Baldwin Mine 

Docket No. LAKE 80-27 

A.O. No. 11-00598-03037 

Eagle No. 2 Mine 

Docket No. LAKE 80-26 

A.O. No. 11-00585-03048 

Mine No. 10 

Docket No. LAKE 80-25 

A.O. No. 11-00725-03037 

River King No. 1 UG 

DECISION AND ORDER 

Despite the operator's withdrawal of its petition for discretionary 

review in the captioned matters on the ground they were settled and paid, 

the Commission joined them with an unrelated matter in issuing its suspension 

order of April 14, 1980 and decision of May 16, 1980. Secretary v. Peabody 

Coal Company, Dkt. LAKE 80~25, et al., 2 FMSHRC ~-· For this reason, the 

finality of the decision approving settlement of these matters was suspended 

pending the decision in the unrelated matter. The Commission having now 

remanded the unrelated matter apparently intended to life suspension of all 

the matters cited in the captioned to its decision. 

Accordingly, it is ORDERED that the ju 

be, and hereby is, REINSTATED and CONFIRME • 

1122 

of March 5, 1980, 
Distribution: 

David S. Hemenway, Esq., 301.North Memorial Drive, P.O. Box 235, St. Louis, 

MO 63166 (Certified Mail) 

Miguel J. Carmona, Esq., U.S. Department of Labor, Office of the Solicitor, 

230 S. Dearborn St., Chicago, IL 60604 (Certified Mail) 

Rafael Alvarez, Esq., U.S. Department of Labor, Office of the Solicitor, 

230 S. Dearborn St., Chicago, IL 60604 (Certified Mail) 

1123 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MISSOURI GRAVEL COMPANY, 

Respondent 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/1 l /12 

2 2 MAY 19$0 

Civ:f.l Penalty Proceeding 

Docket l'!'o. LAKE 80-15-M 

A.O. No. 11-00132-05005 

Plant No. 6 

Florence Quarry & Mill 

DECISION AND ORDER 

These seven allegedly nonserious, low negligence violations were 

initially assessed at $536.00. It is now proposed to reduce the assessment 

to $522.00. 

Based on an independent evaluation and de novo review of the information 

furnished, I conclude that six of the seven violations should be settled 

at the amounts proposed. The seventh violation involves a failure to 

provide an audible backup alarm on a caterpiller tractor operating in an 

area where personnel were working or traveling. The potential for a 

fatal or seriously disabling injury was therefore real and not remote 

or speculative. For these reasons, I find the amount proposed for 

settlement, $72.00, is unacceptable and should be increased to $100.00. !/ 

Accordingly, it is ORDERED that to the extent indicated the motion 

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

!/ The findings in this Decision and Order are based on the information submitted in support of the parties' motion. The penalties found 

warranted constitute an exercise of the predictive, discretionary power 

conferred by Congress under section llO(i), (k) of the Act to assess 

penalties designed to deter future violations and insure voluntary 

compliance. Should the disposition proposed be unacceptable, the parties 

may request a settlement conference or evidentiary hearing. 

1124 
that on or before Friday, June 13, 1980, the operator pay a penalty of 

$550.00 in settlement of these matters and that subject to payment the 

captioned proposal for penalty be DISMISSED. 

Judge 

Distribution: 

William c. Pasternack, Esq., U.S. Department of Labor, Office of the 

Solicitor, 230 S. Dearborn St., Chicago, IL 60604 (Certified Mail) 

Stephen A. Gorman, Esq., Chadwell, Kayser, Ruggles, McGee & Hastings, Ltd., 

8500 Sears Tower, Chicago, IL 60606 (Certified Mail) 

1125 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 2 MAY 1900 

Complaint of Discharge, 

Discrimination or 

Interference 

on behalf of PERRY R. BISHOP, 

Complainant Docket No. KENT 79-161-D 

v. 

MOUNTAIN TOP FUEL, INC., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MOUNTAIN TOP FUEL, INC., 

Respondent 

No. 4 Surface Mine 

Civil Penalty Proceeding 

Docket No. KENT 80-98 

Assessment Control 

No. 15-10188-03006 

No. 4 Surface Mine 

DECISION 

Appearances: Thomas P. Piliero, Esq. , Office of the Solicitor, . -' ' 

U.S. Department of Labor, for Complainant and Petitioner;· 

Herman W. Lester, Esq., Pikeville, Kentucky, for 

Respondent. 

Before Administrative Law Judge Steffey 

Pursuant to an order providing for hearing, consolidating issues, and 

requiring furnishing of documents issued February 28, 1980, a hearing in the 

above-entitled proceeding was held on March 18 and 19, 1980, in Pikeville, 

Kentucky, under section 105(d) of the Federal Mine Safety and Health Act .of 

1977. 

The consolidated proceeding involves a complaint of discharge filed on 

August 7, 1979, by the Secretary of Labor and MSHA on behalf of Perry R. Bishop 

against Mountain Top Fuel, Incorporated, in Docket No. KENT 79-161-D. 

The complaint alleged that respondent had violated section 105(c)(l) 

of the Federal Mine Safety and Health Act of 1977 and asked that Mr. Bishop 

be reinstated to his former job, be awarded back pay from the time of his 

discharge on February 14, 1979, and be given other relief. 

Subsequently, the complainant filed a motion for dissolution l;)f the order 

of temporary reinstatement which had been issued on June 19, 1979, and reaffirmed 

on July 3, 1979, by Chief Administrative Law Judge Broderick after aheariilg 

1126 
MSHA v. Mountain Top, Docket Nos. KENT 79-161-D, et al. 

helcf 'on June 29, 1979, with respect to the issue of whether the Secretary had 

properly found that the complaint was nonfrivolous. 

'The reasons that a motion for dissolution of the order of temporary 

. reinstatement was filed was that Mr. Bishop had secured a job elsewhere and 

did not any longer wish to be reinstated at respondent's No. 4 Surface Mine. 

I issued an order on October 24, 1979, granting the motion for dissolution 

of the order of temporary reinstatement. Complainant still seeks an award of 

back pay and all other relief previously sought in his complaint. 

Respondent's petition for review of the order of temporary reinstatement 

was dismissed as moot by the U.S. Circuit Court of Appeals for the Sixth 

Circuit upon agreement of the parties that the action was moot in view of the 

dissolution of the order of temporary reinstatement. 

I also issued an order on February 28, 1980, consolidating for hearing 

and decision in this proceeding the civil penalty issues raised by the 

Secretary's filing on February 14, 1980, of a Petition for Assessment of 

Civil Penalty in Docket No. KENT 80-98 alleging that respondent had violated 

section l05(c)(l) of the Act by refusing to reinstate Mr. Bishop to his job 

pursuant to the order of temporary reinstatement and seeking to have a civil 

penalty assessed for that alleged violation. 

The order of February 28, 1980, also provided for the hearing in this consolidated proceeding to be held in Pikeville, Kentucky, on March 18, 1980. 

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

the bench decision which is reproduced below (Tr. 375-395): 

My decision in this proceeding will be based on the findings of fact which I am first going to make. An explanation of my 

cred~bility determinations will be given after the findings of fact. 

These findings of fact will be given in numbered paragraphs and 

I shall give the numbers at the beginning of each paragraph. 

1. Complainant, Perry R. Bishop, began working for respondent, 

Mountain Top Fuel, Inc., on September 22, 1977. Mr. Bishop at first 

drove a truck for respondent for a period of nine or ten months. 

Then Mr. Bishop became the operator of a front-end loader which was 

used to remove overburden at respondent's No. 4 Surface Mine. Thereafter, respondent, at Mr. Bishop's request, transferred Mr. Bishop 

to the position of operating a Michigan 275 front-end loader which 

was used to clean the final five or six inches of overburden off 

the coal seam and for loading the coal into trucks which haul an 

average of 25 tons each. 

2. On February 14, 1979, Mr. Bishop reported for work as 

usual at about 6:45 a.m. for a nine-hour shift beginning at 7 a.m. 

The temperature on February 14 was below freezing. Mr. Bishop checked 

1127 
MSHA v. Mountain.Top, Docket Nos. KENT 79-161-D, et al. 

the fluid levels in the Michigan front-end loader and noticed 

that the brakes were inoperative. The brakes were operated by an 

air system which is subject to malfunctioning in below-freezing 

temperatures because of condensation which forms in the air lines and 

freezes so as to prevent air pressure from moving the brake drums. 

An alcohol container is built into the system which is designed 

to mix alcohol with the condensation and prevent ice from forming 

in the brake lines. Mr. Bishop did not check the alcohol level 

on February 14. 

3. The first work done by Mr. Bishop on February 14 consisted of tramming his end loader from a location near the mine 

office to a coal stockpile situated about 2,000 feet from the 

office. Mr. Bishop loaded three trucks with the stockpiled coal. 

About one-half truck load of coal remained in the stockpile. 

Mr. Bishop then trammed his loader down to the pit area where 

another pile of coal had been prepared by the preceding evening 

shift. Mr. Bishop loaded two additional trucks from that pile 

of coal and once again about a half truck load of coal remained 

after those two trucks had been loaded in the pit area. 

4. About 15 minutes were required to load the three trucks 

at the stockpile area. Mr. Bishop trammed the Michigan loader to 

the pit area between 7:15 and 7:30 a.m. Mr. Bishop loaded the 

two trucks in the pit area between 7:30 and 8 a.m. and began cleaning rocks and dirt off the top of the coal seam at about 8 a.m. 

About 9 a.m. a sixth truck driven by Mr. Billy Cool arrived in the 

pit area .. Although Mr. Bishop could have loaded Mr. Coal's truck 

with the half-load of coal at the stockpile plus the half-truckload 

of coal in the pit area or by using coal which had already been 

uncovered between 8 and 9 a.m., Mr. Bishop continued to remove 

overburden from the coal seam instead of loading Mr. Cool~s 

truck. 

5. While Mr. Cool was waiting to get his truck loaded, he 

ate a sandwich and some other food, cleaned his windshield and 

lights, and went to the bathroom. Since truck drivers get paid 

for the number of loads hauled, rather thari for the number of hours 

worked, Mr. Cool grew impatient about further waiting and decided 

to go home. As he was passing the mine office on his way home 

in his truck, he saw Mr. David Childers near the mine office and 

stopped to complain about having to wait from 15 minutes to 30 

minutes to get a load of coal. Mr. Childers, who is vice-president, 

part owner, and foreman, persuaded Mr. Cool to return to the pit 

and asked Mr. Michael Adkins to load Mr. Coal's truck. 

6. Mr. Childers then drove down to the pit in his truck 

and asked Mr. Bishop why he had not promptly loaded Mr. Coal's 

truck. Mr. Bishop's sole excuse for not loading the truck was 

that he was still cleaning off coal as he had been instructed to 

do it and that he couldn't have loaded the truck so as to satisfy 

Mr. Childers' instructions any sooner than he had done it. 

1128 
MSHA v. Mountain Top,. Docket Nos. KENT 79-161-D, et al. 

Mr. Childers saw that Mr. Bishop had already cleaned off about 

ten loads or 250 tons of coal and couldn't understand why Mr. 

Bishop had not promptly loaded Mr. Cool's truck. Mr. Childers 

had had other complaints from truck drivers who were upset about 

having to wait for coal to be loaded. Mr. Childers had previously 

emphasized to Mr. Bishop the importance of loading trucks promptly. 

Therefore, Mr. Childers told Mr. Bishop that he was discharging 

Mr. Bishop at that time, which was about 9:30 a.m., for failure 

to load coal trucks promptly. 

7. Since Mr. Bishop had parked his truck that morning at 

a place about ten miles from the mine site and had ridden to the 

mine with another employee, it was ne~essary for Mr. Childers 

to use his own truck to transport Mr. Bishop to the place where 

Mr. Bishop's truck had been left. 

8. Counsel for MSHA on May 18, 1979, called Mr. Childers and 

advised him that he was shortly expecting to file a statement with 

the Counnission which would result in the issuance of an order of 

temporary reinstatement which would require respondent to reinstate Mr. Bishop to his position as operator of the end loader. 

At that time MSHA's counsel asked Mr. Childers if he would 

voluntarily reinstate Mr. Bishop so as to make it unnecessary for 

MSHA's counsel to ask for an order of temporary reinstatement. 

Mr. Childers' response was that he did not intend to reemploy 

Mr. Bishop voluntarily, but Mr. Childers stated that he had partners 

whose opinions he would like to obtain before giving counsel a 

final answer. Therefore, Mr. Childers stated that he would 

provide MSHA's counsel with a final answer on Monday, May 21, 1979. 

When MSHA's counsel thereafter called Mr. Childers on May 21, 

Mr. Childers stated that respondent would not voluntarily reemploy 

Mr. Bishop. 

9. Chief Administrative Law Judge Broderick issued on 

June 19, 1979, an order of temporary reinstatement. Respondent 

did not comply with the order on June 22, 1979,.when Mr. Bishop 

appeared at respondent's mine. An MSHA inspector then issued on 

June 22, 1979, Citation No. 713218 alleging a violation of 

section 105(c) of the Act because of respondent's failure to 

reinstate Mr. Bishop on June 22, 1979. Citation No. 713218 gave 

respondent until June 25, 1979, within which to comply with the 

order of temporary reinstatement. On June 25, 1979, Mr. Bishop 

and the inspector returned to respondent's mine. When respondent 

still declined to reemploy Mr. Bishop, the inspector issued on 

June 25, 1979, an order of withdrawal for failure of respondent 

to abate Citation No. 713218 within the time provided. As indicated 

in the first part of this decision, an action in the Sixth Circuit 

concerning the order of temporary reinstatement was dismissed as 

moot after Mr. Bishop found a job elsewhere and requested that 

the order of temporary reinstatement be dissolved because Mr. 

Bishop no longer wished to be reemployed at respondent's mine. 

1129 
MSHA v. Mountain Top, Docket Nos. KENT 79-161-D, et al. 

10. Counsel for MSHA filed on February 14, 1980, in Docket 

No. KENT 80-98 a Petition for Assessment of Civil Penalty seeking 

to have a penalty assessed for the violation of section 105(c) 

alleged in Citation No. 713218 .described in Finding No. 9 above. 

By order issued February 28, 1980, I granted the motion of MSHA's 

counsel for consolidation of the Petition for Assessment of Civil 

Penalty r 1r hearing and decision with the issues raised by the 

complain filed in Docket No. KENT 79-16l~D. 

11. At the commencement of the hearing on March 18, 1980, 

MSHA's counsel asked that I assess a penalty if I found that 

respondent violated section 105(c)(l) in discharging Mr. Bishop. 

He also asked that I assess a penalty for respondent's having 

laid off all men on the second shift on May 18, 1979, in order 

to avoid having to reinstate Mr. Bishop. 

12. As Finding No. 6 above indicates, respondent did not 

violate section 105{c){l) when it discharged Mr. Bishop. 

13. The evidence does not support MSHA's claim that 

respondent violated section 105(c) when it laid off the second 

shift on May 18, 1979. And Mr. Piliero, MSHA's counsel, agreed 

that was a fact this morning in his summation. The evidence shows 

that respondent was having difficulty in selling its coal as fast 

as it was being produced and that respondent decreased its work 

force to achieve economy in its operations. The decision to reduce the number of employees at respondent's mine had been made 

2 weeks prior to May 18, 1979, at one of respondent's weekly 

meetings and that reduction in force was made effective on 

May 18, 1979. 

14. The claims made by respondent to explain its reduction 

in employees are supported by the production· data submitted in 

response to MSHA's questions. During the four quarters of the year 

1978, respondent employed from 21 to 23 persons and produced from 

10,378 tons in the first quarter of that year to 38,421 tons in the 

second quarter of that year. The large production shown in the 

second quarter was accompanied by a much larger number of hours 

worked than were reported in any other quarter. During the year 

1979, respondent produced 27,922 tons in the first quarter and 

24,954 tons in the second quarter with 21 employees. The third and 

fourth quarters show that the coal production dropped to 21,013 

tons in the third quarter and 20,867 tons in the fourth quarter 

after respondent had reduced ~ts number of employees to 13 and 11, 

respectively. 

. 15. Respondent's president testified that when two 9-hour 

production shifts are worked, more equipment is down for repairs 

than when one shift is worked and that production time is wasted by 

the time lost in overlapping of the two shifts of miners leaving 

and arriving at the mine site and that a one-shift operation is 

more economical from a cost standpoint that a two-shift operation. 

1130 
MSHA v. Mountain Top, Docket Nos. KENT 79-161-D, et al. 

16. Respondent's president testified that the choice 

of the reduction in employees was made on the basis of both 

seniority and efficiency and for that reason some of the men 

retained would have had less seniority than Mr. Bishop if he had 

still been working for respondent on May 18, 1979, when the reduction in personnel occurred. Therefore, respondent said that 

Mr. Bishop would have been laid off on May 18, 1979, if he had 

still been working for respondent when that reduction in force 

occurred. For example, the elimination of the miners working 

on the night shift required the transfer of the night-shift 

supervisor to the day shift. The need to retain that valuable 

employee required the subsequent layoff of a person who had 

been working on the day shift. 

17. On an annual basis respondent's No. 4 Mine produced 

94,756 tons in 1979 according to Exhibit C or 101,623 tons annually 

if one uses the figure in the Assessment Order in Docket No. 

KENT 80-98. Assuming that the mine produced coal on an average 

of 250 days each year, the daily average tonnage would have ranged 

from 379 tons to 406 tons per day. 

That concludes my findings. 

There are several reasons for the credibility determinations 

which have resulted in my making findings which support my 

conclusion that Mr. Bishop was discharged for reasons other than 

the protected activities set forth in section 105(c) (1) of the Act. 

I am going to list the aspects of the testimony which have caused 

me to rule in favor of respondent. The items I shall discuss are 

listed as they occur to me and not with the intention of giving 

any item as being more important than another. 

Mr. Bickford, who was responsible for repairing the brakes 

on the Michigan end loader stated that when he examined the alcohol 

container at the end of the day on February 14, 1979, the day of 

Mr. Bishop's discharge, he found that the container was empty. 

Mr. Bishop agreed that it was his responsibility to check the alcQhol 

level in that container from time to time and yet he admitted that 

he had not checked the container on February 14 or for several 

days prior to February 14. .Mr. Bishop agreed that it was important 

and necessary to drain water out of the air tanks to prevent freezing. Mr. Bishop also was aware of the importance of the alcohol 

in preventing freezing. He contributed to the malfunctioning of 

the brakes by not properly doing the maintenance work for which 

he was responsible. 

Mr. Bishop's claim that the brake pedal remained flat on 

the floor board did not withstand cross-examination. Mr. Bickford 

testified that the brake pedal was held up by a spring and that it 

would not remain in a depressed condition even if there was no 

air pressure at a given time. When Mr. Bishop was cross-examined 

1131 
MSHA v. Mountain Top, Docket Nos. KENT 79-161-D, et al. 

about that claim, he did not deny that the spring existed but 

contended that the brake pedal sometimes would stick. When he was 

asked if he tried to raise the pedal to see if it was stuck, 

he said he did raise it, but it fell back to the floor. The 

logical conclusion from those admissions is that the brake pedal was 

not stuck in the down position or it would have remained upright 

when pulled up manually. 

Mr. Bickford testified that the brakes on the end loader 

would not work on February 14 because of a freezing problem 

and that another mechanic corrected 'the problem by making a bypass around the frozen area. Mr. Bickford did not recall having 

been working on a water pump as alleged by Mr. Bishop on February 14 when Mr. Bishop asked him to check the brakes on the end 

loader and Mr. Bickford said that his answer to Mr. Bishop about 

repairing brakes on the end loader would not have been given in 

terms of what Mr. Childers might assign for him to do on that day. 

Mr. Cool insisted that there was enough coal already prepared to provide a load for his truck and that he would not have 

driven away.after waiting from 15 to 30 minutes to be loaded if the 

only coal available had still been intact in the coal seam and 

unavailable for immediate moving. Even though Mr. Coal's 

testimony may be motivated by self-interest, there is no way to 

explain Mr. Coal's displeasure at having to wait for a load of 

coal unless Mr. Bishop was taking an unreasonable amount of time 

in loading Mr. Cool's track. Mr. Cool had been driving trucks 

for 17 years and said that he generally obtained a load of coal 

within four or five minutes. Even though the brakes were bad on 

the end loader on February 14, Mr. Bishop had loaded three truckloads at the beginning of his shift in a period of 15 minutes. 

There is nothing in the record to show that Mr. Cool's complaint 

about undue waiting was without merit or justification. 

Mr. Bishop does not deny that several months before his 

discharge he turned over a truck hauling rock in order to avoid 

hitting a road grader driven by Mr. Childers. On that occasion 

Mr. Bishop claimed the truck's brakes were defective, but Mr. 

Childers claims they were in operating condition immediately after 

the truck was pulled back upon its wheels. Even though some rock 

fell from the truck to the place where Mr. Childers would have 

been sitting if he had not jumped out of the grader before the 

rocks landed, Mr. Bishop says that Mr. Childers did not become 

upset over the incident. Mr. Childers' ability to remain calm 

was demonstrated by the way he conducted himself in that instance 

and I believe his forebearance in that case shows that he is not 

a person who would be likely to discharge an employee who simply 

reports defective brakes on two occasions. In other words, we 

do not have in this case a long list of alleged safety complaints 

or evidence indicating that Mr. Childers was indifferent about 

safety matters. 

1132 
MSHA v. Mountain Top, Docket Nos. KENT 79-161-D, et al. 

Mr. Bishop's complaint filed with the Mine Safety and 

Health Administration was introduced as Exhibit 1 in this proceeding. Mr. Bishop states in that complaint, "I wish to make 

a discrimination· complaint against Mountain Top Fuel. I was 

fired by David Childers (the boss) when I told him I couldn't 

work as fast as he ordered me to because th~ end loader I was 

running didn't have brakes on it." Mr. Bishop's own testimony in this proceeding does not support the wording of his 

complaint. 

There is no evidence in the record to cast any doubt on 

Mr. Childers' claim that he drove the Webco truck to test its 

brakes after Mr. Bishop had stated that its brakes were defective. 

It seems quite credible that Mr. Childers would have made, as he 

claimed, a similar effort to check the brakes on the end loader 

when Mr. Bishop complained about its brakes being defective about 

five days before Mr. Bishop was discharged. At that time Mr. 

Childers says he instructed Mr. Bickford to repair the brakes and 

that Mr. Bickford reported to him that the brakes had been repaired. 

Therefore, Mr. Childers assumed that the brakes were operative on 

February 14, 1979, when he discharged Mr. Bishop because Mr. 

Bishop did not mention the defective brakes to Mr. Childers at the 

time Mr. Childers asked for an explanation of Mr. Bishop's failure 

to load Mr. Cool's truck. One of the least convincing aspects 

of Mr. Bishop's case has always been that he would fail to mention 

the defective brakes to Mr. Childers on February 14 until after 

Mr. Childers had discharged him and he was being driven by Mr. 

Childers down the mountain in Mr. Childers' truck. 

MSHA's counsel says that Mr. Bishop's having asked Mr. 

Bickford to fix the brakes on February 14 is sufficient to show 

that Mr. Bishop was discharged for having engaged in a protected 

activity under section 105(c)(l), that is, for having made a 

safety-related complaint. I do not think the facts in this case 

support that argument. While it may be said for some purposes 

that knowledge of an agent may be attributed to the principal, 

there was a time element here which cannot be satisfied by that 

argument. Neither Mr. Bishop nor any other witness has been able 

to show that Mr. Childers knew of a defective brake claim on 

February 14 when Mr. Bishop was discharged. 

Before I can make a finding that Mr. Bishop was discharged 

for having made a safety-related complaint, I must be able to 

cite evidence clearly showing. that there was- a pattern of activity by the complainant which so annoyed the respondent that the 

respondent dishcarged the complainant for that pattern of conduct 

. rather than for the reason respondent gave for discharging the 

complainant. Two complaints about defective brakes to Mr. Childers 

a few days before the discharge simply are insufficient to show 

that Mr. Childers really discharged Mr. Bishop for complaining 

about brakes rather than for failing to load coal trucks promptly. 

1133 
MSHA v. Mountain Top, Docket Nos. KENT 79-161-D, et al. 

The next part of this decision will be related to Docket 

No. KENT 80-98. 

Docket No. KENT 80-98 

I have already made findings regarding the civil penalty 

issues insofar as the finding of occurrence of a violation is 

involved. Finding No. 9 above shows that respondent refused to 

comply with the order of temporary reinstatement while it was in 

force. Section 105(c)(3) of the Act provides that, "Violations 

by an person of paragraph (1) shall be subject to the provisions 

of Sections 108 and llO(a)." Paragraph (1) referred to in the 

foregoing quotation, among other things, prohibits any person 

from interfering with the exercise of a miner's statutory rights 

under the Act. Respondent violated paragraph (1) in refusing to 

comply with the· order of temporary reinstatement. Section llO(a) 

requires that a civil penalty be assessed for a violation of any 

provision of the Act. Section llO(i) requires that penalties be 

assessed after giving consideration to the six criteria set forth 

in section llO(i). 

The first criterion is respondent's history of previous 

violations. It has been stipulated by MSHA's counsel that 

respondent has not previously violated section 105(c) of the 

Act. Therefore, I find that there is no history of previous violations to be considered in this instance. 

The second criterion is the appropriateness of the penalty 

to the size of respondent's business. As indicated in Finding 

Nos. 14 and 17 above, respondent's No. 4 Mine once employed a 

toal of 23 winers and now employs 11 miners to produce about 

379 tons of coal per day. On the basis of those data, I find 

that respondent operates a small mine and that any penalty assessed 

should be in a low range of magnitude insofar as the size of 

respondent's business is concerned. 

The third criterion is the question of whether payment of 

penalties would cause respondent to discontinue in business. 

Respondent has introduced no financial data to show that payment 

of penalties would have an adverse effect on its ability to continue 

in business. In ~he absence of any evidence to the contrary, I 

find that payment of penalties will not cause respondent to discontinue in business. 

The fourth criterion is whether the operator was negligent 

in violating the Act. The evidence shows that respondent 

deliberately refused to reinstate the complainant. In the preliminary hearing on the issue of whether the complaint was frivolous, respondent stated that it was paying into an escrow account 

the money it would otherwise have paid Mr. Bishop if he had not 

1134 
MSHA v. Mountain Top, Docket Nos. KENT 79-161-D, et al. 

been discharged on February 14, 1979. I agree with Chief Judge 

Broderick's statement at the preliminary hearing that payment 

of wages into an escrow account will not satisfy the purpose of 

the temporary reinstatement provisions of the Act because the 

purpose of temporary reinstatement is to provide the discharged 

miner with income while the merits of his complaint are being 

determined. It may seem harsh to assess a penalty in a case in 

which respondent's position has been upheld on the merits, but 

Congress has already balanced those considerations and has provided 

for temporary reinstatement. The deliberate refusal to comply with 

the order of temporary reinstatement and the refusal to abate 

Citation No. 713218 is tantamount to gross negligence because 

management knew they were obligated to comply with the order 

but steadfastly refused to do so. 

The fifth criterion is the question of the gravity of the 

violation. MSHA's counsel has stipulated that respondent's 

refusal to reinstate Mr. Bishop did not expose any miners to the 

likelihood of injury. If the criterion of gravity is in.tended 

to refer only to the physical exposure to danger, I believe that 

the criterion of gravity is inapplicable in this instance. On 

the other hand, if gravity is interpreted from the standpoint of 

the loss of a family's income by the operator's refusal to reinstate 

a complainant, the gravity of the violation could be considered 

as being a serious one. Also, if one thinks of gravity from the 

standpoint of the damage done to the miner's faith in the Act if 

the Commission's orders can be ignored with impunity, the violation 

would be serious from that viewpoint. I think that all aspects 

of the violation have to be considered and I find that the violation 

was serious under the aspects I have just explained. 

Finally, the sixth criterion is the demonstrated good faith 

of respondent in attempting to achieve rapid compliance after 

notification of the violation. The evidence shows that respondent 

exerted no effort to comply with the order of temporary reinstatement after Citation No. 713218 was issued. It was respondent's 

refusal to attempt to achieve compliance which caused the inspector 

to issued Withdrawal Order No. 713219. Since that order was labeled 

by the inspector as a "non-area closure order," it had no adverse 

effects upon respondent's coal-producing activities. 

My consideration of the six criteria would require assessment 

of a maximum penalty of $10,000.00 except for the important fact 

that respondent is a small company and has no prior history of violating section 105(c). Taking into consideration the other matters 

I have discussed above, requires assessment of a penalty of 

$1,500.00 

1135 
MSHA v. Mountain Top, Docket Nos. KENT 79-161-D, et al. 

ULTIMATE FINDINGS AND CONCLUSIONS 

(1) Complainant failed to prove that he was discharged on 

February 14, 1979, because of any activity protected under 

section 105(c)(l) of the Act; therefore, the complaint filed in 

Docket No. KENT 79-161-D should be dismissed. 

(2) Respondent violated section 105(c) of the Act by refusing 

to comply with the order of temporary reinstatement issued 

June 19, 1979, as confirmed on July 3, 1979, and respondent should 

be assessed a penalty of $1,500.00 for that violation. 

(3) Respondent, as the operator of the No. 4 Surface Mine, 

is subject to the Act and to the Regulations promulated thereunder. 

WHEREFORE, it is ordered: 

(A) The complaint filed on August 7, 1979, in Docket 

No. KENT 79-161-D is dismissed. 

(B) Respondent, within 30 days from the date of this 

decision, shall pay a civil penalty of $1,500.00 for the violation 

of the Act referred to in paragraph (2) above. 

Distribution: 

~ c. r:i.¥hJRichard C. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 

Thomas P. Piliero, Trial Attorney, Office of the Solicitor, p.s. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Herman W. Lester, Esq., Attorney for Mountain Top Fuel, Inc., 

Combs and Lester, P.S.C., 207 Caroline Avenue, Pikeville, KY 

41501 (Certified Mail) 

Mr. Perry R. Bishop, Route 4, Box 955, Pikeville, KY 41501 

Larry G. Adkins, President, Mountain Top Fuel, Inc., Route 2, 

Box 258-F, Pikeville, KY 41501 

1136 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 2 MAY 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , · 

Petitioner 

Docket No. KENT 79-7 

Assessment Control 

No. 15-09827-03002 

v. 

MIDDLE KENTUCKY CONSTRUCTION, INC. 

Crapshooter No. 2 

Strip Mine 

DECISION 

Appearances: Darryl A. Stewart, Office of the Solicitor, U.S. 

Before 

Department of Labor, for Petitioner; 

Byron W. Terry, Field Safety Director, for 

Respondent. 

Administrative Law Judge Steffey 

Pursuant to notice of hearing issued February 22, 1980, a hearing in 

the above-entitled proceeding was held on April 3, 1980, in Evansville, 

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

of 1977. 

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

the bench decision which is reproduced below (Tr. 57-65): 

This hearing involves a Petition for Assessment of Civil 

Penalty filed in Docket No. KENT 79-7 on May 21, 1979, by 

the Mine Safety and Health Administration seeking to have 

eivil penalties assessed for two alleged violations of 

30 CFR 77.1710(e) by Middle Kentucky Construction, Incorporated. 

The issues in this proceeding, of course, are whether 

a violation of section 77.1710(e) occurred, and, if so, what 

civil penalty should be assessed after consideration of 

the six criteria in section llO(i) of the Act. The parties 

have entered into stipulations with respect to some of the 

criteria, but the first matter to be considered and really 

the largest issue in this case is whether a violation occurred. 

Section 77 .1710 prov:l.des that employees working in 

a surface coal mine shall wear protective clothing. And 

subsection (e) of that section provides that the employees 

will wear suitable protective footwear. There is a practically identical provision in the underground portion of the 

regulations which is section 75.1720, subsection (e) which 

has the same language as section 1710 has. Namely, that 

the miners will wear suitable protective footwear. 

1137 
MSHA v. Middle Kentucky, Docket No. KENT 79-7 (Contd.) 

The two citations involved in this proceeding are 

Citation Nos. 399710 and 399711. Both of them were issued 

the same day and the only difference between them is a 

mechanic, in one instance, was not wearing what the inspector 

felt to be suitable protective footwear, and in the other 

instance a person who lubricates equipment and does 

other maintenance work was not wearing what the inspector 

felt was suitable protective footwear. 

In his testimony, the inspector indicated he believed 

the term, suitable protective footwear, had to be interpreted 

in accordance with the job that a given miner is doing. In 

these two instances, the inspector felt that it was quite 

likely and, in fact, that it was probable a mechanic 

or a maintenance man might have something fall on his feet 

which could crush them. And, that he felt that these two 

gentlemen involved in the two citations should have been 

wearing steel-toed shoes. The operator's contention in 

this case is that he agrees that the term, suitable protective footwear, should be interpreted to deal with the situation confronting the individual miner and that he stresses 

the fact that in this instance the men, both the mechanic 

and the maintenance worker, were working around equipment 

which is subject to having diesel fuel and other greases 

or greasy substances accumulate on the floor or spill 

on the ground and that it's quite possible for these 

individuals to slip. 

And that he felt that the greater danger to the employees 

was that they would slip and hurt themselves rather than that 

something would fall on their feet, because, for example, he 

says that any heavy piece of equipment that might be used 

by a mechanic, such as a part of an engine or transmission, 

would be lifted by a crane and that the men themselves 

would not be handling heavy equipment or parts. 

There is a considerable amount of merit to the operator's 

contention that the phrase, suitable protective footwear, 

in the instances here involved could well indicate that 

the men ought to wear equipment that would keep them 

from sliding on floors or places that are slippery, but 

there's also a considerable amount of merit to the inspector's 

contention that even though he agrees that it's helpful 

to have nonslipping soles on the shoes that the men wear 

in such an area, that it's also important that they 

be protected from falling objects. And, of course, even 

a big wrench or a big hammer could easily fall on a person's foot with enough force to cause him to miss a day's 

work that he wouldn't have missed otherwise had he had 

on the steel-toed shoes. 

1138 
MSHA v. Middle Kentucky, Docket No. KENT 79-7 (Contd.) 

So, the regulations are designed to protect people 

against all dangers and while there's a considerable 

amount of merit to the operator's argument in this case, 

I think that the inspector's contention that steel-toed 

shoes are required is also a reasonable interpretation 

of the phrase, suitable protective footwear, and, therefore, 

I find a violation of section 77.1710(e) did occur. 

The inspector presented as Exhibit 8 a picture of a 

sign which indicates that the operator does require that 

hard hats and steel toes be worn in the area involved in 

this proceeding. 

The spokesman for the operator in this proceeding 

indicated that the company is extremely safety minded and 

it was their intention for people to wear steel-toed shoes 

in this area, and the inspector agreed this is a company 

which should be at the top of the list for those who 

encouraged and insisted on safety-minded activities at its 

mine. 

The facts did show also that the gentlemen involved 

in these two citations, the mechanic and the maintenance 

man, did not specifically obtain the operator's permission 

to wear shoes which may have protected them from slipping 

but did not have steel toes on them. 

The former Board of Mine Operations Appeals in 

North American Coal Corp., 3 IBMA 93 (1974), held with 

respect to a similar provision in section 75.1720, that 

if any operator had erected a sign advising people to 

wear safety goggles and the individual miner did not 

wear the safety goggles, even though they were provided 

by the company, that no violation of the section there 

involved should be found to have occurred. 

The Commission in United States Steel Corp. v. MSHA, 

in a decision issued September 17, 1979, 1 FMSHRC 1306, 

held that that North American case decided by the Board 

should be limited to the language of that standard which 

was, as I said, 30 CFR 75.1720. 

The effect of that is that I don't think the 

Commission would favorably look upon a holding in this 

instance that the fact that these two gentlemen had failed 

to comply with the operator's clearly exhibited sign as 

shown in Exhibit 8, that steel toes were required, is a 

reason to find that no violation occurred. 

We now come to the six criteria, as to which there 

have been some stipulations. First, it has been agreed 

that }liddle Kentucky Construction, Incorporated, is subject 

to the jurisdiction of the Act and the regulations promulgated 

1139 
MSHA v. Middle Kentucky, Docket No. KENT 79-7 (Contd.) 

thereunder. It was also stipulated that the inspector involved was properly a representative of the Secretary 

and has the authority to make the inspection involved in 

this case. As to the criterion of whether the payment of 

penalties would cause the operator to discontinue in business, 

it was stipulated that payment of penalties would not cause 

the operator to discontinue in business. It was also 

stipulated that Middle Kentucky is a small company 

and, therefore, I find that any penalties should be in a 

low range of magnitude. 

The inspector's Exhibits 3 and 6 show that the 

operator made a normal good faith effort to achieve 

rapid compliance and it was so stipulated; therefore, 

any penalties assessed should take, and will take, that 

mitigating factor into consideration. 

The inspector's Exhibits 2 and 5 show that the 

inspector did not think the operator could have known or 

predicted the occurrence of the two workers failing to wear 

safety-toed shoes. And that finding by the inspector 

is consistent with the operator's testimony to the effect 

that neither the mechanic nor the maintenance man obtained 

the operator's permission when they came to the mine without 

safety-toed shoes. Therefore, the evidence shows that 

the operator was nonnegligent in the occurrence of the 

two violations. 

The only criterion left to be considered then is 

that of gravity. The inspector agreed that it was important 

that the men wear shoes that would keep them from slipping 

and they apparently were doing so. So, that would have 

been some protection from one of the hazards to which they 

are exposed in their work. The inspector's illustration 

of an accident that occurred to him when he was not wearing 

safety-toed shoes many years ago before the effective 

date of this Act and also one given by the operator's 

spokesman show that safety-toed shoes may or may not be 

sufficient to keep a person from having an injury, but 

they at least are some protection and it's better to 

have some protection than no.ne. 

The specific point that is being made here is that 

a heavy object may fall on one's toes where the safety 

toe is helpfui, as in the illustration given by the inspector, 

but in the one given by the operator's.spokesman the object 

fell just past the area covered by the safety-toed shoe 

and therefore injured the miner's arch at a point that was 

not protected by the steel toes. Of course, the inspector 

pointed out that some operators require a steel protective 

plate over the arch as well as over the toe and that, of 

course, would have been protection in the situation given 

by the operator's spokesman. 

1140 
MSHA v. Middle Kentucky, Docket No. KENT 79-7 (Contd.) 

But the inspector does not feel that requiring a 

steel plate over the arch is within the confines of protective footwear as it's now interpreted by the inspector. 

So, I think in this instance that we can find that considering the type of work these two miners were doing and the 

possibilities that still exist for injury that the violation 

was only moderately serious. 

There was some testimony in this case about the fact 

that the operator requires the miner who violates the regulation which the company is trying to enforce to pay the 

penalty, if one is assessed, for his failing to carry out 

the company's and the Government's safety regulation·. 

That may be effective in bringing about more consistent 

conscientious adherence to the safety regulation than we would 

have without the provision, but I don't believe that the Act 

contemplates that I am to take the financial circumstances 

of a given miner into account in assessing a penalty. As the 

Conunission stated in the United States Steel case cited above, 

it is well settled that operators are liable for violations 

without regard to fault. So, I don't think in the assessment 

of a penalty I should transfer from respondent to an individual 

miner application of the criteria of negligence or gravity 

or whether the payment of penalties would affect an individual's financial conditicn. I don't think those are matters 

that I should consider in light of the way the Act was drafted 

and should be enforced. Consequently, I'm not taking those 

matters into consideration. 

Nevertheless, I think that there are many extenuating 

circumstances about this case and the conditions under 

which the employees were working and the fact that the 

inspector does not think that the operator was negligent 

which indicates that a small penalty should be assessed 

in this instance. Therefore, a penalty of $15.00 will 

be assessed for each violation. 

WHEREFORE, it is ordered: 

Respondent, within 30 days from the date of this decision, shall pay 

civil penalties totaling $30.00 which are allocated to the two violations 

as follows: 

Citation No. 39971010/31/78 ·§ 77.1710(e) ••••••••••••••• $15.00 

Citation No. 399711 10/31/78 § 77.1710(e) ••••••••••••••• 15.00 

Total Penalties in Docket No. KENT 79-7 •••••••••••• $30.00 

~ _ ,,., .. r·a . rt: / / f.A'1-0- k:\ '-....), ~ ~;. , ' ._, Richard C. Steffey &-7 /-

Administrative Law Judge 

(Phone: 703-756-6225) 

1141 
MSHA v. Middle Kentucky, Docket No. KENT 79-7 (Contd.) 

Distribution: 

Darryl A. Stewart, Attorney, Office of the Solicitor, U.S. Department 

of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Middle Kentucky Construction, Inc., Attention: Byron Terry, Safety 

Director, Crapshooter Mines, P.O. Box 53, Jetson, KY 42252 

(Certified Mail) 

1142 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

McCOY ELKHORN COAL CORPORATION, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

2 2 MAY 1980 

: Application for Review 

:·Docket No. KENT 80-122-R 

Order No. 721484 

December 5, 1979 

No. 4 Mine 

DECISION 

Appearances: Fred G. Karem, Esq., Lexington, Kentucky, for Applicant; 

William F. Taylor, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Respondent. 

Before Administrative Law Judge Steffey 

Pursuant to an order issued February 20, 1980, a hearing in the aboveentitled proceeding was held on March 28, 1980, in Pikeville, Kentucky, 

under section 105(d) of the Federal Mine Safety and Health Act of 19i7. 

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

the bench decision which is reproduced below (Tr. 260-275):. 

This proceeding involves an Application for Review which 

was filed by McCoy Elkho.rn Co.al Corporation on December 31, 

1979, in Docket No. KENT 80-122-R. The Application seeks 

review of Order No. 721484 issued under sections 107(a) and 

104(a) of the Federal Mine Safety and Health Act of 1977. The 

order alleges a violation of 30 CFR 75.703. The civil penalty 

issues which will be raised when and if MSHA files a Petition 

for Assessment of Civil Penalty were consolidated with the 

issues raised by the Application for Review and evidence was 

received at the hearing concerning the six criteria which 

must be considered if a violation under section 75.703 is found 

to have occurred. This decision will sever the civil penalty 

issues· for future decision when I have received the Petition 

for Assessment of Civil Penalty. That may be several months 

after this decision is issued. The Applicant has raised 

several factual issues in its Application for Review but 

the primary issue, of course, in any case where an order is 

issued under section 107(a), is whether an imminent danger 

existed at the time the order was issued. In order to apply 

the law to any case, it's necessary to make some findings 

of fact and I shall now make those findings. 

1143 
McCoy Elkhorn v. MSHA, Docket No. KENT 80-122-R 

Findings of Fact 

1. McCoy Elkhorn Coal Corporation operates three coal 

mines which have been numbered 1, 3 and 4. The No. 4 mine 

is the one which has primarily been discussed in this proceeding. That is the mine in which the imminent danger 

order was issued. The No. 4 mine operates on two production 

shifts and has a maintenance shift on the third shift. The 

mine utilizes. conventional mining.methods and uses a cutting 

machine, loading machine, two shuttle cars, a conveyor belt, 

and two roof bolting machines. The average daily production 

from the No. 4 mine is approximately 600 tons. The production from the No. 3 mine is also 600 tons and the No. 1 mine 

produces approximately 1,200 tons of coal a day. T:he total 

production, therefore, of the three mines is, depending on how 

well coal is running, 2,400 to 3,400 tons per day. McCoy 

Elkhorn.is an affiliate of General Energy which seems to 

own some other coal mines and may do some oil exploration. 

2. Inspector Charles Chafin on December 5, 1979, 

made an inspection at the No. 4 mine. He was accompanied 

underground by Mr. Michael Norman who is McCoy Elkhorn's 

Safety Director. When Inspector Chafin arrived on the 

section he first made an inspection to determine whether 

the equipment had frame grounds. To do that, it was 

necessary to pull the shuttle car, which in this instance was 

the right-drive shuttle car, up beside the loading machine. 

By doing that, he could check with his ohmmeter to determine whether there was continuity of the frame ground on 

both pieces of equipment. 

At that time it was agreed by both Inspector Chafin 

and the company's electrician, who.was Mr. Reed, that the 

frame ground was inoperable on either the shuttle car or 

the loading machine. Therefore, the inspector checked the 

frame of the right-drive shuttle car and determined that 

it was not energized. Then he had the right-drive 

shuttle car operator, who was Mr. James Stotridge, to back 

the right-drive shuttle car up approximately 40 feet outby 

the loading machine. At that point, Inspector Chafin 

knew that either the loading machine or the right-drive 

shuttle car had a defective frame ground. He did not know 

which had the defective frame ground, so he instructed 

the mine personnel to get the .disconnect, which is also 

called a cathead in this case, and bring it up to the 

right-drive shuttle car so that he could check the continuity of the ground wire in the trailing cable. 

He determined when he was able to place his ohmmeter on 

the shuttle car and also upon the ground wire on the shuttle 

car, that there was not continuity in the ground wire·of the 

1144 
McCoy Elkhorn v. MSHA, Docket No. KENT 80-122-R 

shuttle car's trailing cable. At that point, he told Mr. 

Norman, the Safety Director, that the shuttle car should 

stay parked where it was until the trailing cable had been 

further checked. 

3. while the men were in the process of bringing 

the cathead or disconnect for the trailing cable up to the 

right-drive shuttle car, Inspector Chafin also pulled, or 

had someone pull, the left-drive shuttle car over to the 

loading machine and made a check for frame-ground purposes 

on those two pieces of equipment and it was established 

that they both did have operable fralile grounds. By process 

of elimination, Inspector Chafin knew that the right-drive 

shuttle car was the one which had a defective trailing 

cable or defective frame ground. 

4. The right-drive shuttle car operator, Mr. James 

Stotridge, got off of the right-drive shuttle car as soon 

as he had pulled it back from the loading machine and proceeded to assist the electrician in bringing the cathead or 

disconnect up to the right-drive shuttle car so it could be 

inspected by Inspector Chafin. 

5. After the inspector had determined that the 

ground wire was defective in the trailing cable, the electrician and Mr. Stotridge began to look for the defective 

place in the cable and they found it before the inspector 

and Mr. Norman had gotteri out of shouting distance. The 

result was that the inspector came back and looked at the 

place which they had located which was a soft area in the 

permanent splice, A cut was made into the permanent splice. 

It was determined that the ground wire was separated 

approximately one inch which meant there was no continuity 

and the trailing cable would not have_performed its intended 

purpose of grounding the machine in case of an electrical 

fault. The inspector, at that point, asked the personnel 

to cut the defective permanent splice out of the trailing 

cable and asked th~m for the splice so that he could use it 

as the subject of a memo to the head of the Mine Safety and 

Health Administration for the purpose of trying to get the 

maker of the splice, the Southern Mine and Cable Service Company, 

to improve on the quality of its splices since the inspector 

had encountered several other defective splices made by the 

same company. All mine personnel indicated to the inspector 

that the should ask their supervisor, Mr. Charles, the 

Superintendent of the mine, about taking the splice. 

6. Mr. Reed, the electrician, then proceeded to 

install a new permanent splice. He then checked the trailing cable to determine that there was continunity on the 

1145 
McCoy Elkhorn v. MSHA, Docket No. KENT 80-122-R 

ground wire and the equipment was reenergized even though 

there was no use made of that right-drive shuttle car on 

December 5 for production of coal. Coal was produced on 

the section that day, but because of the mining development at that point only the left-drive shuttle car was 

utilized for transporting coal. 

7. When Inspector Chafin and Mr. Norman reached 

the surface of the mine, they went into the· mine office 

where Mr. Charles, the Superintendent, was waiting for 

them and the inspector was carrying the defective 

permanent splice. The inspector either asked or told Mr. 

Charles that he was going to take the cable back to the MSHA 

Office for the purpose of demonstrating what a poor splice 

the Southern Mine and Cable Service had installed in the cable 

to the right-drive shuttle car. Mr. Charles took exception 

to giving the inspector the splice because Mr. Charles stated 

that he wanted to show the splice to Southern Mine and Cable 

Service Company, so that he could ask them to improve on their 

splices. Mr. Charles had been using that company's services 

for approximately 5 years to repair his trailing cable and 

had not previously been dissatisfied with its work. Also, 

if one looks at the defective permanent splice which is 

Exhibit 2, it is actually impossible to determin.e whether 

the splice was actually defective at the time it was made. 

As the inspector testified, and as others also testified, 

the ground wire in the splice probably separated under 

strain. If it separated under strain, then it could have 

been made properly in the first place, but still would have 

looked defective, and would have been defective, at the time 

it was found to have a separated ground wire on December 5, 1979. 

In order to apply the foregoing findings of fact to 

the law as it exists at the present time, I think I should 

give the definition of imminent danger which was set forth 

by the Seventh Circuit Court of Appeals in Freeman Coal 

Mining Co. v. Interior Board of Mine Operations Appeals, 

504 F.2d 741, (1974). In that case, the court said that 

an imminent danger exists when the condition is of such a 

nature that a reasonable man would estimate that, if normal 

operations designed to extract coal in the disputed area 

should proceed, it is at least just as probable as not that 

the feared accident or disaster would occur before elimination 

of the danger. That definitiQn was also adhered to by the 

Fourth Circuit Court of Appeals in Eastern Ass"c·iated Coal 

Corp. v. Interior Board of Mine Operations Appeals, 491 F.2d 

277 (1974). Of course, the court in each of those cases was 

affirming the former Board of Mine Operations Appeals which 

had originally formulated a very similar definition in 

a case known as Eastern Associated Coal Corp., 2 IBMA 128 

(1973) • . 

1146 
McCoy Elkhorn v. MSHA, Docket No. KENT 80-122-R 

In United States Steel Corp., 3 IBMA 50 (1974), the 

former Board held an imminent danger must be based on the facts 

existing at the time the order was issued. Another well 

known case the former Board decided in dealing with the 

question of imminent danger occurred in Old Ben Coal Co., 

6 IBMA 256 (1976). In that case, the inspector had seen 

a miner riding on a man trip with his feet dangling over 

the side of the car and the inspector said that it was an 

imminent danger for a man to ride with his feet dangling 

off the car. The miner got off the car. The inspector 

then wrote an immine.nt danger order. The Board affirmed the 

judge's decision in that case which had held that since the 

imminent danger had to exist at the time the order was 

issued, the inspector's order was invalid because the imminent danger did not, in fact, exist after the miner got off 

the car. 

I think the Old Ben case applies very strongly to the 

facts we have in this case. We have a situation in which 

Inspector Chafin was very concerned about whether this 

right-drive shuttle car should continue to be used. The 

inspector said that if it were to continue to be used with 

the lack of a proper frame ground on it, that it could become 

energized, and if it did become energized, either the operator 

in getting off of it could be electrocuted, or any other miner 

who might touch the frame of the machine could be electrocuted. 

The inspector's concern was justified, but the difficulty that I have with the o~der is that the inspector says 

he issued it when he determined that the frame ground wire 

was separated. Now, we have a diagram in this case which 

is Exhibit 6, which was drawn by the inspector and that shows 

without any doubt and the testimony also shows without any 

doubt that when the inspector determined that there was no 

continuity in the ground wire, there was no power on the 

shuttle car whatsoever. Not even the power of a battery 

was involved because the determination of continuity of the 

ground wire is based on the ability of the ohmmeter to test 

the existence of an operable grounding mechanism. Since the 

inspector issued the imminent danger order verbally at a 

time when there was no power on the machine, there could 

not have been an imminent danger at that moment. 

Now it is true, just as in the case where the miner's 

feet were dangling off the car, that there could have been 

an imminent danger at the time the operator of the shuttle car 

moved it back from the loading machine, but the inspector 

didn't know at that point that the right-drive shuttle car 

was the piece of equipment which had the defective permanent 

ground and the inspector didn't say that he issued the i.nuninent 

1147 
McCoy Elkhorn v. MSHA, Docket No. KENT 80-122-R 

danger order at that point. He couldn't have, because he 

didn't know for certain that the lack of a frame ground might 

not be on the loading machine, and he didn't issue one for 

the loading machine and the shuttle car. He only issued it 

on the right-drive shuttle car. So it is the equivalent of 

the foot-dangling situation as I see it. The inspector was 

concerned about the existence of a frame ground and the possibility of someone being electrocuted and he was justified in 

being concerned, but he did not issue the imminent danger order 

at the time the hazard may have existed because the inspector 

was not cert~in that there was a lack of a frame ground until 

after the shuttle car had been deenergized. 

In the arguments today, I think the attorneys may have 

overlooked one of the points that most concerned the inspector, 

and that concern was discussed in the Eastern Associated case, 

supra, which was appealed to the court, wherein the Board of 

Mine Operations Appeals had inserted the clause; "if norma~ 

operations designed to extract coal in a disputed area proceed". That proviso was not in the definition that Congress 

placed in the Act, but all the courts which considered the 

issue agreed with the Board that the proviso was legitimately inserted because, unless the miners were going to keep 

mining coal, there wouldn't be exposure to hazards. Here the 

inspector said that he was concerned that if he issued only 

a citation, that they mi~ht put this defective trailing cable 

back on the right-drive shuttle car so that the strain would 

continue on the trailing cable and produce an energized frame 

which might have caused someone to be electrocuted. 

Well, in this case we have all sorts of facts that just 

simply do not support the inspector's concern in this instance 

because first of all, there's nobody that challenges the company's 

testimony through all it's witnesses that the right-drive 

shuttle car was not going to be used that day. So, if normal 

mining operations had continued, that shuttle car would not 

have been used. In addition to that, before the inspector 

left the area, the defective ground wire having been discovered, the trailing cable had been severed and the defective 

splice had physically been removed. Therefore, he could have 

left the area knowing that the trailing cable could not be used 

again until it had been properly repaired. 

There are some other aspects of the case which have 

been argued by the parties and I think that there is some 

merit in most of them. One of them is whether the inspector 

ever made it clear that he had really issued an imminent 

danger order. The inspector said, and Mr. Taylor argues, 

that the inspector told them that the right-drive shuttle car 

1148 
McCoy Elkhorn v. MSHA, Docket No. KENT 80-122-R 

was parked and was not to be moved until the trailing cable 

had been corrected. Mr. Norman says that he asked the inspector if th~t statement was meant to be an order or a citation, 

and apparently the inspector did not give him a candid reply. 

That is, the inspector left the company in doubt as to whether 

he had found existence of an imminent danger. 

I'm not holding in this case that an inspector has to 

use the exact definition that I just discussed in the Court of 

Appeals cases, nor am I saying that he has to use the exact 

language in the Act, but, when he was asked whether he had 

issued an imminent danger order, I think he was obligated 

to make it perfectly clear that he either had or had not. 

I don't think there should be any doubt about it. Yet, 

every witness who testified here today on behalf of the Company, 

without exception, and those witnesses were put out of the 

hearing room until they testified, all said they thought they 

had been issued a citation and not an imminent danger order. 

Whatever language the inspector uses, he must make sure 

that the company knows that he has issued an imminent danger 

order. Although the imminent danger had ceased to exist 

in this case before a violation was cited, miners who are in 

doubt about the inspector's action may continue to work and 

expose themselves to an imminent danger without actually 

realizing that they have been ordered to withdraw from the 

mine except for purposes of correcting the imminent danger. 

In Kaiser Steel Corporation, 3 IBMA 489 (1974), the 

former Board of Mine Operations Appeals stated that an 

inspector's manual does not have the force of regulations. 

I think the inspector correctly said in this case that he was 

not obligated to follow the exact provisions of the inspector's manual, a portion of which is. Exhibit B in this case, 

which does say or at least suggests, that the inspector when 

he issues an imminent danger order should place a closed poster 

on the controls of the equipment if equipment is involved. 

Now, the inspector explained his reason for not doing that 

in this case by saying that he actually issued an imminent 

danger order on the trailing cable and not the right-drive 

shuttle car, and that if he had tried to put a danger poster, 

closed poster, on the trailing cable, that it would not have 

stayed on it even if he had done so. Regardless of whether 

the inspector has to follow the manual, as I have indicated, 

I think he has to make it clear to the company's personnel 

•that he has issued an imminent danger order. If the inspector 

had put a closed poster on the trailing cable or had laid one 

down there by it, no one would have been likely to have claimed 

in this case that there was doubt as to whether he had issued 

an imminent danger order. 

1149 
McCoy Elkhorn v. MSHA, Docket No. KENT 80-122-R 

Also the inspector's order states that a violation of 

section 75.703 existed at this mine in that the frame of the 

right-drive shuttle car was not frame grounded. So it is a 

little hard when you read that order to put out of your mind 

the fact that you have only a trailing cable that has been 

cited and not also a right-drive shuttle car. The inspector 

said his primary concern was that someone would use the rightdrive shuttle car, that its frame would become energized, and 

that someone would touch the frame and be electrocuted. There 

is no reason why the inspector could not have put his closed 

poster on the right-drive shuttle car because that would have 

kept anyone from using the very piece of equipment about which 

he was concerned. It's true that his order says the area 

covered by the withdrawal order was the trailing cable to the 

right-drive shuttle car; even though that is stated, the fact 

remains that he was concerned about someone using the rightdrive shuttle car. So, it is difficult to separate the trailing cable from the right-drive shuttle car since the imminent 

danger has to relate to the shuttle car as well as relate to 

the trailing cable. 

Mr. Taylor has indicated that he feels that this Order 

No. 721484 complies with all the provisions of section 107(a), 

as well as subparagraph (c) because the order contains the 

detailed description of the condtions or practices which cause 

and constitute an imminent danger. The former Board of Mine 

Operations Appeals held in Armco Steel Corp., 8 IBMA 88 (1977), 

that an inspector is required to write an imminent danger 

order so that the person who receives a copy of it will know 

exactly what constitutes the imminent danger. I am not at 

all sure that the inspector made it clear in this case because, 

you see, he issued the imminent danger order verbally before 

he knew for certain about the separation of the ground cable 

and yet, the order itself states "when checked with an 

ohmmeter the Ground Conductor was separated approximately 

one (1) inch in a vulcanized splice made by Southern Mine 

and Cable Service." Now, you see that separation was not 

known at the moment he issued the order, so it is not a 

part of the imminent danger at that point. I think one 

other problem here was that the inspector was intent on, 

and I think he was properly motivated, but he was intent on 

trying to get Southern Mine and Cable Service to do a better 

job on their splices. In trying to fight that battle and 

show documentation of it in the order he was issuing, the 

inspector lost sight of what he really wanted to cite as 

an imminent danger. Now perhaps not any one of these 

items by itself would be sufficient for me to hold that the 

inspector's order was invalid, but I think when you add all 

these problems up, that the company had a legitimate complaint here about whether it had been properly treated. 

1150 
McCoy Elkhorn v. MSHA, Docket No. KENT 80-122-R 

In Old Ben Coal Corp. v. Interior Board of Mine 

Operations Appeals, 523 F.2d 25 (7th Cir. 1975), the court 

held that an inspector should be upheld unless he has severely 

abused his discretion. The court, in that case, said the 

operator of a coal mine is primarily interested in production 

and that he may, in some instances, give less emphasis to 

safety than he should because giving attention to safety 

regulations may cut down on the amount of coal he can 

produce. So the court said when an inspector is in the mine 

he is concerned about mine safety and he is the one who may 

have to disagree with management, as to enforcement of safety 

regulations. So the court gave the inspector, as it should, 

an edge any time we have a real close point about whether 

there was an imminent danger or wasn' t. Any time there is 

doubt, the inspector should be upheld unless he has clearly 

abused his discretion. I think in this case there are just 

too many areas where the inspector's order was unclear as 

orally issued and, when written, was based on facts not 

known when the order was orally issued. 

I agree whole heartedly that the inspector was properly 

motivated and I congratulate him on being concerned. It is 

certain that he accomplished his objective in seeing that 

this equipment was repaired and that is was not used in a 

condition that could have caused someone to be electrocuted. 

But I'm required to follow the precedents the former Board 

has laid down, until the Commission disagrees with the Board, 

or the Commission reverses me for misunderstanding the 

precedents, but I think in this instance, there was not an 

imminent danger on the facts that existed at the time the 

inspector issued the order. Therefore, I find that the 

order is invalid and should be vacated~ 

WHEREFORE, it is ordered: 

(A) Order No. 721484 dated Decmeber 5, 1979, is vacated 

and the Application for Review in Docket No. KENT 80-122-R 

is granted. 

(B) The civil penalty issues are severed from the issues 

raised by the Application for Review and the civil penalty 

issues will be decided on the basis of evidence received in 

this proceeding when I receive a petition for assessment of 

a civil penalty for the violation of section 75.703 alleged 

in Order No. 721484. 1./ 

Richard 

~c.~~ C. Steffey iz;:JAdministrative Law Judge 

(Phone 703-756-6225) 

1./ Even after an imminent danger order has been vacated, the violation cited 

therein may become the subject of a civil penalty proceeding (Eastern 

1151 
McCoy Elkhorn,. MSHA, Docket No. KENT 80-122-R 

Distribution: 

Wiliiam F. Taylor, Attorney, Office of the Solicitor, U.S. Department 

of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Fred G. Karem, Esq., Attorney for McCoy Elkhorn Corporation, Shuffett, 

Kenton, Curry & Karem, 109 North Mill Street, Lexington, KY 

40507 (Certified Mail) 

1./ (Continued from p. 9 

Associated Coal Corp. 1 IBMA 233 (1972); Zeigler Coal Co., 2 IBMA 216 

(1973); and Zeigler Coal Co., 3 I.BMA 64 (1974)). 

1152 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52Qj LEESBURG PIKE 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

PEABODY COAL COMPANY, 

PEABODY COAL COMPANY, 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

FALLS CHURCH, VIRGINIA 22041 

Phone (703) 756-6236 

Petitioner 

Respondent 

Applicant 

Respondent 

Civil Penalty Proceeding 

Docket No. LAKE 80-247 

A.C. No. 33-01069-02027V 

Sunnyhill No. 9 North Underground 

Mine 

Application for Review 

Docket No. VINC 77-91 

Order No. 1 WS; 

January 27, 1977 

Sunnyhill No. 9 North Underground 

Mine 

DECISION 

Before: Judge Charle·s C. Moore, Jr. 

On May 5, 1978, I issued a decision in Docket No. VINC 77-91 in which I 

Tuled that MSHA had failed to prove a violation of 30 C.F.R. § 75.400. I 

based that ruling principally upon the decision of the Interior Department's 

Board of Mine Operations Appeals in Old Ben Coal Company, 8 IBMA 98 (1977). 

On December 12, 1979, the Federal Mine Safety and Health Review Commission 

reversed the Board's Old Ben decision (Commission Docket No. VINC 74-11) 

and on the same date reversed my decision in Peabody and remanded it for 

further proceedings consistent with the Commission's Old Ben decision. Thereafter, on April 4, 1980, the Secretary of Labor filed the penalty proceeding 

which has been assigned Docket No. LAKE 80-247. 

The Secretary has moved for summary decision in both cases and Respondent has opposed this motion and moved to dismiss the penalty case. For the 

reasons set forth below, I grant Peabody's motion to dismiss the civil penalty case and grant the Secretary's motion for a decision affirming the 

unwarrantable failure order which was the basis of both cases. 

1153 
As to the affirmance of the withdrawal order, I rely on my decision of 

May S, 1978. On page 3 of that decision I stated that but for the Board's 

Old Ben decision "I would probably have found the af orementioried coal 

dust accumulations to have constituted an 'unwarrantable failure' violation 

* * *·" The word "probably" caused the above to be an understatement. The 

record clearly shows the existence of the accumulations and the inspector 

estimated that because of the extent of the accumulations the operator 

should have been aware of them for at least a week prior to the inspection. 

That is enough to support a finding of unwarrantability. This estimation 

was not rebutted and, as noted in the opinion, .even Old Ben's witness thought 

that a notice of violation would have been justified if the accumulation 

had not been cleaned up. The.fact that the inspector did not find any 

notation of an accumulation when he examined the preshift inspection reports 

does not rebut his estimate that the accumulations had existed for at least 

a week. There is no need for further evidence or for further briefing. The 

order of withdrawal is affirmed. 

As to Docket No. LAKE 80-247, an earlier civil penalty petition, Docket 

No. VINC 78-320-P, sought civil penalties for the same alleged violation 

involved in Docket Nos. LAKE 80-247 and VINC 77-91. After my May 5, 1978, 

decision in Docket No. VINC 77-91, Peabody moved to dismiss Docket No. VINC 

78-320-P because I had already ruled that no violation had been established. 

The motion to dismiss was filed on July 10, 1978, and MSHA did not oppose the 

motion. I granted the motion to dismiss on August 2, 1978, and MSHA did not 

seek review. !:_/ 

Respondent's motion to dismiss the first civil penalty proceedings 

prayed for dismissal with prejudice (see Exhibit "D" of petition for assessment of civil penalty in Docket No. LAKE 80-247). The August 2, 1978, ruling granted dismissal for the reasons set forth in the motion (vacation of 

the underlying order) and for the Secretary's failure to oppose the motion. 

The question is how to construe an involuntary dismissal which does not indicate on its face whether it was granted with or without prejudice after the 

moving party requested dismissal with prejudice. 

!:_/ In the interim between remand of Docket No. VINC 77-91 to me on 

December 12, 1979, and the filing of the second civil penalty case, Docket 

No. LAKE 80-247 on April 4, 1980 (I actually had some advance notice that 

the penalty suit would be filed but I do not recall when that notice was 

received), the parties had been negotiating a settlement of the review proceeding. I gathered that the Government felt that it had won its principal 

point in the Old Ben case and that since the penalty case in Peabody had 

already been dismissed there would be little point in devoting much effort 

toward the remand. I was led to believe that Peabody felt the same way and 

that the matter would be resolved but I did not know whether the parties 

intended that Peabody withdraw its petition for review or that the Government withdraw its opposition to that petition. In any event those negotiations broke down and the second penalty suit was filed. 

1154 
- Rule 2700.l(b) of our Rules of Procedure states that where "any procedural question [is] not regulated by the Act, these Procedural Rules, or the 

Administrative Procedure Act, the Commission or any Judge, shall be guided 

so far as practicable by any pertinent provision of the Federal Rules of 

Civil Procedure." Neither the Act nor the Procedural Rules nor the Administrative Procedure Act contain provisions governing the construction of an 

order of dismissal. Rule 41 of the Federal Rules of Civil Procedure, however, entitled "Dismissal of Actions," states 1-n paragraph (b) pertaining 

to involuntary dismissals: "Unless the court in its order for dismissal 

otherwise specifies, a dismissal under this subdivision and any dismissal 

not provided for in this rule [exceptions that are not applicable], * * * 

operates as an adjudication upon the merits." As I read this rule, with 

certain exceptions that are not pertinent, any involuntary dismissal, that 

is, where one party asks for the dismissal of the other party's case, if 

granted, is with prejudice.unless the court states otherwise in its dismissal order. That was also my understanding at the time the dismissal 

order was issued. My dismissal of the case was therefore with prejudice 

and the doctrine of ~ judicata applies. 

The statement in footnote 1 on page 2 of the Secretary's second petition for civil penalty implies that there was some duty on the part of 

Peabody to serve its motion to dismiss in the first penalty case on 

counsel who were representing the Department of Labor in Docket No. VINC 

77-91. Of course there was no such duty on Peabody, but there was a duty 

upon the Secretary to oppose the motion to dismiss if he disagreed with 

the motion and to seek review of the order of dismissal if he disagreed with 

that order. The Secretary did neither and cannot now be heard to complain 

because counsel involved with one docket number were not served with papers 

in a different docket number. 

Distribution: 

~ (? f'7l Pf}lll#( i. 

Charles C. Moore, Jr. 

Administrative Law Judge 

Edward H. Fitch, Esq., U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 (Certified Mail) 

Thomas R. Gallagher, Esq., Peabody Coal Company, P.O. Box 235, 

St. Louis, MO 63166 (Certified Mail) 

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

NW., Washington; DC 20005 (Certified Mail) 

1155 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

~ 9 MAY 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

THE HOKE COMPANY, INC., 

Respondent 

Docket Nos. Assessment Control Nos. 

BARB 79-327-P 15-09969-03002 

Processing Division 

PIKE 79-113-P 15-05447-03004 

Murray Strip Mine 

DECISION 

Appearances: Darryl A. Stewart, Esq., and George Drumming, Jr., Esq., 

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

for Petitioner; 

Byron W. Terry, Safety Director, Owensboro, Kentucky, 

for Respondent. 

Before Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued February 22, 1980, a hearing in 

the above-entitled proceeding was held on April 3, 1980, in Evansville, 

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

of 1977. 

The consolidated proceeding involves two Petitions for Assessment 

of Civil Penalty filed by the Mine Safety and Health Administration. 

The Petition in Docket No. BARB 79-327-P filed March 26, 1979, seeks to have 

civil penalties assessed for five alleged violations of the mandatory health 

and safety standards by The Hoke Company. The second Petition was filed 

on May 17, 1979, in Docket No. PIKE 79-113-P by MSHA and seeks assessment 

of a civil penalty for an alleged violation of 30 CFR 71.107 by The Hoke 

Company. 

On March 20, 1979, counsel for MSHA filed a Motion for Approval of 

Settlement reached by the parties with respect to Docket No. PIKE 79-113-~. 

The motion states that respondent has agreed to pay the full amount of a $34.00 

penalty proposed by the Assessment Office for the single violation of section 71.107 involved in Docket No. PIKE 79-113-P. 

The Settled Case 

Docket No. PIKE 79-113-P 

The Assessment Order in the official file indicates·that the respondent 

produced 384,560 tons of coal on an annual basis and that 190,935 tons 

annually are produced at the Murray Strip Mine which is involved in 

1156 
MSHA v. The Hoke Company, Docket Nos. BARB 79-327-P, et al. (Contd.) 

Docket No. PIKE 79-113-P. On the basis of those production figures, I find 

that respondent operates a medium-sized business and that any penalties which 

might be assessed should be in a moderate range of magnitude. 

There is no evidence in the file or in the Motion for Approval of 

Settlement pertaining to respondent's financial condition. · In the absence 

of any evidence to the contrary, I find that payment of penalties will 

not cause respondent to discontinue in business. 

Respondent does not have a large number of previous violations and 

that factor should be considered as a mitigating circumstance when determining 

penalties. 

The specific violation of section 71.107 involved in this settled case 

was alleged in Citation No. 9948403 which stated that respondent had failed 

to submit a respirable dust sample or a reason for not sampling one employee 

within the time period for submitting the required sample. Respondent abated 

the violation very quickly by submitting a Miner's Status Change Notice 

card showing that the sample had not been submitted for the miner concerned 

because he no longer worked for respondent. 

In such cirumstances, the violation was nonserious, but the violation 

was a result of a rather high degree of negligence. Respondent abated the 

violation within a much shorter time than was allowed for abatement in 

the citation. Considering the conscientuous effort made by the respondent 

in achieving rapid compliance, I find that· the Assessment Office proposed 

a reasonable penalty of $34.00 for the alleged violation of section 71.107 

and that respondent's agreement to pay the full am:ount proposed by the 

Assessment Office should be .approved. 

The Contested Case 

Docket No. BARB 79-327-P 

Citation No. 400126 9/19/78 § 77.400 

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

the bench decision which is reproduced below (Tr. 38-41): 

The contested part of this proceeding9 as I previously 

indicated applies only to the Petition for Assessment of Civil 

Penalty filed in Docket No~ BARB 79-327,..P. The issues in any 

civil penalty case are whether there were any violations ·of the 

mandatory health and safety standards, and, if so, what penalties 

should be assessed based on consideration of the six criteria set 

forth in section llO(i) of the Act. Three of those criteria 

can be given a general evaluation in most cases. As I indicated 

in my opening remarks in this case, the company has not at this 

point, and I take it, will not present any financial information 

and in the absence of such information, I find that the payment 

of penalties will not cause the company to discontinue in business. 

1157 
MSHA v. The Hoke Company, Docket Nos. BARB 79-327-P, et al. (Contd.) 

It has been stipulated that the company is subject to the 

Act and to the regulations promulgated under it. It has also 

been stipulated that the size of the preparation plant is such 

that it processes approximately 125,000 tons annually and that 

the controlling company produces about 384,000 tons on an annual 

basis. Those findings support a finding fact that the company 

is moderate in size and that any penalties to be assessed should 

likewise be in a moderate range of.magnitude. 

Exhibit 17 in this proceeding is a listing of violations for 

which penalties have been paid by the company. According to that 

exhibit, the company has ~at previously violated any of the 

mandatory health and safety standards alleged in this proceeding. 

It has been my practice to increase the penalty somewhat when there 

is evidence before me showing that respondent has previously 

violated the same section of the regulations which is alleged by 

MSHA in the case currently being considered. Since respondent 

has not previously violated the sections being considered in · 

this proceeding, the criterion of history of previous violations 

will not be used to increase or decrease ariy penalty which may be 

assessed under the other criteria (Tr. 56). 

Turning now to the criteria of negligence and gravity and good 

faith effort to achieve rapid compliance, I find that the first 

citation before us in this proceeding, No. 400126 dated September 19, 

1978, and alleging a violation of section 77.400(c), I find in 

connection with that particular citation that there was a violation 

of section 77.400(c) because that section does refer to the fact 

that the guard should extend a distance sufficient to prevent a 

person from reaching behind the guard and becoming caught in the 

belt and pulley. 

Considering the criterion of negligence, there has been 

testimony that the company was aware of the provision I've just 

referred to and that it considered the guard that was on the 

pulley extended far enough to the rear of the pulley to keep 

a person from falling into it. It is also indicated by the 

record that other inspections had been made and apparently the 

guard that was on the pulley was considered to be adequate by 

inspectors other then the one who wrote this citation now before 

us. In view of that fact, I find that there was a very low degree 

of negligence in the occurrence of the violation. 

From the standpoint of gravity, I think that the violation was 

only moderately serious because it is a fact that the evidence shows, 

particularly Exhibits A and Al through A4, that there was a facility 

around the tail pulley which would keep a person from just walking 

into it upright and the only way that a person would be near this 

particular pulley would be for him to stoop under this construction 

that surrounded the tail pulley and then he would probably be on 

the alert just because of his going into an area like that. 

1158 
MSHA v. The Hoke Company, Docket Nos. BARB 79-327-P, et al. (Contd.) 

But the fact remains that it would be possible for someone 

to have his clothes caught in this place and he could be injured 

in this pulley from the rear. So, based on the fact that there 

was moderate seriousness and a low degree of negligence, I find 

that a penalty of $15.00 should be assessed for this violation 

of section 77.400(c). 

Citation No .• 400127 · 9/19/78 § 77 .206(a) 

Upon completion of introduction of evidence by the parties with 

respect to the above citation, I rendered the following bench decision 

(Tr. 55-56): 

With respect to the alleged violation in Citation No. 400127, 

I find that a violation occurred because the operator's witness 

and the inspector both agree that three rungs in the ladder were 

broken. The inspector does not contest the fact that the operator 

was not using the portion of the facility that is here involved 

at the time the citation was written and consequently it was not 

being inspected at that time. So, there is not as great a degree 

of negligence in that area as there would have been if this were 

a place where the people were frequently traveling up and down 

this ladder. Additionally, the operator's testimony shows that 

there was a ladder and Exhibit B2 shows that there was a ladder 

on the opposite side of this particular area cited by the inspector and it is alleged that the other ladder was being used instead of the one that was cited by the inspector. Additionally, 

the ladder has only four rungs and is approximately 5 feet high; 

therefore, the likelihood of serious injury as a result of any 

of the rungs breaking if someone had used the ladder is less 

likely than it would be if a great height were involved. Consequently, I find that there was moderate seriousness in connection with the violation. I think that extenuating circumstances 

in this instance also justify finding that a penalty of $15.00 

is adequate. 

Citation No •. 400128 9/19/78 § 77.205(e) 

Upon completion of introduction of evidence by the parties with respect 

to the above citation, I rendered the following bench decision (Tr. 75-76): 

My decision with respect to Citation No. 400128 is that, 

as all testimony indicated there was a violation of section 77.205(e). 

The company, I think, was a little more negligent in this instance 

than it was in the previous violations, because, even though there 

was not normally any use of this particular elevated walkway, there 

having been only three uses of it between the time this violation 

was written in September of 1978 and the present time, it was known 

to the company that there had been an open section left where 

another walkway might have been tied into this walkway at a 

future date. And, it was known that there was a gap of three feet 

1159 
MSHA v. The Hoke Company, Docket Nos. BARB 79-327-P, et al. (Contd.) 

in the handrails. So, I think that since the facility was 

constructed with this gap in i~ that the company should have 

put in a more stable handrailing than a rope, assuming that the 

rope was there at the time the citation was written. Additionally, 

there should have been an enclosed handrailing at the end where 

the storage silo existed. 

As for the gravity of the violation, there is agreement 

of both the company's witness and the inspector that if a person were to fall from this area, it could be a fatal accident. 

Therefore, I find that the violation was serious, and, in view 

of this large degree of negligence in this instance, I find that 

a penalty of $150.00 is appropriate. 

Citation No. 400129 9/19/78 § 77.206(a) 

Upon completion of introduction of evidence by the parties with respect 

to the above citation, I rendered the following bench decision (Tr. 94-95): 

I have taken additional testimony from Mr. Terry to be sure 

that I didn't improperly assess too much in connection with the 

alleged violation of section 77.205(e), and after further consideration, I find that there was at least a period of time when the 

company was using the walkway and I still adhere to the ruling 

that I made previously in the amount of penalty that I previously 

assessed. 

Turning to the one as to which we just 

is Citation No. 400129 alleging a violation 

that section provides that ladders shall be 

struction and maintained in good condition. 

tion of section 77.206 occurred because the 

had testimony, which 

of section 77.206(a), 

of substantial conI find that a violaladder was rusted, 

was made of light materials, and did have an extensive area at 

the top which made it difficult and dangerous to use. There is 

evidence from the operator's witness which showed that at the 

time the citation was written the silo was not being used because the company did not have orders that required the screening 

operation that was involved in that portion of the facility for 

which the citation was written. But the company's witness had 

indicated that the facility was used at some point in time and, 

therefore, I feel that the ladder should have been inspected and 

it should have been.put in a proper and safe condition at the 

original time the facility was used. I find that there was a 

rather high degree of negligence in their failure to do so at 

that time. It would have been difficult to negotiate this ladder. 

Of course, as the company's witness has indicated, the likelihood of someone going on up the ladder was somewhat remote but 

it would have been possible for someone to need to do some 

maintenance work and it would have been possible for someone to 

have tried to negotiate the ladder. He could have fallen because 

of the inadequate construction. Therefore, I find that the 

violation was serious and since it was a serious violation with 

a high degree of negligence, I think a penalty of $150.00 is 

appropriate for this violation. 

1160 
MSHA v. The Hoke Company, Docket Nos. BARB 79-327-P, et al. (Contd.) 

Citation No. 400130 9/19/78 § 77.1707(b) 

Upon completion of introduction of evidence by the parties with respect 

to the above citation, I rendered the following bench decision (Tr. 106-107): 

The final alleged violation in this case was contained in 

Citation No. 400130 alleging a violation of section 77.1707(b). 

I find that a violation of that section did occur. The provision 

that was violated lists twelve items which are supposed to be 

included in first-aid equipment at a prepartion plant and at mines. 

The paragraph that caused Mr. Terry and his company to have less 

than the full amount of equipment provided for in paragraph (b) 

was the section which contains somewhat ambiguous phraseology 

which is subject to an interpretation that a company would not 

have to have a full complement of first-aid equipment unless 

there were ten or more employees at the preparation plant. I 

can see easily why a company might arrive at that conclusion and, 

consequently, I find that there was a low degree of negligence 

in their failure to have the equipment at this particular 

preparation plant. 

Insofar as gravity is concerned, as the inspector has 

pointed out, the violation could be associated with considerable gravity if someone were to be seriously injured and not 

have the appropriate first-aid equipment immediately available, 

but in view of the company's good faith in trying to comply 

with the regulation, I find that there were extenuating circumstances in this instance and that a penalty of $20.00 is appropriate for this violation of section 77 .1707 (b). 

Summary of Assessment and Conclusions 

(1) Based on all the evidence of record and the aforesaid findings of 

fact, or the parties' settlement agreement, the following civil penalties 

should be assessed: 

Docket No. BARB 79-327-P 

Citation No. 400126 9/19/78 § 77 .400(c) . ................... $ 15.00 

Citation No. 400127 9/19/78 § 77 .206(a) . ................... 15.00 

Citation No. 400128 9/19/78 § 77. 205 (e} . ................... 150.00' 

Citation No. 400129 9/19/78 § 77 .206 (a} . ................... 150.00 

Citation No. 400130 9/19/78 § 77.1707(b) . .................. 20.00 

Total Penalties in Docket No. BARB 79-327-P ........... $350.00 

Docket No. PIKE 79-113-P 

Citation No. 9948403 1/5/79 § 71.107 •••••••••• (Settled) •••• $ 34.00 

Total Settlement and Contested Penalties in This 

Proceeding .................. _•. . . . . . . • . . . . . . • • . . . . . . . $384. 00 

1161 
MSHA v. The Hoke Company, Docket Nos. BARB 79-327~P, et al. (Contd.) 

(2) Respondent, as the operator of the Murray Strip Mine and Processing 

Division, is subject to the Act and to the mandatory safety and health standards promulgated thereunder. 

WHEREFORE, it is ordered: 

(A) The parties' request for approval of settlement is granted and 

the settlement agreement submitted in this proceeding in Docket No. 

PIKE 79-113-P is approved. 

(B) Pursuant to the parties' settlement agreement and the bench 

decision rendered in the proceeding in Docket No. BARB 79-327-P, respondent 

shall, within 30 days from the date of this decision, pay civil penalties 

totaling $384.00 as set forth in paragraph (1) above. 

Distribution: 

~ C. ofL4JI' 

Richard c. Steffey~ Administrative Law Judge 

(Phone: 703-756-6225) 

Darryl A. Stewart, Esq., and George Drumming, Jr., Esq., Office 

of the Solicitor, U.S. Department of Labor, Room 280, U.S. 

Courthouse, 801 Broadway, Nashville; TN 37203 (Certified Mail) 

The Hoke Company, Inc., Attention: Byron W. Terry, Safety Director, 

Box 61, Cromwell, KY 42333 (Certified Mail) 

1162 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

May 29, 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HASTIE MINING COMPANY, 

Respondent 

Docket No. LAKE 79-191-M 

A/O No. 11-01023-05001 

Hastie Quarry & Mill 

DECISION 

Appearances: 

Before: 

Michele Fox, Esq., Office of the Solicitor, u.s. 

Department of Labor, Chicago, Illinois, for 

Petitioner; 

Donald Hastie, Partner, Hastie Mining Company, 

Cave In Rock, Illinois, for Respondent. 

Chief Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

Pursuant to notice, the above case was heard on the merits in 

Evansville, Indiana, on April 16, 1980. Following the conclusion 

of the hearing and arguments by the parties' representatives, a 

bench decision was issued which is set out in its entirety below: 

BENCH DECISION 

Judge Broderick: 

Alright. The following is my decision in the 

case of Secretary of Labor versus Hastie Mining Company, Docket Number LAKE 79-191-M. Appearances were 

entered by Michelle Fox of the Office of the Solicitor of Labor, Chicago, Illinois, for the petitioner. 

And by Donald Hastie, a partner in the Hastie Mining 

Company, Cave-In-Rock, Illinois for Respondent. 

Pursuant to notice a hearing on the merits was 

held today April 16, 1980 in Evansville, Indiana. 

George LaLumondiere and Jack Lester, both of whom 

1163 
are Federal Mine inspectors, testified on behalf of 

Petit.ioner. Donald Hastie testified on behalf of 

Respondent. Exhibits were introduced by both parties. 

The parties have been given the opportunity to argue 

their respective positions and each has waived its 

right to file written proposed findings and briefs. 

The following are my findings of fact: 

FINDINGS OF FACT 

Number one, Hastie Mining Company is the operator of a mine, a surface mine in Hardon County, 

Illinois, known as the Hastie Quarry and Mill. Number two, the subject mine produces flurspar [fluorspar] 

from its quarry. Number three, the products of the 

mine enter interstate commerce. Number four, on 

March 22, 1979 there were five miners working at the 

subject mine. Three working partners and two paid 

employees. Number five, respondent is a small mine 

operator. Number six, respondent has no previous history of violations of the Federal Mine Safety and 

Health Act or the regulations promulgated there under. 

Number seven, on March 22, 1979, the subject mine was 

inspected by Mr. George LaLumondiere, a mine inspector 

and a duly authorized representative of the Secretary 

of Labor. Number eight, on March 22, 1979, respondent 

was using a Caterpillar 950 front-end loader which did 

not have roll over protection. Number nine, on 

March 22, 1979, a citation was issued by the inspector, 

being Citation number 366434 charging a violation of 

30 CFR 56.9-88. The termination due date on the citation was April 24, 1979. Number ten, respondent continued using the front-end loader after the issuance 

of the citation. Number eleven, on April 27, 1979, 

an order of withdrawal was issued by Federal Mine 

Inspector, Jack Lester, being order number 365195 

under section 104(b) of the Federal Mine Safety and 

Health Act for failure to abate the forementioned 

citation~ Number twelve, respondent has continued to 

use the 950 Caterpillar front-end loader without having roll over protection after the issuance of the 

order of withdrawal. Number thirteen, respondent 

uses the front-end loader in its surface quarrying 

and mining operation. It also uses it to clear waterways from an old abandoned mine works of sediment and 

mud. If this work was not done the water would come 

into the quarry where respondent's operation was being 

conducted. Number fourteen, it would not be possible 

to use the equipment in question, namely, the Caterpillar 950 front-end loader with roll over protection 

1164 
in the addits from which the mud and sediment is 

cleared since the addits are only eight feet high. 

Number fifteen, a new cab providing roll over protection for the Caterpillar 950 front-end loader would 

cost approximately $5,431.62 for the part or parts 

and would require approximately thirty-two manhours 

to install it. The Fabick Machine Company of Marion, 

Illinois which does this kind of work would charge 

$30.00 an hour for the labor required in this 

installing of the cab. After the initial installation, it would take approximately four manhours to 

remove the cab and five to six manhours to reinstall 

it. The price quoted above includes a heater and 

defroster. Number sixteen, respondent has two additional front-end loaders which he uses in his operation, both of which are equipped with cabs including 

roll over protection. The following are my conclusions of law: 

Conclusions of Law 

30 CFR 56.9-38 promulgated pursuant to the Federal 

Mine Safety and Health Act provides in part as follows: 

"Excluding equipment that is operated by remote 

control, all self-propelled track type or wheeled--

and I'm omitting some words--"front-end loaders"--

and I'm omitting additional words--"as used in metal 

and nonmetal mining operations with or without 

attachments shall be used in such mining only when 

equipped with, 1) roll over protective structures 

(ROPS) in accordance with the requirements of paragraph (b) through (g) of this standard as applicable." Subsection C of this standard provides as 

follows: "All self-propelled equipment described in 

paragraph (a) of this standard manufactured prior to 

the effective date of this standard and after June 30, 

1969, shall be equipped with ROPS meeting the requirements of paragraphs (d) through (g) of this standard 

as appropriate." Paragraph (d) of the standard 

provides a description of the equipment meeting the 

requirements of the standard, describing it in 

accordance with certain recommended practices of the 

Society of Automotive Engineers. Subsection (e) 

provides that all self-propelled equipment shall be 

deemed in compliance with the standard if the ROPS 

meet the standards of the State of California, the 

U.S. Army Corps of Engineers or the Bureau of Reclamation or the MSHA Coal Mine Regulations or the Occupational Safety and Health Administration Regulations. 

1165 
Subsection (f) states that any alterations or repairs 

of the ROPS shall only be done under the instructions 

of the ROPS manufacturer or under the instructions of 

a registered professional engineer. Subsection (g) 

provides that the ROPS shall have certain information 

permanently affixed to the structure. 

Conclusion of law number one, the respondent, 

Hastie Mining Company, is and at all times pertinent 

to this case was subject to the Federal Mine Safety 

Health Act of 1977; number two, as an Administrative 

Law Judge with the Federal Mine Safety and Health 

Review Commission, I have jurisdiction over the parties and subject matter of this proceeding; number 

three, on March 22, 1979, respondent was in violation 

of the mandatory safety standard contained in 30 CFR 

56.9-88 because its 950 Caterpillar front-end loader, 

serial number 81J7909 was not equipped with roll protection; number four, the violation found to have 

occurred in Conclusion of Law number three was a 

serious violation because it could result in serious 

injury to a miner. This conclusion is reached 

despite the fact that respondent has so far in its 

operation had no lost time injuries. Number five, 

respondent was aware that its front-end loader was 

required to have roll over protection and was aware 

that it was in violation of the safety standard, but 

declined to provide it because of the difficulty that 

would be created in the operation described .as clearing underground waterways; number six, respondent 

failed to comply with the terms of the citation and 

therefore an order of withdrawal was issued. This 

indicates a failure to recognize the serious nature 

of a Federal Mine Inspector's duties in enforcing 

the provisions of the Mine Safety Act and its regulations. I previously found that the violation here 

was serious. I found that the respondent was aware 

of the violation before it was cited. I must find 

and state for the record that, by far, the most 

serious part of this case, so far a$ I'm concerned, 

is the failure, one, to abate the violation after 

the citation was issued; more importantly, the 

failure to comply with the order of withdrawal. 

This is a very serious violation of the letter and 

spirit of the Federal Mine Safety and Health Act of 

1977. I am sympathetic with the plight of the operator in this case. It obviously would be a costly 

thing for it to comply with the standard, but neither 

the Federal Mine Inspectors or the Secretary of Labor 

1166 
nor the Administrative Law Judge or the Review Commission has.any right to determine that a legal regulation issued pursuant to the Federal Law can be ignored 

or excused or thwarted because of cost to a mine operation. I would, although it's not a matter within my 

jurisdiction, remind the respondent, operator in this 

case, that failure to comply with validly issued 

orders of a Federal Inspector under this Act can 

result in much more serious consequences than a civil 

penalty and would urge that the operator consider 

seriously its obligations under this law. Primarily, 

because of my· finding concerning the seriousness of 

the respondent's failure to comply with the order, I 

am assessing a civil penalty in this case in excess of 

that recommended by the Assessment Office and recommended by the Solicitor's counsel. And I will order, 

as a result of the violation which·I found and considering the criteria set out in section llO(i) of the 

Act by which I am bound, I am assessing a penalty of 

$500.00 in this case. I explained earlier that 

following this hearing a written order will be issued. 

It will order the respondent, Hastie Mining Company, 

to pay within thirty days of the issuance of that 

decision $500.00 as a civil penalty for the violation 

which I have found occurred in this case. I explained 

also the right of the party to petition the Federal 

Mine Safety and Health Review Commission in Washington 

for a review of my decision. And that will conclude 

the record in this case. Thank you very much. 

ORDER 

The foregoing bench decision is hereby AFFIRMED. 

Respondent Hastie Mining Company, is ORDERED to pay $500 as a civil 

penalty for the violation found herein within 30 days of the date 

of this written decision. 

"'/cY1.At-G-S fo,t)(f_r/_ c-~ ._,,,/ James A. Broderick 

Chief Administrative Law Judge 

.. ll67 
Distribution: By certified mail. 

Mr. Donald Hastie, Partner, Hastie Mining Company, Robin, Donald,.and 

Robert, Cave-in-Rock, IL 62919 

Michele Fox, Attorney, Office of the Solicitor, U.S. Department of Labor, 

230 South Dearborn Street, Chicago, IL 60604 

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

Arlington, VA 22203 

1168 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

B. V. HEDRICK GRAVEL AND 

SAND COMPANY, 

Respondent 

2 9 MAY 1980 

Civil Penalty Proceeding 

Docket No. SE 79-88-M 

Assessment Control 

No. 31-00435-05003 

B. V. Hedrick Pit and Plant 

DECISION 

Appearances: William F. Taylor, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Thomas C. Newman, Corporate Safety Director, 

Swannanoa, North Carolina, for Respondent. 

Before Administrative Law Judge Steffey 

Pursuant to a notice of hearing issued February 27, 1980, a hearing in 

the above-entitled proceeding was held on April 8, 1980, in Asheville, North 

Carolina, under section 105{d) of the Federal Mine Safety and Health Act 

of 1977. 

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

the bench decision which is reproduced below (Tr. 81-86): 

This proceeding involves a Petition for Assessment 

of Civil Penalty filed in Docket No. SE 79-88-M on 

September 4, 1979, by the Mine Safety and Health Administration, seeking to have a civil penalty assessed for 

an alleged violation of 30 CFR 56.12-34 by B. ·v. Hedrick 

Gravel and Sand Company. 

This proceeding raises the issues that are raised in 

all civil penalty cases, namely, whether a violation occurred, and, if so, what penalty should be assessed, based 

on the six criteria set forth in section llO(i) of the 

Act. 

I think that I should make some findings of fact upon · 

which my conclusions will be based. 

(1) On May 22, 1979, Inspector John Kerr made an 

examination of the facilities of the respondent and at 

that time he wrote Citation No. 105415 citing respondent 

for a violation of section 56.12-34, alleging that "low 

1169 
MSHA v. B. V. Hedrick, Docket No. SE 79-88-M (Contd.) 

hanging lights in the shop, refreshment stand at the 

laboratory were not guarded." 

(2) The citation was written at 10:00 a.m. and at 

4:30 p.m., Inspector Kerr wrote an action to terminate, 

stating that the low hanging lights were provided with 

guards. 

(3) Inspector Kerr was accompanied on his inspection 

by Mr. David West, who is the mine superintendent at the 

plant and also by an inspector trainee, whose name is 

William J. Lowe. Inspector Kerr testified that he explained to Mr. West the location of the incandescent 

lights that were involved in his citation. 

(4) Inspector Kerr drew a diagram of the area 

involved in his citation, which was received in evidence as Exhibit 3. Inspector Kerr explained that on the 

left side of that diagram there is a square which shows 

a shop area and'that three of the light bulbs are in an 

office inside of that shop and the other light bulb was 

at a refreshment stand, which is shown also on the left 

side of Exhibit 3. Inspector Kerr stated in his citation 

and explained in reference to Exhibit 3 that the refreshment stand about which he was talking was situated near 

a laboratory. 

(5) Mr. Lowe also testified in this proceeding 

and confirmed the testimony of Inspector Kerr by stating 

that he was with Inspector Kerr and that Inspector Kerr 

had correctly shown in Exhibit 3 the location of the places 

where they had found light bulbs which were approximately 

six feet four inches off the floor and which constituted 

a possible burn or shock hazard to tall people who might 

run into them or to people who might carry something on 

their shoulder and hit such a light bulb. 

(6) Inspector Kerr stated that the light bulbs were 

in areas where the plant superintendent and other supervisors would have had reason to walk and they shoul.d have 

been aware of the fact that there were light bulbs sufficiently low to constitute a hazard without having guards 

on them. 

Those are the primary findings of fact that I wish to 

make, but we still have to have a finding of whether a 

violation occurred. In that connection, respondent's witness in this proceeding was Mr. Newman, who is respondent's 

safety director, stated that he had been unable to determine 

after discussing Citation No. 105415 with Mr. West, just 

exactly where these light bulbs were located. And it was 

1170 
MSHA v. B. V. Hedrick, Docket No. SE 79-88-M (Contd.) 

his position that after he had walked around the area and 

the shops and in the refreshment stand that none of the light 

bulbs would have been close enough to the floor that he would 

have hit them if he had walked under them while wearing a 

safety helmet and that he also is 6 feet 1 inch in height. 

I am supposed to base my findings of fact upon the preponderance of the evidence and I find that the testimony 

of an inspector and trainee who were present at the time 

Citation No. 105415 was written should be given greater 

weight than the testimony of Mr. Newman in this instance, 

because Mr. Newman was working from an adverse circumstance, 

in that he was not present on May 22, when the citation was 

written, and he necessarily was working and making an investigation on the basis of the abatement of the citation which had 

been written on a previous day when he was not present. 

Therefore, I find that there was a violation of 

section 56.12-34, which provides that portable extension lights 

and other lights that by their location present a shock or 

burn hazard shall be guarded. 

Having found a violation it is necessary for me to assess 

a penalty based on the six criteria. We have had some stipulations which first of all indicate and agree that· the respondent 

is subject to the jurisdiction of the Commission and to the 

Act and Regulations promulgated thereunder. It has been 

stipulated that the payment of a penalty would not cause the 

company to discontinue in business. It has been stipulated 

that the company is a moderate-sized company, and it was stated 

that the company produces approximately 1 million tons of rock 

and sand a year, but that production figure, while apparently 

quite high at face value, reflects a digging operation as 

opposed to a crushing operation, and, therefore, the quantity 

of the production is not as indicative of a large company as 

would be the case if we had a crushing operation in connection 

with the production operation. 

It was also shown that since these guards were placed on 

the lights within the period provided for by the inspector, 

that there was a good faith effort to achieve rapid compliance. 

The remaining two criteria relate to the gravity of the 

violation and to negligence. Those are the ones that we 

primarily use for determining just how large a penalty should 

be assessed. In view of the fact that these lights were six 

feet four inches off the floor at a minimum, only tall people 

would have been likely to run into them and even then that is 

somewhat debatable, depending on the conflicting testimony of 

the witnesses on height, but I find that the light bulbs would 

not constitute a really serious hazard that would be likely 

to kill anyone who might happen to bump into one of them. 

1171 
MSHA v. B. V. Hedrick, Docket No. SE 79-88-M 

As to negligence, apparently the inspector considered 

a light bulb at seven feet off the floor as not a hazard 

and does not have be guarded, so, we have a situation where 

there might have been at least a doubt in respondent's mind 

as to whether these light bulbs were low enough to require 

guarding, and, consequently, I find that there was a low 

degree of negligence associated with the violation. 

In view of the fact that we have a moderate-sized 

operator, have a good-faith abatement, and have a moderately 

serious violation with a low degree of negligence, I think 

that a penalty of $15.00 is reasonable under the circumstances. 

WHEREFORE, it is ordered: 

Within 30 days after the date of this decision, respondent 

shall pay a penalty of $15.00 for the violation of 30 CFR 56.12-34 

alleged in Citation No. 105415 dated May 22, 1979. 

Distribution: 

Richard 

~c.o!~ C. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 

William F. Taylor, Attorney, Office of the Solicitor, U.S. 

Department of Labor, Room 280, U.S. Courthouse, 801 Broadway, 

Nashville, TN 37203 (Certified Mail) 

B. V. Hedrick Gravel and Sand Company, Attention: Thomas C. 

Newman, Safety Director, P.O. Box 425, Swannanoa, NC 28778 

(Certified Mail) 

1172 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

{703) 7 5~·-6225 

s o MAY 1900 

CONSOLIDATION COAL COMPANY, 

Contestant 

Contest of Order 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. WEVA 80-13-R 

Order No. 808268 

September 5, 1979 

Blacksville No. 1 Mine 

DECISION 

Appearances: Samuel Skeen, Esq., Pittsburgh, Pennsylvania, for Contestant; 

Eddie Jenkins, Esq., Office of the Solicitor, U.S. Department 

of Labor, Arlington, Virginia, for Respondent. 

Before: Judge Edwin S. Bernstein 

STATEMENT OF THE CASE 

This is a proceeding for review of an order issued under Section 104(b) 

of the Federal Mine Safety and Health Act of 1977 (the Act) on September 5, 

1979, for an alleged failure to abate a citation. 

The case was heard on the merits in Pittsburgh, Pennsylvania, on 

February 22 and 27, 1980. Following the hearing, the parties submitted 

briefs. 

APPLICABLE STATUTE 

Section 104 of the Act reads in applicable part: 

(a) If, upon inspection or investigation, the Secretary 

* * * believes that an operator * * * has violated this Act, 

1173 
or any mandatory health or safety standard, rule, order, or 

regulation * * * he shall * * * issue a citation to the 

operator. * * * [T]he citation shall fix a reasonable time 

for the abatement of the violation. * * * 

(b) If, upon any follow-up inspection * * * an authorized representative of the Secretary finds (1) that a violation described in a citation * * * has not been totally 

abated within the period of time as original,ly fixed 

therein or as subsequently extended, and (2) that the 

period of time for the abatement should not be further 

extended, he shall * * * promptly issue an order requiring 

the operator * * * to immediately cause all persons * * * 

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

such area** *· 

FINDINGS OF FACT 

The parties stipulated and I find: 

1. Consolidation Coal Company (Consol) is the owner and operator of the 

Blacksville No. 1 Mine. 

2. Consol and the Blacksville No. 1 Mine are subject to the provisions 

of the Federal Mine Safety and Health Act of 1977 and I have jurisdiction 

over this proceeding. 

3. Mr. Ellis Mitchell, the inspector who issued the subject citation 

and order, was a duly authorized representative of the Secretary of Labor. 

4. Copies of the citation and order are authentic copies and were 

properly served. 

On August 30, 1979, Ellis Mitchell, an MSHA inspector, accompanied by 

Jim Bowman, a safety representative of the United Mine Workers of America, 

and Robert Gross, a Consol escort, inspected the 2 West 036 section of the 

1174 
Blacksville No. 1 Mine. Mr. Mitchell found that the roof in an area approximately 50 feet long was unsupported. The area consisted of a segment of an 

entry, or passageway, l__/ approximately 46 by 14-1/2 feet, which had been 

mined by a borer miner, and an adjacent area in an intersection which was 

approximately five feet long and of irregular width. The intersection area 

had been mined first by a borer miner and then rounded off on its corners 

by a ripper miner (sometimes known as a Heliminer). The intersection itself 

was a four-way intersection, approximately 6-1/2 to seven feet in height, and 

was heavily traveled. At one entry to the intersection was a power center 

and at another was an intake escapeway. The entry in question was little 

traveled and was about four to 4~1/2 feet in height. Both the intersection 

and the entry had been developed in 1970, although the area was still in 

an "advance" stage of mining. On August 30, 1979, there were no posts, 

roof bolts or other roof supports in the 50-foot area described above. All 

witnesses agreed that on that date there was some cracking in the roof, some 

falling coal, and lengths of coiled cables in the entry. 

Mr. Mitchell issued Citation No. 808265 on August 30, 1979, for an 

alleged violation of 30 C.F.R. § 75.200. The citation read: 

In the 2 West, 036 section currently in the construction stages and idle this shift the roof in the old borer 

entry was not supported for a distance of about 50 feet, 

coal roof was cracked and spalled entire distance, beginning just to the right of the power center. The trailing 

cable to the auxiliary fan was placed in this unsupported 

area by miners who traveled under this roof. 

lJ Mr. Mitchell testified that this area could be described either as an 

entry or a crosscut depending upon the direction in which mining was proceeding. I will refer to it as an entry for the sake of clarity. 

1175 
Mr. Mitchell directed that the condition be abated by 1300 hours that 

day. He served the citation at 1019 hours. Mr. Mitchell testified that he 

found the roof to be sagged down, deteriorated with fallen coal and cracked. 

He stated that he did not sound the roof because he felt that a visual 

inspection was sufficient. He also noted that all of the roof's rock dust 

had fallen. He testified that the existence of a cable in the entry indicated that men had been in the area recently. As was his practice, before 

fixing an abatement time, he discussed the matter with officials of the 

operator. Although the manner of abatement was not discussed, Mitchell 

testified that he assumed that the operator would abate either by installing 

posts or installing a barricade at each end of the area, and that he would 

have accepted either method. 

Mr. Bowman confirmed Mr. Mitchell's testimony about the August 30 

inspection. He indicated that neither he nor Mr. Mitchell entered the area 

in question, but that they inspected from each end by use of the spot lights 

on their hats. He confirmed that the floor was hooved 2/ and that the entry 

was not a heavily traveled route. 

Mr. Gross disagreed that the roof was hazardous when he observed it with 

Mr. Mitchell on August 30, 1979. He acknowledged that the roof had deteriorated a little, that there was spalling, and that there were some cracks, 

but he concluded that this was normal for a ten-year-old entry, and that the 

2/ "Hooving" is a condition in which the floor buckles or becomes raised 

Tn the center. This results from pressure transmitted from a roof to 

walls and through the floor. Mr. Bowman stated that this is normally a 

sign of good roof, since it shows that the roof pressure is being dissipated. However, he added that this is not always the case. 

1176 
roof was safe. He stated that most of the cracks were small pressure cracks 

and that only large cracks are dangerous. He testified that a roof crack 

one-quarter inch thick and three or four feet long would not alarm him. 

He stated that he did not discuss the method of abatement with Mr. Mitchell, 

although he told Mr. Mitchell that bolts could not be installed because the 

height was too low in the entry to accommodate a roof-bolting machine. 

Mr. Gross expected that the citation would be abated by barricading 

both ends of the area and he was surprised to find a barricade at one end 

only when he returned on August 31, 1979. He then told the section foreman to barricade the other end also. This was not done. 

Mr. Mitchell did not return to the area until 1725 hours on September 5, 

1979. At that time, he was accompanied by Richard Green, a union representative, and James Turner, a Consol inspector-escort. They found that at the 

intersection side of the entry, two posts had been installed between the 

floor and the roof and a board had been wired between them with a warning 

written in yellow chalk. The warning sign faced the intersection. There was 

no such barrier or sign at the other end of the area. No other roof supports 

had been installed. The cable had been removed from the area, however, and 

near the other intersection at the back entrance of the area, the men found 

recently deposited human feces. 

Mr. Mitchell was outraged that after six days only one barricade at one 

end had been installed. He testified that the two posts and sign would not 

prevent entrance into the area from that side. He believed that the human 

feces at the back entrance indicated that miners had been in the area 

1177 
recently. Although initially he would have accepted the installation of 

a barricade at each end as abatement, upon reinspection on September 5, he 

refused to allow this method of abatement. 

Mr. Mitchell issued a Section 104(b) order which read: 

In the 2 West, 036 section only two posts had been set 

near the power· center in the intersection with a danger board 

hung between them. The other end of the unsupported loose 

roof was not dangered off or barricaded to prevent travel in 

this direction. Evidence of travel in the entry just inby 

this area was observed and miners could travel through under 

unsupported roof. 

After Consol installed 19 additional posts in the area, Mr. Mitchell 

terminated the withdrawal order at 2132 hours on September 5, 1979. 

Mr. Green confirmed Mr. Mitchell's testimony that on September 5, 1979, 

when they visited the area together, they found loose coal and cracks on the 

roof in the area, human feces in the area and a barricade at only one end. 

Mr. Turner testified that Mr. Mitchell had become angry about another 

violation en route to the area on September 5, 1979. He testified that when 

they arrived at the area, Mr. Mitchell stated "[t]hey still haven't set any 

God damn posts." Mr. Mitchell denied making that statement. According to 

Mr. Turner, Mr. Mitchell sounded the roof and said "[t]his is a bad top." 

Mr. Turner stated that six months earlier, when the entry had been an air 

passageway, he had walked the area weekly and had no concern about the roof. 

He stated that had Mr. Mitchell allowed the installation of a second barricade, this could have been done by three or four men in 45 minutes. The 

installation of the 19 posts took five men about four hours. 

1178 
Charles Bane, Consol's assistant superintendent, also visited the area 

on September 5, 1979, following Mr. Mitchell's inspection at 1725 hours. 

He confirmed that Mitchell was upset and refused to allow the construction 

of a second barricade. Bane acknowledged that there was some deterioration 

and spalling in connection with the roof in the area, but he denied that the 

roof was unsafe. 

At the hearing, Consol moved to dismiss the citation and also moved 

to dismiss the withdrawal order. I reserved decisions on both motions. 

I. Was the Citation Proper? 

I find that Citation No. 808265 was properly issued because on August 30, 

1979, Consol violated its roof-control plan in the 2 West 036 section· as 

alleged. 

Paragraph 2(c) at page 16 of that plan (Revised Plan No. 3, dated 

February 5, 1969), reads: "Where slips or clay veins are encountered, where 

the shale roof is exposed, or whenever hazardous roof is encountered during 

advance and persons must pass thereunder, the areas shall be bolted immediately or otherwise made safe." 

It is undisputed that the area was in an advance stage of mining. It 

is also undisputed that on August 30, 1979, when Mr. Mitchell made his 

inspection, lengths of coiled cables were found in the entry. This indicates 

that persons had been in the entry recently and supports the conclusion that, 

although this entry was not heavily traveled, persons were required to pass 

under the unsupported roof. 

1179 

.;.·· 
I also find that a hazardous roof existed in the 2 West 036 section during Mr. Mitchell's August 30, 1979, inspection. Mr. Mitchell testified that 

he found cracking and spalling in the roof; that all of the roof's rock dust 

had fallen in the area; and that, although the roof was hooved, the roof 

generally was sagged down and in a deteriorated condition. Mr. Bowman also 

stated that the roof was not good. He testified: 

The top had some head coal where it was flaked off, and 

there also were cracks within this head coal that was still 

remaining there. It was just a bad situation there as far as 

my experience in the mine. If people are going to be there, 

it should have had some additional support. 

Mr. Gross disagreed that the roof was in poor condition, although he 

admitted that the roof had deteriorated. 

I find the testimony of Mr. Mitchell and Mr. Bowman to be more persuasive, and I conclude that on August 30, 1979, when Mr. Mitchell made his 

inspection, the roof in the 2 West 036 section was in a hazardous and 

unsafe condition. 

At that time, Consol was also in violation of the requirements of page 5 

of its roof-control plan. There, the plan stated that before an intersection 

is started a row of roof bolts must be installed (bolts "A" on a diagram) and 

after the crosscut is driven, an additional line of bolts perpendicular to 

the "A" row of bolts (bolts "B" on the diagram) "should be installed as soon 

as is practicable after machine has created intersection." A textual comment 

in paragraph 2(a) on page 16 of the plan adds: "All four-way intersections 

shall be bolted as soon as is practicable; bolts 'A' as shown on the sketches 

1180 
pages 5 and 6, should be installed·prior to the creation of the intersection 

and the remaining 'B' bolts installed as soon as is practicable thereafter." 

According to the diagram on page 5, at least one bolt of each line must 

extend in each direction past the intersection and into the adjacent entries 

or crosscuts. In failing to place bolts at 4.5-foot intervals past the 

intersection and into the entry·, Consol again violated the requirements of 

its roof-control plan. 

I do not agree with Consol that because the citation described the area 

as "the old borer entry," it precludes a finding that a violation also existed 

in the intersection. In my view, the term "entry" is broad enough to cover 

a distance approximately four feet into the intersection. Mr. Mitchell 

testified that the word "entry" can refer to an area extending into the 

intersection, and I accept that less restrictive meaning of the term. 

Furthermore, I believe that Consol had sufficient notice of the area referred 

to in the citation. 11 

II. Was the Withdrawal Order Proper? 

Section 104(b) of the Act provides that if, upon a follow-up inspection, 

the Secretary's representative finds (1) that a violation described in a 

citation has not been totally abated within the period of time originally 

~ As the Commission stated in Secretary of Labor, Mine Safety and Health 

Administration (MSHA) v. Jim Walter Resources, Inc., and Cowin and Company, 

Docket Nos. BARB 77-266-P and BARB 77X465-P, 1 FMSHRC Dees. No. 8 at 1827 

(1979), a notice which is insufficiently specific may not be invalid if it 

allows the operator "to identify and thereby abate the allegedly violative 

condition." 

1181 
fixed or as subsequently extended, and (2) that the period of time for abatement should not be further extended, he shall promptly issue a with~rawal 

order with respect to the area covered by the citation. In the light of 

this statutory mandate, I find that the withdrawal order issued by Inspector 

Mitchell on September 5, 1979, was proper. 

The time specified for abatement of the citation was two hours and 

41 minutes. In fact, the Secretary's inspector did not return to reinspect 

until six days later, on September 5, 1979. At that time, the violation was 

still not abated, and no extension of time had been requested. Abatement 

would consist of bringing conditions in the affected area into compliance 

with Consol's roof-control plan. As indicated above, there were two violations. There was a violation of Section 2(c) at page 16 of the plan in the 

entry, and there was a violation of page 5 of the plan (elaborated upon in 

Section 2(a) at page 16) in the intersection. By installing a barricade 

between the entry and the intersection, Consol partially complied with 

page 5 of the plan in that it added some support to the roof,.!.·~·· the 

two weight-bearing posts on which the barricade sign was hung. However, 

in failing to install additional roof bolts as required and described on 

page 5, it failed to comply with the plan. 

With respect to the violation at Section 2(c) on page 16 of the plan, 

there also was partial but insufficient compliance. That portion of the 

plan required the areas described to "be bolted immediately or otherwise 

made safe." Although no bolting was done, a barricade was erected at one 

. side of the entry. Inspector Mitchell stated that he would have accepted 

1182 
barricades at both ends of the entry as abatement of the citation. This 

barricading would have prevented people from entering the unsupported area. 

As ind1cated by the human feces near the unbarricaded end of the entry, 

people traveled in that area. MSHA contended that in barricading only one 

end, Consol failed to abate the citation. I agree. 

Finally, I find that the period of abatement should not have been 

extended. The testimony indicated that two barricades could have been 

erected in less than two hours. The actual abatement, which consisted of 

installing 19 roof bolts, was performed by five men in about four hours. 

Consol had been afforded six days to abate the violation. Clearly, that 

time was sufficient and no reason was given for extending it. In fact, 

such an extension would hardly be justifiable in view of the uncorrected 

dangerous condition. 

III. Was it Unreasonable for Inspector Mitchell to Refuse to Allow Abatement by Barricading on September 5, 1979? 

Although it does not affect the validity of the withdrawal order, I 

believe that Inspector Mitchell acted unreasonably in not allowing Consol 

to abate the citation by barricading the entry on September 5, 1979. The 

inspector stated that he would have accepted such abatement prior to that 

time, and I do not think he should have restricted Consol's options on that 

date. These actions by the inspector were a manifestation of his anger at 

Consol's delay in correcting the roof condition. His actions took on a 

punitive aspect, as he was apparently attempting to punish Consol by making 

abatement more difficult. I can understand his exasperation, but I also 

believe he misconstrued the nature of a withdrawal order. 

1183 
Orders issued under Section 104(b) are intended to motivate an operator 

to abate a violation. By refusing to allow an operator access to that 

portion of his mine which is affected by a citation, the operator is given 

an added incentive to correct the condition. The order is not intended to 

punish the operator. The Act provides for civil penalties which may be 

assessed against operators who refuse to abate violations, but this is done 

in a separate proceeding. As indicated by Section llO(i) of the Act, 

one factor which may be taken into account in assessing such a penalty is 

the good faith exhibited by the operator in abating the violation. Inspector 

Mitchell's decision to insist upon a particular method of abatement at such 

a late date constituted a misuse of his authority to issue withdrawal orders. 

Admittedly, Consol could have proceeded to erect the second barrier and 

taken its chances on the inspector's resolve. However, as a practical 

matter, an operator runs the risk of having its operation closed down by 

attempting such challenges at the mine, rather than later in a proceeding 

provided for by the Act. 

In conclusion, while I do not condone the inspector's misuse of his 

authority, I find that upon consideration of the facts of record and the 

criteria set forth in the Act, the withdrawal order was properly issued and 

I affirm both the citation and the withdrawal order. 

~--~·- d .& • ..;Z .. ~ . Edwin S. Bernstein 

Administrative Law Judge 

1184 
Distribution: 

Samuel Skeen, Attorney, Consolidation Coal Company, Consol Plaza, 

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

Eddie Jenkins, Attorney, Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified 

Mail) 

1185 
•