October 1983 

Commission Decisions 

10-06-83 

10-27-83 

10-31-83 

Kenneth Wiggins v. Eastern Assoc. Coal 

R.Collins & V.Kelley v. Sec. of Labor 

Southwestern Illinois Coal Corp. 

Administrative Law Judge Decisions 

10-03-83 

10-04-83 

10-04-83 

10-04-83 

10-05-83 

10-05-83 

10-06-83 

10-06-83 

10-06-83 

10-06-83 

10-06-83 

10-07-83 

10-07-83 

10-11-83 

10-11-83 

10-11-83 

10-12-83 

10-12-83 

10-13-83 

10-14-83 

10-14-83 

10-14-83 

10-14-83 

10-14-83 

10-14-83 

10-14-83 

10-14-83 

10-17-83 

10-17-83 

10-19-83 

10-19-83 

10-19-83 

10-24-83 

10-25-83 

10-28-83 

10-28-83 

International Minerals & Chemical Corp. 

U.S. Steel Mining Co., Inc. 

U.S. Steel Mining Co., Inc. 

Price River Coal Company 

Helvetia Coal Company 

Solar Fuel Company 

MSHA/ .Eperson v. Jolene, Inc. 

Monterey Coal Company 

U.S. Steel Mining Company, Inc. 

UMWA on behalf of Louis Maholic v. 

Andy Onficer and BCNR Mining Corp. 

Glen Irvan Corporation 

Coal Carriers, Inc. 

Price River Coal Company 

Nugent Sand Company, Inc. 

Medusa Cement Company 

U.S. Steel Mining Company, Inc. 

Lit~le Sandy Coal Sales, Inc. 

American Mine Services, Inc. 

Edwin Webber v. Harrison Western Corp. 

Pyro Mining Company 

Medusa Cement Company 

Medusa Cement Company 

Medusa Cement Company 

Medusa Cement Company 

Medusa Cement Company 

U.S. Steel Mining Co., Inc. 

·Ross Island Sand & Gravel Co. 

Clinchfield Coal Company 

Kennecott Minerals Company 

MSHA/E. Gaddy v. Anchor Stone Company 

R. F. H. Coal Company 

U.S. Steel Mining Company, Inc. 

Shamrock Coal Company, Inc. 

U.S. Steel Mining Company, Inc. 

Energy Fuels Nuclear, Inc. 

Westmoreland Coal Company 

WEVA 82-300-D 

EAJ 83-1 

LAKE 80-216 

SE 82-20-M 

PENN 83-3 

PENN 83-39 

WEST 81-224 

PENN 81-157 

PENN 83-118 

KENT 83-38-D 

LAKE 80-413-R 

PENN 82-299 

PENN 83-112-D 

PENN .83-86 

KENT 83-62 

WEST 80-83 

LAKE 83-57 

LAKE 83-80-M 

PENN 82-300 

KENT 83-178-R 

WEST 82-1-M 

WEST 82-195-DM 

KENT 83-137 

LAKE 83-74-M 

LAKE 83-75-M 

LAKE 83-76-M 

LAKE 83-77-M 

LAKE 83-81-M 

PENN 83-52 

WEST 83-111-M 

VA 82-51-R 

WEST 81-393-M 

CENT 81-258-DN 

KENT 83-246 

PENN 83-40 

KENT 83-207 

PENN 83-47 

WEST 80-446-M 

WEVA 83-170 

Pg. 1668 

Pg. 1671 

_Pg. 16 72 

Pg. 1686 

Pg. 1724 

Pg. 1728 

Pg. 1734 

Pg. 1743 

Pg. 1747 

Pg. 1749 

Pg. 1750 

Pg. 1752 

Pg. 1757 

Pg. 1759 

Pg. 1765 

Pg. 1766 

Pg. 1784 

Pg. 1786 

Pg. 1788 

Pg. 1793 

Pg. 1796 

Pg. 1797 

Pg. 1798 

Pg. 1805 

Pg; 1808 

Pg. 1811 

Pg. 1813 

Pg. 1816 

Pg. 1818 

Pg. 1821 

Pg. 1824 

Pg. 1861 

Pg. 1862 

Pg. 1863 

Pg. 1867 

Pg. 1871 

Pg. 1873 

Pg. 1878 

Pg. 1887 

Commission Decisions 

OCTOBER 

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

Secretary of Labor, MSHA v. U.S. Steel Mining Co.; Docket No. WEVA 82-387, 

(Judge Steffey, August 30, 1983). 

Old Ben Coal Company v. Secretary of Labor, MSHA, Docket No. LAKE 83-50-R, 

(Judge Moore, August 30, 1983). 

Secretary of Labor, MSHA v. U.S. Steel Mining Co., Docket No. PENN 82-336, 

(Judge Broderick, September 12, 1983). 

Little Sandy Coal Sales, Inc. v. Secretary of Labor, MSHA, Docket No. 

KENT 83-178-R, (Judge Moore, October 12, 1983). 

Secretary of Labor, MSHA v. Youghiogheny & Ohio Coal Co., Docket No. LAKE 83-36, 

(Judge Broderick, September 19, 1983). 

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

Secretary of Labor, MSHA v. U.S. Steel Mining Co., Docket No. PENN 82-321, 

(Judge Broderick, September 12, 1983). 

Secretary of Labor, MSHA v. U.S. Steel Mining Co., Docket No. PENN 82-337, 

(Judge Broderick, September 16, 1983). 

Ralph Yates v. Cedar Coal Company, Docket No. WEVA 82-360-D, (Judge Broderick, 

September 19, 1983). 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

KENNETH A. WIGGINS 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, O.C. 20006 

October 6, 1983 

Docket No. WEVA 82-300-D 

EASTERN ASSOCIATED COAL CORP. 

ORDER 

This discrimination case arises under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §801 !:.!_~· (1976 & Supp. V 1981). On 

September 6, 1983, the administrative law judge issued a "Decision on 

the Merits" in which he held that Ec:.stern Associated Coal Corp. had 

discharged Kenneth A. Wiggins in violation of section 105(c) of the Mine 

Act. 30 U.S.C. §815(c). The judge did not, however, award the miner relief. 

Instead, "Pending a Final Order" in this case, the judge allowed the miner 

15 days from the date of his decision on the merits to submit a proposed 

order granting relief. The judge further allowed the operator 15 days from 

receipt of the miner's proposed order in which to reply. On October 3, 1983, 

Eastern Associated filed a petition for review of the judge's September 6, 

1983 decision on the merits. ±./ 

Section 113(d)(l) of the Mine Act (30 U.S.C. §823(d)(l)) and Commission 

Rule 65(a) (29 C.F.R. §2700.65(a)) require that the decision of the judge 

contain an order that finally disposes of the proceedings. Because the 

judge has not as yet issued an order granting the miner appropriate relief 

he has not finally disposed of the case. Thus, the issuance of his decision on the merits did not initiate the running of the statutory review 

period. Jurisdiction in the case remains with the judge. Campbell v. The 

Anaconda Co., 3 FMSHRC 2763 (December 1981); McCoy v. Crescent Coal Co., 

3 FMSHRC 2475 (November 1981). 

Y The petition was styled, "Respondent's Petition for Interlocutory 

Review or in the Alternative for Discretionary Review." We read the 

petition as one for discretionary review. To the extent that it is 

intended as a petition for interlocutory review, it is denied. 

1668 

83-10-3 
Accordingly, the petition for review is dismissed as premature. The 

parties may file petitions for discretionary review in accordance with 

section 113 of the Mine Act and Connnission Rule 70 (29 C.F.R. §2700.70) 

once the jud.ge has issued an order finally disposing of this proceeding. 

1669 
Distribution 

Larry W. Blalock, Esq. 

Jackson, Kelly, Holt & O'Farrell 

P.O. Box 553 

Charleston, West Virginia 25322 

William B. Talty 

Talty and Carroll 

112 Central Avenue 

P.O. Box 104 

Tazewell, Virginia 24651 

Administrative Law Judge Charles C. Moore 

Federal Mine Safety & Health Review Commission 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

16~0 
J 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 27, 1983 

RUSSELL COLLINS AND VIRGIL KELLEY 

v. 

SECRETARY OF LABOR,· 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Docket No. EAJ 83-1 

ORDER 

The motion filed by counsel for Russell Collins and Virgil Kelley for 

permission to withdraw their petition for discretionary review in this 

matter is granted. Accordingly, our direction for review issued on 

September 2, 1983, is hereby vacated and the administrative law judge's 

decision stands as the tinal Commission order in this proceeding. 

83-10-15 

1671 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SOUTHWESTERN ILLINOIS COAL 

CORPORATION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 31, 1983 

Docket No. LAKE 80-216 

DECISION 

In this civil penalty case arising under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 ~~· (1976 & Supp. V 1981), we are 

called upon to interpret the phrase "shall be required to wear ••• safety 

belts and lines" in the surface coal protective clothing standard, 30 C.F.R. 

§ 77.1710(g). 1_/ The Department of Interior's Board of Mine Operations 

i_/ Section 77.1710 provides: 

Protective clothing; requirements. 

Each employee working in a surface coal mine or in 

the surface work areas of an underground coal mine shall 

be required to wear protective clothing and devices as 

indicated below: 

(a) Protective clothing or equipment and 

face-shields or goggles shall be worn when 

welding, cutting, or working with molten metal 

or when other hazards to the eyes exist. 

(b) Suitable protective clothing to cover 

the entire body when handling corrosive or toxic 

substances or other materials which might cause 

injury to the skin. 

(c) Protective gloves when handling materials 

or performing work which might cause injury to the 

hands; however, gloves shall not be worn where they 

would create a greater hazard by becoming entangled 

in the moving parts of equipment. 

(d) A suitable hard hat or hard cap when in or 

around a mine or plant where falling objects may 

create a hazard. If a hard hat or hard cap is 

painted, nonmetallic based paint shall be used. 

(e) Suitable protective footwear. 

(f) Snug-fitting clothing when working around 

moving machinery or equipment. 

(g) Safety belts and lines where there is danger 

of falling; a second person shall tend the lifeline 

when bins, tanks, or other dangerous areas are entered. 

(h) Lifejackets or belts where there is danger 

from falling into water. 

(i) Seatbelts in a vehicle where there is a danger 

of overturning and where roll protection is provided. 

(Emphasis added.) 

1672 83-10-19 
Appeals held that the identical phrase in the underground coal protective 

clothing standard imposed on operators the duty to "establish a safety 

system designed to assure that employees wear [the clothing or equipment] 

on appropriate occasions" and to "enforce such system with due diligence." 

North American Coal Corp., 3 IBMA 93, 107 (1974). In his decision below, 

the Commission administrative law judge found North American analogously 

persuasive, concluded that the operator had satisfied the North American 

criteria, and vacated the citation. 3 FMSHRC 871 (April 198l)(ALJ). We 

approve the judge's adoption of the North American construction, but 

reverse his finding that the operator satisfied the North American 

criteria. We conclude that the facts show a violation, and remand for 

assessment of penalty. 

On November 5, 1979, an inspector from the Department of Labor's 

Mine Safety and Health Administration (MSHA) issued a citation to 

Southwestern Illinois Coal Corporation alleging a violation of section 

77.1710(g) at Southwestern's Captain Strip Mine in Illinois. The 

inspector issued the citation when he observed a miner working alone 

without a safety belt and line on a large stripping shovel where the 

inspector believed there was a danger of falling. 

The miner, assigned to work as the shovel groundman, was repairing a 

broken grease line on the end of one of the shovel's steering arms. He was 

kneeling at the place where the arm was joined at right angles to the 

shovel's steering cylinder. (The steering arm and cylinder functioned 

together to turn one of the tracked crawlers on which the shovel traveled.) 

The miner's immediate work location was approximately two feet wide and 12 

to 15 feet off the ground. 3 FMSHRC at 873, 875, 878; Tr. 16-17, 72-75, 

87, 89-90; Pet. Exh. No. 2. There were no guardrails or similar protective 

devices on the steering arm or cylinder. As the inspector approached, the 

miner walked down the steering arm to the crawler tracks and off the machine. 

The inspector spoke with the miner about the use of a safety belt and a line, 

and the miner offered no explanation as to why he had not been using them. 

At the time of the citation, the shovel was not being used for 

stripping, although its power was on. The shovel had an automatic leveling 

mechanism that periodically moved the machine, including the steering arm, 

to level positions. Safety belts were kept on the shovel. According to 

Southwestern's safety director at the Captain Mine, these belts were intended 

for "the men to use if they are going to get in an area [on the shovel] where 

they think there is a danger of falling." Tr. 77. 

A few days after the MSHA citation, the safety director issued the 

miner a safety violation for working in an "elevated work position without 

wearing a safety belt" in violation of federal, state, and company rules. 

The violation was charged to the miner pursuant to Southwestern's program 

of progressive discipline for violations of safety rules. This program 

was contained in Southwestern's safety booklet issued to all employees. 

1673 
The booklet included specific rules requiring the wearing of safety belts 

and lines. l:/ 

At the hearing, the inspector testified that he believed there was 

a danger of falling, within the meaning of section 77.1710(g), in the 

area where the miner was working without a belt. The inspector based 

this conclusion on his observations that the work area was elevated, small, 

and unguarded, that grease was likely to accumulate there, and that the 

machine could move while the miner was working. Southwestern's overall 

director of safety and training testified that the decision whether to 

wear a belt ' in a particular situation was largely up to the miner himself. 

He agreed that, if the facts were as the inspector testified, there was 

a danger of falling where the miner was working and he should have been 

wearing a belt. 

The judge adopted and applied North American, supra. He thus 

interpreted the phrase "shall be required to wear" to mean only thatoperators must require belts to be worn, not that operators must insure 

.absolutely that they are worn. On this basis, the judge concluded that 

Southwestern passed the North American test. He relied on the facts that 

a safety belt was available on the shovel, that Southwestern had 

promulgated safety rules requiring miners to wear the belts, and that the 

company enforced its rules by disciplining violators. In light of these 

determinations, the judge vacated the citation. 

We first construe the phrase "shall be required to wear." In 

North American, the Board interpreted the identical phrase in the underground coal protective clothing standard, 30 C.F.R. § 7S.1720(a). 3/ 

Although a failure to wear safety goggles was the specific issue in 

that case, the more significant focus of the North American decision was 

on the general meaning of "shall be required to wear." The Board concluded 

that these words meant only that operators must (1) establish a safety 

system requiring the wearing of the clothing or equipment and (2) enforce 

2/ The safety booklet contained two rules concerning safety belts and 

lines: 

Safety belts and lanyards shall be worn if necessary. 

Safety belts and lines shall be worn at all times 

where there is a danger of falling. If belts or 

lines present a greater hazard or are impractical, 

notify your supervisor so that alternative precautions are taken. 

Res. Exh. No. 1, Section VII, Rules 8 & 9, p. 8. 

From the time of the safety booklet's publication in 1978 to the 

hearing, Southwestern issued approximately SO safety violations, three 

of which (including the one issued to the miner) involved safety belt 

infractions. The majority of the SO violations were first warnings. 

2./ Like the surface standard at issue in this case, section 7S.1720 

begins by providing that "each miner ••• shall be required to wear the 

following protective clothing and devices" (emphasis added), and then 

lists the covered items in a number of subsections. 
the system diligently. 3 IBMA at 107. The intended effect of this 

construction was that if a failure to wear the protective clothing and 

equipment was "entirely the result of the employee's disobedience or 

negligence rather than a lack of requirement by the operator to wear 

them, then a violation has not occurred" (emphasis added). Id. 4/ We 

agree with the judge that the North American construction is-rhe-natural 

reading of the words in issue. 

The regulation does not state that the operator must guarantee that 

belts and safety lines are actually worn, but rather says only that each 

employee shall be required to wear them. The plain meaning of "require" 

is to ask for, call for, or demand that something be done. See Webster's 

Third New International Dictionary (Unabridged) 1929 (1971).~ccordingly, 

when an operator requires its employees to wear belts when needed, and 

enforces that requirement, it has discharged its obligation under the 

regulation. We respectfully disagree with our dissenting colleagues 

that "shall be required to wear" means "shall be worn." The two phrases 

are not the same, and we do not find persuasive a reading that converts 

a duty to require into a duty to guarantee·. Certainly, the purpose of 

the standard is to protect miners, but the standard as written provides 

for that protection by directing that operators require the belts to be 

worn. 

The Secretary of Labor argues through counsel that the regulation 

should be read as if the words "shall be worn" are contained in the 

regulation. If the Secretary wanted that phrase to obtain we are constrained to ask why he did not make the appropriate changes nine years 

ago when North American was issued. To tell us now that "shall be 

required" is the same as, or stronger than, "shall be worn" is an 

assertion that cannot be squared with the Secretary's understanding of 

North American. Further, the words "shall be worn" are used in other 

regulations promulgated by the Secretary. 2_/ In effect, the Secretary 

is asking us to amend the regulation, but amendment is his province, not 

ours. The Connnission is an independent adjudicatory agency that provides 

trial and appellate review under the Mine Act. 

Our holding is restricted to the language of this standard, and 

does not create an employee disobedience or negligence exception to the 

liability without fault structure of the Mine Act. Our concern is only 

with the duty of care imposed by this one regulation and, as indicated 

above, we hold that the duty is one of requirement diligently enforced, 

not guarantee. 

4/ After the issuance of North American, some discerned in the decision 

-; recognition of a general employee disobedience and negligence exception 

to the liability without fault structure of the 1969 Coal Act. The Board 

itself repudiated that reading of the decision and any such exception to 

the liability scheme of the 1969 Coal Act (Webster County Coal Corp., 

7 IBMA 264, 267-68 (1977)), and we have done the same. Nacco Mining Co., 

3 FMSHRC 848, 849 & n. 3 (April 1981). 

5/ The metal and nonmetal personal protection standards dealing with 

-;afety belts and lines use the phrase, "shall be worn." 30 C.F.R. 

§§ 55.15-5, 56.15-5 and 57.15-5. 

1670 
We also conclude, however, that the judge erred in finding that 

Southwestern satisfied the North American criteria. Although Southwestern had ·safety rules requiring the wearing of belts and provided 

some general training on the subject, the record does not show 

sufficiently specific and diligent enforcement of that requirement. 

As noted in the summary of facts above, Southwestern's general 

director of safety and training testified that the decision whether to 

wear a belt was largely up to the miner himself. At oral argument 

before the Commission, Southwestern's counsel reinforced this point by 

stating that the use of a safety belt in any given situation at the 

mine was "optional" with the employee. The general safety director 

also testified that there were no signs at the mine reminding employees 

to wear belts, and conceded that no safety analysis had been conducted 

or directives issued to identify specific working situations where belts 

should be worn. We do not suggest that the operator necessarily had to 

engage in any one of these steps to satisfy its responsibilities under 

the standard, but we find a virtual absence of any specific guidelines 

and supervision on the subject of actual fall dangers. 

In sum, the evidence reveals that the wearing of belts was delegated 

to the discretion of each employee, with only general guidance at best. 

As a matter of law and evidence, this fa~ls short of demonstrating due 

diligence in enforcement. It is impo.rtant to note in contrast, in the 

North American case, that the operator had a more specific program aimed 

at avoiding the particular hazard through prominent signs and constant 

verbal warnings and reinforcement of safety considerations. 3 IBMA at 

107-08. 

Regarding the incident that led to the citation, there is no dispute 

that the miner was working unsupervised on an elevated platform without a 

belt and line. The evidence also clearly shows that there was a danger of 

falling. fl_/ The decision not to wear the belt was made by the miner, but 

6/ The miner's work platform was only about two feet wide and 12 to 15 

feet off the ground. This was an area where grease lines and fittings 

were located, and as the inspector testified it was likely that grease 

would accumulate there causing a slippery surface. The shovel's power 

was on, and it also had an automatic leveling device that could move the 

steering arm on which the miner was working. Thus, the machine could 

have moved during his work. Applying the analogous test we recently 

adopted in Great Western Electric Co., 5 FMSHRC 840, 841-42 (May 1983), 

to assess fall dangers under a metal and nonmetal personal protection 

standard (30 C.F.R. § 57.15-5), we conclude that an informed, reasonably 

prudent person would have recognized a danger of falling under these 

circumstances. The mine's safety director initially testified that he 

had measured the work area to be about four feet wide; however, he 

subsequently conceded that he incorrectly made his measurements further 

back on the steering arm. He also testified, without explanation, that 

he did not believe there was a danger of falling where the miner was 

working. The facts summarized above do not support this opinion. 

167G 
it represented an exercise of the wide discretion expressly permitted 

him under Southwestern's decentralized, non-specific safety belt program. 

Accordingly, the failure to wear·the belt in this instance was attributable to the operator's failure to enforce diligently its belt requirements, and constituted a violation of the standard. 

For the foregoing reasons, we approve the judge's adoption of the 

North American interpretation of section 77.1710(g), but conclude that 

Southwestern nevertheless violated the standard so construed. We remand 

for determination of an appropriate penalty. 

~ ~;er~c&;:: 

L. Clair Nelson, Commissioner 

1677 
Frank F. Jestrab specially concurring in result: 

I agree with the majority of the Commission that the judge should 

be reversed. 

I understand the learned majority of the Commission to base their 

decision on the so-called North American defense set forth by the Board 

of Mine Operations Appeals wherein it was held that an "identical" 

phrase "shall be required to wear" required the employer to establish a 

safety system "requiring the wearing of clothing or equipment and 

enforce such system diligently." My colleagues further state that 

"shall be required. to wear" and "shall be worn" are not the same and 

they "do not find persuasive a reading that converts a duty to require 

into a duty to guarantee." From this I apprehend that we would all 

agree, as we have in the past, that if the pivotal phrase was "shall be 

worn," North American would not apply and the operator's safety program 

and its efforts to enforce it would be irrelevant to the finding of a 

violation. U.S. Steel Corporation, 1 FMSHRC 1306, 1307 (1979). 

With all deference and respect to the majority, I am not satisfied 

that there is any distinction in the duty imposed on the operator under 

the Mine Act by the phrase "shall be required to wear ... " and the simple 

"shall be worn." However, I do not reach the question of the meaning of 

"shall be required to wear" in this case because as I read the regulation 

it is not the applicable verb phrase for the subsection which was cited 

for the violation. Whether the duty imposed is a duty to enforce a 

program (shall be required to wear) or a duty imposing liability without 

fault (shall be worn), we agree that the operator has not satisfied his 

duty in this case and that the decision of the administrative law judge 

should be reversed. I concur in that result, but I base my decision on 

narrower grounds. 

It seems to me that our first assignment is to interpret the 

regulation at§ 77.1710 1__/. The initial clause of subsection (g), which 

1../ § 77.1710 Protective clothing; requirements. 

Each employee working in a surf ace coal mine or 

in the surf ace work areas of an underground coal mine 

shall be required to wear protective clothing and 

devices as indicated below: 

(a) Protective clothing or equipment and faceshields or goggles shall be worn when welding, cutting, 

or working with molten metal or when other hazards to 

the eyes exist. 

(b) Suitable protective clothing to cover the 

entire body when handling corrosive or toxic substances 

or other materials which might cause injury to the skin. 

(c) Protective gloves when handling materials 

or performing work which might cause injury to the hands; 

however, gloves shall not be worn where they would create 

a greater hazard by becoming entangled in the moving 

parts of equipment. 

(Footnote continued) 

1678 
was cited here, contains no independent verb. The appropriate verb, 

which must be supplied by reference is, in my view, the last preceding 

verb in the series, which is found not in the preamble to the regulation 

as the majority suggests, but rather in subsection (a). The verb phrase 

in subsection (a) is shall be worn. 'l:..J Further, a proper verb form must 

agree with other verbs in the same subsection and in the second clause 

in subsection (g), it is provided that a person shall tend the lifeline. 

It does not say "shall be required" to tend. If I am correct, and I 

believe that I am, then North American has no relevance to this case 

and the operator's duty here is a duty imposing liability without fault. 1/ 

U.S. Steel Corporation, supra, and Mid-Continent Coal and Coke Co., 

supra at n. 2. 

Second, it is well established that the Mine Act imposes liability 

without fault upon operators. Southern Ohio Coal Co., 4 FMSHRC 1459 

(1982), A.H. Smith Stone Company, 5 FMSHRC 13 (1983). The authority 

which Congress delegated to the Secretary of Labor carries with it the 

responsibility to promulgate regulations which mirror the concept of 

fn. 1/ continued 

(d) A suitable hard hat or hard cap when in or 

around a mine or plant where falling objects may create 

a hazard. If a hard hat or hard cap is painted, nonmetallic based paint shall be used. 

(e) Suitable protective footwear. 

(f) Snug-fitting clothing when working around 

moving machinery or equipment. 

(g) Safety belts and lines [shall be worn] where 

there is danger of falling; a second person shall tend 

the lifeline when bins, tanks, or other dangerous areas 

are entered. 

(h) Lifejackets or belts where there is danger of 

falling into water. 

(i) Seatbelts in a vehicle where there is a danger 

of overturning and where roll protection is provided. 

(Emphasis mine. Phrase in brackets also mine, supplied 

by relation back to subsection (a) to illustrate how I 

read (g).) 

!:_/ Upon previous examination of subsection (a) of 30 C.F.R. § 77.1710 

the Commission interpreted the phrase "shall be worn" according to its 

literal meaning, Mid-Continent Coal and Coke Co., 3 FMSHRC 2502, 2506 (1981). 

See U.S. Steel Corporation, supra. 

1/ For the record, the regulation at issue here is not the same as the 

regulation cited in North American. That regulation is 30 C.F.R. § 75.1720, 

of which subsection (a) was cited. Note that there is no verb in 

subsection (a) and to supply one it is necessary to relate back to the 

last, preceding verb which is "shall be required to wear", appearing in 

(Footnote continued) 

167f1 
liability without fault--that is, regulations with which compliance is 

mandatory. It seems clear to me that the regulation at issue does just 

that; the wearing of personal protective equipment is mandated and if it 

is not worn, the operator is liable. We have no power to create exceptions 

to liability without fault which have not been placed in the Act by 

Congress. U.S. v. Atchison T. & S.F.Ry Co., 156 F.2d 457 (9th Cir. 

1946). 

In this case the operator's employees were observed without the 

protective eqbipment required by 30 C.F.R. § 77.1710(g)--safety belts 

and lines--where there was a danger of falling. For the reasons set 

forth above, I believe this constitutes a violation of that regulation 

and' I concur with the result reached by my colleagues in the majority 

that the administrative law judge should lie reversed a -a violatio 

found. 

/ 

fn. ]_/ continued 

I 

the preamble. Nowhere in the regulation does the/verb phrase "shall be 

worn" appear: / 

§ 75.1720 Protective clothing; requirement~. 

On and after the effective date of th:i,'~ § 75.1720 

each miner regularly employed in the act,ivf workings of 

an underground coal mine shall be required to wear the 

following protective clothing and devices: 

(a) Protective clothing or equipment and faceshields or goggles when welding, cutting, or working 

with molten metal or when other hazards to the eyes 

exist from flying particles. 

(b) Suitable protective clothing to cover those 

parts of the body exposed to injury when handling 

corrosive or toxic substances or other materials which 

might cause injury to the skin. 

(c) Protective gloves when handling materials or 

performing work which might cause injury to the hands; 

however, gloves shall not be ~orn where they would create 

a greater hazard by becoming entangled in the moving parts 

of equipment. 

(d) A suitable hard hat or hard cap. If a hard hat 

or hard cap is painted, nonmetallic based paint shall be 

used. 

(e) Suitable protective footwear. 

(Emphasis Mine) 

1680 
Commissioner Lawson concurring and dissenting: 

I join with my colleagues in finding a violation and that the judge 

below must be reversed. I disagree with their interpretation of the 

phrase "shall be required to wear," as set forth in 30 C.F.R. 77.1710(g). 

That interpretation is not only contrary to the common usage of "require," 

but creates an internal contradiction within section 30 C.F.R. 77.1710 

itself, forestalling the application of uniform safety practices and 

protection in the mining industry. Indeed, their definition is significantly--and selectively--less inclusive than that found in Black's Law 

Dictionary (5th ed.) (p. 1172), which defines "require," inter alia. to 

mean "compel •.. command," certainly not precatory terms. 

Subsections (a) and (c) of this standard delineate which protective 

clothing "shall be worn," or "shall not be worn." There is no indication 

that creation of a third category of protective clothing, which "shall 

be worn if directed to do so by the operator," is or was intended. It is 

evident that the only purpose of 77.1710(g) is to insure or guarantee that 

safety belts must be worn "where there is danger of falling." The miner 

is not protected when there is a danger of falling unless he is actually 

wearing a safety belt; the wearing of that belt is therefore what the 

standard requires. 

This interpretation is confirmed by the language of regulation 

30 C.F.R. 77.403a(g), to cite but one example. The Secretary has construed 

"shall be required to wear" to mean "shall be worn" in 30 C.F.R. 77.403a(g). 

That standard provides that: 

Seat belts required by 77.1710(i) shall be worn by 

the operator of mobile equipment required to be 

equipped by ROPS (roll over protection structures) by 

77.403(a). (Emphasis supplied.) 

The core sense of "require" is to mandate, not exhort--that which 

is required, shall be done. See Mississippi River Fuel Corp. v. Slayton 

et al, 359 F.2d 106, 119 (8th Cir. 1966): "Required" implies something 

mandatory, not something permitted by agreement." 

As the Secretary persuasively points out, the phrase, "shall be 

required," emphasizes that it is the duty of the operator to insure the 

wearing of safety belts and lines, and that breaching that duty is a 

violation of the Act. This construction carries out the purpose of the 

Act by expressing the standard's sole purpose: to protect miners from 

the danger of falls. Although it appears unnecessary of repetition, 

regardless of the existence of even a diligently enforced company rule, 

a miner is not protected from the danger of falling unless he is actually 

wearing a safety belt. There is no meaningful, nor even semantically 

persuasive distinction, between "shall be required to wear" and "shall 

be worn." 

1681 
Moreover, to find that "required" means only "direct" would effectively 

vitiate not only this standard, but a multitude of other regulations. 

The word "require" or "required" is used no less than thirty-nine times 

in part 77 of 30 C.F.R. alone. 1/ If "required" means only to "direct," 

as contended by the majority, then the commands of Part 77, as well as 

several other sections of 30 C.F.R., would be rendered nugatory, rather 

than compelling that a named protection or action is to be taken to assure 

miners' health and safety. · 

Pursuing the ma]ority's reasoning would result in ridiculous constructions. See for example, 30 C.F.R. 75.313, which states that "the 

Secretary shall require such monitor to deenergize automatically •••• " 

Substituting "direct" for "require," as does the majority here, would 

necessitate direction being given to an inanimate object--an absurd 

result. The word "require" or "required" is a mandate to the operator 

to guarantee that a methane monitor will deenergize automatically, as in 

section 75.313, and that safety belts shall be worn, as set forth in 

section 77.1710. ]:_/ 

Adopting the majority's test would thus be an invitation to an 

operator, despite the fact that its miners are being subjected to safety 

and health hazards, to avoid responsibility merely by demonstrating that 

it has established a safety and health program under which miners are 

told to wear safety belts. Uniform safety practices and protection 

throughout the mining industry, 1_/ absent clearly defined exceptions, 

are the obvious goal of the Act and these regulations. 

This interpretation is congruent with those final--and absolute--

responsibilities placed upon the operator by the Act to prevent safety 

and health hazards to miners, including forestalling employees from 

engaging in unsafe and unhealthful activities. 30 U.S.C. § 80l(e) and 

30 U.S.C. § 8ll(a)(7). 

1/ A complete review of all of the six hundred eighty-eight pages of 

30 C.F.R. (Part 0-199) has not been made. 

]:_/ Section 77.1710 is titled: "Protective Clothing, Requirements." 

(Emphasis supplied) Certainly this title does not suggest "directions" 

to miners. To the contrary, it means requirements imposed on the 

operator. 

ll I agree with my colleague Commissioner Jestrab, for the reasons he 

stated, that the authority which Congress delegated to the Secretary 

of Labor carries with it the responsibility to promulgate regulations 

which mirror the concept of liability without fault. Neither the Secretary 

nor this Commission has any authority to interject exceptions. Slip 

op. at 8-9. As is well established, if a miner, despite an operator's 

best efforts, negligently or disobediently fails to wear a belt, the 

operator's efforts toward enforcement, or lack of negligence can be 

considered in assessment of a penalty. Nacco Mining Co., 3 FMSHRC 848, 

850 (1981). 

1682 
The Secretary's safety belt standards for other than coal mining 

operations all use the phrase "shall be worn."!:±._/ There is no indication, 

nor any reason to suppose, the Secretary intended a dichotomous scheme 

of protection from dangerous falls for coal miners and other miners. 

It is difficult, to understate the case considerably, to meaningfully distinguish between a fall in a coal mine, and one occurring in a noncoal 

mine. To the contrary, uniform regulation of such common safety problems 

best serves the interests of the miner and the industry. 

Finally, the majority's construction of applicable'precedent is also 

deficient. The dicta relied upon from North American represents the views 

only of the Board of Mine Operations Appeals (BMOA), (a non-independent 

body subordinate to the Secretary of the Interior) then charged with the 

contradictory responsibilities of maximizing coal production, and enforcing 

mine safety. Legis. Hist. 998, 1011, 1154-55. Moreover, even the BMOA, 

in Webster County Coal Corp., 7 IBMA 264, 267-68 (1977) retreated from, 

if indeed it did not invalidate, its prior North American dicta. Nor 

has the Secretary of Labor, since passage of the Mine Act, taken other 

than a consistent position, as advanced by him in this case. 

More relevantly, and more recently, this Commission held--unanimously--

that "to the extent that these dicta suggest an exception to the liability 

without fault structure of the 1969 Coal Act, they are out of line with, 

and do not survive, the well established precedents cited above." Nacco 

Mining Co., supra, 849, n.3. See also Pocahontas Coal Co. v. Andrus, 

590 F.2d 95 (4th Cir. 1979); El Paso Rock Quarries, 3 FMSHRC 35, 38-39 

(1981); Ace Drilling Coal Co., Inc., 2 FMSHRC 790 (1980); aff'd mem., 

(3rd Cir. No. 80-1750, Jan. 23, 1981); Peabody Coal Co., 1FMSHRC1494, 

1495 (1979); United States Steel Corp., 1 FMSHRC 1306, 1307 (1979); 

Ruston Mining Co., 8 IBMA 255, 259-60 (1978), and Valley Camp Coal Co., 

1 IBMA 196 (1972). 

In summary, there is no exception to the present liability without 

fault mandate of the Mine Act, nor it would appear did any survive, even 

as dicta, the passing of the Board of Mine Operations Appeals. The 

economic incentive provided by this keystone of the 1977 Act would 

obviously be undercut, if, as the majority now proposes, the law is to 

be changed, and only if the operator is negligent in monitoring his 

"safety program", is liability to be imposed. As has been often noted, 

both under this Act and elsewhere, this Commission must be "guided by 

the familiar canon of statutory construction that remedial legislation 

should be construed broadly to effectuate its purposes." Tcherepnin v. 

Knight 389 U.S. 332, 336 (1967). The Mine Act and the safety standards 

promulgated under the Act clearly constitute remedial legislation. As 

the United States Court of Appeals for the Third Circuit stated: 

4/ 30 C.F.R. §§ 55.15-5 (metal open pit), 56-15-5 (sand and gravel), and 

57.15-5 (metal underground), provide that "Safety belts and lines shall be 

worn when men work where there is a danger of falling." 

1683 
The statute we are called upon to interpret is the 

out-growth of a long history of major disasters in 

* * * mines * * *· [I]n construing safety or remedial 

legislation narrow or limited construction is to be 

eschewed. Rather, in this field liberal construction 

in light of the prime purpose of the legislation is to 

be employed. [Citations omitted.] 

St. Mary's Sewer Pipe Company v. Director of the United States Bureau 

of Mines, 262 F.2d 378, 381 (3rd Cir. 1959). 

I agree with the majority that the evidence clearly shows that the 

miner was not wearing a safety belt, and that there was a danger of falling. 

Accordingly, for the reasons stated above, I conclude that Southwestern 

violated 30 C.F.R. § 1710(g) and would remand for determination of an 

appropriate penalty. 

A. E. Lawson, Commissioner 
Administrative Law Judge Decisions 

1G8il 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 OCT 3 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE S~FETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

Docket No. SE 82-20-M 

A.C. No. 08-00551-05009 

v. Port Sutton 

INTERNATIONAL MINERALS & 

CHEMICAL CORP., 

Respondent 

Appearances: 

Before: 

DECISION 

Ken W. Welsch, Esq., Office of the Solicitor, 

U.S. Department of Labor, Atlanta, Georgia, 

for Petitioner; 

William B. deMeza, Esq., Holland & Knight, 

Bradenton, Florida, and Howard E. Post., Esq., 

International Minerals Corporation, Northbrook, 

Illinois, for Respondent. 

Judge Koutras 

Statement of the Case 

This is a civil penalty proceeding initiated by the petitioner 

against the respondent pursuant to section llO(a) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. 820(a), seeking 

civil penalty assessments for two alleged violations of the 

mandatory noise standards found at 30 CFR 55.50(b). Respondent 

filed a timely answer and a hearing was convened in Tampa, 

Florida, on June 7, 1983. The posthearing arguments and proposed 

findings and conclusions filed by the parties have been considered 

by me in the course of this decision. 

Issues 

The principal issues presented in this proceeding are (1) 

whether respondent has violated the provisions of the Act and 

the implementing regulatory standard as alleged in the proposal 

for assessment of civil penalties, and, if so, (2) the appropriate 

civil penalties to be assessed against the respondent for the 

1G8G 
alleged violations based upon the criteria set forth in section llO(i) 

of the Act. Additional issues concerning engineering or administrative feasibility for compliance are identified and discussed herein. 

In determining the amount of a civil penalty assessment, 

section llO(i) of the Act requires consideration of the following 

criteria: (1) the operator's history of previous violations: 

(2) the appropriateness of such penalty to the size of the 

business of the operator, (3) whether the operator was negligent, 

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

(5) the gravity of the violation, and (6) the demonstrated good 

faith of the operator in attempting to achieve rapid compliance 

after notification of the violation. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, P.L. 

95-164, effective March 9, 1978, 30 U.S.C. 801 et seq. 

2. Mandatory standard 30 CFR 55.5-50, provides as follows: 

55.5-50 Mandatory. (a) No employee shall 

be permitted an exposure to noise in excess 

of that specified in the table below. Noise 

level measurements shall be made using a sound 

level meter meeting specifications for type 2 

meters contained in American National Standards 

Institute (ANSI) Standard Sl.4-1971. "General 

Purpose Sound Level Meters," approved April 27, 

1971, which is hereby incorporated by reference 

and made a part hereof, or by a dosimeter with 

similar accuracy. This publication may be 

obtained from the American National Standards 

Institute, Inc., 1430 Broadway, New York, New 

York 10018, or may be examined in any Metal and 

Nonmetal Mine Health and Safety District or Subdistrict Office of the Mine Safety and Health 

Administration. 

PERMISSIBLE NOISE EXPOSURES 

Duration per day, 

hours of exposure 

Sound level dBA, 

slow response 

8. . . . . . . . . . . 9 0 

6. . . . . . . . . . . . . 92 

4. . . . . . . . . . . . . . . 95 

3. . . . . . . . . . . 97 

2. . . . . . . . . . . . . . . 100 

1-1/2. . . . . • . • . • • • .102 

1. . . . . . . . . 105 

1/2. . . . . . . . . • • . . .110 

1/4 or less. . . • . . .. 115 

168'7 
No exposure shall exceed 115 dBA. Impact or 

impulsive noises shall not exceed 140 dB, 

peak sound pressure level. 

NOTE. When the daily exposure is composed 

of two or more periods of noise exposure at 

different levels, their combined effect shall 

be considered rather than the individual effect 

of each. 

If the sum 

exceeds unity, then the mixed exposure shall be 

considered to exceed the permissible exposure 

Cn indicates the total time of exposure at a 

specified noise level, and Tn indicates the total 

time of exposure permitted at that level. 

Interpolation betwe~n tabulated values may be 

determined by the following formula: 

log T = 6.322 - 0.0602 SL 

Where T is the time in hours and SL is the 

sound level in dBA. 

(b) When employees' exposure exceeds that 

listed in the above table, feasible administrative or engineering controls shall be utilized. 

If such controls fail to reduce exposure to 

within permissible levels, personal protection 

equipment shall be provided and used to reduce 

sound levels to within the levels of the table. 

Stipulations 

The parties stipulated to the following (Tr. 7-9): 

1. Respondent's products affect commerce and respondent 

is subject to the Act. 

2. Respondent's gross business revenues for the fiscal 

year 1982 were in excess of one billion dollars, 

and the penalties proposed for the citations in 

question will not affect the respondent's ability to 

remain in business. 

3. Respondent's history of prior citations is that stated 

in MSHA's computer print-out, exhibit P-1. 

1688 
Discussion 

Section 104(a) Citation No. 094927, November 26, 1980, 

cites an alleged violation of 30 CFR 55.5-50, and the condition 

or practice described by MSHA Inspector Arthur McLaughlin states: 

The car unloader was exposed to 2.01 times the 

permissible limit for noise for a full shift. 

Hearing protection was not being worn and all 

feasible engineering or administrative controls 

were not being utilized. 

The inspector fixed the initial abatement time as 

December 1, 1980, and on December 3, 1980, he extended the 

abatement time to January 2, 1981, and noted as follows: 

Ear protection was being worn. Citation No. 

094927 is modified from 55.5-50 to 55.5-50(b), 

which requires the development and installation 

of feasible engineering controls. The citation 

termination due date is also extended to 1-2-81 

to allow time to implement control measures. 

Hearing protection shall be worn until the noise 

levels are reduced to permissible limits. 

On January 13, 1981, the inspector extended the abatement 

further to February 13, 1981, and he noted as follows: 

Various noise control measures have been tried, 

but were not satisfactory. The problem had been 

referred to the engineering dept. The extension 

is granted to allow time for the engineering 

dept. to develop a control measure. 

On March 9, 1981, the inspector extended the abatement 

time to May 15, 1981, and he noted the following: 

C~tation 0094927 is extended to May 15, 1981 

to allow MSHA's Pittsburgh Technical Support 

Center ample time to evaluate the noise problem 

and make a determination as to whether or not 

feasible engineering controls are available. 

On May 27, 1981, the abatement time.was further extended, 

and Inspector Charles D. Cox noted the following: 

This citation is extended as additional time 

is needed for feasible engineering studies 

by MSHA technical support group. 

1689 
The abatement time was further extended by Inspector Cox 

on July 7, 1981, to August 10, 1981, for the reasons stated 

immediately above. Thereafter, on September 1, 1981 

he terminated the citation for the following reasons: 

This citation is terminated pending development of additional means of noise attenuation 

on this equipment which may be required at a 

later date. In the meantime, suitable 

protective hearing equipment shall be worn 

when persons are exposed to this noise source. 

Inspector McLaughlin issued a second section 104(a) 

Citation No. 094928, on November 26, 1980, citing a violation 

of 30 CFR 55.5-50, and the condition or practice is described 

as follows: 

The car unloader was exposed to 2.03 times 

the permissible limit for noise for a full 

shift. Hearing protection was not being 

worn and all feasible engineering or administrative controls were not being utilized. 

Inspector McLaughlin modified the citation to reflect 

a citation to section 55.5-50(b), and both he and Inspector Cox 

extended the abatement times to and including August 1, 1981, 

and the reasons for these actions are the same as those noted 

above in connection with Citation No. 094927. On September 1, 1981, 

Inspector Cox terminated Citation No. 094928, for the same reasons 

that he terminated the previous citation. 

Petitioners proposal for assessment of civil penalties 

in this case was filed on December 21, 1981, and it asserts 

that respondent operates a mine at Hillsborough County, 

Florida, "which produces phosphate and its miners handle or 

otherwise work with and on goods, materials, supplies and 

equipment produced at or destined for points outside the 

State of Florida". 

Respondent's answer was filed on January 18, 1982, and 

respondent does not dispute MSHA's jurisdictional assertion. 

With regard to the alleged violations, respondent's answer 

states the following defenses: 

a) there are no feasible administrative or 

engineering controls to reduce the noise level 

in the area referred to in the citations; 

b) the conduct described in the Citation is 

not in violation of the cited standard in 

1690 
that Respondent has utilized several methods 

to reduce the noise level but they have all 

proved ineffective and, in compliance with 

the cited standard, Respondent provides and 

requires miners to wear personal protective 

equipment when working in the area referred 

to in the Citation; 

c) the conduct described in the Citation was 

the result of unpreventable employee misconduct; 

d) the condition described in the Citation is 

not such that it would significantly and substantially contribute to the cause and effect 

of a mine safety and health hazard; 

e) the existence of the alleged condition 

was not the result of an unwarranted failure 

to comply with the cited standard. 

MSHA's testimony and evidence 

MSHA Inspector Arthur McLaughlin confirmed that .he conducted 

an inspection at the respondent's phosphate plant on November 25, 1980, 

and he was accompanied by union and company representatives. 

He also confirmed that he issued two noise citations after 

determining that the noise exposure for two employees working 

in the plant railroad dumping building exceeded the required 

levels. He described the cited work location as an open-ended 

building about 100 feet long and 40 feet wide with a railroad 

track down the middle and an open grated floor below for the 

dumping of the mined materials which are transported to the 

building by railroad cars and dumped below and through the 

grated floor to a conveyor belt (Tr 12-17). 

Mr. McLaughlin stated that the two workmen stationed 

in the work area use pneumatic wrenches to open the gates 

located at the bottom of the railroad cars, and that the 

men are on opposite sides of the car during the dumping process. 

He observed that the men were not wearing ear protection 

devices, and since the work area was loud, he concluded 

that the men were probably over-exposed to noise and he confirmed 

this preliminary "noise screening" by use of a sound millimeter. 

He returned to the plant the next day, November 26, 1980, to 

conduct a full noise compliance survey. He confirmed that he 

calibrated and checked his noise and sound level dosimeters, 

which he described as a General Radio Type 2, 1954, sound level 

meter, and installed the dosimeters on the two workmen. He 

sampled them for a little over seven hours and found that 

they were both over-exposed, and both were exposed to 95 

1691 
decibles. His sound level meter readings were 103 for one 

man and 102 for the other, and neither man was wearing any 

ear protection on November 26. Mr. McLaughlin believed that 

the primary noise source was the pneumatic wrench when it 

was engaged to the railroad car door opening fitting (Tr. 17-23). 

On cross-examination, Mr. McLaughlin stated that he oerformed 

no tests to differentiate the various noise sources present 

in the loading area in question, and he confirmed that he 

could not have made such tests with the equipment he had 

on the da~ of the inspection. He also confirmed that when 

he conducted the noise tests he did not have the two employees 

under continuous .observation and he could not state whether 

the dosimeterswere tampered with during the testing period 

(Tr. 23-26). 

In response to bench questions, Mr. McLaughlin confirmed 

that had the cited workers worked only four hours they would 

have been in compliance, and he indicated that the dosimeter 

only registers noise levels in excess of 90 dBA's. He also 

confirmed that it was respondent's policy to make ear protection 

available to employees, but he did not know whether the cited 

employees were ever supplied with such ear protection, and he 

did not ask them (Tr. 27-28). 

Mr. McLaughlin was of the view that in order to comply 

with section 55.5-50, a mine operator should conduct noise 

surveys, locate any problems, and then attempt to solve them. 

He believes that a 90 dBA noise limit is workable, and that 

for every 3 decibles of noise reduction, sound pressure 

diminishes by 50%. He confirmed that he would have issued the 

citations even if the two men had been wearing ear protection, and 

he would have cited the respondent for not using engineering 

controls to reduce the noise levels (Tr. 32). 

Mr. McLaughlin stated that he recommended to the respondent 

that a barrier or acoustical wrapping with sound absorption 

materials be used to reduce the wrench noise. His recommendation 

that personal ear protection be supplied immediately was 

followed by the respondent (Tr. 33). He confirmed that the 

wrench operators work on both sides of the cars simultaneously, 

that they are exposed to the noise from each other's wrench, 

and when there is no unloading going on they would simply 

sit in the car unloading area (Tr. 34-35). 

Mr. McLaughlin indicated that while the car shaker is 

another noise source, it is operated from a control booth 

and is insulated from noise level above 90 dBA's. He confirmed 

that the workers at the car unloading area worked eight hour 

shifts, three shifts a day, seven days a week, and that two 

1692 
persons worked each shift. He did not sample other car unloader 

workers, and indicated that noncompliance on one shift would 

be inferred as noncompliance on the other shifts (Tr. 36). 

He estimated that 50 cars were unloaded on any given day 

and he had no reason to suspect that the pneumatic wrenches 

were out of compliance prior to the day 0£ his inspection. 

He confirmed that the noise problems at the plant were isolated 

to the car unloading area, and he believed that the fact that 

the respondent installed insulation and a control booth to 

reduce the car shaker noise levels indicated that the respondent 

was aware of the fact that a noise problem existed (Tr~ 38). 

Mr. McLaughlin indicated that he did not return to the plant after 

the citations were issued except for the purpose of extending 

the abatement times, and he believed that the wrenches in question 

were still being used (Tr. 39). 

In response to further questions, Mr. McLaughlin stated 

that he saw no noise controls installed on the wrenches during 

the time he was at the plant and he did not observe the car 

shaker in operation. He had no actual knowledge of the 

number of daily car trips to the plant, and believed that all 

of the cars were of uniform size and construction. He was 

not aware of any additional noise citations at the plant since 

1980 (Tr. 40-41). . 

Jerry W. Antel, Engineering Technician, MSHA's Physical 

Agents Branch, testified as to his background and experience 

in the field of noise and noise surveys, and he indicated 

that the purposes of such surveys is to identify noise sources 

and to make recommendations for noise reductions. He confirmed 

that he visited the respondent's Port Sutton Plant in April 1981 

and May 1982, and that he did so at the request of MSHA's local 

.field office. He confirmed that he conducted his noise survey 

at the metal building where the locomotive cars enter on a 

rail line to be unloaded onto a belt system which conveys the 

mined materials into the planu, and his mission was to 

investigate the cited pneumatic wrench noise and to make 

recommendations for improvements. During his April visit he 

observed two workers in the unloading area, and the locomotive 

operator was also present (Tr. 42-47). 

Mr. Antel stated that during the April visit he observed 

dust collectors on one side if the unloading building, and 

car shakers mounted on the other. After calibrating the 

dosimeters, he placed them on the two workers, and he 

explained the procedures and the results of his survey (Tr. 47-

51). He confirmed that the primary noise source was the 

pneumatic wrench which was used during the loading and unloading 

of the railroad cars (Tr. 51). He stated that the sound level 

meter readings during the opening of the cars was in the range 

I 

169J 
of 107 to 108 dBA, and 108 to 109 dBA during closing. The 

tape recordings revealed 104 to 105 dBA during opening, and 106 dBA 

in closing. The recordings also showed that when the wrench 

was running disengaged there were definite peaks in the midfrequency, speech range of 500 hertz, 1000 hertz, 200 hertz. 

However, when the wrench was engaged, other areas came into 

play which flattened off this spectrum. There were no primary 

peaks. He identified exhibit no. 6 as the report he prepared 

on the first visit in April and he suggested an enclosure 

be constructed around the body of the wrench to muff le both 

the exhaust noise and the noise radiating from the wrench 

body. He also recommended a flat box be fitted over the 

chuck to deflect noise downward. In addition, he recommended 

three administrative controls. One, that the men should usually 

leave the area when cars came through; two, that the tram whistle 

should not be blown unless necessary; and three, that the flagmen 

generally avoid riding in the locomotive cab (Tr. 52-55). 

Mr. Antel identified exhibit P-7 as some instructions 

for the construction of a wraparound muffler for the reduction 

of noise on the wrench in question, and he confirmed that this 

was part of his recommendations for reducing the noise on the 

wrench. He also indicated that the wraparound device was 

commercially available from the EAR Corporation in Indianapolis, 

and he believed that the use of this device would lead to a · 

minimum 5 db reduction in noise, and that the device would 

cost about $65 in material and installation, and could be 

installed by one man in one day (Tr. 57). He also was of the 

view that the installation of this wraparound device would 

not lead to any maintenance or utilization problems, and he 

stated that he had installed the device on other pneumatic drills 

(Tr. 58-59) . 

With regard to his second visit in May 1982, Mr. Antel 

confirmed that he took note of the noise controls which 

the respondent installed on the wrenches in question. These 

included modifications to the wrenches by the installation 

of sheet steel barrier lines with acoustical foam to shield 

the wrench operators from the noise and a hose muffler attached 

at the exhaust end of the wrench to cut down the noise (Tr. 59-60). 

Mr. Antel identified certain photographs which he took during 

both of his visits, and they include the wrench before and 

after the acoustical treatment or improvements (exhibits P-5 

and P-8). 

Mr. Antel stated that the noise control improvements made by 

the respondent did not correspond to those which he had recommended, 

and using the same sample equipment he used during his April 1981 

169·1 
visit, he sampled the worker using the treated wrench and 

read an exposure of 192%, or 95 dBA over an eight hour sampling 

cycle, and an exposure of 453%, or 101 dBA, from the worker 

using such a wrench. The sound level meter indicated readings 

of 104, 106 dBA's for the untreated wrench, and 102 and 104 

dba's for the treated wrench (Tr. 65). 

Mr. Antel stated that he observed the utilization of 

the modified wrench for the entire shift on the second day of 

the visit. He estimated the noise controls reduced exposure 

by 5 dB's and noticed that the operator experi~nced minor 

difficulties in engagging the wrench because of the flap. He 

neither noticed nor was informed of any resulting maintenance 

problems. He approximated the material cost of IHC's improvements at $95 to $100, and the installation time to be one day. 

He considered the 5 dB reduction significant because it could 

increase the operation time of the equipment by two fold, and 

represented nearly 75% of the sound tolerance. Mr. Antel also 

related that MSHA's offer that a wrench be shiped to MSHA 

in Pittsburgh, to be modified and tested at MSHA's expense, 

with the respondent responsible for shipping, was rejected 

by the respondent (Tr. 66-69). 

On cross examination, Mr. Antel conceded that some additional 

noise generated from the chucks engaged in the car and from 

the car itself, but that he did not "isolate or quantify" 

these other noise sources. He also conceded that the railroad 

cars were of varying sizes and construction, and he did not 

believe he had tested the treated and untreated wrenches on 

the same car door. Thus, the testing would not reflect 

variations between the wrenches nor between different types 

of cars. Of an estimated 50 cars that were opened and closed, 

he took measurements of ten to fifteen (Tr. 69-72). 

Mr. Antel confirmed that the noise exposure indices for the 

two untreated wrenches for the full shift noted in the citations 

were 201% and 203%, and he noted that in his report of July 12, 1982 

(exhibit P-~ , he found under a similar situation that the 

untreated wrench generated noise at a level 453% of the permissible 

dosage. He explained the discrepancy in the test results as 

follows (Tr. 73-74): 

A. I believe that can be accounted for due 

to the variables, not only in the types of 

cars, but also in the number of cars that, in 

which the wrench is used. If I could refer 

back to my first visit, we witnessed about 

fifty cars, fifty-two cars that were being 

unloaded that day, but only on about half 

of these the wrench was used. And the other 

1690 
half, they were used, the bar was used to 

open it. So certainly that would influence 

the exposures, the number of times the wrench 

was used. 

Q. Then you are suggesting that to compare 

those two numbers is improper? 

A. I am saying that one day might vary from 

another day, depending on the number of cars 

they are opening. 

Q. You are suggesting then that those figures 

are invalid? 

A. No, I am saying that those figures were valid 

for that day. 

Q. You only tested them one day? On the followup visit? 

A. The follow-up visit we did one full shift, sir. 

Mr. Antel did not know how many days per month cars were 

normally unloaded, nor how many hours employees were exposed 

to the wrench noise, and therefore could not give a professional 

estimate as to the magnitude of potential harm to the employees. 

He agreed that a hypothetical wrench flap which obscured 

the operator's view of the connection points, or which had to 

be kicked into position, or an exhaust muffler which, because 

of severe working conditions, led to the wrench being repaired 

two or three times more than usual, would not be a feasible 

device. He also said that it was possible for the treated 

wrench to be used in compliance with the noise standards 

depending upon the amount of exposure received over varying 

periods of time (Tr. 76-77). 

In response to further questions, Mr. Antel explained 

that because of the design of certain car doors, a bar was 

used to manually open the doors, and that this procedure 

produced no noise problem. He further stated that he did 

not know who owned or controlled the cars. He understood that 

the respondent's reluctance to ship a wrench to MSHA stemmed 

from that fact that there were normally three wrenches 

operating and two in the shop. Also, he had never heard of 

a device such as the wrench being used anywhere else. He 

conceded that one could not guarantee that once modifications 

were made on the wrench it would forever remain in compliance 

(Tr. 81-83). 

1698 
Mr. Antel was of the opinion that a new wrench would cost 

$4400 or $4500, and he estimated that wrench modifications either 

through MSHA's recommendations or through the respondent's 

own techniques, would result in a noise reduction of five dB's. 

He confirmed that there was less noise during the opening 

of the locomotive car doors than there was during closing 

because the materials in the car tended to dampen the noise. 

He conceded that he did not know the labor costs incurred in 

maintaining the wrenches in their improved form (Tr. 95). 

He also explained that the two to three day installation time 

referred to in the answers to interrogatories included five 

or six hours of "curing time" needed for the molten urethane 

material to dry (Tr. 98). He confirmed that no recommendations 

have ever been made to do anything with the locomotive cars 

in terms of noise controls, and he conceded that if part of 

the noise problems came from the cars someone would need to 

address that problem, but that the respondent does not own 

the cars (Tr. 101-102). He conceded that the noise from the 

cars doors was a contributing factor (Tr. 102). 

Respondent's testimony and evidence 

Donald R. Erickson, plant maintenance supervisor, testified 

that he has tested the wrench in question and supervised the 

installation of various noise suppression devices on the wrench. 

These "treatments" consisted of a steel plate which was added. 

to the frame of the machine extending to the toe plate, a 

box fitted over the wrench bit cover, and a hose muffler 

adapted to the exhaust port. Because of the differences 

between the wrenches used at the plant, any modifications 

would have to be specially fabricated to fit each individual 

machine. He confirmed that the respondent did not modify 

all of the five wrenches used at the plant, and he estimated 

that it took 32 man hours to treat one wrench. He also estimated 

the cost of materials and labor for one wrench to be 

approximately $750. He also stated that increased maintenance 

costs would result after each wrench was modified because 

such modifications would result in the wrench being required 

to be serviced two or three times more than normal because 

of the modifications. Specifically, he cited the hose adapter 

for the exhaust muffler on the modified wrench, and he estimated 

that it would have to be replaced nine times a year at a cost 

of $50 for each replacement installation. He also stated 

that the rear housing on each of the wrenches would have to 

be replaced three times a year at a cost of $650 each time 

it was replaced on a single wrench. He concluded that the total 

costs in labor and materials for the five modified wrenches 

would approximate $19,500 a year (Tr. 105-119). 

On cross examination, Mr. Erickson confirmed that only 

one wrench had actually been modified, and that he supervised 
the work, but did not know who had made the actual modification 

design or recommendation (Tr. 120). He conceded that with the 

exception of the wrench muffler, the material used to modify 

the one wrench was available in the plant shop or was borrowed 

from another job. He also confirmed that routine maintenance 

work on the.wrenches was performed by a contract maintenance 

vendor. He also confirmed that the labor and maintenance 

costs which he testified to concerning the one wrench which 

was modified was based on his experience with the wrench which 

was modified for test purposes, but he could not state how 

long the testing period lasted (Tr. 130). 

In response to further questions, Mr. Erickson stated 

that the modified wrench was tested on four different operational 

occasions, and that during these tests the wrench operators 

expressed a desire to have the bit cover shroud and the bottom 

deflector removed from the wrench because it got in their way 

while they were operatint it. Conceding that he had no 

knowledge of the actual test results, he did confirm that 

the employees who operated the wrench expressed a preference 

to use the wrench in its original untreated form (Tr. 135-138). 

Mr. Erickson stated that the wrench supplier was asked 

to inquire of the manufacturer as to whether or not muffler 

or other noise controls could be installed on the machine, 

but that the response was negative (Tr. 142). He speculated 

that if one wrench were shipped to MSHA for prolonged testing, 

this would affect production because the initial dumping 

process by use of the wrenches was a critical part of the 

plant's production process. This was particularly true when 

one or more of the wrenches are down for maintenance (Tr. 152). 

He confirmed that the wrenches were sent to the maintenance 

vendor at least once a month for routine maintenance and would 

remain there for a week to a month. All of the wrenches in 

use at the plant are approximately two to four years old. 

Although Mr. Erickson could not state a routine maintenance 

estimate for an untreated wrench, he did indicate that the 

vendor's bills rarely were for less than $175 to $200 for each 

trip to the shop (Tr. 154). He agreed that each new wrench 

probably cost in the area of $4500 each (Tr. 156). He confirmed 

that he was not present when the treated wrench was tested at 

the work site, and had no knowledge of any of the test procedures 

(Tr. 157). 

Eugene I. Rowell, respondent's safety supervisor, testified 

as to his background and eight to nine years' experience in 

industrial safety and hygiene, including conducting noise 

surveys and using sound level meters and dosimeters (Tr. 159-161). 

He stated that shipments of rock to Port Sutton came in so 

1698 
erratically that he was unable to guess at how many days 

per month unloading took place. However, he did estimate 

that an average of 18 to 20 cars per day were unloaded during 

the first shifts, and the cars were of varying size and design. 

Some could only be opened manually with a bar, and others had 

lower hoppers. In a full day, the workers might spend four 

to six hours unloading fifty to sixty cars. Only when the cars 

doors were being opened were the pneumatic wrenches utilized 

(TR. 164). 

Mr. Rowell stated that the lead flagman had radio contact 

with the train engineer and was responsible for the recovery 

of cars which needed to be dumped, storing them after unloading, 

and opening the car doors on his side of the track. If time 

allowed, crew members were often assigned to other duties 

until a new shipment arrived. At times, three days passed 

without a single car being unloaded, and he added that he had 

never seen the shaker used in the rock unloading during his 

three years at the plant (Tr. 166). 

Mr. Rowell described the employees' hearing conservation 

program at the Port Sutton facility. All workers involved 

in the unloading process were required to wear hearing 

protection, and they received some training in noise hazards 

as part of a mandatory MSHA course. Mr.·Rowell approximated 

the weight of one pneumatic wrench to be 130 pounds. However, 

any sound treatment equipment would add 20 to 30 pounds extra 

weight to each wrench (Tr. 169). He further indicated that 

this additional weight would enhance the likelihood of back 

injury among the operators, and that the modifications would 

also obscure a worker's view of the wrench bit when he tried 

to insert it into the car door. An employee's attempt to 

operate the wrench without a secure connection could lead 

to the bit flying off and injuring someone (Tr. 170). 

Mr. Rowell recalled that, in response to the MSHA 

citations, plant management conducted noise tests on four or 

five occasions, and he briefly described some of the testing. 

He reiterated the potential hazards which would result from 

decreased visibility on a treated wrench due to the flap 

covering the coupling. With regard to administrative controls 

for noise reduction, he stated that the existing union contract 

would frustrate any plan for personnel rotation, and that it 

would cost more money to add a part-time crew. The company 

does not own the railroad cars, and therefore it lacked the 

ability to modify their design. Mr. Rowell also discussed 

the dangers of using the car bar as an alternative to the 

pneumatic wrench, and indicated that one reason for the adoption 

of the wrench was to avoid the frequency of bar related 

accidents (Tr. 182-187). 

Mr. Rowell estimated that the ear plugs supplied to the 

employees reduced the sound level 188 by 15 or 20 dBA. The 

annual cost for plugs would be about $20 or $30, while ear 

muffs sold for fourteen or fifteen dollars a pair. When 

asked if the company had consulted the manufacturers on the 

1698 
subject of noise control, he replied that the manufacturer 

had actually requested the company to pass along its findings 

as they did not have any answers. Mr. Rowell also confirmed 

that he was unaware of any feasible engineering or administrative 

solutions for ameliorating the noise problem (Tr. 188). 

On cross examination, Mr. Rowell denied that either he 

or his supervisor had been aware of the noise problem in 

the unloading area, and he could recall no noise surveys 

being conducted prior to the MSHA inspection. The employees 

were instructed in their training classes that whenever they 

felt a need for hearing protection or sound tests in their 

work area, they were to notify their supervisor or the safety 

department, who would then supply the protection and conduct 

the tests. Although he did not know of any other sections 

with noise problems, he stated that there were some workers who 

did choose to wear hearing protection (Tr. 189-190). 

With regard to the company noise surveys, (exhibits R-8 and 

R-9), Mr. Rowell confirmed that he used a Quest Type 2 sound 

level meter, but that no dosimeters were used. He confirmed 

that he was not familiar with the error factor on the particular 

sound level meter used. He also confirmed that he accompanied 

Mr. Antel on both surveys, and in the 1982 testing took 

samples at the same time as the MSHA p~rsonnel. He agreed 

that there was about a five dBA reduction on the treated 

wrench, but was not sure if that was reflected in the company 

survey report, exhibit R-8. Nor was he sure how that figure 

was arrived at, and he admitted not knowing exactly how much 

weight would be added to the wrench because of the noise controls. 

He conceded that not all of the controls installed on the 

wrench corresponded to those suggested by MSHA. Mr. Rowell 

confirmed that he took the readings for the May 26, 1982, survey 

which was incorporated as respondent's exhibit no. 9, but he 

was unable to explain why Car. No. 5 emitted less noise with 

an untreated wrench then with a treated one (Tr. 193-203). 

In response to further questions, Mr. Rowell stated that 

the company had at one time considered purchasing a hydraulic 

torque wrench to keep the work environment quieter, but did 

not do so because of certain safety factors. He agreed 

that the claimed 20 dBA noise reduction through the use of 

ear plugs was simply the manufacturer's claim, and that this 

reduction may not be accurate at the actual work locations 

(Tr. 212-217) . 

Richard Gullickson, Industrial Hygienist, testified that 

he has been in the respondent's employ for almost 15 years, 12 

of which were as a professionally certified industrial hygienist. 

1'700 
He testified as to his professional background, and confirmed 

that he held a college B.S. Degree in chemistry and that 

he had participated in noise surveys and testing (Tr. 235-240). 

He was aware of the events surrounding the issuance of the 

citations in question and confirmed that he was familiar 

with the design, operation, and uses made of the cited pneumatic 

wrenches, including the modifications which were made during 

the past two years. Although he personally did not test the 

treated and untreated wrenches, he was familiar with the tests 

and the results, and in most cases the testing was done under 

his direction (Tr. 240). 

Mr. Gullickson disagreed with MSHA Inspector McLaughlin's 

position that the pneumatic wrench was the primary noise source 

in the unloading facility. He did not believe that his 

measurements revealed the degree of noise reduction on the 

treated wrench as indicated by the MSHA inspector. Although 

he lacked supportive data, he advanced the notion that the 

longer a wrench was used, the quieter it became due to wear 

and refurbishing and he believed that this was why the wrenches 

seemed quieter after they were treated. Also, he claimed 

that MSHA tested different wrenches without determining what 

their individual noise levels were with the same treatment. 

Because of a possible ten decibel, or ten-fold, difference 

between various cars, he focused his experiments on only two 

cars. In some cases the treated wrench was higher in noise 

intensity than the untreated wrench, but he did not regard 

it as noisier, and thought that the contrast reflected two 

different wrenches with different intensities (Tr. 242-245). 

With regard to MSHA's testing in May 1982, Mr. Gullickson 

expressed no quarrel with the scientific validity of MSHA's 

testing methods. However, he did express concern over the 

fact that the noise level measurements were made on two different 

untreated wrenches which were not of the same noise levels. 

As an example, he cited the April 1981, test results where 

the lead flagman averaged 90.2 decibles and the flagman averaged 

95.4, both from untreated wrenches. He believed that it was 

critical to test the same wrench on the same car because the 

cars had up to ten decibel differences in their noise, which 

translated to a ten-fold difference in noise energy (Tr. 249). 

Mr. Gullickson rejected MSHA's contention that scientifically 

valid conclusions could be drawn from an experiment in which 

a number of wrenches were tested with a certain number of cars 

and then simply averaged out. He also doubted the validity 

of MSHA's reading of 453% with the noise dosimeter in May 1982, 

because measurements taken on other occasions indicated that 

the noise exposure index of the untreated wrenches should be 

higher than 200% (Tr. 251-252). With regard to the four decibel 

variati~n detected between the treated versus the untreated wrench, 

1701 
Mr. Gullickson pointed out differences in noise. intensity 

ranging as high as ten-fold, which he attributed to disparate 

car designs. He believed that, with a small enough sample, 

it was conceivable that differences between rail cars would 

override the four dBA disparity. He regarded the vibration 

of the rail cars as the only significant source of noise, and 

therefore, wrench modification would be ineffective to reduce 

noise. In his opinion, noise reduction down to the 90 dBA 

time-weighted average was not feasible using MSHA's recommendations or through any other engineering innovation. Even if 

all the wrenches were treated, he believed that employees 

would still need to wear hearing protection (Tr. 260-261). 

On cross examination, Mr. Gullickson reiterated that 

if properly fitted and worn, personal ear protection would 

reduce excessive noise exposure (Tr. 265). He confirmed that 

ear plugs and muffs are available at the plant, and he generally 

discussed the noise survey studies conducted at the plant, 

the results of which are recorded in the reports, exhibits 

R-8 and R-9 (Tr. 269). In response to a hypothetical, he 

stated that if there were two equivalent noise sources and 

one was reduced by 12 dBA, the overall noise exposure would 

be diminished by 3 decibels, or fifty percent (Tr. 272). Even 

if a totally silent wrench could theoretically be designed, he 

believed the noise problem would not be significantly affected 

due to the fact that the car doors were the major source of 

noise (Tr. 273). He also stated that the noise exposure 

would be less if a car bar was used because its impact would 

be less than that of a wrench, but he conceded that the 

pneumatic wrenches did contribute to the noise level. He 

further testified that the 114 decibel locomotive whistle would 

have to sound for 15 minutes a day to be out of compliance, 

as opposed to an isolated ten second blast (Tr. 274-277). 

Procedural ruling 

As part of his post-hearing brief, petitioner's counsel 

included as an "Exhibit A" certain tabular compilations 

purportedly reporting the results of certain noise test data 

not previously made a part of the evidentiary hearing record. 

By letter filed September 9, 1983, respondent's counsel objected 

to the document and moved that it not be considered by me as part 

of my decision in this case. Subsequently, by letter filed 

September 23, 1983, in response to the respondent's objections, 

petitioner's counsel withdrew the exhibit and requested 

that it not be considered in my decision in this case. Under 

the circumstances, petitioner's request to withdraw the 

document IS GRANTED, and I have not considered it in the course 

of this de~ision. 

1702 
Findings and Conclusions 

Respondent's Port Sutton facility unloads phosphate rock 

from its various mine sites for processing, storage, or shipment to customers, and the facility employs approximately 83 

employees. The phosphate rock is unloaded from railroad 

hopper cars at the "dumping shed", an open-ended metal fabricated 

building approximately 100 feet long by 40 feet wide with 

a railroad track running through the center. The railroad 

cars are pulled through the building by a locomotive. After 

each car is placed at the unloading point, the material is 

unloaded from the bottom of the car and it drops through a 

grate in the floor under the cars to a belt conveyor system 

underneath the grate for transportation to the main plant 

for drying and storage. 

The crew involved in the dumping or unloading process 

consists of three employees. The locomotive engineer is 

responsible for operating the locomotive to pull the railroad 

hopper cars into position over the dumping grates. The lead 

flagman assists in positioning the railroad cars over the 

grates, through radio communications with the engineer, and 

opens the hopper car doors on one side of the dumping shed. 

The flagman opens the railroad hopper car doors on the opposite 

side of the dumping shed. The flagman opens the railroad 

hopper car ,doors on the opposite side of the dumping shed 

opposite from the lead flagman. There are three crews 

available forworking three shifts, seven days a week. The 

number of cars dumped on any given shift vary. On the day 

of the inspection, the inspector stated approximately 50 

cars were dumped on one shift, and respondent's witnesses 

estimated that on a yearly average approximately 18 to 20 

cars per shift are dumped. 

The lead flagman and flagman use pneumatic impact 

wrenches to open and close the hopper car doors having rack-andpinion mechanisms. A square "bit" on the end of a pneumatic 

w~e~ch is engag~d with the socket on the hopper car door 

pinion and the impact wrench is activated, causing the bit 

and pinion assembly to rotate and move the hopper car door 

which is attached to the rack. The doors can be opened 

or closed by adjusting the pneumatic wrench to rotate the 

bit and pinion assembly either clockwise or counter-clockwise~ 

On some cars, a bar has to be used because the doors are not 

adapted for the pneumatic wrench. 

The dumping shed must normo.lly have three pneumatic 

wrenches in operating condition at all times. One wrench 

is located at the lead flagman's work station on one side 

of the shed and tracks; that wrench can be moved along the 

1703 
railroad tracks the entire length of the dumping shed. Two 

wrenches are necessary on the opposite flagman's side of 

the shed, because a concrete partition perpendicular 

to the railroad track prohibits movement of a single wrench 

along the entire length of the dumping shed. Any of the 

wrenches can open any railroad car's rack-and-pinion mechanisms. 

Each of the pneumatic wrenches is approximately four 

feet h~gh, two feet wide, and four feet long (including the 

bit). The pneumatic impact motor, contained in a cylindrical 

housing approximately two feet in length, is mounted between 

two rubber-tired wheels that give the wrenches their mobility. 

A bit-directional control rod (allowing the operator to select 

clockwise or counter-clockwise rotation of the bit) extends 

directly upward from the top of the pneumatic motor housing. 

The power control for the pneumatic wrench is located on 

the right handlebar assembly. The wrenches have approximately 

four inches ground clearance. Each wrench weighs approximately 

130 pounds and is connected by a long hose to an air compressor 

which is located outside the dumping shed. The bit ·of the 

pneumatic wrench rotates at approximately 1500 rpm when 

unconnected to a railroad car: under "load" conditions, that 

is, when connected to a railroad car door pinion socket, the 

wrench bit rotates at approximately 10 rpm. The wrenches do 

not have noise-suppression devices supplied by the manufacturer. 

(Photographs of the wrench are included as part of the record) . 

Inspector McLaughlin visited the Port Sutton facility 

on November 25 and 26, 1980. The first day was devoted to 

a general scheduled inspection, and after determining that 

the unloading area may have a noise problem, Mr. McLaughlin 

returned to the facility the next day and conducted a complete 

noise survey using dosimeters and a sound level meter. (A 

dosimeter measures accumulated exposure to noise over a 

measured period of time, while a sound level meter measures 

noise at any instant in time). Mr. McLaughlin calibrated 

the dosimeters, and properly placed them on the lead flagman 

and flagman who were working in the unloading shed area. 

The dosimeters were used to measure the noise exposure 

of the two employees for a full working shift, and during 

the course of the shift Mr. McLaughlin returned to the shed 

area four times to take noise level readings with the sound 

level meter during the opening and closing of the car doors. 

The two employees sampled by dosimeter by Mr. McLaughlin 

on November 26, were found to be exposed to 95 dBA, which is 

equivalent to 201% and 203% of the allowable regulatory maximum 

noise exposure, or 2.01 and 2.03 times the allowable noise 

exposure. Mandatory standard section 55.5-50 limits employee 

exposure to less than 90 dBA for an eight hour duration, and 
for employees exposed to 95 dBA, the standard limits the 

duration of exposure to four hours. At the time of the 

inspection, the employees were not wearing any hearing 

protection and Mr. McLaughlin observed no noise controls on 

the pneumatic wrenches operated by the sampled employees. 

As a result of the November 26, noise sampling at the 

unloading area, Mr. McLaughlin issued two section 104(a) 

citations citing the respondent with violations of section 

55.5-50(b), and as noted earlier in this decision the abatement 

times were extended several tines and the citations finally 

terminated on September 1, 1981. 

The respondent concedes that the two cited employees 

were not wearing personal hearing protection when the citations 

were issued, and that on that particular day, the cited employees 

working at the dumping operation were exposed to noise in 

excess of the regulatory maximum. Respondent also admits 

that it is appropriate for me to find it liable for civil 

penalties for the two violations, and that it cannot contest 

the citations nor a proposed penalty assessment insofar as 

petitioner seeks sanctions only for failure to wear personal 

hearing protection on November 26, 1980. 

On the question of whether feasible engineering or 

administrative controls exist for the abatement of the noise 

levels described in the citations, respondent takes the 

position that neither the noise controls that it has implemented 

or those recommended by the petitioner are "feasible" as 

that term has been statutorily and judicially defined. 

Respondent maintains that none of the controls (whether 

implemented or merely recommended) have been proved effective 

in reducing the total noise of the unloading operation, 

have been shown to be econo~ically feasible, or have survived 

a cost-benefit analysis. 

The dispute in this case arises on the question as to 

whether the petitioner has established that feasible engineering 

controls are available to bring the respondent within compliance, 

and whether or not the respondent has implemented these controls 

in good faith so as to come within the requirements of the 

standard. Respondent takes the position that it has acted 

in good faith, and that it has made an attempt to implement 

MSHA's recommendations, as well as its own, but that they 

are not feasible to achieve compliance. On the other hand 

petitioner takes the position that even though its recomme~dations, as w~l~ ~s ~he actions taken by the respondent acting on its 

own in1~1at1ve, do no~ achieve total compliance with the· 

standara, respondent is nonetheless obligated to implement them. 

1705 
Citing Judge Morris' decision in MSHA v. N.A. Degerstrom, 

5 FMSHRC 637, April 5, 1983, petitioner submits that in order 

to establish a violation of section 55.5-50, it must show 

that (1) the respondent's employees are exposed to noise levels 

in excess of those permitted by the standard; (2) there are, 

in general, technologically feasible engineering or administrative 

controls available which will reduce the noise; and (3) provide 

a rough estimate as to the cost of implementing the controls. 

Petitioner submits that it has made out a prima facie case. 

Assuming that it can establish that the noise exposure 

measured by the inspector exceeded the allowable limits, 

petitioner asserts that the gravamen of the violations was 

that the respondent failed to institute or to attempt to institute 

any "feasible administrative or engineering controls to reduce 

noise exposure in the unloading area". Other than requiring 

employees to wear hearing protection, which was not done at 

the time of the citations, petitioner asserts that the respondent 

has still not instituted any controls to reduce the noise 

exposure. Although conceding that the respondent had modified 

one of its wrenches and conducted some tests, petitioner maintains 

that the modifications were not adopted. Petitioner advances 

the notion that since its studies have shown that some noise 

reduction has been achieved, respondent is obligated to 

implement them, even though they may not result in enough 

noise abatement to bring the respondent within the requirements 

of the cited standard. 

At page 17 of its post-hearing brief, petitioner cites 

Judge Morris' decision in MSHA v. N.A. Degerstrom, 5 FMSHRC 637, 

April 5, 1983, in support of its argument that any feasibility 

consideration of noise controls to reduce employee exposure 

to excessive noise precludes the weighing of costs and benefits, 

and that the phrase "feasible" should be construed to mean 

"capable of being done" or "achievable" without regard to 

whether or not any recommended controls will reduce the noise 

to within the permissible limits. All that is required, 

suggests petitioner, is that some significant reduction 

is achieved, regardless of whether such reduction results in 

total and full compliance with the requirements of section 

55.5-50. In support of its argument, petitioner states that 

the consideration of whether the cost of a control is wholly 

disproportionate to the benefits does not involve a cost-benefit 

analysis or the kind of weighing of costs and benefits involved 

in such an analysis. Petitioner suggests there is no need 

to calculate and quantify all the conveivable costs and benefits 

to determine where the balance lies. Instead, it is only 

1706 
necessary to arrive at a general estimate of the cost and 

to ascertain that some measurable benefits can be expected to 

result. In considering the benefits, it is not necessary 

to prove that the results to be achieved by the control will, 

in fact, promote the purposes of the regulation or statute; 

the regulation or statute itself embodies that determination. 

Petitioner asserts that the question is whether the control 

can be expected to achieve any significant results and whether 

the costs are so great that it would be irrational to require 

the use of the control to achieve those results. 

Aside from the fact that Judge Morris' decision in 

N.A. Degerstrom is not binding on me, I take note of the fact 

that he relied on several cases decided under the Occupational 

Safety and Health Act, as well as the legislative history of 

that statute in determining the meaning and application of 

the phrase "feasible". He also noted that "the law on this 

point continues in a state of flux". In short, he relies 

on an interpretation by OSHRC, as further refined by the Courts, 

to support his findings and conclusions in N.A. Degerstrom. 

This I decline to do. 

Petitioner also relies on Judge Morris' decision in 

Jet Asphalt and Rock Co., 3 FMSHRC 940, April 14, 1981, where 

he construed section 55.5-50 as requiring the implementation 

of feasible controls in the event of excessive exposure 

regardless of whether such implementation would guarantee 

reduction of the noise to within the permissible levels. 

After review of Judge Morris' decision, my conclusion is 

that he simply held that a companion mandatory standard 

(56.5-50) requires an operator to explore the feasibility of 

administrative or engineering noise controls before relying 

on personal protective equipment, and that the mere use 

of ear plugs is not an absolute defense. I agree with 

Judge Morris' conclusion that "what I'm trying to say is that 

the first thing to be considered is administrative or engineering 

controls", 4 FMSHRC 945. However, I reject petitioner's 

attempts to.read anything else into his decision, and I reject 

any notion that section 56.5-50 permits anything less than full 

compliance with the clear language of the standard. The 

second sentence of section 56.5-50, clearly permits the use 

of personal protection equipment in the event feasible 

administrative or engineering controls fail to reduce any 

noise exposure to within permissible levels. The permissible 

levels are those stated in the standard, and the standard 

makes no allowances or provisions for so-called "improvements" 

or "near" or "close to" compliance with the required noise 

levels. If the Secretary wishes to change or alter the standard 

he is free to do so through proper rule making, but I reject 

his attempts to do so in this proceeding. 

170'/ 
With regard to any adverse economic impact on the 

respondent, I cannot conclude that the cost factors discussed 

on the record in this case would have any adverse impact on 

the respondent. Assuming that the engineering noise suppression 

methods advanced by both the respondent and MSHA are proved 

workable, I seriously doubt that the respondent would suffer 

economically. As a matter of fact, at page five of its 

posthearing arguments, respondent states that "Although MSHA's 

recommended noise controls are neither harmful nor costly, 

neither are they especially effective". Thus, the question 

presented is whether the engineering recommendations are 

cost effective. In other words, if it cannot be established 

through credible evidence that the implementation of the 

engineering methods explored in this case are feasible and 

realistically achievable, then respondent need not go through 

needless expenditures to implement them. On the facts of 

this case, I believe the critical question presented is whether 

respondent has explored all available feasible engineering 

and administrative noise controls to bring it into compliance 

with the requirements of the cited standard. As part of that 

determination, I cannot conclude that the estimated costs 

of "treating" each of the five wrenches which respondent has 

available at any given time is all that critical. What is 

critical is whether the "treated" wrench will do the job. 

Petitioner suggests that it has established that the results 

of the "treated" wrench tests clearly establish a reduction 

in noise exposure and that respondent should not be allowed 

to abandon this partial solution to the problem simply because 

it does not believe that total abatement can be achieved. 

The thrust of the petitioner's case is the assertion 

that the May 1982, tests conducted by Mr. Antel (exhibit P-9), 

conclusively demonstrates an average noise reduction with 

the treated wrench of 4.5 dBA in closing and 5.1 dBA in opening 

the railroad car doors. Petitioner relies on Mr. Antel's 

testimony that this average reduction in the noise level 

was shown from tests on 10 to 15 railroad cars (Tr. 72), 

and that dosimeter readings he took for the employee's full 

shift showed a reduction of 6 dBA when using the treated 

wrench (Tr. 64). However, a closer examination of Mr. Antel's 

testimony reflects that some 50 cars passed through the 

unloading area at the time of the testing, that they varied 

in size and construction, that the treated and untreated 

wrenches were never tested on the same car doors, that 

measurements were only taken from 10 to 15 cars, and that 

the wrenches were not compared, one to the other on the same 

railroad car. In short, Mr. Antel conceded that his testing 

procedures would not attract any individual variations between 

the wrenches (Tr. 71-72). Further, when asked to explain and 

1708 
reconcile Mr. McLaughlin's full shift test results showing 

noise exposure of 201% and 203% above the permitted limits 

for the untreated wrench, and his test results of 453% 

above the permitted limits for an untreated wrench, Mr. Antel 

replied as follows (Tr. 73-74): 

Q. In your July 12, 1982 report, Petitioner's 

Exhibit 9, you found under similar situation 

that the untreated wrench generated noise 453% 

of the permissible dosage; is that not correct? 

A. Yes. 

Q. Under similar circumstances, MSHA employees 

obtained readings of 201, 203 and 453%. That 

appears to be a rather large discrepancy. Can 

you account for that? 

A. 

the 

but 

the 

I believe that can be accounted for 

variables, not only in the types of 

also in the number of cars that, in 

wrench is used. 

due to 

cars, 

which 

If I could refer back to my first visit, we 

witnessed about fifty cars, fifty-two cars that 

were being unloaded that day, but only on about 

half of these the wrench was used. And the other 

half, they were used, the bar was used to open 

it. So certainly that would influence the exposures, 

the number of times the wrench was used. 

Q. Then you are suggesting that to compare those 

two numbers is improper? 

A. I am saying that one day might vary from another 

day, depending on the number of cars they ~re 

opening. 

Q. You are suggesting then that those figures are 

invalid? 

A. No, ~ am saying that those figures were valid 

for that day. 

Q. You only tested them one day? On the follow-up 

visit? 

A. The follow-up ~isit we did one full shift, sir. 

1709 
Q. Could you tell me the, the activities of the 

employees working in the dry rock unloading area 

in the shed that we have been discussing? 

A. My observation, I noticed the operators, 

besides unloading the cars with the pneumatic 

wrenches, between strings of cars they would go 

down into the rail yard -- and I am not sure what 

they were doing there -- but they would come up 

with another string of cars. 

Q. Do you know how many days per month railroad 

cars are normally unloaded there at Port Sutton 

in the shed? 

A. How many days per month? 

Q. Yes. 

A. No, I don't. 

Q. Do you know how many hours per month the 

employees in the dry rock unloading area are exposed 

to that wrench noise? 

A. No. 

Q. Doesn't the potential harm from any loud 

noise source depend on the duration of employee 

exposure to that noise source? 

A. Yeah, I guess that would be true. 

Q. Since you don't know the activities of the 

employees in that area, either on a daily or a 

monthly basis, you cannot accurately testify as 

to any potential harm they may suffer as a result 

of their exposure to the wrench noise, can you? 

A. I can only testify to the findings that I 

observed that day. 

Q. But you can't give any professional estimate 

as to the magnitude of potential harm to the employees, 

can yqu? 

A. No, I can't. 

1710 
One major flaw in the petitioner's case is that its 

enforcement efforts are concentrated on the pneumatic wrench 

used to open and close the locomotive cars. In its post-hearing 

brief, petitioner maintains that both Inspector McLaughlin 

and Mr. Antel were of the opinion that the wrench was the primary 

source of the noise. However, as correctly pointed out by 

the respondent in its post-hearing arguments, the excessive 

noise levels which prompted the issuance of the citations 

emanate from the total dumoing operation at the shed, and 

unless this total environment is considered, concentrating 

on one particular piece of equipment, which may or may not 

be significant, would be fruitless. 

While it is true that Inspector McLaughlin testified 

that he considered the primary source of noise exposure as 

"the noise being generated by the pneumatic wrench while it 

was engaged with the car fitting" (Tr. 22), he conceded 

that he performed no noise measurements to differentiate 

and quantify the noise produced by the wrench from noises 

produced by the railroad car, and he explained as follows 

(Tr. 23-24): 

Q. Mr. McLaughlin, you just testified that 

the primary noise source during the unloading 

operation was the pneumatic wrench. But isn't 

it true that you never performed tests to quantify 

the various noise sources? 

A. Explain that. What do you mean quantify? 

Q. You never performed any tests when you were 

there on that day to differentiate various noise 

sources in the dry rock and loading area, did you? 

A. Well, I did use a sound level meter while the 

equipment was operating, and I guess that would 

be a quantified measurement, would it not? 

Q. But you never performed a test to distinguish 

the noise generated by the wrench from the noise 

generated by the railroad car or by the fans or 

employees dropping lunchboxes in the shed itself, 

did you? 

A. Well, I wouldn't be interested in that. 

Q. Isn't it true that you cannot perform such 

a test using the equipment that you had there on 

that day? 

A. Yes. 

1711 
And, at Tr. 28-29: 

Q. Now, Mr. deMeza asked you a question 

about whether or not you actually tested all 

of the available noise sources there. Do 

I take it that the noise levels that you found 

to be out of compliance would be what? A 

composite or a totality of all the noise that 

these two fellows were engaged -- were exposed 

to during the course of a given shift? 

A. Yeah, as a, as the inspector -- I am not 

really concerned that much which piece of 

equipment is making the noise, because you, in 

this particular case, you have got a wrench making 

noise, you have got steel rattling on the cars, 

you have got all kinds of noise. What I am 

interested in is what the man is being exposed to. 

And so it is, it is the total noise in the area. 

Q. So I take it if you tested all of the available 

noise sources and you found that one in particular 

was the culprit, if I can use that word, in other 

words, if you were ~o take that particular piece 

of equipment out of the workers' environment and 

theoretically if that would bring them into 

compliance, that they would know what the particular 

noise source would be, wouldn't they? 

A. Yes. If they were not using a pneumatic 

wrench there wouldn't be, you know, hardly any noise. 

Q. Do you feel that that was the principle noise 

source there that was causing the problem? 

A. Uh-huh. 

Q. That was causing the problem? 

A. It was the pneumatic wrench opening the car 

doors. You see, it is a combination. You have 

two things. You have noise from the wrench and 

you also have noise when it is engaged. 

While it is true that Mr. Antel testified that based 

on his April 1981, noise survey, it was his opinion that 

the primary noise source "was the wrench and operating during 

loading and unloading of the cars" (Tr. 51). He qualified 

his statement by readily conceding the existence of dumping 

operation noise sources other than the pneumatic wrenches, 

and his testi~ony in this regard is as follows: 

1712 
Q. (Mr. deMeza) Why does the noise level 

increase when doors are being closed? The rail 

car doors? 

A. Because the cars are being emptied at 

that time and the reverberation condition. 

Q. Reverberation condition? 

A. From the cars themeslves. 

So, in closing [the hopper doors], that damping 

of the rock is, is absent, but the walls are 

pretty [sic] vibrating and shake in sympathy, 

I suppose, to the wrench? 

A. Yes • (Tr • 9 4- 9 5) • 

* * * * 

Q. (The Court) Okay, now, with that flap device 

over there what, what kind of noise would come 

from that coupling and uncoupling? 

A. It was a very loose fitting on some of these 

cars from, I suppose, continual opening and closing, 

whe.re the bit or this part of the wrench would 

engage and sometimes it tended to rattle and jump 

around (Tr. 99). 

* * * * 

Q. (Mr. DeMeza) Did you attempt to identify and 

regulate those other noise sources? 

A. There was no way that, that I was able to 

do that, since the wrench was not operating, 

certainly would not excite the car and there 

was no other means of generating the noise from 

the car, other than the wrench. (Tr. 69). 

Q. And when he is opening the doors, that 

particular wrench generates noises? 

A. Yes, sir. 

Q. At that point and at what other point? 

.A. Closing. Opening and closing. 

1713 
Q. So, if, if part of the noise problem is 

the, the doors clanging and that, I would 

think that somebody would want to address 

that, too, That would be a contributing factor, 

wouldn't it? 

A. Yes. (Tr. 99-102) . 

Mr. Antel's April 1981, noise survey report (exhibit P-6), 

contain certain conclusions which recognize noise sources 

other than the wrench during the dumping operation, and these 

are as follows: 

increased noise levels when car doors are closed 

due to the reverberant condition of the cars 

after the material has been removed. 

the car shaker. 

locomotive tramming through the building, including 

the whistle. 

Mr. Antel's report also states that at times, two or three 

cars may be emptying simultaneously, and that on occasion 

it may be necessary to utilize a car shaker in emptying the 

car. Although he did not consider the car shaker to be a major 

noise source at the time of his survey, he conceded that in the event 

the shaker operating time is increased it "should be regarded 

as a potential problem and should be investigated". ~r. Antel 

notes that the shaker operated two times during his survey, 

and no data was collected from the locomotive cab. 

In view of the foregoing, it would appear to me that 

Mr. Antel's noise survey included factors which were not 

present during the survey taken by Mr. McLaughlin to support 

the citations. It would seem to me that if two or three cars 

are being dumped simultaneously while one or more car shakers 

is in operation, significant noise sources other than the wrenches 

would be present. Yet, none of these variables are explained. 

The parties go through great lengths to try and explain 

their respective engineering methodology in support of their 

respective positions in this case, but it occurs to me that 

when one is dealing with such extremely complex matters 

as the noise suppression standards in issue what may work 

theoretically on paper may not work in the actual mine working 

environment. 

In his report of the May 1982, noise evaluations, Mr. Antel 

again recogn~zes the fact that noises other than the wrench 

1714 
contribute to the overall employee exposures. He takes note 

of the fact that there are differences in the noise levels when 

the wrench is coupled and uncoupled from the locomotive car 

doors. Although he notes that when the wrench is coupled 

to the car, "another noise source is activated", he speculated 

as to where these sources were located and concluded that 

the exact location could not be determined at the time of 

his survey. He also took note of the fact that the noise 

levels generated while opening the car doors are lower than 

the levels generated while closing the car doors. This 

fact lends support to the respondent's claim that the cars 

themselves contribute significantly to the overall noise 

exposure. 

Feasible Engineering Controls 

Respondent concedes that it did not follow MSHA's precise 

recommendations concerning the noise control measures described 

in the 1981 Antel Report. However, respondent has established 

that its tests included the use of a foam-lined metal shroud, 

a rubber flap extending over the wrench bit, and an exhaust 

muffler. Therefore, as correctly pointed out by the respondent, 

its attempted engineering controls were close to those 

recommended by MSHA and presented no significant operational 

differences, and Mr. Antel believed that one could expect 

approximately the same results from the noise controls measures 

implemented by the respondent as those recommended by MSHA 

(Tr. 93). Further, as pointed out by the respondent at 

page 20 of its post-hearing brief, during the abatement 

process MSHA never took issue with the respondent's testing 

(Tr. 213). As previously noted, the compliance time for 

both citations was extended for some ten months while both 

the respondent and MSHA were attempting to come up with some 

feasible engineering controls. The citations were then 

terminated "pending development of additional means of noise 

attenuation on this equipment which.may be required at a 

later date". In the meantime, MSHA permitted the use of 

personal hearing protection, and when the inspector observed 

that the employees were not wearing such devices the citations 

followed. 

With regard to the petitioner's assertion that respondent 

failed to accept MSHA's offer to test one of the wrenches 

in its laboratory, respondent explained that it could not 

afford to relinquish a wrench because it was required to be 

located at the loading site as a back-up in the event the 

other wrenches were down for maintenance. In the circumstances, 

respondent's reluctance to send one of its wrenches to MSHA's 

laboratory for testing seems reasonable. Aside from the fact 

that laboratory testing is significantly different than 

1715 
operating such a wrench in the actual mine 

cannot conclude that on the circumstances 

respondent's reluctance to take one of its 

commission was unreasonable. 

environment, I 

here presented 

wrenches out of 

Respondent's maintenance supervisor Erickson confirmed 

that one of the wrenches was "treated" with certain devices, 

including a muffler, in order to test the noise reduction 

(Exhibit R-3). He explained the modifications in great detail 

(Tr. 107-11), and aside from the fact that the particular 

modif>ications had to be "customized" to the particular 

wrench, he encountered no particular difficulties in making 

the modifications (Tr. 112). However, he did speculate on 

certain operational and maintenance problems which he 

believed would be encountered, and he estimated that the total 

additional labor and materials to maintain five treated 

wrenches would amount to $19,500 annually (Tr. 119). 

Mr. Erickson alluded to certain complaints made by the· wrench 

operator after it was modified (Tr. 135-136; 138), and while 

he confirmed that testing was conducted before and after the 

modifications, he had no knowledge of the test results or 

whether the modifications resulted in any noise improvements 

(Tr. 138). Mr. Erickson's concern over the increased costs 

for the modified wrench stemmed from the fact that it would 

impact on his particular budget (Tr. 142). 

Mr. Antel's testimony that he had previously constructed 

a wrap-around muffler for use on large pneumatic drills, 

that the cost would be approximately $65, and that no significant 

maintenance or employee problens would result is not persuasive. 

To begin with, the wrench in question is not a drill. With 

regard to Mr. Antel's assertion that he would expect a noise 

reduction of 5 dBA in the unloading area if his "wrap around" 

recommendations were followed, I take note of the fact that 

based on the results of testing as advanced by the parties, 

respondent would still not be in compliance. More importantly, 

on the facts of this case, it seems clear to me that MSHA's 

preoccupation with the wrench focuses only one part of the 

overall noise problems which result from the total unloading 

operation to which the two cited employees were exposed. 

Safety supervisor Rowell indicated that the railroad 

owns the cars, and while the respondent leases some of them, 

it has no control over which cars appear at the unloading 

facility (Tr. 183). He discounted the use of car bars to 

open the car doors because the use of such bars has resulted 

in numerous accidents (Tr. 184-187). Petitioner's counsel 

agreed that the respondent has no control over the cars and 

cannot readily modify them (Tr. 230). 

1716 
Mr. Rowell believed that the fully-treated wrench 

presented serious safety problems due to the lack of visibility 

during the insertion of the wrench chuck into the car due to the 

presence of ~he flap (Tr. 182). He also confirmed that the 

respondent considered purchasing a hydraulic torque-type 

wrench, which is quieter, but decided not to after determining 

that it was hazardous to the operator (Tr. 212). He also 

indicated that an untreated wrench weighs approximately 

130 pounds, and that the modifications added an additional 

20 to 25 pounds (Tr. 168). He also testified that the addition 

of the flap as shown on exhibit R-3 presented a visibility 

problem which has resulted in a misplaced wrench bit flying 

off and that this is hazardous to the wrench operator (Tr. 170-

172) • 

Petitioner's suggestion at Tr. 231 that one cannot test 

the noise levels with the wrench attached to the car so as 

to determine the amount of noise given off by the car and 

the amount of noise given off by the wrench is simply not 

so. The record here establishes when respondent tested the 

treated wrench with and without a chuck while not coupled 

to the car, the sound level meter indicated noise in the 

range of 88 to 92 dBA (exhibit R-8). The test results for 

the treated wrench while opening and closing the car doors 

reflected significant increases in the noise levels. As a 

matter of fact, Mr. Antel's May 1982, tests indicated 

the approximate same results for the treated uncoupled wrench 

as well as for the treated wrench while coupled and used in 

the opening and closing of the car doors. Thus, I conclude 

that these test results support the respondent's assertions 

that the wrench in question is but one part of the noise problem. 

Petitioner's counsel candidly admitted during the course 

of the hearing in this case that the parties "came away from 

those tests back in May of 1982 with a different interpretation 

of the results" (Tr. 209). While it may be true that the 

testing conducted by the parties reflect a reduction in the 

noise levels as between the treated and treated wrenches, 

it seems clear to me that in the actual mine working environment, 

compliance will not be achieved until such time as the total 

noise sources are addressed. Petitioner's counsel conceded 

that even if MSHA were to independently test the wrench, 

and its recommendations did not result in noise reduction, 

it would consider that there are no feasible engineering 

controls available, and the respondent would then be permitted 

to continue providing personal ear protection to its employees. 

This would be considered as compliance (Tr. 228-229). During 

a bench colloquy, counsel elaborated further as follows 

(Tr. 229-230): 

111·1 
JUDGE KOUTRAS: Once they operate under 

this standard and made a reasonable effort 

to comply with the feasible engineering 

controls -- and that's always the guts of 

the cases; right? 

MR. WELSCH: Yes, sir. 

JUDGE KOUTRAS: There is always a difference 

of opinion as to what is feasible and what 

is not? 

MR. WELSCH: Yes, sir. 

JUDGE KOUTRAS: But theoretically, assuming 

that they did all that, that was necessary 

and that MSHA agreed that they did all that was 

really necessary to bring the noise level on this 

particular wrench down into compliance, you 

could isolate that from all the other noise and 

find that they were in compliance. 

And once they put that modified wrench back 

into production, it could very well be that other 

noise sources -- let's just take the empty cars --

MR. WELSCH: Yes, sir. 

JUDGE KOUTRAS: That would put them back out of 

compliance again? Theoretically, that could 

happen? 

MR. WELSCH: Yes, sir. 

JUDGE KOUTRAS: And then I suppose MSHA could 

come back and say, "Okay, listen. We have 

eliminated the wrench now. What we want you 

to do now is take these cars that you are 

producing and buy some rubber ones." 

MR. WELSCH: I, I don't think MSHA would --

JUDGE KOUTRAS: Theoretically? 

MR. WELSCH: Theoretically, yes, Your Honor. 

In this case, though, it is my understanding 

that these are the controls that MSHA recommends 

and at this point in time this is probably all 

the controls that we can recommend to abate this 

noise. 

1718 
On the basis of the preponderance of the evidence adduced 

in this case, I conclude that the petitioner has not established 

that feasible engineering controls are available to reduce 

the noise of the dumping operation in question to within the 

allowable levels mandated by section 55.5-50(b). I conclude 

further that the petitioner has failed to establish through any 

credible evidence that its recommended wrench engineering 

noise controls will reduce the dumping crew's noise exposure 

so as to bring the respondent into compliance. I reject the 

petitioner's suggestion that while the engineering controls 

tested by MSHA and the respondent may not reduce employee 

exposure below the permissible limits, the respondent must 

nonetheless implement them. 

With respect to the question of economic feasibility, 

based on the record here presented, I cannot conclude that 

the estimated costs for the treated wrenches in question 

would place the respondent in dire financial need. Based 

on its overall resources, I cannot conclude that the expenditures 

testified to in this case are economically burdensome. 

However, since there is no dispute over the fact that the 

respondent was out of compliance and was in violation 

because the cited employees were not wearing personal 

hearing protection, and in view of my conclusions that the 

petitioner has not prevailed on the question of feasible 

engineering controls, the particular question of cost feasibility 

is not a critical factor in this case. 

I further find and conclude that the respondent here 

acted in good faith in attempting to achieve engineering 

compliance through the testing of certain noise control 

measures similar to those suggested by MSHA, but that unless 

the total operational noise environment at the dumping location 

is addressed by both MSHA and the respondent, "piecemeal" 

consideration of the wrench in question will not achieve compliance. 

I also find that the respondent has established through 

credible testimony that its own modifications to the wrench 

presented safety problems to the operator which outweighed 

any resultant noise reductions. 

Feasible administrative controls 

In this case, MSHA recommended the following administrative 

controls: 

1. Having the lead flagman and flagman leave 

the dumping shed when a trip of cars is being 

moved through. 

1719 
2. Eliminating any unnecessary use of the locomotive whistle while the locomitive is passing 

through the shed. 

3. Keeping the lead flagman and flagman outside the 

locomotive cab unless uncessary in the performance 

of their duties. 

Although respondent on the one hand states that MSHA's 

administrative controls are not significant, it nonetheless 

at page 37 of its post-hearing brief "does not disagree with 

the wisdom of those recommendations". At page 31 of its 

post-hearing brief, respondent concedes further that MSHA's 

suggested administrative controls will, to some small degree, 

be effective in reducing the dumping crew's noise exposure, 

and that if MSHA's recommendations are followed the crew will 

occasionally be exposed to significant noise levels. 

In addition to those administrative controls suggested 

by MSHA, the respondent states that one of the more common 

administrative noise controls, rotation of employees among 

various work stations of varying noise exposures to minimize 

the total daily noise dose, was never recommended by MSHA. 

Respondent assumes that MSHA accurately perceived that 

respondent could not implement such measures at the Port Sutton 

terminal because the facility's employees are solidly unionized 

and dumping crew jobs are subject to the "bid" system. Respondent 

states that any assignment of a less-senior employee to a 

preferred position on the unloading crew would result in 

union grievance proceedings or double payment of employees 

(i.e., payment of both the senior employee who was "bumped" 

by rotating off the dumping crew as well as the junior employee 

who actually performed the work) (Tr. 166-167). 

Respondent's safety supervisor Rowell testified that 

since the citations were issued all employees working in the 

unloading area are required to wear personal ear protection 

as a condition of continued employment (Tr. 190). He also 

confirmed that on any given day, employees in the unloading 

area would spend from 4 to 6 hours per shift in that location, 

and that during this time the wrenches are in operation only 

when the car doors are opened (Tr. 164). He confirmed further 

that the respondent supplies all employees with ear plugs, 

that any employee working in the car unloading area is required 

to wear them as a matter of company policy, and that the 

annual training for all employees includes a portion devoted 

to noise (Tr. 168, 187). Although Mr. Rowell alluded to 

the possibility of bringing in additional part-time shifts 

to relieve the regular unloading crews, he did not believe 

this would be feasible due to the added costs (Tr. 183). 

However, no further details or evidence was offered with respect 

to this suggestion. 

1720 
At hearing, respondent's counsel conceded that section 

55.5-50(b) requires the respondent to implement feasible 

engineering or administrative controls to achieve compliance 

(Tr. 222). When asked whether he believed MSHA's recommended 

administrative controls to be unduly burdensome, counsel 

replied as follows (Tr. 224): 

JUDGE KOUTRAS: At any rate, I don't see 

anything in these three paragraphs that 

would, that would be an undue burden on the, 

on the Respondent in this case to comply 

with; wouldn't that be true? Do you agree 

or disagree with that? Counselor? 

MR. deMEZA: It would seem so, Your Honor, 

although I have not discussed it with the 

client. 

I cannot conclude from the record in this case that the 

respondent has established that the recommended administrative 

controls are not feasible. By the same token, I cannot conclude 

that the parties have established that such controls will, 

or have had any significant impact in reducing the noise 

expos~re. Quite frankly, I believe that the parties have concentrated on engineering controls, and have not fully considered 

the impact of any possible administrative solutions to the 

problem. Under the circumstances, I believe that the respondent 

has a continuing obligation to continue to explore feasible 

administrative controls, including those suggested during 

the hearing, in order to achieve full compliance with the 

noise requirements. 

The parties are reminded that while the result of my 

decision in this case is to permit the respondent to use 

personal ear protection, as correctly stated by the petitioner, 

the use of such devices is not an absolute defense. My decision 

in this case focused on the pneumatic wrench, and my· feasibility 

findings are in connection with that particular piece of 

equipment. Respondent may not sit idly by without making any 

further attempts to address its noise problems at the dumping 

location in question, and it has a positive duty to make 

good faith future efforts at achieving total noise compliance 

at the operation in question. 

Fact of Violations 

There is not dispute on the question of violation and 

the record supports a conclusion that the respondent is in 

violation of mandatory safety standard 30 CFR 55.5-50(b). 

Accordingly, the citations ARE AFFIRMED. 

1721 
History of Prior Violations 

The computer print-out submitted by the petitioner 

(Ex. P-1) , reveals a moderate history of prior violations 

by the respondent with no previous violations of the cited 

standard herein, and I have considered this in the course 

of my penalty assessments in this case. 

Size of Business and Effect of Civil Penalties on the Resoondent's 

Ability to Remain in Business. 

I conclude that the respondent is a large mine operator, 

and the parties agree that the payment of the proposed civil 

penalties will not adversely affect its ability to remain 

in business. 

Negligence 

Although respondent suggests that it was unaware of 

any noise problems at its unloading operation, and relied 

on its employees to bring such problems to its attention, 

since it did conduct noise tests on certain other equipment, 

I believe it had an obligation to insure that tests were made 

at the unloading area as well, particularly when its own 

safety supervisor (Rowell) candidly admitted that the unloading 

area was the only real source of any potential excessive 

noise. In these circumstances, I conclude and find that the 

violations resulted from the respondent's failure to exercise 

reasonable care, and that this amounts to ordinary negligence. 

Gravity 

Although there is no evidence of any specific damage to 

any employee as a result of excessive noise exposure, the 

fact is that in this case the employees were not wearing 

personal protective devices. Since the respondent concedes 

that it was out of compliance and that the two cited employees 

were not wearing such protective devices, they were exposed 

to noise above the regulatory limits. Accordingly, I conclude 

that the conditions cited posed a potential source of harm 

to the employees, and that the violations were serious. 

Good Faith Compliance 

I conclude that the respondent made a good faith effort 

to achieve compliance after the cited conditions were brought 

to its attention, and I have considered this in the penalties 

assessed by me for the two violations in question. · 

1722 
Penalty Assessments 

On the basis of the foregoing findings and conclusions, 

and taking into account the requirements of Section llO(i) 

of the Act, I conclude and find that the following civil 

penalty assessments are appropriate for the citations which 

have been affirmed: 

Citation No. 

094927 

094928 

Date 

11/26/80 

11/26/80 

30 CFR Section 

55.5-50(b) 

55.5-50(b) 

ORDER 

Assessment 

$180 

180 

$360 

Respondent IS ORDERED to pay the civil penalties assessed 

by me in the amounts shown above within thirty (30) days of 

this decision and order, and upon receipt of payment by the 

petitioner, this case is dismissed. 

~.lt~ Administrative Law Judge 

Distribution: 

Ken S. Welsch, Esq., U.S. Department of Labor, Office of the 

Solicitor, 1371 Peachtree St., NE, Rm. 339, Atlanta, GA 30309 

(Certified Mail) 

Howard E. Post, International Minerals & Chemical Corp., 2315 

Sanders Rd., Northbrook, IL 60062 (Certified Mail) 

William B. deMeza, Jr., Esq., Holland & Knight, 406-13th St., 

West, Bradenton, FL 33305 (Certified Mail) 

/slk 

1723 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 OCT4 JIB 

SECRETARY OF: LABOR,. CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

U.S. STEEL MINING COMPANY, INC., 

Respondent 

Docket No. PENN 83-3 

A.C. No. 36-05018-03503 

Cumberland Mine 

DECISION 

Appearances: 

Before: 

Matthew J. Rieder, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Louise Q. Symons; Esq., Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

This proceeding involves a single citation issued June 16, 

1982, alleging a violation of a safeguard notice issued August 12, 

1980, requiring that all track haulage switches be provided with 

reflector lights or some other means to show the direction of the 

switch throw. The subject citation charges a violation of 30 C.F.R. 

§ 75.1403. Respondent concedes that the violation occurred but 

denies that it was significant and substantial and contests the 

amount of the penalty. Pursuant to notice, the case was heard in 

Uniontown, Pennsylvania, on June 21, 1983. Clarence D. Moats, 

Robert W. Newhouse and Eugene w. Beck testified on behalf of 

Petitioner; Don Laurie and Mark Skiles testified on behalf of 

Respondent. Both parties have filed posthearing briefs. Based on 

the entire record, and considering the contentions of the parties, 

I make the following decision. 

FINDINGS OF FACT 

1. Respondent is the owner and operator of an underground 

coal mine in Greene County, Pennsylvania, known as the Cumberland 

Mine. 
2. Respondent is a large operator and the subject mine is 

a large mine. 

3. The imposition of a penalty in this case will not affect 

Respondent's ability to continue in business. 

4. Between August, 1980 and August, 1982, Respondent had 

SO violations of 30 C.F.R. § 75.1403 at the subject mine. The 

nature of these violations is not shown in the record. This 

history of prior violations is not such that a penalty otherwise 

appropriate should be increased because.of it. 

S. On August 12, 1980, a notice to Provide Safeguards was 

issued under 30 C.F.R. § 75.1403 requiring that at the subject 

mine all track haulage switches shall be provided with reflectors, 

lights, or some other means to indicate the direction of the 

switch throw. 

6. The subject mine-utilizes battery operated haulage 

equipment, including 5-ton and 10-ton locomotives (carrying men 

or supplies), and smaller vehicles called jeeps or crickets. The 

locomotives have a maximum speed of about 14 miles per hour. 

7. On June 16, 1982, a reflector or other suitable means 

to indicate the alignment of the track haulage switch was not 

provided at the switch at the number 9 crosscut 12 butt East 

17 Face South section of the subject mine. Citation No. 1146098 

was issued for a violation of the notice to provide safeguards. 

8. The track in the area cited continues beyond the switch 

for a distance of about 200 feet. There is a battery charging 

station about 140 feet from the switch. 

9. The violation cited was abated promptly and in good faith. 

ISSUES 

1. Was the violation of such nature as could significantly 

and substantially contribute to the cause and effect of a mine 

safety or health hazard? 

2. What is the appropriate penalty for the violation? 

CONCLUSTONS OF LAW 

1. Respondent is subject to the provisions of the Federal 

Mine Safety and Health Act of 1977 in the operation of the subject 

mine, and the undersigned administrative law judge has jurisdiction over the parties and subject matter of this proceeding. 

1'125 
2. The condition cited by the Federal Mine Inspector on 

June 16, 1982, described in Finding of Fact No. 7 was a violation 

of the safeguard notice issued August 12, 1980, and therefore, a 

violation of 30 C.F.R. § 75.1403. 

3. The violation found above was of such nature as could 

significantly and substantially contribute to the cause and effect 

of a mine safety or health hazard. 

DISCUSSION 

The hazard caused by the absence of a reflector on a switch 

is that the operator of a haulage vehicle might mistake the position 

of the switch, and by going in the "wrong" direction, jostle the 

occupants in the vehicle or derail the vehicle. Because low-speed 

haulage equipment was in use in the subject mine, the injuries 

would not be nearly as serious as would be the case where high 

speed haulage equipment was involved. This limits the weight to 

be accorded Government's Exhibit No. 2, the Report of a Fatal Coal 

Mine (Haulage) Accident, which involved high speed haulage. Nevertheless, a derailment could result in injuries of a reasonably 

serious nature. 

Respondent contends that its haulage operators rely on 

observing the switches rather than the reflectors, that absent 

reflectors were sometimes not cited by inspectors, that reflectors 

were often removed by employees, and that the haulage equipment 

travelled so slowly that an injury was improbable even if a vehicle 

operator mistook the position of the switch. 

With regard to the first contention, it is self-evident that 

a reflector or light is visible for a greater distance than the 

switch and its absence clearly could contribute to an accident. 

The second and third contentions are irrelevant to this issue. 

With respect to the last contention, I accept the judgment of the 

government inspectors that a derailment even at low speed could 

result in injuries to occupants of haulage cars. 

4. The violation was moderately serious. 

5. The condition cited was known or should have been known 

to Respondent. It resulted from Respondent's negligence. 

6. Based on the criteria in section llO(i) of the Act, I 

conclude that an appropriate penalty for this violation is $100. 

ORDER 

Based on the above findings of fac~ and conclusions of law, 

IT IS ORDERED 

l 112G 
1. The. Citation No. 1146098 including its designation as 

significant and substantial is AFFIRMED. 

2. Respondent shall within 30 days of the date of this order 

pay the sum of $100 for the violation found herein to have occurred. 

Distribution: 

!

{;7/l/IM-5 

James A. 

4131~// Broderick ~ 

Administrative Law Judge 

Matthew J. Rieder, Esq., Office of the Solicitor, U.S. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

Louise Q. Symons, Esq., 600 Grant Street, Room 1580, Pittsburgh, 

PA 15230 (Certified Mail) 

/fb 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 . 

OCT 4 \ID 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINIST~TION (MSHA), 

Petitioner 

v. 

U.S. STEEL MINING COMPANY, INC., 

Respondent 

Docket No. PENN 83-39 

A.C. No. 36-05018-03505 

Cumberland Mine 

DECISION 

Appearances: 

Before: 

Matthew J. Rieder, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Broderick 

STATE~ENT OF THE CASE 

In the above proceeding the Secretary seeks civil penalties 

for nine alleged violations of mandatory safety standards. Each 

violation was cited as significant and substantial. However, 

with respect to Citation No. 2011904, alleging a violation of 

30 C.F.R. § 75.1722, the Secretary in open court deleted the 

significant and substantial designation and proposed that the 

violation be settled. With respect to Citation No. 2012075, 

alleging a violation of 30 C.F.R. § 75.606, the Secretary in open 

court deleted the significant and substantial designation. With 

respect to Citation No. 2011908, alleging a violation of 30 C.F.R. 

§ 75.903, the Secretary moved that the citation be vacated and no 

penalty be imposed for the cited condition. Respondent admits 

that the remaining violations occurred, but denies that they were 

significant and substantial, and contests the penalties proposed. 

Pursuant to notice, the case was heard in Uniontown, Pennsylvania 

on June 21 and June 22, 1983. Robert w. Newhouse and Clarence D. 

Moats testified on behalf of Petitioner; Robert Alan Bohach, Mark 

Skiles, and Chuck Lemunyon testified on behalf of Respondent. 

Each party was afforded the opportunity to file a posthearing 

brief. Respondent filed such a brief. Based on the entire record 

and considering the contentions of the parties, I make the following 

decision. 

1728 
ISSUES 

1. Whether the violations are of such nature as could 

significantly and substantially contribute to the cause and effect 

of a mine safety or health hazard? 

2. What is the appropriate penalty for each violation? 

FINDINGS AND CONCLUSIONS COMMON TO ALL VIOLATIONS 

1. Respondent is the owner and operator of an underground 

coal mine in Greene County, Pennsylvania, known as the Cumberland 

Mine. 

2. Respondent is subject to the provisions of the Federal 

Mine Safety and Health Act of 1977 in its operation of the subject 

mine and I have jurisdiction over the parties and subject matter 

of this proceeding. 

3. Respondent is a large operator and the subject mine is a 

large mine. 

4. The assessment of civil penalties in this proceeding will 

not affect Respondent's ability to continue in business. 

5. Between August 1980 and August 1982, Respondent had a 

history of 50 paid violations of 30 C.F.R. § 75.1403, 2 violations 

of 30 C.F.R. § 75.601, 66 violations of 30 C.F.R. § 75.400, no 

violations of 30 C.F.R. § 75.1106-4, 8 violations of 30 C.F.R. 

§ 75.606, and 11 violations of 30 C.F.R. § 75.1722(a}. This is a 

moderate history of previous violations and penalties otherwise 

appropriate should not be increased because of it. 

6. In the case of each citation involved herein, the violation was abated promptly and in good faith. 

7. Whether a cited violation is properly designated as a 

significant and substantial violation is per se irrelevant to a 

determination of the appropriate penalty to beassessed. The 

penalties hereinafter assessed are based on the criteria in 

section llO(i} of the Act. 

8. All of the contested violations were abated promptly and 

in good faith. 

9. The subject mine is a gassy mine and liberates over 

one million cubic feet of methane in a 24-hour period. Methane 

ignitions have occurred at the subject mine. 

1728 
CITATION NOS. 2012062, 2012064 AND 2012073 

Each of the above citations charged a violation of 30 C.F.R. 

§ 75.1403 (ndtice to provide safeguards) because of inoperative 

or empty sanding devices on haulage equipment in the subject 

mine. On September 14, 1978, a notice was issued requiring that 

each self propelled personnel carrier should be provided with well 

maintained sanding devices. On April 30, 1980, a notice was 

issued requiring that all track mounted self-propelled personnel 

carriers and locomotives be equipped with properly installed and 

well-maintained sanding devices, except that personnel carriers 

(Jitneys) which transport not more than 5 persons need not be so 

equipped. 

Citation No. 2012062, issued August 4, 1982, charges that 

on a mantrip, three sanqers were empty and one was plugged with 

wet sand. (There are four sanders on the mantrip - one for each 

wheel). The mantrip had been used to transport the nine person 

crew into the section prior to the citation being issued. The 

rails were damp in some places, there was a slight grade in some 

areas, and people were working on the haulage. At times the rails 

may be wet. The mantrip had a maximum speed of 12 to 14 miles 

per hour. It has a hand operated mechanical brake, and can also 

be stopped by reversing the directional controller. 

Citation No. 2012064, also issued on August 4, 1982, charges 

that the sanders on another mantrip were inoperative. This 

mantrip had been operated on wet track for about 400 feet because 

of a broken water line. Seven miners were transported on this 

mantrip. 

Citation No. 2012073, issued on August 5, 

sanders in a seven person mantrip were empty. 

mantrips were involved, the section foreman in 

being transported was the same section foreman 

Citation No. 2012062. 

1982, charges that 

Although different 

charge of the crew 

involved in 

The purpose of requiring operating sanding devices on haulage 

vehicles is to give better traction to facilitate stopping and to 

round curves and climb grades at a safe speed. Although the 

equipment is operated a low speed, a sudden stop may be necessary 

for many reasons, e.g., persons or objects on the track, a switch 

with a defective reflector signal. Wet tracks or ascending or 

descending grades may require sand for proper traction. The 

failure to have operative sanding equipment is likely to result in 

injuries of a reasonably serious nature. The violations are 

significant and substantial. The violations were serious and 

resulted from Respondent's negligence. The violation charged in 

Citation No. 2012073 was the result of aggravated negligence. Based 

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

appropriate penalties for the violations are $200, $200, and $300. 

1730 
CITATION NO. 2012065 

This citation, issued August 4, 1982, charges a violation of 

30 C.F.R. § 75.601 because the disconnecting devices for the 

trailing cables on a shuttle car and a continuous miner were not 

properly identified or tagged to correspond with the receptacles 

at the load center. The mandatory standard, which is a statutory 

provision, requires that "disconnecting devices used to disconnect 

power from trailing cables shall be plainly marked and identified 

and such devices shall be equipped or designed in such a manner 

that it can be determined by visual observation that the power is 

disconnected." The hazard resulting from the violation is that 

someone could contact an energized cable thinking it was disconnected, or could inadvertently plug in the wrong cable. The plugs 

for the continuous mine~ cable and the shuttle car cable are very 

different in size and appearance, and could not be confused with 

one another. However, there were other shuttle cars and the disconnecting device for the shuttle car cables could be confused if 

one was not properly marked and identified. The load center at 

the subject mine has a keying system which is a physical means to 

prevent a plug from being inserted in the wrong receptacle. However, the keys are often taken off the cables, and it is not known 

whether keys were present on the day the citation was issued. 

Mechanics who work on cables are instructed to lock out the cable. 

If a break occurs in a power lead, the power would be cut by the 

ground continuity check. However, it is possible to have a bare 

wire not cut, without interrupting the continuity. 

The question whether this violation is significant and substantial is a close one, but considering the large number of cables 

and power conductors in the mine, and the severe consequences 

which might ensue (electrocution), I conclude that the violation 

was significant and substantial. It was a serious violation, and 

should have been known to Respondent. Therefore, Respondent was 

negligent. Based on the criteria in section llO(i) of the Act, I 

conclude that an appropriate penalty for this violation is $250. 

CITATION NO. 2012066 

This citation, issued August 4, 1982, charges a violation of 

30 C.F.R. § 75.400 because of an accumulation of dry coal, float 

coal dust, oil and grease in the operator's compartment, behind 

· the electric motors for the cutting head and around the electric 

cables on a continuous mining machine. The machine was being 

trammed into a working place in the No. 4 entry at the time the 

citation was issued. The hazard created by this violation is that 

these accumulations are combustible and could propagate a mine 

fire. The methane monitor and the water sprays on the miner were 

working properly. However, the coal that was packed around the 

1731 
motors would prevent the water sprays from reaching the motors in 

case of a fire. The accumulation in the operator's compartment 

was approximately 3 inches deep. The accumulation around the 

motor was packed and not easily measured. It would have taken 

several shifts to accumulate. The area of .the mine in which the 

citation was issued recorded a maximum of 0.2 percent methane on 

the day in question. The continuous miner motor is water cooled 

and has thermal strips designed to shut off the motor if it 

overheats. 

Accumulation of combustible materials in a coal mine is likely 

to contribute to a mine fire or explosion in a mine that liberates 

methane. The violation was significant and substantial. It was a 

serious violation and resulted from Respondent's negligence. I 

conclude that an appropriate penalty for this violation is $300. 

CITATION NO. 2012074 

This citation, issued August 9, 1982, charges a violation of 

30 C.F.R. § 75.1106-4 because two compressed gas cylinders were 

standing along the shuttle car roadway without being secured from 

falling. 

The hazard created by this violation is that the valve could 

be broken or the cylinders ruptured, releasing the compressed gas 

causing the cylinders to become as missiles. The section was preparing to begin a new shift. Both cylinders were in bags. The 

oxygen cylinder was capped and the acetylene cylinder had a recessed 

valve. I conclude that the cylinders could have been knocked over 

by a shuttle car, or other force, and could have been ruptured. If 

one or both were ruptured, serious injuries would likely occur. I 

conclude that the violation was significant and substantial. It was 

a serious violation and was caused by Respondent's negligence since 

it was evident to visual inspection. Based on the criteria in 

section llO(i) of the Act, I conclude that an appropriate penalty 

for this violation is $200. 

CITATION NO. 2012075 

This citation, issued August 9, 1982, charges a violation of 

30 C.F.R. § 75.606 because the trailing cable for a construction 

miner was not adequately protected to prevent damage by mobile 

equipment. There was evidence that the cable had been run over, 

but there was no visual evidence of damage to the cable and a 

continuity check showed no damage to the power conductors. The 

cable was not energized. The cable had apparently fallen from 

hangers along the rib. 

Petitioner stated that the violation was not significant and 

substantial. I conclude that it was not serious. It should have 

been observed by Respondent, however, on a preshift examination. 

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

an appropriate penalty for this violation is $50. 

1732 
ORDER 

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

IT IS ORDERED· 

1. Citation Nos. 2012062, 2012064, 2012073, 2012065, 2012066, 

2012074 are AFFIRMED as properly charging significant and substantial 

violations. 

2. Citation Nos. 2011904 and 2012075 charge violations not 

pr9perly designated as significant and substantial. 

3. Citation. No. 2011908 is Vl\CATED and the penalty petition 

is dismissed with respect to it. 

4. Respondent shall within 30 days of the date of this order 

pay the following penalties for violations found herein to have 

occurred: 

Distribution: 

Citation 

2011904 

2012062 

2012064 

2012073 

2012065 

2012066 

2012074 

2012075 

Total 

Penalty 

$ 20 

200 

200 

300 

250 

300 

200 

so 

$1,520 

JtlA tu'!~- ,/Vdi·-vcle-r2 c7/' 

James A. Broderick 'l_ 

Administrative Law Judge 

Matthew J. Rieder, Esq., Office of the Solicitor, U.S. Department 

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

Philadelphia, PA 19104 (Certified Mail} 

Louise Q. Symons, Esq., 600 Grant Street, Room 1580, Pittsburgh, 

PA 15230 (Certified Mail} 

/fb 1733 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 OCT4 E 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WEST 81-224 

A.C. No. 42-00165-03051 

v. . .. Price River No. 3 Mine 

PRICE RIVER COAL COMPANY, 

formerly BRAZTAH CORPORATION, 

Respondent 

Appearances: 

Before: 

DECISION 

Phyllis K. Caldwell, Esq., Office of the Solicitor 

U.S. Department of Labor, Denver, Colorado, 

for Petitioner: 

Stanley v. Litizzette, Esq., Price River Coal 

Company, 

formerly Braztah Corporation, Helper, Utah, 

for Respondent. 

Judge Vail 

Procedural History 

This case is before me upon petition for asse~sment of a civil 

penalty by the Secretary of Labor pursuant to section llO(a) of the 

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

(the "Act"). Respondent (formerly the Braztah Corporation, and now 

the Price River Coal Company) is charged with violation of a 

mandatory underground coal mine safety standard, for which a 

citation was issued pursuant to section 104(a) of the Act. In 

conjunction with the citation, a withdrawal order for failure to 

properly abate was issued pursuant to section 104(b) of the Act. 

Respondent duly contested the proposed penalty for the alleged 

violation of the safety standard. Upon notice to the parties, a 

hearing on the merits was held in Salt Lake City, Utah. Both 

parties filed post-hearing briefs. 

Issues 

The principal issues presented in this proceeding are: (1) 

whether respondent was properly charged with a mine safety 

violation, and if so, what civil penalty is appropriate based upon 

the criteria set forth in section llO(i) of the Act: and (2) whether 

respondent may now challenge a withdrawal order for respondent's 

alleged failure to abate the violative condition. Additional issues 

raised during the proceeding are identified and disposed of where 

appropriate in the course of this decision. 
In determining the amount of a civil penalty assessment, 

section llO(i) of the Act requires consideration of the fQllowing 

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 of 

the penalty 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. 

Stipulations 

At the outset of the hearing, the parties stipulated to the 

jurisdiction of the Mine safety and Health Review Commission to hear 

this case, and to several facts relevant to the assessment of 

penalties. It was agreed that: (1) respondent produces 3,200 tons 

of coal daily and employs 269 miners at the Price River No. 3 Mine; 

(2) respondent would stipulate to the admissibility of a computer 

printout (Exhibit P-7) to show the number of cited violations 

occurring over a 24 month period ending on February 5, 1981, the day 

that the citation involved in this proceeding was issued; and (3) 

respondent's payment of a penalty would not impair its ability to 

continue in business. 

Findings of Fact 

1) Respondent owns and operates a coal mine known as the Price 

River No. 3 Mine near Helper, Utah. 

2) On February 2, 1981, Fred Lupo, president of the Local 8303 

of the United Mine Workers of America (UMWA) at the Price River No. 

3 Mine, .attended a safety meeting at the mine, and afterward informed the mine superintendent of his concern with dirty mine belts. 

Upon being informed by the mine superintendent that when the mine's 

manpower was "built-up then they could spread out and do more jobs," 

Lupo advised the superintendent that he believed that the dirty 

belts had existed for a long period of time and that he intended to 

notify the Mine Safety and Health Administration (MSHA) and request 

an inspection (Tr. 75, 76). 

1735 
3) On February 2, 1981, Lupo sent a letter on behalf of the 

UMWA to MSHA complaining of dirty belt lines in the mine, and 

requeyting an inspection pursuant to section 103(g) of the 

Act. / The letter was received by MSHA on February 3, 1981 

(Tr. 76, Exhibit P-8). 

4) Upon receipt of Lupo's letter, MSHA assigned Jerry Lemon to 

inspect the mine's belt lines. Lemon commenced his inspection on 

February 5, 1981 and was accompanied by Lupo and Victor Stuart, the 

mine's safety inspector. 

5) Upon arriving at the No. 1 belt at the mine's Castle Gate 

portal on February 5, 1981, Lemon observed accumulations of both 

loose coal and float coal dust in the area of the belt's second set 

of air-lock doors, about 500 feet inby the mine portal. The coal 

accumulations extended a distance of 20 feet and were six inches to 

two feet in depth. Black deposits of float coal dust had accumulated on the floor and ribs of the same area (Tr. 29, 30, Exhibit P-6). 

Upon proceeding down the No. 1 belt to the area of the belt tailpiece, Lemon observed three belt drive rollers and the idler roller 

running in loose coal accumulations which measured 13 to 32 inches 

in depth and extended over a distance of 20 feet. In addition, 

black float coal dust accumulations were again evident and extended 

approximately 120 feet from the tail piece in the direction of the 

portal (Tr. 28, 31, 48, Exhibit P-6). 

ll Section 103(g) provides in pertinent part as follows: 

Whenever a representative of the miners or a miner in the case 

of a coal or other mine where there is no such representative has 

reasonable grounds to believe that a violation of this Act or a 

mandatory health or safety standard exists, or an ·imminent danger 

exists, such miner or representative shall have a right to obtain an 

immediate inspection by giving notice to the Secretary or his 

authorized representative of such violation or danger. Any such 

notice shall be reduced to writing, signed by the representative of 

the miners or by the miner, and a copy shall be provided the 

operator or his agent no later than at the time of inspection, 

except that the operator or his agent shall be notified forthwith if 

the complaint indicates that an imminent danger exists. The name of 

the person giving such notice and the names of individual miners referred to therein shall not appear in such copy or notification. 

Upon receipt of such notification, a special inspection shall be 

made as soon as possible to determine if such violation or danger 

exists in accordance with the provisions of this title. If the 

Secretary determines that a violation or danger does not exist, he 

shall notify the miner or representative of the miners in writing of 

such determination. 

173G 
6) Lemon issued citation No. 1021163 at 4:40 p.m. on February 

5, 1981, charging violation of 30 C.F.R. § 75.400. The citation 

listed the conditions in the area of the No. 1 belt described above 

in Finding No. 5 (Exhibit P-6). 

7) After discussing the amount of time necessary for abatement 

of the cited conditions with the mine safety inspector, Lemon allowed two hour and 40 minutes for completion of the abatement work (Tr •. 

35, 80, Exhibit P-6). 

8) Upon returning to the site four and a half hours later, 

Lemon determined that the abatement was incomplete.' No rock dusting 

had been performed, and only 80 percent of the loose coal 

-accumulations had been removed. Lemon then issued withdrawal order 

No. 1021164 pu2suant to section 104(b) of the Act (Tr. 60, 62, 

Exhibit P-6). :_j 

9) Four miners, a mine foreman, and Lupo completed the 

required abatement work within one hour, whereupon the withdrawal 

order was terminated at 10:25 p.m. on February 5, 1981 (Tr. 38, 

Exhibit P-6). 

10) On May 26, 1981, the Secretary filed a petition ·for the 

assessment of a civil penalty against the respondent predicated upon 

the issuance of citation No. 1021163 for a violation of 75.400 and 

proposed a penalty of $470.00. Respondent filed an answer on June 

16, 1981, admitting the above citation was issued on the date 

indicated but denying that a violation occurred. Respondent had not 

~/ section 104(b) of the Act provides as follows: 

If, upon any follow-up inspection of a coal or other mine, an 

authorized representative of the Secretary finds (1) that a 

violation described in a citation issued pursuant to subsection (a) 

of this section has not been totally abated within the period of 

time as originally fixed therein or as subsequently extended, and 

(2) that the period of time for the abatement should not be further 

extended, he shall determine the extent of the area affected by the 

violation and shall promptly issue an order requiring the operator 

of such mine or his agent to immediately cause all persons, except 

those persons referred to in subsection (c) of this section to be 

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

an authorized representative of the Secretary determines that such 

violation has been abated. 

1737 
filed a notice of contest to the withdrawal order No. 1021164 issued 

on th3 day of the inspection, pursuant to section 105(d) of the 

Act. _I 

Discussion 

Citation No. 1021163 charges respondent with violation of 

safety standard 30 C.F.R. § 75.400, which provides as follows: 

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. 

Lemon's description (both in the citation and at the hearing) of 

coal and float coal dust accumulations in the area of the mine's No. 

1 belt was corroborated at the hearing by Fred Lupo. 

Lemon testified that it was unlikely that the coal accumulations he observed occurred during only one shift, but instead had 

been there for at least five days. Lemon further stated that where 

a belt and its rollers run in loose coal, frictional heat can 

provide an ignition source and result in fire. In turn, the fire 

may set off an explosion where float coal dust has been allowed to 

accumulate. Both fire and mine explosions pose the threat of 

serious or fatal injury to miners (Tr. 32, 34, 35). In light of 

such alleged safety hazards, petitioner seeks to have citation No. 

1021163 affirmed, and a civil penalty imposed. 

In contrast, respondent urges that a civil penalty be 

disallowed. However, while respondent generally denied petitioner's 

allegation of a safety violation in its "Answer to Petition for 

11 Section 105(d) of the Act provides in pertinent part as follows: 

If, within 30 days of receipt thereof, an operator of a coal or 

other mine notifies the Secretary that he intends to contest the 

issuance or modification of an order issued under section 104, 

or other citation or a notification of proposed assessment of a 

penalty issued under subsection (a) or (b) of this section, or 

the reasonableness of the length of abatement time fixed in a 

citation or modification thereof issued under section 104 ••• 

the Secretary shall immediately advise the Commission of such 

notification, and the Commission shall afford an opportunity for 

a hearing (in accordance with section 554 of title 5, United 

States Code, but without regard to subsection (a)(3) of such 

section), and thereafter shall issue an order, based on findings 

of fact, affirming, modifying, or vacating the Secretary's 

citation, order, or proposed penalty, or directing other appropriate relief. 

1738 
Assessment of Civil Penalty," it failed to make any arguments at the 

hearing or in its post-hearing brief rebutting the cited conditions 

of coal and float coal accumulations. Witnesses Stuart and Robert 

Lindsey (safety inspector and belt foreman respectively at the mine) 

did testify that the accumulations were damp. However, I find the 

credibility of such testimony to be weak since Lindsey also 

testified that he could not directly controvert Lemon's testimony 

that overall, the areas cited were dry (Tr. 114, 125). In view of 

such testimony, and upon careful review of the evidence, I find 

that accumulations of coal and float coal dust existed in 

respondent's mine and that such accumulations posed a hazard of a 

fire and explosion occurring. Accordingly, I affirm the issuance of 

citation No. 1021163. 

Respondent further argued both at the hearing and in its post 

trial brief that the abatement period set by Lemon to correct the 

cited condition was unreasonable. Respondent therefore reasons that 

withdrawal order No. 1021164 was wrongfully issued, and that as a 

consequence the proposed penalty at issue in this case should not be 

assessed. In making such arguments, respondent confuses the 

function of this civil penalty proceeding with that involved in a 

"contest of order" proceeding. Section 105(d) of the Act allows a 

challenge of withdrawal orders, but only if the contest is filed 

within 30 days of the receipt of the order. 30 u.s.c. § 815(d). see 

Black Diamond Coal Mining Co, 5 FMSHRC 764 (April 1983)(ALJ) at 

766-767. Based on the facts in the present case, the withdrawal 

order was issued and served on respondent by inspector Lemon on 

February 5, 1981, and there is no evidence that respondent filed its 

notice of contest challenging the order within the 30 day period as 

provided in section 105(d). Respondent's "contest" was initiated 

when it was served with a copy of MSHA's proposed civil penalty for 

the violation of standard 75.400 and informed MSHA on April 6, 1981 

that it wished to contest citation No. 1021163 and the associated 

proposed penalty. Accordingly, I will not rule on the validity of 

the withdrawal order in the instant civil penalty•case. Instead, I 

will decide only the affect of the withdrawal order on 

considerations of good faith abatement when addressing the issue of 

assessment of an appropriate penalty for respondent's violation of 

safety standards 75.400. 

Penalty 

Mine History, Size, and Financial Status 

The evidence in this case shows that respondent had a history 

of approximately 114 violations at the Price River No. 3 Mine over a 

two year period ending on February 5, 1981 (Exhibit P-7). Respondent stipulated that the mine employed 269 miners, produced 3,200 

tons of coal daily, and that payment would not effect its ability to 

continue in business (Tr. 5, 6). I finn that the mine is of a 

medium size and that the number of prior violations indicates a 

moderate history of violations. 

1739 
Negligence 

I accept Lupe's unrebutted testimony that he informed a mine 

superintendent on February 2, 1981 of his concern with dirty mine 

belts. In view of such testimony, I conclude that respondent had 

notice of a potentially hazardous condition and yet failed to 

correct it. Furthermore, the evidence shows the respondent had been 

cited previously for violations of the same regulatory standard and 

was aware of application of the standard to conditions in its mine 

(Tr. 41). I therefore find that respondent's failure to maintain 

clean belt l~nes and correct hazardous conditions, although provided 

with notice of their existence, amounts to gross negligence. 

Gravity 

I find that the action of the respondent in this case 

constitutes a serious hazard. The accumulations of coal under the 

No. 1 belt, in combination with significant accumulations of float 

coal dust, created a serious hazard of fire and explosion and 

consequently the threat of serious or fatal injury to miners. 

Good Faith 

In addressing the issue of good faith abatement of a violative 

condition, petitioner contends that respondent's lack of good faith 

is demonstrated by the respondent's failure to timely abate the 

cited safety violations. The evidence of record establishes that 

upon issuance of citation No. 1021163, Lemon allowed two hours and 

40 minutes for abatement of the hazardous conditions (Exhibit P-6). 

Upon returning to the site four and a half hours later, he 

discovered that while the coal belt continued in operation, only 80% 

of the loose coal accumulations had been removed and placed in the 

travelway adjacent to the belt. In addition, no rock dusting had 

been performed (Tr. 60). Lemon therefore issued~ withdrawal order, 

and shut down the belt (Exhibit P-6). The abatement work was 

subsequently completed by four miners and the mine foreman, with the 

assistance of Lupo, within one hour, whereupon the order was 

terminated (Tr. 64). 

Respondent contends that it used diligence and good faith in an 

attempt to abate the alleged violation. It rejects petitioner's 

claim that Lemon established the abatement period following a 

discussion with Stuart (the mine's safety inspector), during which 

Stuart allegedly indicated that two hours would be sufficient time 

to abate the cited conditions (Tr. 35, 80). Respondent denies that 

such a conversation took place (Tr. 126). It further contends that 

the abatement period was unreasonable due to Lemon's issuance of 

further citations for conditions which also required abatement, and 

the need to allow miners performing the abatement work a lunch 

break. 

1740 
Upon careful review of the evidence, I find that respondent is 

unconvincing in its attempt to establish that Lemon was unreasonable 

in issuing the withdrawal order and refusing to extend the abatement 

period. Respondent offers no evidence that an extension of the 

abatement period was requested. Nor does the abatement period seem 

unreasonable in relation to activities required for the abatement of 

other cited violations. Lemon testified that while he later issued 

four other citations, the abatement deadline on at least two of them 

was set for the following day or later (Tr. 142). While Lemon 

established an abatement period of two hours and 40 minutes, he 

actually allowed four and a half hours to abate before returning to 

inspect such activities. At that time, Lemon discovered that 

necessary abatement work was incomplete although the necessary 

manpower was apparently available to perform such duties, since upon 

issuance of the withdrawal order, the abatement work was completed 

within one hour. Similar facts exist in u. s. Steel Corporation, 2 

FMSHRC 832, 844 (April 1980)(ALJ), involving contest of a citation 

and 104(b) withdrawal order. In that case, Administrative Law Judge 

Koutras found that mine management was less than diligent in 

achieving abatement where manpower required for abatement work was 

available and yet had been assigned to other duties. Again, upon 

issuance of a withdrawal order, abatement of a safety violation was 

rapidly achieved. In light of the foregoing, and the credible 

evidence in th is case, I find that respondent failed. to make a 

diligent and good faith effort to achieve abatement. 

Conclusions of Law 

Based upon the entire record in this case, and consistent with 

my findings in the narrative portion of this decision, the following 

conclusions of law are made: 

1) Respondent violated 30 C.F.R. § 75.400 a~ alleged by the 

Secretary of Labor, and accordingly citation No. 1021163 is 

·affirmed. 

2) Respondent failed to file a timely challenge to withdrawal 

order No. 1021164 and therefore is estopped from attacking its 

validity in this proceeding. 

3) Based on a consideration of the criteria in section llO(i) 

of the Act, I conclude that an appropriate penalty for the violation 

charged in citation No. 1021163 is $470. 
ORDER 

WHEREFORE IT IS ORDERED that citation No. 1021163 is affirmed 

and respondent shall pay the above assessed penalty of $470.00 

within 30 days of the date o~ this decision. 

'-Z'~~A~,{ Virgi • Vail ,!:~ Admi strative Law Judge 

Distribution: 

Phyllis K. Caldwell, Esq., (Certified Mail), Office of the Solicitor 

United States Department of Labor, 1585 Federal Building 

1961 Stout Street, Denver, Colorado 80294 

s. V. Litizette, Esq., (Certified Mail), Price River Coal Company 

178 south Main Street, Helper, Utah 84526 

/blc 

1'/42 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 OCTs S 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

. . Docket No. PENN 81-157 

·A.C. No. 36~00917-03092 

Lucerne No. 6 Mine 

v. 

HELVETIA COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

David T. Bush, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphiat 

Pennsylvania, for Petitioner 

William M. Darr, Esq., Helvetia Coal Company, 

Indiana, Pennsylvania, for Respondent 

Judge Fauver 

This proceeding was brought by the Secretary of Labor 

under Section llO(a) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et jeq:, for assessment of a 

civil penalty for an alleged VIo ation of a mandatory 

safety standard. The case was heard at Pittsburgh, 

Pennsylvania. 

Having considered the contentions of the parties and 

the record as.a whole, I find that the preponderance of the 

reliable, probative and substantial evidence establishes the 

following: 

FINDINGS OF FACT 

1. At all pertinent times Helvetia Coal Company 

(Respondent) operated an underground coal mine known as 

Lucerne No. 6 Mine, which produced coal for sale or use in 

or substantially affecting interstate commerce. 

1743 
2. On February 27, 1981, MSHA Inspector William R. 

Collingsworth and his supervisor, John L. Daisley, conducted 

an inspection at Lucerne No. 6 Mine. As they prepared to go 

underground, Inspector Collingsworth noticed a discrepancy 

between the lamps in the lamp rack and the metal tags on the 

check-in board used to indicate who was underground. After 

an investigation, the inspector and his supervisor determined 

that twelve miners were underground although the check-in 

tags corresponding to their lamp numbers were still on the 

check-out board. They also found that twenty miners were 

not present on the mine property although check-in tags on 

the check-in board indicated they were underground. 

3. The inspector determined that the check-in/out 

boards constituted the established check-in, check-out 

system. 

4. He also determined that mine management knew or should 

have known of the errors in the check-in/out boards system because 

they were readily observable and he observed six mine foreman 

enter or leave the mine without using the boards. 

5. The inspector issued an order of withdrawal under 

section 104(d) (2) of the Act, charging the operator with a 

violation of 30 CFR 75.1715, alleging that: 

The posted established check-in 

check-out system was not being properly 

used to provide a positive identification 

of every person underground. 

The order was terminated on March 5, 1981, after the individuals 

who were listed in the order were reinstructed as to the proper 

use of the check-in, check-out system. 

DISCUSSION WITH FURTHER FINDINGS 

The main issue is whether the check-in, check-out boards 

were subject to the requirements of 30 CFR 75.1715, which states: 

Each operator of a coal mine 

shall establish a check-in and 

check-out system which will provide 

positive identification of every person 

underground and will provide an accurate 

record of the persons in the mine kept 

1744 
on the surf ace in a place chosen to 

minimize the danger of destruction by 

fire or other hazard. 

Respondent contends the lamp records were the primary 

check-in/out system and that the check-in, check-out boards 

were merely a backup for the records kept by the lamp man 

and, as such, were not subject to the above regulation. This 

contention is not supported by the evidence. The inspector 

observed at least six signs in the lamp house, each signed 

by the mine foreman, which stated: "All employees, be sure 

to use the check-in and check-out board before you enter the 

mine and after you arrive outside." The evidence shows that 

the check-in, check-out boards and metal tags were the primary 

means of identifying miners who were underground. 

The lamp records might have served as a partial check-in/ 

out system, but its primary purpose was to keep an accurate 

account of the miners for payroll purposes. The abbreviation 

"A" was written on the lamp records to indicate that a miner 

was "absent" for the day, and not to indicate that he was 

not underground. If the lamp records had been the primary 

identification system, the system would have been in violation 

of 30 CFR 75.1715, since these records did not identify 

all of the individuals who were underground. The lamp 

records dealt only with miners who reported at the beginning 

of a shift; they did not record individuals who entered or 

left the mine after a shift began. Also, the lamp records 

did not record management.personnel who exited tne mine. 

I hold that Respondent violated 30 CFR 75.1715 by its 

improper use of the check-in, check-out boards and metal tags. 

A civil penalty of $370.00 is proper in light of the statutory 

criteria set forth in Section llO(i), including Respondent's 

size and compliance history and the factors of negligence, 

gravity and abatement. Respondent was negligent in that the 

violation could have been prevented by the exercise of 

reasonable care. The gravity of the violation is serious. 

Improper use of the check-in, check-out boards and tags 

could result in unnecessary delays and confusion in a mine 

rescue attempt and contribute to death or injury to mine 

rescuers or persons caught in a mine disaster. Respondent 

showed good faith in promptly abating the condition after 

notice of the violation by MSHA. 

1745 
CONCLUSIONS OF LAW 

1. The' undersigned judge has jurisdiction over this 

proceeding. 

2. At all pertinent times, Respondent's Lucerne No. 6 

Mine was subject to the provisions of the Act. 

3. Respondent violated 30 CFR 75.1715 as alleged in 

Order No. 1042037. 

Proposed findings and conclusions inconsistent with the 

above are rejected. 

ORDER 

WHEREFORE IT IS ORDERED that Respondent shall pay a 

civil penalty of $370.00 within 30 days from the date of 

this decision. 

Distribution: 

·--?' ) f 1 . L.. WJJZ.w~ 7 u-u. ,,- ~4..--

wi11 iam Fauver 

Administrative Law Judge 

David T. Bush, Esq., U.S. Department of Labor, Office of the 

Solicitor, 3535 Market Street, Philadelphia, Pennsylvania 

19104 (Certified Mail) 

William M. Darr, Esq., 655 Church Street, Indiana, Pennsylvania 

15701 (Certified Mail) 

United Mine Workers, 900 15th Street, N .• w., Washington, D.C. 

20005 (Certified Mail) 

kg . 

174G 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 5, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

SOLAR FUEL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. PENN 83-118 

A.C. No. 36-06100-03506 

Solar No. 9 Mine 

ORDER OF DISMISSAL 

Before: Judge Merlin 

In this case, the notice of contest card was signed by 

the operator and mailed to MSHA on March 14, 1983. On July 25, 

1983, the Secretary of Labor mailed a motion for leave to 

file late petition and a petition for assessment of civil 

penalty. On August 4, 1983, the oper~tor mailed a motion 

for dismissal on the basis of untimely filing of the petition. 

A civil penalty petition should be filed within 45 days 

of receipt of a timely notice of contest of a penalty. 29 

C.F.R. § 2700.27(a). The Commission has held that the late 

filing of a petition will be accepted where the Secretary 

demonstrates adequate cause and where there is no showing of 

prejudice to the operator. Salt Lake County Road Department, 

3 FMSHRC 1714 (July 28, 1981) In his motion for leave to 

file late petition, the Secretary states: "The assessments 

information and all administrative records pertaining to the 

case were forwarded to the Solicitor's Office by Assessments. 

However, the file was misplaced inadvertently and the civil 

penalty petition was not filed in a timely manner." 

The Secretary took over four months to file a petition 

which should have been filed within 45 days. The only 

preferred excuse in this case is that the file was misplaced. 

This bare assertion does not constitute adequate cause. The 

question of whether the operator was prejudiced by the delay 

does not arise here because there is no showing of adequate 

cause. A dismissal here is unfortunate for the enforcement 

of the Act but I see no alternative. Hopefully, the Solicitor 

will exercise greater care in the future. 

174{ 
Accordingly, the operator's motion is Granted and this 

case is DISMISSED. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Catherine O. Murphy, Esq., Office of the Solicitor, U.S. 

Department of Labor, Rm. 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Mr. James L. Custer, Manager, Safety and Health, Solar Fuel 

Company, P. 0. Box 488, Somerset, PA 15501 (Certified 

Mail) 

/ln 

174B 
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 

October 6, 1983 

DISCRIMINATION PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

on behalf of 

. . Docket No. KENT 83-38-D 

SHELBY EPERSON, Jolene No. 1 Mine · Complainant 

v. 

JOLENE I INC. I 

Respondent 

CORRECTIVE ORDER 

Pursuant to Commission Rule 65(c), 29 CFR § 2700.65(c), 

the decision in this case issued September 30, 1983, is 

hereby corrected as follows: 

1. Page 4, paragraph 3, line 1: 

The word "February" is hereby corrected to read 

"September". 

2. Page 7, paragraph 1, line 4: 

The date "September 6, 1983" is hereby corrected 

to read "September 6, 1982". 

3. Page 7, paragraph 2, line 1 

The date, "May 28, 983 11 · 

to read "May 18, 19 

Gary Melick 

Assistant Chief 

Distribution (by certified mail) : 

Bernard Pafunda, Esq., Deskins a 

Street, P.O. Box 799, Pikeville, 

Pafunda, 105 1/2 Division 

y 41501 

Darryl A. Stewart, Esq., Office of the Solicitor, U.S. 

Department of Labor, 280 U.S. Courthouse, 801 Broadway, 

Nashville, TN 37203 

Thomas Mascolino, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 

nsw 

1749 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 OCT 6 l983 

MONTEREY 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. 

MONTEREY COAL COMPANY, 

Respondent 

Contest of Citation 

Docket No: LAKE 80-413-R 

Citation No. 775259; 9/11/80 

Monterey No. 1 Mine 

Civil Penalty Proceeding 

Docket No: LAKE 81-59 

A/O No: 11-00726-03060 

No. 1 Mine 

DECISION 

Before: Judge Moore 

The above cases have been remanded to me for the 

purpose of assessing a penalty. Inasmuch as the Commission 

has already affirmed the citation, only Docket No: LAKE 81-59 

is actually befor~ me. 

The parties have stipulated as to Monterey's size, history 

of violation, negligence, good faith and gravity. As to 

gravity, it is interesting to note that despite the government appellate counsel's representations· to the Commission 

as to the safety concerns of MSHA, the assessment off ice assessed· 

only $100 with no points for gravity. In my opinion a penalty 

of $50 is appropriate. 

Monterey is accordingly 

days, a civil penalty in the 

ORDERED to pay MSHA, within 30 

amount of $50. 

~ (l. ?;? C?tW/ a,, 

Charles C. Moore, Jr., 

Administra.tive Law Judge 

1750 
Timothy M. Biddle, Esq., Thomas c. Means, Esq., Crowell & 

Moring, 1100 Connecticut Avenue, NW., Washington, D.C. 20036 

(Certified Mail) 

Edward H. Fitch, Esq., Office of the $olicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Harrison Combs, Esq., United Mine Workers of America, 900 

15th Street, NW., Washington, D.C. 20005 (Certified Mail) 

1751 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCl 6 \983 

SECRETARY OF LABOR~ CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PENN 82-299 

A.C. No. 36-00970-03502 

v. 

Maple Creek No. 1 Mine 

U.S. STEEL MINING COMPANY, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Thomas A. Brown, Esq., and Matthew J. Rieder, Esq., 

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

Philadelphia, Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, 

for Respondent. · 

Judge Broderick 

STATEMENT OF THE CASE 

This proceeding involves six alleged violations of mandatory 

safety standards. Each of the citations alleging the violations 

was denominated significant and substantial. Pursuant to notice, 

the case was heard in Uniontown, Pennsylvania, on June 22, 1983. 

William R. Brown, James L. Potiseck, and Alvin R. Shade testified 

for Petitioner; Dan Basile, John Pacsko, Walter J. Franczyk, and 

Joseph Ritz testified for Respondent. Petitioner made a motion 

on the record to withdraw Citation No. 1250103 after testimony 

was taken concerning it. I ordered the citation vacated and will 

dismiss the penalty petition with respect to that citation. 

Petitioner also moved to vacate Citation No. 1250106 because of 

insuff icierit evidence to establish the violation charged. I 

ordered the citation vacated and will dismiss the penalty petition 

with respect to that citation. Each party has filed a posthearing 

brief. Based on the entire record and considering the contentions 

of the parties, I make the following decision. 

1752 
FINDINGS AND CONCLUSIONS COMMON TO ALL VIOLATIONS 

1. Respondent is the owner and operator of an underground 

coal mine in Washington County, Pennsylvania, known as the Maple 

Creek No. 1 Mine. 

2. Respondent is subject to the provisions of the Federal 

Mine Safety and Health Act of 1977 in its operation of the subject 

mine, and I have jurisdiction over the parties and subject matter 

of this proceeding. 

3. The subject mine produces 541,835 tons of coal annually. 

Respondent produces 15,000,000 tons of coal annually. Respondent 

is a large operator. 

4. The assessment of civil penalties in this proceeding will 

not affect Respondent's ability to continue in business. 

5. In the 24-month period prior to the issuance of the citations involved herein, Respondent had a total of 673 assessed violations. Of these, 11 were violations of 30 C.F.R. § 75.515, 

5 of 75.1003, 3 of 75.302 and 13 of 75.516. This history is not 

such that penalties otherwise appropriate should be increased 

because of it. 

6. In the case of each citation involved herein, the violation 

was abated promptly and in good faith. 

7. The subject mine is classified as a gassy mine. It 

liberates more than one million cubic feet of methane in a 24-hour 

period. 

8. Whether a cited violation is properly labelled as a 

significant and substantial violation is per se irrelevant to a 

determination of the appropriate penalty to be-assessed. The 

penalties hereinafter assessed are based on the criteria in 

section llO(i) of the Act. 

CITATION NO. 1250104 

This citation,-charging a violation of 30 C.F.R. § 75.511, was 

issued when the inspector observed a shuttle car operator changing 

a light bulb on his shuttle car. The citation alleges that the 

shuttle car operator was not qualified to perform electrical work 

and that he failed to lock out and tag the disconnecting device 

when performing the work. Changing the bulb required the removal 

of the lens and the insertion of the bulb having two prongs into a 

socket having two holes. This seems to be a rather elementary task, 

~ut it clearly is electrical work. The inspector (and apparently 

1~15J 
the shuttle car operator) interpret the term "qualified person" 

to mean one who has had electrical training and has obtained his 

"electrical papers." This interpretation was not rebutted by 

Respondent's witnesses. It is clear that the disconnecting device 

was not locked out and tagged. The power switch on the shuttle 

car was turned off however. No bare wires were exposed when the 

lens was removed. The system carries 32 volts, AC. I conclude 

that a violation was shown. I further conclude, however, that an 

injury was not likely to occur, and that a serious injury was 

extremely unlikely. Following the test in the National Gypsum 

decision, I conclude that the violation was not significant and 

substantial. The violation was not serious. There is no evidence 

that Respondent was aware of the violation as it occurred, or that 

it was deficient in its training program. Therefore, the violation 

was not the result of negligence. I conclude that an appropriate 

penalty for this violation is $30. 

CITATION NO. 1205105 

This citation, charging a violation of 30 C.F.R. § 75.1003, 

was issued because a mantrip stopped and discharged miners at an 

area beyond the station where the trolley bar and wire were not 

guarded. The trolley wire was about 6-1/2 feet above the floor. 

The standard requires that trolley wires be guarded at man-trip 

stations. The inspector stated that the mantrip went approximately 

100 feet past the regular station before stopping. Respondent's 

assistant mine foreman testified that it did not go beyond the 

station, but did admit that the mantrip may have gone "a foot or 

two, the length of the portal bus" beyond the station, but "I 

don't think the operator himself went beyond the unguarded 

portion." (Tr. 92). I accept the testimony of the inspector that 

the mantrip stopped beyond the regular mantrip station to discharge 

miners. I conclude that the standard is intended to prohibit such 

an occurrence. The hazard posed by this violation is that the 

trolley operator was likely to contact the energized uninsulated 

trolley wire. The operator had to stand to "dog" the pole, and the 

wire was head high. The violation was reasonably likely to result 

in a serious injury. Therefore, the viola~ion was significant and 

substantial. It was a serious violation. ·The evidence does not 

show that the violation was the result of Respondent's negligence. 

I conclude that an appropriate penalty for the violation is $150. 

CITATION NO. 1249389 

This citation, charging a violation of 30 C.F.R. § 75.302-l(a), 

was issued because Respondent mined a full cut of coal - 15 feet -

without extending the line curtain. The standard requires that 

line brattice be installed at a distance of no greater than 10 feet 

from the area of deepest penetration. Respondent was conducting 

retreat mining at the time. The methane monitor on the continuous 

miner was working properly as were the water sprays. The area was 

well rockdusted. The inspector found 6,200 cubic feet of air at 

the face, 1,200 more than the minimum required by the ventilation 

plan. 

1754 
The failure to advance the line curtain to within 10 feet of 

the face causes inadequate face ventilation. In the event of a 

methane liberation, an ignition and mine explosion could occur. 

In a gassy mine, such an event is reasonably likely. The violation was significant and substantial. The inspector testified 

that the mining machine operator told him that it was Respondent's 

practice when the last cut was involved to go 12 feet inby the 

curtain. The assistant mine foreman testified that the machine 

operator told him that he misjudged the position of the curtain. 

I conclude that moderate negligence was involved. I conclude that 

$250 is an appropriate penalty for this violation. 

CITATION NO. 1249546 

This citation, charging a violation of 30 C.F.R. § 75.516, 

was issued because an energized power wire was hung on a wire nail 

affixed to a wooden post. The wire was insulated. There was no 

tension on the wire, and the insulation did not appear to be 

damaged. The wire carried 560 to 600 volts of direct current. The 

inspector stated that vibrations could damage the insulation and 

bare the wire, which could cause a short circuit. I find, however, 

that there was little or no tension on the wire and that damage to 

the insulation where the wire rested on the nail was unlikely. I 

conclude that there was a violation, but it was not significant and 

substantial. The inspector had cited Respondent for similar conditions previously. Therefore, I conclude that the violation, while 

not serious, was the result of Respondent's negligence. An appropriate penalty for this violation is $75. 

ORDER 

Based upon the above findings of fact and conclusions of law, 

IT IS ORDERED 

1. Citation Nos. 1250103 and 1250106 are VACATED, and the 

penalty petition is DISMISSED with respect to such citations. 

2. Citation Nos. 1250104 and 1249546 ·are AFFIRMED but the 

violations were not significant and substantial. 

3. Citation Nos. 1205105 and 1249389 are AFFIRMED as issued 

and the violations were significant and substantial. 

4. Respondent shall, within 30 days of the date of this 

decision, pay the following civil penalties for the violations 

found herein to have occurred: 

1755 
Distribution: 

Citation 

1250104 

1250105 

1249389 

1249546 

Total 

Penalty 

$ 30 

150 

250 

75 

$505 

. /) ,; j {J./vu..e& A-1:) 111 ,:£: n~(:t?/(_ James A. Broderick 

Administrative Law Judge 

Thomas A. Brown, Esq., Office of the Solicitor, U.S. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

Matthew J. Rieder, Esq., Office of the Solicitor, U.S. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

Louise Q. Symons, Esq., 600 Grant Street, Room 1580, Pittsburgh, 

PA 15230 (Certified Mail) 

/fb 1756 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 6 1983 

UNITED MINE WORKERS OF AMERICA 

ON BEHALF OF LOUIS MAHOLIC, 

Complainant 

DISCRIMINATION COMPLAINT 

v. 

ANDY ONFICER AND BCNR MINING 

CORPORATION, 

Respondent 

Docket No. PENN 83-112-D 

Russellton Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Koutras 

Statement of the Case 

This case involves a discrimination complaint filed on 

March 9, 1983 by the complainant against the respondents 

pursuant to section 105(c) of the Federal Mine Safety and 

Health Act of 1977. The respondents contested the allegations, 

and the matter was scheduled for a hearing in Washington, 

Pennsylvania, Wednesday, August 24, 1983 at 9:30 a.m. However, on the representations by complainant's counsel on 

August 22, 1983, that the parties had reached a settlement of 

the dispute, the hearing was cancelled and continued. The 

UMWA now files a motion to approve the settlement. 

The complainant, president of Local Union 3506; avers that 

he was a representative of the miners for purposes of section 

103(f) of the Act, and he alleges that he was suspended by 

the respondent for insisting on being permitted to exercise 

his walkaround rights during a MSHA inspection on September 24, 

1982. Although he was later allowed to return to work, he 

further .alleges that he was threatened with suspension if 

he refused to work at any later date. He further states 

that a complaint was filed with MSHA on November 1, 1983, and 

that by letter dated February 7, 1983, MSHA informed him 

that on the basis of their investigation, no violation of 

the anti-discrimination provisions of section 105(c) had 

occurred. 

1757 
Discussion 

In seeking dismissal of this complaint, the UMWA states 

Mr. Maholic has informed them that all references to the 

events of September 24, 1982, which triggered the filing of 

this case have been removed from his personnel file. In 

addition, the UMNA has submitted a copy of a draft letter 

from mine management to Mr. Maholic informing him of this 

action, as well as the assurance by mine management that it 

intends to provide authorized miners' representatives with 

the opportunity to accompany the Secretary or his authorized 

representative during physical inspections of the mine. 

Conclusion and Order 

It would appear to me that this dispute has now been 

resolved to the mutual satisfaction of the parties. Accordingly, 

the U~1WA' s motion to approve the settlement IS GRANTED, and 

IT IS ORDERED that this case be DISMISSED. 

~-,U~ Administrative Law Judge 

Distribution: 

Mary Lu Jordan, Esq., UMWA, 900 15th St., NW, Washington, DC 

20005 (Certified Mail) 

B. K. Taoras, Esq., Kitt Energy Corp., 455 Race Track Rd., 

P.O. Box 500, Meadow Lands, PA 15347 (Certified Mail) 

/slk / 

1758 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 OCT 6 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

GLEN IRVAN CORPORATION, 

Respondent 

DECISIONS 

Docket No. PENN 83-86 

A.C. No. 36-04596-03503 

Bark Camp Strip 

Docket No. PENN 83-87 

A.C. No. 36-02391-03507 

Bark Camp No. 1 

Appearances: David Bush, Office of the Solicitor, U.S. 

Department of Labor, Philidelphia, Pennsylvania·, 

for Petitioner; 

Robert M. Hanak, Esq., Reynoldsville, Pennsylvania, 

for Respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of 

civil penalties filed by the petitioner 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 14 alleged violations of certain mandatory safety standards 

found in Parts 50, 75, and 77, Title 30~ Code of Federal Regulations. Respondent filed timely answers ·and the cases were 

heard in Pittsburgh, Pennsylvania on July 27, 1983, along with 

two other cases involving these same parties which were heard 

that day. 

Issues 

The principal issue 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, and, if so, (2) the appropriate 

civil penalty that should be assessed against the respondent 

1759 
for the alleged violations based upon the criteria set forth 

in section llO(i) of the Act. Additional issues raised are 

identified and disposed of where appropriate in the course of 

this decision. 

In determining the amount of a civil penalty assessment, 

section llO(i) of the Act requires consideration of the following 

criteria: (1) the operator's history of previous violations, 

(2) the appropriateness of such penalty to the size of the 

business of the operator, (3) whether the operator was negligent, 

(4) the effect on the operator's ability to continue in 

business, (5) the gravity of the violation, and (6) the demonstrated good faith of the operator in attempting to achieve 

rapid compliance after notification of the violation. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 

Pub. L. 95-164, 30 U.S.C. § 801 et seq. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. CoITu~ission Rules, 29 C.F.R. § 2700.1 et seq. 

Stipulations 

The parties stipulated that the respondent is subject 

to the Act, that I have jurisdiction to hear and decide the 

cases, that the respondent has a good history of prior citations, 

and that it is a small operator (Tr. 5; 134-137). 

Discussion 

During a colloquy on the record with counsel for the 

parties in these proceedings, it was made clear to counsel 

that the Secretary's Part 100 Civil Penalty Assessment 

regulations are not binding on the Commission or its Judges. 

It is also clear to me that under the Act all civil penalty 

proceedings docketed with the Commission: and its Judges are 

de novo and that any penalty assessment to be levied by the 

Judge is a de novo determination based upon the six statutory 

criteria found~section llO(i) of the Act, and the evidence. 

and information placed before him during the adjudication of 

the case. Sellersburg Stone Company, 5 FMSHRC 287, March 1983. 

The fact that the petitioner may have determined that 

some of the violations in issue in these proceedings are not 

''significant and substantial", and therefore qualify for the 

so-called "single penalty" assessment of $20 pursuant to 

section 100.4, and are not to be considered by the petitioner 

as part of the respondent's history of prior violations pursuant 

·1760 
to section 100.3(c), is not controlling or even relevant in 

these proceedings. Regardless of the Secretary's regulations, 

once Commission jurisdiction attaches, I am bound to follow 

and apply the clear mandate of section llO(i) in determining 

the civil penalty to be assessed for a proven violation after 

due consideration of all of the criteria enumerated therein. 

The fact that Congress chose to include language in section 

llO(i) which arguably authorizes the Secretary not to make 

findings on the penalty criteria clearly is inapplicable to 

the Commission. 

Section llO(i) of the Act requires Commission consideration 

of all six penalty criteria, and the fact that the Secretary 

chooses to ignore $20 citations as part of a mine operator's 

compliance record is not controlling when the case is before 

a Commission Judge. Accordingly, for civil penalty assessment 

purposes, I will take into consideration all previously paid 

citations by the respondent, including any "single penalty" 

$20 citations which have been paid. 

In the course of the hearings in these cases, the parties 

advised me that they agreed to a proposed settlement for all 

of the citations which were originally disputed. However, with 

respect to one of the citations in PENN 83-66, No. 2000776, 

December 7, 1982, citing a violation of mandatory standard 

77.1710(i), the parties advised that the alleged fact of 

violation is in dispute and testimony from the inspector who 

issued the citation and the respondent's safety director was 

offered for the record. 

With regard to Docket PENN 83-87, the parties presented 

their arguments in support of the proposed settlement on the 

record (Tr. 88-108), including information concerning the six 

statutory criteria found in section 110(1). After consideration 

of the arguments presented in support of the proposed settlement, 

and pursuant to Commission Rule 30, 29 CFR 2700.30, the settlement 

was approved, and the citations, initial assessments-, and the 

settlement a~ounts are as follows: 

Citation No. Date 

2016781 11/15/82 

2016783 11/15/82 

2016784 11/15/82 

2016785 11/16/82 

2016787 11/17/82 

2016789 11/18/82 

2016791 11/19/82 

30 CFR Section 

75.1702 

75.200 

75.503 

75.517 

75.1100-3 

75.517 

75.326 

1761 

Assessment 

$ 20 

46 

20 

79 

20 

112 

20 

$ 317 

Settlement 

$ 20 

46 

20 

79 

20 

90 

20 

$ 295 
In Docket No. PENN 83-86, the parties proposed a reduction 

of $20 in the penalty assessed for Citation No. 2000774. 

However, after considering the circumstances concerning this 

violation, the proposed settlement reduction was rejected and I 

approved payment for the.full amount of the $58 penalty 

assessment (Tr. 75-84; 86). 

With regard to Citation Nos. 2000773, 2000696, 2000775, 

2000777, and 2000778, after consideration of the arguments 

presented by the parties in support of their settlement proposals, 

including information concerning the six statutory criteria 

found in section llO(i), I approved the proposed settlements 

requiring the respondent to pay the full amount of the proposed 

civil penalty assessments (Tr. 41-57-)-.~The MSHA inspector 

who issued the citations and the respondent's safety director 

were both present in the courtroom and were in agreement with 

the disposition made of these citations. The citations, 

initial assessments, and the approved settlement amounts are 

as follows: 

Citation No. Date 30 CFR Section Assessment Settlement 

2000773 12/2/82 77.409(a) $ 20 $ 20 

2000774 12/2/82 77.1710(i) 58 58 

2000696 12/3/82 - . 50.30 20 20 

2000775 12/7/82 77.410 20 20 

2000777 12/7/82 77.1605(a) 20 20 

2000778 12/10/82 77.208(d) 20 20 

$ 158 $ 158 

With regard to citation no. 2000776 charging a violation 

of mandatory safety standard 77.1710(i), there is a dispute 

as to whether or not the facts and circumstances support a 

violation of the cited standard. The condition or practice is 

described by the inspector is as follows: 

A functional set of seat belts were not 

provided for the Caterpiller model D9H bulldozer 

SN 90 V 5229 on which roll-over protection was 

provided. The seat belts were not functional 

in that the right seat belt was not provided. 

The dozer was operating in pit 008 on terrain 

where a danger of overturning existed. The 

bulldozer was operating under the supervision 

of Orland Gray. (Emphasis added). 

Section 77.1710(i) provides in pertinent part as follows: 

Each employee working in a surf ace coal mine 

or in the surf ace work areas of an underground 

coal mine shall be required to wear protective 

clothing and devices as indicated below: 

1762 
* * * * 

(i) Seatbelts in a vehicle where there is 

a danger of overturning and where roll 

protection is provided. 

MSHA Inspector John Brighenti confirmed that he issued the 

citation in question and he explained that at 9:30 a.m. 

when he inspected the cited bulldozer he told the operator, 

Merle Stewart that he wished to check the seat belts. The 

left part of the belt was visible, but he could not see the 

right part which contained the buckle. After Mr. Stewart 

advised him that the buckle end of the belt which was not 

visible was probably wedged under the seat, he and Mr. Stewart 

pulled up the seat, and while they both observed the remaining 

portion of the left side of the belt, they could not find 

the buckle end and Mr. Stewart exclaimed that "it is not here" 

(Tr. 59-60). Mr. Brighenti then advised foreman Orland Gray 

that he was going to issue a citation because he could not 

see or find the missing end of the seat belt. At approximately 

10:55 a.m., Mr. Gray shut the bulldozer down, and he and 

.Mr. Stewart proceeded to work on the seat belts. Later, at 

11:30 a.m., Mr. Gray approached Mr. Brighenti and advised 

him that "That's not a violation because the right strap 

was in there also" (Tr. 61). Mr. Brighenti advised Mi. Gray 

that since he couldn't find the missing portion of the belt 

when he first inspected and observed the bulldozer, as far 

as he was concerned the belt was not "provided" as required 

by section 77.1710(i), and that the violation would stand 

(Tr. 59-61) • 

In explaining why he refused to change his mind after 

Mr. Gray had advised him that the missing portion of the belt 

was finally discovered, Mr. Brighenti stated that it was 

probably wedged down under the seat between the final machine 

drives and the vehicle frame. Since he and Mr. Stewart could 

not see or find it after the seat was raised, and since it 

obviously took .Mr. Gray and Mr. Stewart ~pproximately 35 minutes 

to locate it, Mr. Brighenti was of the view that it was not 

"provided", was not functional, and was not available to the 

driver who should have been wearing it (Tr. 62-64). The bulldozer 

was provided with rollover protection. 

Respondent's defense is that the seat belt portion which 

was not visible to the inspector was in fact "provided" and 

on the cited bulldozer, albeit it was discovered wedged 

under the seat after the foreman and the operator made a search 

for it (Tr. 65). Since the inspector accepted the foreman's 

word that the missing portion of the belt was later discovered, 

and since there is no contention or evidence that the respondent 

1763 
here installed a new seat belt to achieve abatement, .respondent 

takes the position that the belt was provided and that it 

complied with the cited section (Tr. 68). Respondent presented 

no testimony on the violation. , 

Findings and Conclusions 

Respondent's defense to Citation No. 2000776 IS REJECTED. 

On the facts of this case I conclude that the inspector acted 

reasonably in the circumstances. Since he and the driver 

could not find the buckle end of the seat belt after lifting 

the seat and looking for it, the inspector simply concluded 

that it was missing and issued the citation. Section 77.1710(i) 

requires the driver to wear the belt while he is operating the 

bulldozer, and since the driver couldn't locate one end of 

it after the vehicle was stopped for inspection it seems obvious 

to me that he was not buckled into the belt while the vehicle 

was being operated. Accordingly, the citation IS AFFIRMED. 

The lack of a totally functional seat belt at the time 

the citation issued presented a reasonably serious situation 

which could have been avoided by the exercise of reasonable 

care on the part of the driver or a supervisor who should 

have checked the equipment out before placing it in operation. 

Accordingly, I conclude that the violation was serious and 

that it resulted from ordinary negligence. I also conclude 

that the respondent demonstrated good faith compliance and 

that the payment of a civil penalty in the amount of $58 as 

proposed by the petitioner will have no adverse impact on the 

respondent's ability to continue in business. 

ORDER 

Respondent IS ORDERED to pay civil penalties in the 

settlement amounts shown above in Docket Nos. PENN 83-86 and 

PENN 83-87. Respondent is also ORDERED to pay an additional 

civil penalty in the amount of $58 for Citation No. 2000776 

which I have affirmed in Docket No. PENN 83-86. Payment 

for all of the assessed violations shall.be made to the petitioner 

within thirty (30) days of the date of these decisions, and upon 

receipt of payment, these proceedings are dismissed. 

. ~tit Judge 

Distribution: 

David Bush, ~sq., U.S. Depart. of Labor, Office of the Solicitor, 

3535 Market St., Philadelphia, PA 19104 (Certified Mail) » 

Robert M. Hanak, Esq., 311 Main St., Box 250, Reynoldsville, PA 

15651 (Certified Mail) 

/slk 

1764 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, lO!h FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR. 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

v. 

COAL CARRIERS, INC., 

Respondent 

Before: Judge Moore 

DECISION 

OCT7 18 

Civil Penalty Proceeding 

Docket No: KENT 83-62 

A/O No: 15-10062-03501 

Coal Carriers Mine 

By letter of September 29, 1983 the Solicitor has 

advised that respondent has filed for bankruptcy and is no 

longer interested in contesting the citations and penalties. 

A copy of a letter from respondent's attorney confirms this. 

This is not a settlement. It is more like a default in 

that respondent has announced, in effect, that it would not 

show up at a hearing. I am therefore· treating the case as I 

would an actual default, but without the issuance of a useless show cause order. 

The citations are 

pay to MSHA, within 30 

Distribution: 

affirmed and respondent is ordered to 

days, a o;:;;;ltc.f ;;;~ ~. 

Charles c. Moore, Jr., 

Administrative Law Judge 

Carole M. Fernandez, Esq., Office of the Solicitor, U.S. 

Department of Labor, 280 U.S. Courthouse, 801 Broadway, 

Nashville, TN 37202 (Certified Mail) 

Mr. Byron B. Terry, Mine Consultants, Inc., P.O. Box 431, 

Beaver Dam, KY 42320 (Certified Mail) 

Mr. William Nestor, Vice President & General Manager, Coal 

Carriers, Inc., P.O. Box 956, Bowling Green, KY 

/db 1765 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 OCT 7 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PRICE RIVER COAL COMPANY, 

formerly BRAZTAH CORPORATION, 

Respondent 

DECISION 

. . 

. . Docket No. WEST 80-83 

A.C. No. 42-01202-03021 V 

Docket No. WEST 80-135 

A.C. No. 42-01202-03024 

Price River No. 5 Mine 

(formerly Braztah No. 5 Mine) 

Appearances: Phyllis K. Caldwell, Esq., Office of the Solicitor 

U.S. Department of Labor, Denver, Colorado, 

Before: 

for Petitioner: 

Stanley v. Litizzette, Esq., Price River Coal 

Company formerly Braztah Corporation, 

Helper, Utah, 

for Respondent. 

Judge Vail 

Statement of the Cases 

These cases are before me upon petition for assessment of civil 

penalties by the Secretary of Labor pursuant to section llO(a) of 

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

~· (the "Act"). In Docket No. WEST 80-83, captioned above, -

respondent (Price River Coal Company, formerly Braztah Corporation) 

is charged with violation of safety standard 30 C.F.R. § 75.400 in 

citation No. 789581. The citation alleged that the violation at 

respondent's Price River Coal Co. No. 5 Mine (formerly Braztah No. 5 

Mine) was of such a nature as could significantly and substantially 

contribute to the cause and effect of a mine safety hazard and that 

there was an unwarrantable failure on the part of respondent 

justifying action pursuant to section 104(d)(l) of the Act. Within 

90 days of the issuance of that citation, respondent was charged 

with an unwarrantable failure to comply with 30 C.F.R. § 75.200 in 

withdrawal order No. 789596, also issued pursuant to section 

104(d)(l) of the Act. 

In Docket No. WEST 80-135, captioned above, respondent was 

charged in citation No. 789961 with a safety violation pursuant to 

section 104(a) of the Act and 30 C.F.R. 75.1403. 

176G 
Upon agreement by the parties, the cases were consolidated for 

hearing and decision. Following notice to the parties, a hearing on 

the merits was held in Salt Lake City, Utah. No jurisdictional 

issues were raised. Both parties filed post-hearing briefs. 

Issues 

1) Did respondent violate safety standard 75.400, and if so, is 

a review of special findings related to the citation appropriate? 

If the alleged violation occurred, what civil penalty should be 

assessed? 

2) Was respondent properly charged with a violation of safety 

standard 75.200 in a withdrawal order, and if so, may the special 

findings issued in conjunction with the charged violation also be 

reviewed? If the alleged violation occurred, what civil penalty may 

properly be assessed? 

3) was respondent properly charged with violation of safety 

standard 75.1403, and if so, what civil penalty should be assessed? 

Additional issues raised during the proceeding are identified 

and disposed of where appropriate in the course of this decision. 

STIPULATIONS 

At the outset of the hearing, the parties stipulated to several 

facts relevant to the assessment of penalties. It was agreed that: 

(1) respondent's Price River No. 5 mine is a large operation; (2) the 

total number of assessed violations for the mine in the 24 months 

prior to May 14, 1979 was 223; and (3) ·payment of penalties would not 

impair respondent's ability to continue in business. 

DOCKET NO. WEST 80-83 

Citation No. 789581 

on May 14, 1979, MSHA inspector Donald B. Hanna conducted an 

inspection of respondent's Price River Coal Co. No. 5 Mine (formerly 

Braztah No. 5 Mine). During the inspection, Hanna issued citation 
No. 789581, pursuant to section 104(d)(l) of the Act. 1; 

Respondent was charged with an unwarrantable failure to comply with 

safety standard 30 C.F.R. § 75.400, which provides as follows: 

Coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on electric equipment 

therein. 

The citation also alleges that the violation was "significant 

and substantial." 

Hanna stated in the citation that combustible materials had been 

allowed to accumulate in the mine's 6th West working section along 

the No. 1 belt. Float coal dust was deposited on rock-dusted 

surfaces along the operating belt conveyor which was transporting 

coal. The float coal dust ranged in color from gray to black, 

affected an area 20 feet wide in the entry and up to 40 feet wide at 

the crosscut intersections, and extended a distance of approximately 

400 feet from the belt tail-piece outby five crosscuts. In addition, 

combustible materials, loose wood, pieces of brattice, fine dry coal 

dust and loose coal cuttings had been allowed to accumulate along 

both sides of the belt conveyor. The coal dust and loose coal was 

approximately one inch deep in the entry, and at a depth ranging from 

approximately two to twelve inches in the area of one side of the 

five crosscuts. The No. 1 belt entry had been reported dark and in 

need of rock dusting prior to the day shift in the mine's pre-shift 

examination book. The report had been signed by the mine foreman. 

1/ Section 104(d)(l) of the Act provides in pertinent part as 

follows: 

If, upon any inspection of a coal or other mine, an authorized 

representative of the Secretary finds that there has been a violation 

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

that, while the conditions created by such violation do not cause 

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

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

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

with such mandatory health or safety standards, he shall include such 

finding in any citation given to the operator under this Act. 

1768 
No action to abate the condition was detected by the inspector at the 

time he issued the citation (Exhibit P-1). 

Hanna repeated such observations during the hearing (Tr. 188, 

190-196). In addition, he testified that at the time of his 

inspection he noted that loose coal had accumulated between the 

belt's tail-piece roller and a safety guard. He observed that the 

coal was being ground by the operating belt into coal dust and float 

coal dust, was then carried by air currents and deposited at an 

"overcast" at the 5th crosscut (Tr. 188, 194). 

The time for abatement of the conditions was set for 4:00 p.m. 

on May 14, 1979. The abatement period was subsequently extended 

until 11:00 p.m. due to the extent of accumulations and abatement 

work required. When Hanna returned to the area at 9:05 a.m. on May 

15, 1979, the abatement work was approved: the combustible materials 

had been removed, and the area had been dusted with 200 pounds of 

rock dust (Tr. 184, 199-200, 207, 208. Exhibit P-1). Hanna estimated 

that it took crews of at least six men working during the day and 

night shift between ten and fifteen hours to abate the condition. 

On December 10, 1979, the Secretary filed a petition for the 

assessment of a civil penalty against respondent predicated on the 

issuance of the citation charging violation of safety standard 

75.200. The Secretary proposed a penalty of $1,000.00. Respondent 

duly contested the proposed assessment of penalty. 

Respondent failed to rebut Hanna's findings. In fact, John 

Tatton, respondent's safety inspector who accompanied Hanna on his 

underground inspection of the coal mine, admitted during the hearing 

that fine dry coal dust (varying in color from gray to black), loose 

coal cuttings, wood, and pieces of brattice had accumulated at spot 

locations in the cited area (Tr. 167-169). 

since Hanna's findings were not rebutted by respondent but 

instead were actually corroborated in part by respondent's own 

witness, I accept as fact the evidence and testimony presented by the 

petitioner. I therefore find that respondent allowed combustible 

materials to accumulate in the mine's 6th West working section along 

the No. 1 belt and that such accumulations constituted a violation of 

safety standard 75.400. 

I shall next address issues raised by the parties involving the 

special findings that such a violation was "significant and substantial," and represented respondent's "unwarrantable failure" to 

comply with a mandatory safety standard. such findings are necessary 

in order to support Hanna's issuance of a citation pursuant to 

section 104(d)(l) of the Act. Petitioner contends that the 

accumulation of combustible materials constituted a "significant and 

substantial" violation. Hanna testified that an explosion of float 

coal dust in the area of the 6th West working section along the No. 1 

1769 
'belt was possible if sufficient ignition charge existed. Hanna 

further stated that potential ignition sources included electrical 

components and cables, and frictional heat being generated by coal 

being ground at the tail-piece of the No. 1 belt (Tr. 189, 211, 217}. 

He believed that the possibility of fire and explosion posed a threat 

of serious and fatal injury to miners (Tr. 180}. 

Respondent denies that the accumulations of combustible 

materials represented a "significant and substantial" violation. 

Respondent in its post-hearing brief suggests that the condition was 

not signifi~ant because the "inspector admitted that the condition 

did not require shutting the production down and that it 'wasn't that 

bad' ••• p. 241." Upon reviewing the transcript, I find that Hanna 

did not make such a statement. Instead, Hanna testified that 

although the condition was not an imminent danger, the float coal 

dust represented a serious violation having significant and 

substantial possibility of ignition (Tr. 109, 110}. 

The finding of whether a violation is "significant and · 

substantial" depends on whether there existed a reasonable likelihood 

that the hazard contributed to or would have resulted in an injury of 

a reasonably serious nature. Cement Division, National Gypsum 

Company, 3 FMSHRC 822 (April 198l}(ALJ}. The test involves two 

considerations: the probability of resulting injury and the 

seriousness of the resulting injury. Upon analysis of the testimony 

at the hearing and the facts surrounding the violation, I am 

convinced that at the time the citation involved here was issued 

there was a reasonable likelihood that the hazard of float coal dust 

ignition would have resulted in serious or fatal injury to miners in 

the area of the 6th West working section. Respondent's seeming 

confusion between a finding of "significant and substantial" 

violation and "imminent danger" does not disturb such a finding. 

Imminent danger is define~ in the Act as "the existence of any 

condition or practice in a coal or other mine which could reasonably 

be expected to cause death or serious physical harm before such 

condition or practice can be abated," 30 u.s.c. § 802(j}, emphasis 

added. For a hazard to be termed significant and substantial, no 

determination need be made that an accident may reasonably be 

expected to occur before the condition can be abated. 

Accordingly, I conclude that the violation of standard 75.400 

was "significant and substantial." A determination must next be made 

of the issues related to Hanna's finding that the violation was the 

result of respondent's "unwarrantable failure" to comply with the 

mandatory safety regulation. 

The standard by which an "unwarrantable failure" is determined 

was established in Zeigler Coal Company, 7 IBMA 280 (1977}. That· 

1770 
se stated that a violation is the result of an unwarranted failure 

if the violative condition is one which the operator knew or should 

have known existed, or which the operator failed to correct through 

indifference ~r lack of reasonable care. In support of the issuance 

of a 104(d}(l} citation charging "unwarrantable failure," Hanna 

testified to his belief that the combustible materials had accumulated over more than one shift (Tr. 209}, and that an agent of the 

respondent (the mine foreman, Marinos} knew of the violative 

condition due to reports made in the mine's pre-shift book by the 

fire boss. Hanna testified that the violative condition along the 

No. 1 belt had been reported in the pre-shift book by the fire boss 

on the day of the inspection, and on numerous times over the period 

of a month (Tr. 1B6}, 206-207, 212}. 

Despite Hanna's testimony citing "unwarrantable failure," the 

Secretary takes the position that under Windsor Power House Coal 

Company, 2 FMSHRC 1739 (July 1980}(ALJ} the special finding of 

"Unwarrantable failure" is not at issue and need not be proved in a 

penalty proceeding on a 104(d}(l} citation (petitioner's brief at 

4} • 

In arguing against the finding of "unwarrantable failure," the 

respondent charges that the inspector based the finding only on the 

fact that the condition had been reported in the pre-shift book. 

Respondent further states that: 

Under the facts of the case there was no evidence that the 

operator intentionally, knowingly, or recklessly permitted 

accumulations of combustible materials. The mere fact that 

the operator was aware of the condition (emphasis added} is 

not sufficient to constitute an unwarrantable citation. See 

Freeman Coal Mining case ••• (respondent's prief at 2). 

\\. 

In addressing the arguments of the parties, I first reject 

petitioner's claim that a finding of "unwarrantable failure" need not 

be proved in a penalty proceeding involving a citation issued 

pursuant to section 104(d}(l} of the Act. In Windsor Power, supra, 

Judge Melick found that the Act's provisions allow an operator to 

challenge the existence of a violation charged in a citation in a 

civil penalty proceedings. However, he found no authority under the 

Act to consider the special findings of "significant and substantial" 

and "unwarrantable failure" in civil penalty proceedings: failuie to 

timely file a notice of contest to the citation within 30 days after 

its receipt foreclosed the operator from challenging such special 

findings. 2 FMSHRC at 1741. 

1771 
Upon reviewing a more recent Commission decision, I find that 

both the existence of a violation and the special findings charged in 

a citation may properly be reviewed in a civil penalty proceeding. 

In National Gypsum, supra, the Commission found that the validity of 

special findings is in issue in a penalty proceeding. Review of 

special findings charging an operator with "significant and 

substantial" violation and "unwarrantable failure" to comply with 

federal regulation was found by the Commission to be important due to 

the effect of such findings in triggering the possible issuance of 

subsequent withdrawal orders under appropriate provisions of the 

Act. 

In accord with the Commission decision, I therefore reject 

petitioner's contention that the special finding of "unwarrantable 

failure" is not at issue in the present civil penalty proceeding. 

Instead, I find that the charge of respondent's "unwarrantable 

failure" to comply with safety standard 75.400 must be reviewed. 

A finding of unwarrantable failure on respondent's part is 

supported by Hanna's undisputed testimony that combustible material 

had accumulated during more than one shift. Furthermore, the 

evidence shows that the violative condition had been reported at 

least once in the pre-shift book prior to Hanna's inspection (Exhibit 

R-1). Respondent did attempt to rebut Hanna's testimony that he 

observed that the cited condition had been reported in the pre-shift 

book numerous times in the month preceding his inspection. However, 

I find such an attempt to be unsuccessful. Respondent produced three 

non-consecutive pages and reports from the pre-shift book, showing 

two pre-shift reports with no mention of the violative condition 

(Exhibit R-1). However, respondent had not preserved the actual 

pre-shift book. such selective production of evidence is ineffective 

in rebutting Hanna's charge that respondent had notice of the 

violative condition. 

I therefore conclude that respondent knew or should have known 

of the violative condition, and that it failed to correct such a 

condition. Its violation of safety standard 75.400 therefore 

constituted unwarrantable failure to comply with the law. In making 

such a finding, I reject respondent's claim that under Freeman Coal 

Mining Company, 1 MSHC 1209 (December 1974), mere awareness of a 

hazardous condition is not enough to constitute an "unwarrantable 

failure." Respondent misreads the cited case, which provided in 

pertinent part that under the Federal Coal Mine Health and Safety Act 

of 1969: 

The issue of "unwarrantable failure" in an "accumulation" 

case presents the question of whether the operator intentionally or knowingly or recklessly permitted the accumulation of or failed to clean up the particular masses 

of combustible materials ••• It does not concern the 

question of whether the operator was at fault for not being 

1772 
aware generally that the Act proscribes and requires cleanup of "accumulations." 1 MSHC at 1211. 

In summary, both special findings of "significant and substantial" 

and "unwarrantable failure" are affirmed, as is citation No. 789581. 

PENALTY 

As previously noted at the outset of this decision, the parties 

stipulated to the mine's size, history of violations and financial 

status. Further criteria that need to be discussed in determining 

the appropriate civil penalty to be assessed are the respondent's 

negligence, the gravity of the violation, and good faith abatement 

efforts. 

In addressing the issue of negligence, I accept inspector 

Hanna's testimony that the combustible materials had accumulated over 

a period longer than one work shift, and that in fact Hanna observed 

that the violative conditions had been reported numerous times over 

the period of a month in the mines pre-shift book. In view of such 

testimony, I conclude that respondent had adequate notice of a 

hazardous condition and yet failed to correct it. I therefore find 

that respondent's failure to remove combustible materials and 

adequately rock dust in the area of the No. 1 belt amounts to gross 

negligence. 

The evidence in this case shows that the gravity of the 

violation was serious. The accumulations of combustible materials, 

in combination with significant accumulations of float coal dust, 

created a serious hazard of explosion and consequently the threat of 

serious or fatal injury to miners. Safety inspector for the mine, 

John Tatton, testified that in the event of an explosion, the 6th 

west and 4th West crews (each consisting of approximately seven 

people) would be involved, as well as several other mine employees 

having duties in the area (Tr. 178, 179). 

Finally, respondent demonstrated good faith in the abatement of 

the violative conditions. Two crews were assigned to perform 

abatement duties and after continuous work, abatement was completed 

within ten to fifteen hours. 

On balance, I find that the penalty of $1,000.00 as proposed by 

the secretary to be appropriate. 

Withdrawal Order No. 789596 

Inspector Hanna returned to the Price River Coal Co. No. 5 Mine 

on June 14, 1979 (within 90 days of the issuance of citation No. 

789581) to conduct an inspection. At 12:38 a.m., Hanna issued 

withdrawal order No. 789596 pursuant to section 104(d)(l) of the Act, 

alleging that respondent had failed unwarrantably to support the roof 

in the areas of the No. 4 entry and the No. 3 crosscut. section 

1773 
104(d)(l) provides that if during any mine inspection, an MSHA 

inspector finds a violation of any mandatory health or safety 

standard, and further finds that such violation could significantly 

and substantially contribute to a mine hazard and is due to an 

operator's unwarrantable failure to comply with the standard, such 

findings shall be included in a citation issued to the operator. 

Furthermore: If, during the same inspection or any subsequent 

inspection of such mine within 90 days after the issuance of such 

citation, an authorized representative of the Secretary finds another 

violation of any mandatory health or safety standard and finds such 

violation to be also caused by an unwarrantable failure of such 

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

the operator to cause all persons in the area affected by such 

violation, except those persons referred to in subsection (c) to be 

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

an authorized representative of the Secretary determines that such 

violation has been abated. Specifically, Hanna cited respondent.with 

violation of 30 C.F.R. § 75.200 which provides in pertinent part as 

follows: 

The roof and ribs of all active underground roadways, 

travelways, and working places shall be supported or 

otherwise controlled adequately to protect persons from 

falls of the roof or ribs. 

The order also alleges that the violation was "significant and 

substantial." Following abatement of the cited condition, the order 

was terminated on June 14, 1979. 

On December 10, 1979 the Secretary filed a petition for the 

assessment of a civil penalty on the issuance of withdrawal order 

789596 for a violation of 75.200. The Secretary proposed a penalty 

of $1,500.00. Respondent duly contested the proposed assessment of 

penalty. However, respondent did not file a "notice of contest" to 

withd2awal order No. 789596, pursuant to section 105(d) of the 

Act. _/ 

~/ Section 105(d) of the Act provides in pertinent part as follows: 

If, within 30 days of receipt thereof, an operator of a coal 

or other mine notifies the Secretary that he intends to contest 

the issuance or modification of an order issued under section 

104, or citation or a notification of proposed assessment of a 

penalty issued under subsection (a) or (b) of this section, or 

footnote continued 

1774 
The undisputed evidence establishes that the mine's roof control 

plan required that any roof having a width greater than 20 feet be 

supported by timbers (Tr. 271). However, in the mine's No. 4 entry, 

main North working section, no mine posts had been installed for a 

distance of 39 feet although the entry had been driven from a width 

of 20 feet, six inches up to 25 feet wide. In addition, the No. 3 

crosscut between the No. 3 and No. 4 entries had been driven to a 

width of 21 feet, eight inches; and again no mine posts had been 

installed (Exhibit P-4). Hanna made all measurements with a standard 

measuring tape (Tr. 279). The condition had been reported by the 

night shift foreman on June 13, 1979 in the mine's on-shift book 

(Exhibit R-3, Tr. 283). The mine foreman's report noted that the 

"top was working" in the area so that hydraulic jacks could not be 

set (Tr. 283). 

While the area had been adequately roof bolted within four hours 

after the mine foreman's report, no timbering had been performed in 

the twelve hour interim between the time the report was made and that 

of the inspection (Tr. 293, 295, 302, 304). Timbers were available 

for installation, and installed within twenty minutes after issuance 

of the withdrawal order. 

Further unrebutted evidence presented by petitioner at the 

hearing established that respondent's failure to adequately support 

the roof exposed miners to the potential hazard of a roof fall (Tr. 

288). At the time of the inspection, Hanna observed ~igns that the 

pressure in the area was building up. The signs included excessive 

sloughage, roof fracturing, and flooring being pushed up (Tr. 287). 

In addition, Hanna experienced a "bounce" (quick jarring of the ribs 

and roof) while writing the citation (Tr. 286). In the event of an 

accidental roof fall, two miners and an on-shift inspector might have 

been exposed to serious or fatal injury (Tr. 290). 

While respondent failed to rebut the Secretary's charge of 

hazardous roof conditions, it nevertheless urges that the withdrawal 

order be dismissed and that the proposed penalty be disallowed. In 

support thereof, respondent claims that citation No. 789581 was 

invalid. As a consequence, withdrawal order No. 789596 is claimed to 

be invalid also, since the order was triggered by the citation's 

previous issuance pursuant to section 104(d)(l) of the Act. 

Footnote 2 con't 

the reasonableness of the length of abatement time fixed in a 

citation or modification thereof issued under section 104 ••• 

the Secretary shall immediately advise the Commission of such 

notification, and the Commission shall afford an opportunity for 

a hearing (in accordance with section 554 of title 5, United 

States Code, but without regard to subsection (a)(3) of such 

section), and thereafter shall issue an order, based on findings 

of fact, affirming, modifying, or vacating the Secretary's 

citation, order, or proposed penalty, or directing other 

appropriate relief. 

1775 
Lengthy discussion of respondent's contention is unnecessary. I 

have affirmed citation No. 789581 (issued May 14, 1979} and the associated violation and "unwarrantable failure" to comply with a 

mandatory standard. I therefore find that the citation created a 

proper predicate under the Act for issuance of a 104(d}(l} withdrawal 

order. 

I therefore turn next to the legal arguments presented by the 

Secretary. 

Petitioner contends that since this is a penalty proceeding, the 

validity of the withdrawal order is not at issue. The Secretary 

argues that as a consequence, the Administrative Law Judge is limited 

to a determination of (1) the existence of a violation: (2) whether 

the ~iolation of standard 75.200 was "significant and substantial:" 

and (3) an appropriate penalty. The Secretary contends that under 

such case law as Windsor Power House Coal Company, 2 FMSHRC 1739 

(July 1980)(ALJ}, respondent is estopped from contesting the special 

finding of "unwarrantable failure" due to its failure to timely 

contest the withdrawal order (petitioner's brief at 7, 8). 

Commission decisions arising under the old 1969 Act have 

established the precedent that the validity of a withdrawal order is 

not an issue in a penalty proceeding. Pontiki Coal Corporation, 1 

FMSHRC 1476 (October 1979): Wolf Creek Collieries Company, 1 FMSHRC 

(March 1979). However, the existence of a violation itself and 

penalty assessment are still at issue in such a case. Whether the 

validity of special findings that accompany a cited violation may 

also be challenged in a penalty proceeding is not so easily settled. 

To my knowledge, the Commission has not dealt squarely with the right 

of an operator to question special findings in a penalty case. 

Decisions of administrative law judges dealing with the issue are in 

conflict. Both Windsor Power, supra, involving a 104(d)(l) citation, 

and Black Diamond Coal Mining Co., 5 FMSHRC 764 (April 1983)(ALJ), 

involving 104(d)(l) withdrawal orders, have suggested that the 

failure to contest a 104(d)(l) citation or withdrawal order 

accompanied by special findings within 30 days of issuance estops an 

operator from challenging such findings during a civil penalty 

proceeding. However, Administrative Law Judge Carlson held in CF&I 

Steel Corporation, 4 FMSHRC 1777 (September 1982)(ALJ), that an~~ 

operator who fails to contest a withdrawal order issued pursuant to 

section 104(d) of the Act may nevertheless challenge the validity of 

accompanying special findings in a subsequent penalty proceeding 

arising from the same violation. The judge in that case stated that 

"special findings are merely incidents of the violation, not the 

withdrawal order." 4 FMSHRC at 1786. 

I accept such reasoning as a rational extension of the 

Commission decision in National Gypsum, supra, which allowed for 

the review of special findings charged in a citation during a civil 

penalty proceeding. I therefore find CF&I Steel Corporation to be 

1778 
determinative in dealting with the issues at hand. Accordingly, I 

conclude that the present discussion of withdrawal order No. 789596 

must include a ruling on the special findings accompanying the 

104(d)(l) order, as well as a determination of a violation and 

assessment of a civil penalty. 

Turning to the unrebutted evidence and testimony of this case, I 

find that the evidence establishes that substantial portions of the 

roof in the mine's No. 4 entry and associated No. 3 crosscut were 

inadequately supported in violation of safety standard 75.200. I 

further conclude that the violation was "significant and substantial" 

under the definition of National Gypsum, supra. The unstable and 

inadequately supported roof made a roof fall reasonably likely. In 

the event of such a collapse, serious or fatal injury to miners under 

the fall was almost inevitable. 

I turn finally to the issue of respondent's "unwarrantable 

failure" to comply with standard 75.200. "Unwarranted failure" 

occurs where the violative condition is one of which the operator had 

knowledge or should have had knowledge, or which the operator failed 

to correct through indifference or lack of reasonable care: Zeigler 

Coal, supra. 

Respondent argues that under the rule of Eastern Associated Coal 

Corporation, 3 IBMA 331 (1974), the violation charged in the 

withdrawal order was not caused by the operator's unwarrantable 

failure, since the evidence does not show that the operator intentionally, knowingly, or recklessly allowed the hazardous roof 

condition to exist ~respondent's brief at 4). The Interior Board of 

Mine Operations Appeals, in reviewing a violation under the 1969 

Federal Coal Mine Health and Safety Act, did use such criteria in 

discussing the requisite degree of fault necessary to support a 

finding of unwarrantable failure. However, the Board also cited the 

Act's legislative history as defining unwarrantable failure as: 

••• the failure of an operator to abate a violation he knew 

or should have known existed, or the failure to abate a 

violation because of lack of due diligence, or because of 

indifference or lack of reasonable care, on the operator's 

part. 2 IBMA at 356. 

Such a definition is not significantly different from the 

definition expressed in Ziegler Coal and now commonly cited in 

Commission decisions. Using the Ziegler Coal definition, I therefore 

find that the evidence in the case before me shows that violation was 

the product of respondent's "unwarranted failure" to comply with 

standard 75.200. It is apparent that respondent had notice of the 

hazardous roof condition due to an on-shift report made by the night 

shift foreman approximately twelve hours before Hanna's inspection. 

Although the area had stabilized sufficiently within four hours to 

allow roof-bolting, no timbers were installed as required by the 

mine's approved roof plan. 
In summary, I find that violation of standard 75.200 did occur 

as charged in withdrawal order No. 789596, and that special findings 

of "significant and substantial" violation and "unwarrantable 

failure" are supported by the evidence in the case. 

PENALTY 

The mine's size, history of violations, and financial status 

were stipulated by the parties. 

From the evidence, I must conclude that the operator was 

negligent in failing to install timbers in the cited areas of the 

mine. Since the condition had been reported in the mine's on-shift 

book, respondent had notice of the hazard and violation, and yet 

failed to abate it in the twelve hours preceding the inspection. I 

therefore find that respondent's failure to correct the hazardous 

condition amounts to gross negligence. 

The evidence in the case shows that the gravity of the violation 

was severe. In failing to properly support the roof in the area of 

the No. 4 entry and associated No. 3 crosscut, respondent exposed at 

least three miners to the hazard of a roof fall. In the event of 

such a roof fall, serious or fatal injury to the miners was highly 

probable. 

Respondent demonstrated good faith in abating the violative 

condition. Timbers were installed in accord with the mine roof plan 

within twenty minutes of the issuance of the withdrawal order. 

On balance, I find that the penalty of $1,500.00 as proposed by 

the Secretary is appropriate. 

DOCKET NO. WEST 80-135 

Th~s case involves the issuance of a section 104(a) citation No. 

789961 _I for a violation of 30 C.F.R. § 75.1403 which provides 

ll Section 104(a) of the Act provides in pertinent part as follows: 

If, upon inspection or investigation, the Secretary or his 

authorized representative believes that an operator of a coal or 

other mine subject to this Act has violated this Act, or any 

mandatory health or safety standard, rule, order, or regulation 

promulgated pursuant to this Act, he shall, with reasonable 

promptness, issue a citation to the operator. Each citation shall be 

in writing and shall describe with particularity the nature of the 

violation, including a reference to the provision of the Act, 

standard, rule, regulation, or order alleged to have been violated. 

In addition, the citation shall fix a reasonable time for the 

abatement of the violation. 

1778 
in part as follows: 

Other safeguards adequate, in the judgment of an authorized 

representative of the Secretary, to minimize hazards with 

respect to transportation of men and materials shall be 

provided. 

That general statement is followed by 11 subsections. Subsection 

75.1403-1 provides in pertinent part as follows: 

§ 75.1403-1 General criteria. 

{a) Section 75.1403-1 through 75.1403-11 set out the 

criteria by which an authorized representative of the 

secretary will be guided in requiring other safeguards 

on a mine-by-mine basis under § 75.1403. Other safeguards 

may be required. {b) The authorized representative of the 

secretary shall in writing advise the operator of a specific 

safeguard which is required pursuant to § 75.1403 and shall 

fix a time in which the operator shall provide and thereafter maintain such safeguard. If the safeguard is not 

provided within the time fixed and if it is not maintained 

thereafter, a notice shall be issued to the operator 

pursuant to section 104 of the Act. 

The undisputed evidence establishes that Hanna inspected 

respondent's Price River Coal Co. No. 5 Mine on July 18, 1979 and at 

that time observed the operation of a scoop-tram without its 

batteries being protected by cover plates secured to the battery 

tray. At that time, Hanna issued citation No. 789577 pursuant to 

standard 75.1403 as notice to respondent that Hanna was "requiring 

that all cover-plates be secured to mobile equipment when such 

equipment is being operated." The condition was abated within 40 

minutes after issuance of the citation when the cover plates were 

secured to the battery trays {Exhibit P-6). 

However, upon returning to the mine on July 19, 1979, Hanna 

observed that the scoop-tram was once again being operated without 

the cover plates being secured to the battery trays. As a 

consequence, Hanna issued citation No. 789961. The condition was 

abated within six minutes {Exhibit P-16). On February 4, 1980, the 

Secretary filed a petition for the assessment of a civil penalty 

predicated on the issuance of citation No. 789961 for a violation of 

Hanna's safety requirement issued pursuant to 30 C.F.R. § 75.1403 • 

. The Secretary proposed a penalty of $305.00. Respondent duly 

contested the proposed assessment of penalty. 

Respondent does not deny continued operation of its scoop-tram 

without having secured the battery cover plates, despite having been 

provided with notice in citation No. 789577 that such condition was 

considered by Hanna to be a safety violation. Respondent does how1779 
ever contend that citation No. 789961 is invalid due to lack of 

long-term notice regarding the requirement that the battery covers be 

secured when operating the machine in the mine from the area of the 

portal to the first open crosscut. Respondent claims that neither 

Hanna nor any other inspectors had required such a practice before 

the issuance of the citation presently contested. In contrast, Hanna 

testified that during previous inspections of the mine, he must not 

have observed the condition or he would have issued the same safety 

requirement (Tr. 334). 

Upon reviewing such arguments, I find respondent's claim to be 

unsupported by case law. Generally, an operator's reliance on prior 

inspections does not estop the Secretary from bringing an action on 

newly discovered safety violations. Midwest Minerals, Inc., 3 FMSHRC 

251 (January 198l)(ALJ); Missouri Gravel Co., 3 FMSHRC 1465 (June 

198l)(ALJ); Servtex Materiala Company, 5 FMSHRC 1359 (July 1983) 

(ALJ). I therefore conclude that the failure of previous inspections 

to result in the issuance of a citation for the safety violation 

charged in this case does not indicate that citation No. 789961 is 

automatically invalid. 

Respondent further contends that the citation is invalid because 

operating the scoop-tram in the area between the mine portal and the 

first open crosscut without having the battery cover plates secured 

did not constitute a safety hazard. such an area of the mine is 

claimed b~ respondent to be a "significant safety a~ea" (respondent's 

brief at 2). In contrast, Hanna testified that the unprotected 

battery could be damaged by a roof fall or collision while operating 

in the area. Should the battery be damaged, battery acid might burn 

the unshielded machine operator. In addition, the batteries might 

burn, releasing toxic fumes and seriously or fatally injuring miners 

(Tr. 326, 327). 

Hanna also noted that in the event that the scoop-tram should 

have a wreck while going down the steep incline from the portal into 

the mine, the unsecured covers could become flying objects causing 

broken bones or fatal injury (Tr. 325, 327). 

I find Hanna's testimony of the hazard involved in operating the 

scoop-tram without secured battery covers to be convincing. I 

therefore reject respondent's contention that citation No. 789961 is 

invalid due to lack of a safety hazard. 

Respondent also argued that the citation was invalid because an 

MSHA inspector cannot write specific mandatory requirements under 

standard 75.1403 and issue a citation for violation of such a 

requirement, but can write citations only for violations of standards 

specifically stated in subsections 75.1403-2 through 75.1403-11. In 

contrast, the secretary asserts that both statutory construction and 

case law support the position that an MSHA inspector can write a 

1780 
valid, mandatory requirement, and issue a citation for violation of 

such a requirement, pursuant to standard 75.1403 (petitioner's brief 

at 1). 

I accept the Secretary's arguments. Section 75.1403 requires 

that an operator provide other safeguards which are adequate to 

minimize hazards relating to the transportation of men and materials. 

The standard explicitly defers to the judgment of an inspector, as an 

authorized representative of the Secretary, as to what other 

safeguards may be necessary. Section 75.1403-l(a) explains the 

regulatory scheme for the provision of safeguards. It states that 

75.1403-2 through 75.1403-11 are the criteria which will guide an 

inspector on other statutory requirements, but also states that other 

safeguards may be required. I interpret such a statment as giving an 

operator notice that safeguards in addition to those specifically 

named in 75.1403-2 through 75.1403-11. 

Section 75.1403-l(b) states that the inspector must advise an 

operator in writing "of a specific safeguard which is required 

pursuant to § 75.1403." Such a requirement serves to give an 

operator notice that a specific safeguard will be required. Only 

after written notice to provide a safeguard has been given may an 

inspector issue a citation (or "notice") pursuant to section 104(a) 

of the Act. 

The MSHA inspector complied with the requirements of standard 

75.1403 when he issued citation No. 789577 on July 18, 1979. When he 

returned the next day and found that respondent continued to allow 

the violative condition, he issued citation No. 789961 pursuant to 

section 104(a) of the Act. 

Prior decisions of the Commission have upheld such actions taken· 

pursuant to standard 75.1403. In Consolidated Coal Company, 2 FMSHRC 

2021 (July 1980)(ALJ), Judge Cook stated as follows: 

30 C.F.R. § 75.1403 accords substantial power to a Federal 

mine inspector in that it authorized him to write what are, 

in effect, mandatory safety standards on a mine-by-mine 

basis to minimize hazards with respect to transportation of 

men and materials in that mine. Failure to provide the 

safeguard within the time specified and the failure to 

maintain the safeguard thereafter renders the mine operator 

susceptible to the issuance of a withdrawal order and to the 

assessment of civil penalties. 30 C.F.R. § 75.1403-l(b). In 

short, the operator must comply with the requirements of a 

de facto mandatory safety standard promulgated without the 

protections or the opportunity to submit comments afforded 

in the rule making process applicable to the promulgation 

of industry wide mandatory safety standards. 2 FMSHRC at 

2035. 

1781 
Furthermore, the Commission has upheld application of a 

safeguard notice issued under standard 75.1403-1 to an operator's 

mine by affirming an administrative law judge's determination that 

the safeguard notice had been violated and that a civil penalty might 

appropriately be assessed. Penn Allegh Coal Company, Inc., 4 FMSHRC 

1218 (July ~982): 

I therefore conclude, upon consideration of the undisputed 

evidence in this case, that respondent violated the safety requirement or notice issued by inspector Hanna pursuant to standard 

75.1403. Ac~ordingly, I affirm citation No. 789961. 

PENALTY 

Respondent stipulated that the Price River Coal Co. No. 5 Mine 

is a large operation and had 223 assessed violations in the 24 months 

preceding May 14, 1979. Payment of a penalty was also stipulated as 

not impairing respondent's ability to continue in business. 

From the evidence I conclude that respondent was negligent in 

allowing the scoop-tram to be operated without having cover plates 

secured over the battery. Since respondent was provided with notice 

one day before the citation's issuance that battery cover plates were 

required to be secured, it should have known of the hazard and 

violation. On balance, I find the degree of negligence to be 

moderate. 

Petitioner stipulated to respondent's good ·faith abatement of 

the violative condition. Respondent's good faith is further 

indicated by the fact that abatement was completed within twenty 

minutes of the citation's issuance. 

Finally, I find the gravity of the violation to be moderate. 

Although the violation may have resulted in seLious or fatal injury, 

the number of miners exposed to the hazard appears to be limited to 

the machine operator and any other miners in the immediate vicinity 

of the operation of scoop-tram. 

After applying the criteria of section llO(i) of the Act to the 

facts of the case, I find the penalty proposed to be appropriate. I 

therefore assess a penalty of $305.00 for respondent's violation of a 

safety requirement issed pursuant to 30 C.F.R. 75.1403. 

CONCLUSIONS OF LAW 

Based upon the entire record of these consolidated cases, and 

consistent with the narrative portions in this decision, the 

following conclusions of law are made: 

1782 
(1) The Commission has jurisdiction to hear and decide this 

matter. 

(2) Respondent violated 30 C.F.R. § 75.400 as charged in 

citation No. 789581. The violation was "significant and 

substaritial" and was the result of an "unwarrantable failure" to 

comply with the cited standard. The appropriate civil penalty for 

the violation is $1,000.00. 

(3) Respondent violated 30 C.F.R. § 75.200 as charged in 

withdrawal order No. 789596. The violation was "significant and 

substantial" and was the result of an "unwarrantable failure" to 

comply with the cited standard. The appropriate civil penalty for 

the violation is $1,500.00 

(4) Respondent violated a safety no~ice or requirement issued 

pursuant to 30 C.F.R. § 75.1403 as charged in citation No. 789961. 

The appropriate civil penalty for the violation is $305.00. 

ORDER 

1. In Docket No. WEST 80-83, Citation No. 789581 and 

order/citation No. 789596 are affirmed and civil penalties of $1,000 

and $1,500 respectively are assessed against the respondent. 

2. In Docket No. WEST 80-135, Citation No. 789961 is affirmed 

and a civil penalty of $305 is assessed against the respondent. 

Respondent is therefore ORDERED to pay civil penalties in the 

total sum of $2,805.00 within forty (40) days of the date of this 

decision. 

Distribution: 

·'---,,..-

~z~1-r:,-f._,, ~ I ?; 

C 

~d-<:;_e .'::> ~ 

Virgif' E. Vail 

Administrative Law Judge 

Phyllis K. Caldwell, Esq., (Certified Mail), Office of the Solicitor 

u. s. Department of Labor, 1585 Federal Building, 1961 Stout Street 

Denver, Colorado 80294 

Stanley v. Litizzette, Esq., (Certified Mail), Price River Coal Co. 

Helper, Utah 

/blc 

1783 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 11, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

NUGENT SAND COMPANY, INC., 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 83-57-M 

A.C. No. 20-00801-05501 

Nugent Sand Mine 

DISAPPROVAL OF SETTLEMENT 

ORDER OF ASSIGNMENT 

On August 8, 1983, I approved settlements for three of 

the six violations involved in this matter and I ordered the 

Solicitor to submit additional evidence with respect to the 

remaining three. On August 31, 1983, I issued a further 

order to the Solicitor to submit information. Such information now has been submitted. 

After a review of the Solicitor's latest motion, I am 

unabl~ to approve the proposed settlements of $20 each. 

According to the Solicitor Citation 2088974, which was 

issued for failure to have a fire extinguisher on a frontend loader, involved a moderate degree of negligence because 

the employer was aware that a fire extinguisher was required. 

This factor alone would militate against a $20 penalty. 

With respect to gravity the Solicitor states as follows: "An 

injury would have been unlikely because if a fire were to 

occur, the employee could jump out of the front-end loader." 

The Solicitor further states in this respect "The type of an 

injury, if one were to occur, would not have resulted in any 

lost workdays. The type of injury contemplated would be 

sprains or cuts from jumping off the front-end loader." 

I must reject the Solicitor's representations. The 

fact that the violation might force an individual to jump 

out of the front-end loader is to me on its face a very 

serious matter. There is no support for the Solicitor's 

assertion that the type of injury contemplated would be 

only a sprain or cuts. 

I have no alternative, therefore, but to take appropriate action to have this item set for hearing. 
With respect to Citations 2088975 and 2088976 which 

involve failure to guard a take-up pulley and a head pulley, 

the Solicitor again states that the operator was guilty of a 

moderate degree of negligence because it was aware that 

pinch points must be guarded. Such a degree of negligence 

militates against a $20 penalty. Moreover, I am unable to 

accept the Solicitor's assertion there was no likelihood of 

injury because employees seldom travel in the area. Nor am 

I able to accept his representation that' the type of injury 

would not be in the form of a hand amputation but rather 

only in the form of a cut or a bruise when performing only 

maintenance duties. It may be that although the conveyor is 

supposed to be idle when maintenance is performed, it might 

be started up accidentally and the resultant injury could be 

very serious indeed. These matters should be resolved at a 

hearing. 

Accordingly; I have no alternative, therefore, but to 

take appropriate action to have these items set for hearing. 

This case is hereby assigned to Administrative Law 

Judge James A. Broderick. 

All future communications regarding this case should be 

addressed to Judge Broderick at the following address: 

Distribution: 

Federal Mine Safety and 

Health Review Commission 

Office of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, VA 22041 

Telephone No. 703-756-6215 

Paul Merlin 

Chief Administrative Law Judge 

Rafael Alvarez, Esq., Office of the Solicitor, u. s. Department of Labor, 230 South Dearborn Street, 8th Floor, Chicago, 

IL 60604 (Certified Mail) 

Mr. Robert Chandonnet, Vice President, The Nugent Sand 

Company, Inc., P. 0. Box 1209, Muskegon, MI 49443 

(Certified Mail) 

/ln 1785 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 11, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MEDUSA CEMENT COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 83-80-M 

A.C. No. 20-00038-05504 

Medusa Cement Company 

Plant 

DISAPPROVAL OF SETTLEMENT 

ORDER OF ASSIGNMENT 

On August 31, 1983, I disapproved the Solicitor's 

motion to approve a settlement for the one violation in this 

case for the original assessment of $56. I described the 

circumstances as follows: 

Citation No. 2089073 was issued for a 

violation of 30 C.F.R. § 56.16-6 because the 

covers on oxygen and acetylene cylinders 

being transported were not in place to protect the stems of the cylinders. The Solicitor 

states that the operator demonstrated no 

negligence but he gives no basis for this 

assertion. The Solicitor further states that 

the violation was significant and substantial 

but again he gives no reasons. I note that 

the inspector stated on the citation that 

falling materials from the conveyors could 

easily strike one of the stems and create a 

serious hazard. The inspector checked boxes 

indicating occurrence was reasonably likely 

and could reasonably be expected to result in 

lost workdays or restricted duty. 

The Solicitor now has filed an amended motion in which 

he advises that the operator demonstrated no negligence 

because it was not aware of the violation. I cannot accept 

this representation. Even if the operator was not actually 

aware of the violation the possibility that it should have 

been aware, must be explored. 

1786 
With respect to gravity the Solicitor now states as 

follows: 

(b) If an event occurred to which the cited 

standard is directed then it was reasonably 

likely that one employee would be injured. 

The reason is that a cylinder without proper 

protection could become a "torpedo", thereby 

injuring an employee. 

(c) The type of injury that would result is 

that an employee could lose a day or more of 

work or be restricted in his job duties. The 

reason is that a cylinder acting with the 

force of a "torpedo" is a serious hazard 

which would cause serious injury to an employee. 

When the Solicitor paints a picture of potential grievous 

bodily harm, as he has done here, I do not believe a penalty 

of $56 is appropriate unless some other compelling circumstances are present. 

Moreover, the Solicitor has advised that Crane Company 

which owns Medusa Cement Company had 1,768,760 hours worked 

in all of its mines prior to the issuance of this citation 

and the Medusa Cement Company had 239,900 hours worked in 

the same period. The proposed penalty therefore, is inconsistent with the operator's size in light of the other 

circumstances already set forth. 

Accordingly, I have no alternative but to take appropriate action to have this matter set for hearing. 

This case is hereby assigned to Administrative Law 

Judge James A. Broderick. 

All future communications regarding this case should be 

addressed to Judge Broderick at the following address: 

/ln 

Federal Mine Safety and 

Health Review Commission 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, VA 22041 

Telephone No. 703-756-6215 

Paul Merlin 

Chief Administrative Law Judge 

1787 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 111983 

SECRETAR¥ OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

U.S. STEEL MINING COMPANY, INC., 

Respondent 

Docket No. PENN 82-300 

A.C. No. 36-03425-03501 

Docket No. PENN 83-44 

A.C. No. 36-03425-03506 

Docket No. PENN 82-322 

A.C. No. 36-03425-03504 

Maple Creek No. 2 Mine 

DECISION 

Appearances: 

Before: 

Thomas A. Brown, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

The above dockets were heard separately but are hereby consolidated for the purpose of this decision. They all involve the 

Maple Creek No. 2 Mine. Two citations are involved in Docket No. 

PENN 82-300, two in PENN 83-44, and four in PENN 82-322. Pursuant 

to notice, the cases were heard in Uniontown, Pennsylvania, on 

June 22 and June 23, 1983. Alvin L. Shade and Francis E. Wehr, Sr .. 

testified on behalf of Petitioner; David Coffman, Ronald Hartzell 

and Paul H~ Shipley testified on behalf of Respondent. Both parties 

filed posthearing briefs. Based on the entire record and considering the contentions of the parties, I make the following decision. 

FINDINGS AND CONCLUSIONS COMMON TO ALL DOCKETS 

1. At all times pertinent to these proceedings, Respondent was 

the owner and operator of an underground coal mine in Washington 

County, Pennsylvania, known as the Maple Creek No. 2 Mine. 

1788 
2. Respondent is subject to the provisions of the Federal 

Mine Safety and Health Act of 1977 in its operation of the Maple 

Creek No. 2 Mine, and the undersigned Administrative Law Judge 

has jurisdiction over the parties and subject matter of these 

proceedings. 

3. The subject mine has an annual production of 872,848 tons 

of coal. Respondent has an annual production of 15,046,082 tons. 

Respondent is a large operator. 

4. The assessment of civil penalties in these proceedings 

will not affect Respondent's ability to continue in business. 

5. The subject mine had a total of 530 assessed violations 

for the 24 months prior to the issuance of the citations involved 

herein. Ninety one were violations of 30 C.F.R. § 75.503, 20 of 

75.516, 72 of 75.200, 11 of 75.515 and 47 of 75.1403. An unknown 

number of the violations of 75.516 had the significant and substantial designation removed after their issuance, and Respondent 

objects to their being included in the history of prior violations. 

6. In the case of each citation involved herein, the violation was abated promptly and in good faith. 

7. Whether a cited violation is properly designated as a 

significant and substantial violation is per se irrelevant to a 

determination of the appropriate penalty to be-assessed. The 

penalties hereinafter assessed are based on the criteria in 

section llO(i) of the Act. 

DOCKET NO. PENN 82-300 

The two citations involved in this docket both charge permissibility violations (30 C.F.R. § 75.503). In one case, the conduit 

was pulled away from the packing gland on the headlight to the 

continuous mining machine and the junction box was loose. In the 

other, the conduit was pulled away from the packing gland on the 

switch for the deenergizing bar. Both citations were issued charging significant and substantial violations, but at the hearing, 

counsel for the Secretary moved to delete the significant and 

substantial.designation from both citations. No bare wires were 

seen, but if the wire is pulled from the conduit, it could be struck 

or cut to create a spark. However, the headlight is guarded and 

such an occurrence is unlikely. The same is true of the conduit on 

the deenergizing bar. The violations were not serious. Respondent 

has been cited for this violation on a number of occasions. Therefore, I conclude that the violations resulted from its negligence. 

I conclude that an appropriate penalty for each of these violations 

is $50. 

1788 
DOCKET NO. PENN 83-44 

1. Citation No. 2011263, issued August 20, 1982, charges a 

violation of 30 C.F.R. § 75.516 because the energized wire to a 

signal light was not supported on insulators, but in one instance 

was hung on a wire nail and was in contact with wooden cribs. It 

appears that the nail had been part of an insulated hook from 

which the insulation had been broken off or had worn off. The 

wire was not bare or damaged. The mine was idle and had been idle 

for about 2 months when the citation was issued. The system is 

protected by a 10 ampere fuse. I conclude that the violation was 

unlikely to cause an injury. Therefore, it was not significant 

and substantial. Respondent had been cited for this same condition previously, and should have been aware of it. I conclude 

that an appropriate penalty for this violation is $50. 

2. Citation No. 2011267, issued September 9, 1982, charges 

a violation of 30 C.F.R. § 75.504 because the conduit was pulled 

out of the packing gland on the continuous miner headlight. The 

citation originally charged a significant and substantial violation, but at the hearing, Petitioner moved to delete the significant and substantial designation. The inspector testified that 

a hazard was unlikely. I conclude that the violation was not 

serious. Respondent has been cited for this violation on many 

occasions and therefore, I conclude that the violation resulted 

from its negligence. I conclude that an appropriate penalty for 

this violation is $50. 

DOCKET NO. PENN 82-322 

1. Citation No. 829652, issued June 18, 1982, charges a 

violation of 30 C.F.R. § 75.200, in that two roof bolts were missing in an area along the track haulage. The bolts had been 

installed but apparently had fallen out of the roof. There was 

a slip in the roof and the roof was loose and drummy. The roof 

bolts were not on the floor when the citation was issued, leading 

to the conclusion that they might have been out for a period of 

time. The inspector testified that one missing bolt was on the 

"tight" side over the trolley wire and the other over the center 

of the track. The section foreman testified that both had been 

located on ~he tigh.t side. In any event, there was an area of 

unsupported roof, making a roof fall reasonably likely. Such an 

occurrence would likely result in serious injuries to miners. I 

conclude that the violation was significant and substantial. The 

condition should have been known to Respondent despite the fact 

that it is permitted to do the preshift examination by jeep which 

makes it difficult to spot all the roof areas. Therefore, the 

violation was caused by Respondent's negligence. I conclude that 

an appropriate penalty for this violation is $200. 

1790 
2. Citation No. 829653, issued June 18, 1982, charges a 

violation of 30 C.F.R. § 75.515, in that an insulated bushing was 

not provided where the insulated wires entered the control box 

for a water pump. The insulation on the wires was not broken or 

damaged. The water pump's electrical system was protected by 

two fuses - one a 30 amp fuse on the cable, and one a 10-30 amp 

control fuse inside the box. When it is operating, the pump 

vibrates, and the vibration could cause a cut in the insulation of 

the wire in the absence of bushing. This could result in the pump 

to become the ground and, if the circuit protection failed, anyone 

touching the pump could be shocked or electrocuted. I conclude 

that the violation made such an occurrence reasonably likely. 

Therefore, it was significant and substantial. Respondent had 

been cited several times for similar v.i-GY1ations. I conclude that 

this violation was the result of its negligence. I conclude that 

an appropriate penalty for this violation is $125. 

3. Citation Nos. 829654 and 829656 were issued on June 18 

and June 21, 1982. Each charges a violation of 30 C.F.R. § 75.1403 

(notice to provide safeguards) because track haulage switches were 

not provided with reflectors to show the alignment of the switch. 

The hazard caused by the absence of a reflector on a switch 

is that the operator of a haulage vehicle might mistake the position of the switch, and by going in the "wrong" direction, jostle 

the occupants in the vehicle or derail the vehicle. Because 

low-speed haulage equipment was in use in the subject mine, the 

injuries would not be nearly as serious as would be the case where 

high speed haulage equipment was involved. This limits the weight 

to be accorded Government's Exhibit No. 6, the Report of a Fatal 

Coal Mine (Haulage) Accident, which involved high speed haulage. 

Nevertheless, a derailment could result in injuries of a reasonably 

serious nature. I conclude that the violations were significant 

and substantial. They were moderately serious, and the condition 

was known or should have been known to Respondent. I conclude that 

appropriate penalties for each of these violations is $100. 

ORDER 

1. Citation Nps. 1249544, 1249549, 2011263, and 2011267 

charge violations not properly designated as significant and 

substantial. 

2. Citation Nos. 829652, 829653, 829654, and 829656 are 

AFFIRMED as properly charging significant and substantial 

violations. 

1791 
3. Respondent shall, within 30 days of the date of this 

decision, pay the following penalties for the violations found 

herein to have occurred: 

Distribution: 

CITATION 

1249544 

1249548 

2011263 

2011267 

829652 

829653 

829654 

829656 

Total 

PENALTY 

$ 50 

50 

50 

50 

200 

125 

100 

100 

$725 

~μ§n;~ 

James A. Broderick 

Administrative Law Judge 

Thomas A. Brown, Esq., Office of the Solicitor, U.S. Department 

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

Philadelphia, PA 19104 (Certified Mail) 

Louise Q. Symons, Esq., 600 Grant Street, Room 1580, Pittsburgh, 

PA 15230 (Certified Mail) 

/fb 1792 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 OCT 1219fB 

LITTLE SANDY COAL SALES, INC. NOTICE OF CONTEST 

Contestant 

. v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Respondent 

DECISION 

Docket No: KENT 83-178-R 

Order No: 2053590; 3/18/83 

No. 1 Tipple 

Appearances: Edward H. Fitch, Esq., Office of the Solicitor, 

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

Arlington, Va, for Respondent; 

Before: Judge Moore 

This case was set for hearing in Pikeville, Kentucky, on 

September 8, 1983, at 10:00 A.M. After arriving in the Pikeville 

area on September 7, I received a call from my secretary stating 

that Mr. Everman, owner of Little Sandy Coal Sales, Inc. the 

contestant, was ill and could not attend the hearing on the following day. Mr. Everman left two numbers at which he could be reached. 

One was his office number and the other was his home number, and 

he announced to my secretary that he would be at the home number 

after 4:00 P.M. 

On the following day, after several inspectors, the 

Solicitor's attorney, and I had arrived at the hearing site 

and waited until twenty minutes after 10:00 A.M. for Mr. Everman 

to appear, I called my secretary and asked her to get in touch 

with Mr. Everman. My secretary called Mr. Everman's office and 

was informed that he was not there at the time but was expected. 

She then called Mr. Everman's home and let the phone ring 9 

times; there was no answer. 

Mr. Everman had requested an expedited hearing in this 

case and it appeared that Mr. Fitch and the inspectors had 

tried to accommodate Mr.Everman in reaching a speedy determination as to whether his operation was a mine, subject to 

the Federal Mine Safety and Health Act. In fact, the inspectors 

have extended the abatement time of other citations so that 

Mr. Everman will not have to litigate those citations until 

a determination has been made as to the legal status of his 

operation. I think Mr. Everman owed the government a little 

more than a last-minute call to my office saying that he 

was too sick to attend the hearing. 

1793 
At the hearing I did not hold Mr. Everman in total default 

but did rule that by his failure to appear he had waived his 

right to cross-examine the government witnesses. I announced 

that I would communicate with Mr. Everman after the trial 

to determine whether or not he had good reason to be absent. 

The government was then allowed to elicit testimony and 

exhibits from a supervisory inspector. The inspector identified the ~xhibits and described the Little Sandy Coal Sales 

operation. In short, the company buys raw coal, puts it 

through a crusher, refines it by screen into 3 sizes and 

then sells the coal. I asked the inspector how this operation 

differed from that of a normal tipple. His answer was that 

in the typical tipple which is not located at a mine itself, 

the tipple operator does not own the coal. He crushes and 

sizes somebody else's coal, whereas Mr. Everman buys the 

coal, processes it and then sells it. 

Mr. Everman telephoned me as soon as I got back to our 

Virginia office and apologized for not attending the hearing. 

He said he would get a doctor's certificate showing that he 

was too ill to participate in the hearing. I told him that 

if he would send me that doctor's certificate I would allow 

him to submit further evidence but that I would not reconvene the hearing to allow him to cross-examine the MSHA 

inspector. He said that he would like to submit some 

material but that he would like to look at the transcript 

first. I then transferred the call to my secretary, who 

gave him the necessary information concerning the court 

reporter. 

Whether Mr. Everman changed his mind about the copy of 

the transcript or managed to get one before one was delivered 

to this office, I don't know. But he did submit a substantial amount of information (similar to a brief) on 

September 26, 1983. Attached was a note from Dr. Shufflebarger 

which said "Mr. Everman was unable to attend due to illness." 

In the circumstances, I hold the excuse insufficient to justify 

Mr. Everman's failure to appear at the hearing. The note 

does not say what was wrong with Mr. Everman, or how ill he 

was. And he was well enough to be in his office. I will 

neverthel·ess, consider the material he submitted. 

In the handwritten portion of his submission, Mr. Everman 

makes a number of important points. He compares his operation 

to that of the Allied Chemical plant in Ashland, Kentucky, 

which is considered by MSHA as a coke manufacturing plant 

and not a mine. The plant receives coal by rail, grinds it 

to the proper size to make coke to be shipped to various 

customers. At his plant, Mr •. Everman says, he takes coal 

"and manufactures stoker" • 

. 1794 
He also points out that his operation is considered manufacturing by the State of Kentucky fn regard to sales tax and 

workmen's compensation insurance and that he is not considered 

a mine by the federal Off ice of Surface Mining or the Kentucky 

Department of Surface Mining. His most telling argument however, involves the case of Secretary of Labor vs. Oliver M. 

Elam, Jr. Company, 4 FMSHRC 5, (January 7, 1982). Elam's 

operation is quite similar to that of Little Sandy. Elam 

got paid for loading coal that it did not own on to barges that 

it did not own. Some coal was loaded directly on to the barges 

by conveyor belts, but other pieces of coal were too big and 

had to be run through a cru$her in order to fit on the covered 

conveyor belts. Little Sandy, on the other hand, owns the coal 

it processes, and the crushing, sizing and loading is to make 

the coal marketable and not just so that it will fit his 

conveyors. It is a small difference but it is enough. 

Secretary of Labor v. Alexander Brothers, Inc. 4 FMSHRC 541 

(April 5, 1982). 

I sympathize with Mr. Everman. I hope this decision does 

not put him out of business as he claims it will, and I hope 

he takes an appeal to the Commission for a final determination. 

I reject all of Mr. Everman's arguments to the effect that 

the facts, as related by him, as well as by the inspector, indicate that he is not a mine operator. I find that the violation 

occurred, that the operation is covered by the Federal Mine 

Safety and Health Act, and I accordingly AFFIRM the citation 

for failure to have sanitary toilet facilities. 

~-(jM~o~~I,~' Administrative Law Judge 

Distribution: 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Mr. Edgar Everman, Little Sandy Coal Sales, Inc., P.O.Box 

335, Grayson, KY •41143 (Certified Mail) 

/db 

1795 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRETARY OF LABOR, 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 OCT 12 1918 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 82-1-M 

Petitioner MSHA Case No. 42-01689-05003 X02 

v. 

LaSal No. 2 Mine 

AMERICAN MINE SERVICES, INC., 

Respondent 

AMENDMENT OF DF.CISlON 

The decision issued in the above captioned matter on 

September 30, 1983, is hereby AMENDED to reflect that the civil 

penalty assessed for citation 583964 is "$78.00" rather than 

"$87.00." Likewise, on page six of the decision, all references 

to a penalty sum of "$87.00" are AMENDED to reflect "$78.00." 

In all other respects, the decision remains the same. 

Distribution: 

John A. Carlson 

Administrative Law Judge 

James H. Barkley, Esq., (Certified Mail), 

Office of the Solicitor, 

United States Department of Labor, 1585 Federal Building 

1961 Stout Street, Denver, Colorado 80294 

Mr. Morris E. Friberg, (Certified Mail), 

American Mine Services, Inc. 

4705 Paris Street, Denver, Colorado 80239 

/ot 

179G 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

EDWIN WEBBER, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE , 

FALLS CHURCH, VIRGINIA 22041 OCT 131983 

DISCRIMINATION PROCEEDING 

Complainant 

Docket No. WEST 82-195-DM 

HARRISON WESTERN CORP., 

Respondent 

Appearances: 

Before: 

DECISION 

Terris & Sunderland, Washington, D.C., 

Attorneys for Complainant; 

Dennis J. Conroy, Esq., Watkiss & Campbell, 

Salt Lake City, Utah, for Respondent. 

Judge Kennedy 

This matter came on for an evidentiary hearing in Salt 

Lake City, Utah in May 1983. After trial and entry of a 

tentative bench decision in favor of complainant, the parties 

moved for approval of a stipulation for settlement. 1/ 

Based on a consideration of the circumstances set forth in 

the trial record, the tentative decision and the parties 

stipulation, I find the settlement proposed is in the best 

interest of complainant and in accord with the remedial 

purposes of the Act. 

Accordingly, it is ORDERED that the motion to approve 

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

that the operator forthwith pay the sum of $22,000 to complainant, 

Edwin K. Webber, and that subject to payment the captioned 

matter be DISMISSED. 

1/ Because the complainant appeared at the trial pro se, 

the presiding judge assumed responsibility for fully developing 

the record. See Heckler v. Campbell, U.S. , 51 L.W. 

4561; 4564, n. 1, 76 L. Ed. 2d 66, 77,-n: l; LaShley v. 

Secretary of Health and Human Services, 708 F.2d 1048, 1051-

1052 (6th Cir. 1983). Subsequent to trial, the complainant 

obtained the pro bono services of counsel who filed a brief 

in support of the tentative decision and negotiated the 

settlement. 

1797 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 14 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. KENT 83-137 

A.C. No. 15-11408-03510 

v. 

Pride Mine 

PYRO MINING COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Carole M. Fernandez, Esq., Office of the 

Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for Petitioner; 

William M. Craft, Assistant Director of 

Safety, Pyro Mining Company, Sturgis, 

Kentucky, for Respondent. 

Judge Melick 

This case is before me upon a petition for assessment 

of civil penalty under section 105(d) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seg., 

the "Act," in which the Secretary charges the Pyro Mining 

Company CPyro) with three violations of mandatory regulations. The general issues before me are whether Pyro has 

violated the regulatory standards as alleged in the petition and, if so, the appropriate civil penalty to be 

assessed for the violations. 

CITATION NO. 2074459 At hearing, the Secretary moved to 

amend its petition by seeking to withdraw this citation 

for lack of evidence. The Secretary now concedes that the 

cited explosives in fact had not been stored in the working place as alleged. Under the circumstances there 

appears-to have been no violation of the cited standard 

and the motion for amendment and withdrawal is granted. 

Commission Rule 11, 29 C.F.R. § 2700.11. 

CITATION NO. 2074458 This citation, issued by MSHA Inspector Ronald Oglesby pursuant to section 104Ca) of the Act, 

initially alleged a violation of the standard at 30 C.F.R. 

§ 75.523. The standard which tracks the enabling language 

at 30 u.s.c. § 865(r), provides that "[a]n authorized 

1798 
representative of the Secretary may require in any mine 

that electric face equipment be provided with devices that 

will permit the equipment to be deenergized quickly in the 

event o·f an emergency." The citation alleges as follows: 

"A violation was observed on No. 1 unit, section ID003 in 

that the FMC roof bolter Cleft side of section) would not 

deenergize when actuating lever was pushed. The lever was 

damaged to the extent, part of lever bar was broken off." 

The citation clearly does not charge a violation of 

the cited regulation and, indeed, it is difficult to conceive of any factual circumstance that would constitute a 

violation of the regulation. As explained by Inspector 

Oglesby at hearing, the reference in the citation to the 

standard at 30 C.F.R § 523 was erroneous and he meant to 

charge a violation under the standard at 30 C.F.R. 

§ 75.523-2Cb). The Secretary declined, however, to amend 

the citation to comport with this intent. The undersigned 

therefore issued on July 29, 1983, a notice of intent to 

modify the citation pursuant to section 105Cd) of the Act 

to charge that the standard violated was 30 C.F.R 

§ 75.523-2Cb) and not 30 C.F.R. § 75.523. See also Rule 

15Cb) Federal Rules of Civil Procedure and United States 

v. Stephen Brothers Line, 384 F.2d 118, 124 {5th cir. 

1967). In accordance with the notification to the parties 

of this intended action, the parties were given additional 

opportunity for hearing and/or to present additional evidence. International Harvester Credit Corp. v. East Coast 

Truck, 547 F.2d 888 {5th Cir. 1977). 

The operator did in fact submit additional evidence 

and argument by letter dated August 1, 1983. The 

Secretary declined to submit any additional evidence and 

indicated that he had no objection to either the proffered 

evidence or to the action contemplated by the undersigned 

judge. Accordingly, at this time Citation No. 2074458 is 

modified to reflect that it charges a v~olation of the 

standard at 30 C.F.R. § 75.523-2{b). Secretary v. 

Consolidation Coal Company, 4 FMSHRC 1791 (1982). 

The standard at 30 C.F.R. § 75.523-2Cb> provides that 

"[t]he existing emergency stop switch or additional switch 

assembly shall be actuated by a bar or lever which shall 

extend a sufficient distance in each direction to permit 

quick deenerization of the tramming motors of self-propelled 

electric face equipment from all locations from which the 

equipment can be operated." 

1799 
The facts relating to this citation are not in dispute. 

It is only the interpre~ation to be placed upon those facts 

that is a~ issue. During the course of an inspection of the 

Pride Mine on October 27, 1982, MSHA Inspector Ronald 

Oglesby observed the "FMC" roof bolter operating in the 

No. 1 unit, section ID003 with a broken panic bar. Although 

the roof bolter was not then operating inby the last open 

crosscut, it is not disputed that it could have been so 

opera'ted. 

Pyro does not disagree that the panic bar on the roof 

bolter was broken as alleged but argues that the cited 

roof bolter was not "electric face equipment" within the 

meaning of the MSHA Electrical Manual. The manual defines 

"electric face equipment" as electrical equipment that is 

"installed, taken into, or used in or inby the last open 

crosscut." The definitions found in the MSHA manuals are 

not officially promulgated, however, and are not binding 

upon the Commission or its judges, Secretary v. King Knob 

Coal Company, Inc., 3 FMSHRC 1417 (1981), Old Ben Coal 

Company, 2 FMSHRC 2806 (1980). In any event even under 

the definition of "electric face equipment" found in the 

cited MSHA Manual there would nevertheless have been a 

violation of the cited standard in this case. The uncontradicted testimony of Inspector Oglesby was that, when 

cited, the roof bolter was located in the last open 

crosscut. 

I also note that in the case of Secretary v. Solar 

Fuel Company, 3 FMSHRC 1384 Cl981), the Commission held 

that "equipment which is taken or used inby the last open 

crosscut" means equipment habitually used or intended for 

use inby regardless of whether it is located inby or outby 

when inspected. The Commission emphasized in Solar Fuel 

that it is not where the equipment is located at the time 

of inspection that is important, but whether it is equipment which can be taken or used "inby. 11 : Accordingly, 

since the roof bolter here cited is without question equipment that can be taken or used inby the last open crosscut 

it is clear that the violation is proven as charged in the 

amended·citation.l Whether that violation was "significant 

and substantial," however, depends on whether, based on the 

1 The operator also contends in a letter dated August 1, 

1983, that the Secretary failed to prove the degree of 

pressure applied to the cited panic bar and the distance 

the bar was moved in accordance with 30 C.F.R. § 75.523-2Cc). 

The alleged deficiency is irrelevant, however, inasmuch as 

no violation of 30 C.F.R. § 75.523-2Cc> has been alleged. 

1800 
particulars surrounding the violation, there existed a reasonable likelihood that the hazard con~ributed to would have 

resulted in an injury of a reasonably serious nature. 

Secretary v. Cement Division, National Gypsum Co., 3 FMSHRC 

822 (1981). The test essentially involves two considerations, Cl) the probability of resulting injury, and (2) the 

seriousness of the resulting injury. I accept the undisputed testimony of Inspector Oglesby concerning this issue. 

In particular, he testified that in the absence of a functioning "panic bar" a machine operator or other person could 

be pushed and pinned against the coal ribs and, if unable to 

actuate the panic bar, could easily be crushed. Oglesby 

testified about past incidents of crushed legs and fatalities resulting from such a defect. Indeed there had been 

four accidents since 1978 at the Pyro Mines alone involving 

equipment pushing miners into the ribs, resulting in crushed 

lower extremeties, broken bones and, in one case, permanent 

disability. The violation was accordingly "significant and 

substantial." For the same reasons the violation was one of 

high gravity. 

Donald Lamb, an official of Pyro admittedly knew that 

operative panic bars were required on his roof bolters and 

acknowledged that the operator had been cited previously 

for similar problems with the panic bars. The operator 

accordingly should have been on particular notice of this 

recurring problem and may be charged under the circumstances 

with negligence in failing to discover the broken panic bar. 

CITATION NO. 2075863 This citation alleges a violation of 

the operator's roof control plan under the standard at 

30 C.F.R. § 75.200 and reads as follows: 

The roof control plan dated 8/10/82 was 

not being followed on No. 3 unit CID004) in 

that a three way place was observed. The 

first cut had been taken out of right and 

left crosscuts and face also had been cut and 

loaded. Cuts 1 and 2 were extracted and roof 

had not been supported before the face was 

extracted. Plan states (page 16) that 1 and 

2 are to be bolted before the face areas cut 

and loaded. Roof bolter was in area at time 

of inspection pinning No. 2 crosscut. 

The cited portion of the roof control plan consists 

of a diagram <attached hereto as Appendix A) with an 

explanation reading as follows: "Cuts No. 1 and No. 2 

will be extracted and the roof supported, then on the next 

1801 
mining cycle, cuts No. 3, 4 and 5 will be taken in a 

normal manner, etc. The face will be driven no more than 

30 feet from the inby rib of crosscut until crosscut is 

holed through and ventilation is established." 

The citation was issued on December 14, 1982, by MSHA 

Inspector Jerrold Pyles. During the course of his inspection on that date, Pyles observed that three cuts had been 

taken on the No. 3 unit. The right and left crosscuts and 

the face had all been cut to a depth of 9 feet and loaded 

out. The cuts had not yet been bolted although a roof 

bolter was beginning to bolt the No. 2 crosscut. Since 

this evidence is not disputed it is apparent that the roof 

control plan has been violated as alleged. The operator 

nevertheless argues that a violation of the roof control 

plan would exist only if miners are actually working inby 

unsupported roof. I find nothing in the plan to support 

the defense and accordingly reject it. 

I further find that the violation was "significant 

and substantial". National Gypsum,' supra. According to 

the uncontradicted testimony of Inspector Pyles, there had 

been a history of roof falls at the Pride No. 6 Mine and 

that the stability of the cited unsupported roof was 

"unpredictable." Moreover, there had previously been six 

roof falls in the same general area of the mine. Two 

miners were working on the roof bolter in the vicinity of 

the unsupported roof at the time the condition was discovered and would have been the most likely victims of any 

roof fall. Serious and fatal injuries would be likely if 

the roof did in fact fall. The violation was accordingly 

"significant and substantial" and of a high level of gravity. 

According to the undisputed testimony of Inspector 

Pyles, it is the industry practice for the section foreman 

to run the sites for center lines and tQ mark the width of 

places to be cut before the cut is actually made. The 

cutting machine operator indeed would not have the authority to proceed with his work until such directions were 

given by the section foreman. It may therefore reasonably 

be inferred that an agent of the operator, the section 

foreman, knowingly directed the commission of the violation. 

In determining the appropriate civil penalty for the 

violations within the framework of section llOCi> of the 

Act, I am also considering that the operator is medium to 

small in size and that it has a fairly substantial history 

of violations including previous violations of the standards 

cited herein. 

1802 
ORDER 

Citation No. 2074459 is vacated. Citation No. 

2074458 is affirmed and a penalty of $300 is assessed. 

Citation No. 2075863 is affirmed and a penalty of $500 is 

assessed. The penalties herein shall be paid, within 

30 days of the date of this decision. 

Distribution: 

Gary Me ick , Assistant Chie' 

' 

~ Carole M. Fernandez, Esq., Office f the S licitor, U.S. 

Department of Labor, 280 U.S. Cou house, 801 Broadway, 

Nashville, TN 37203 CCertif ied Mai ) 

William M. Craft, Assistant Director of Safety, Pyro 

Mining Company, P.O. Box 267, Sturgis, KY 42459 (Certified 

Mail) 

/fb 

1803 
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Cuts 01 i 2 will be extracted a~d the roof sup?ortcd, then on the ncx: ~inin& 

cycle, cuts f!3, 4 l.. 5 will be c;:ikcn jn a non::;:il 111.Jnncr, cLc. The f.:icc \JEl 

be driven no r.:ore th;ia 30' f ror.1 th~~ in!>y rib of crozzcut until cro!;:;cut iz 

holed throuch ;:incl vcntilntiun cst:iblizllcd. 

180t1 

• I I l I I 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 14, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

MEDUSA CEMENT COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 83-74-M 

A.C. No. 20-02514-05501 

Medusa Cement Company 

(Plant) 

DISAPPROVAL OF SETTLEMENT 

ORDER OF ASSIGNMENT 

The Solicitor has filed a motion to approve settlement 

in the above-captioned proceeding. The Solicitor proposes 

to settle the eleven violations in this case for the original 

assessments total of $326. 

Six of the violations were originally assessed for $20 

apiece. The Solicitor advises that one of these violations 

involved no negligence, three involved a low degree of 

negligence and one involved a moderate degree. The Solicitor 

also represents that in two of these violations there was no 

likelihood of an injury and in three the occurrence of an 

injury was unlikely. He notes that abatement was accomplished in each instance. However, the Solicitor gives no 

basis for any of his assertions regarding negligence and 

gravity. In one instance, Citation No. 2088996, he makes no 

representations at all regarding negligence and gravity. 

The Act makes very clear that penalty proceedings 

before the Commission are de novo. The Commission itself --- recently recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in 

a proceeding before the Commission the amount of the penalty 

to be assessed is a de novo determination based upon the six 

statutory criteria specified in section llO(i) of the Act 

and the information relevant thereto developed in the course 

of the adjudicative proceeding. Sellersburg Stone Company, 

5 FMSHRC 287 (March 1983). Indeed, if this were not so, the 

1805 
Commission would be nothing but a rubber stamp for the 

Secretary. The mere recitation by the Solicitor of bare 

conclusions is not a sufficient basis upon which I can 

predicate settlement approvals of $20 apiece. Of course, as 

I previously have held the Commission is not bound by 30 

C.F.R. § 100.4 which is the basis of the six $20 "single 

penalty assessments." 

The five remaining violations were assessed for amounts 

ranging from $30 to $68. The Solicitor advises that two of 

these violations involved no negligence and three involved a 

low degree of negligence. The Solicitor also states that 

each of these violations was significant and substantial. 

He notes that abatement was accomplished in each instance. 

The Solicitor gives no basis for his assertions regarding 

negligence or the significant and substantial nature of 

these violations. The inspector has checked boxes concerning negligence and gravity for all five violations. 

I have recently held in many other cases that the term 

"significant and substantial" is irrelevant in a penalty 

proceeding before the Commission. Under section llO(i) the 

relevant criterion is gravity. But as I also have previously 

stated, I cannot base a settlement approval upon an inspector's checks in boxes on a form without some explanation 

from the Solicitor. In absence of other evidence penalty 

amounts of $30 or $39 as recommended in some of these cases 

would appear low. The Solicitor has told me nothing about 

size, prior history, or ability to continue in business. 

In another case involving this operator (LAKE 83-80-M) 

I disapproved a similarly inadequate settlement motion from 

this Solicitor and ordered him to submit additional information. However, the additional information he submitted 

still did not support approval of the proffered settlement 

and I therefore, assigned the case for hearing. Assignment 

of this case also appears to be the most expeditious manner 

of proceeding. See also LAKE 83-75-M, LAKE 83-77-M and 

LAKE 83-81-M. 

Accordingly, the settlement motion is Denied and this 

case is assigned to Administrative Law Judge James A. 

Broderick. 

1806 
All futμre communications regarding this case should be 

addressed to Judge Broderick at the following address: 

Distribution: 

Federal Mine Safety and 

Health Review Commission 

Office of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, VA 22041 

Telephone No. 703-756-6215 

: 

Paul Merlin 

Chief Administrative Law Judge 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn Street, Eighth Floor, 

Chicago, IL .60604 (Certified Mail) 

Mr. Thomas Thimm, Plant Manager, Medusa Cement Company, 

Bells Bay Road, P. o. Box 367, Charlevoix, MI 49720 

(Certified Mail) 

/ln 

1807 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 14, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

MEDUSA CEMENT COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 83-75-M 

A.C. No. 20-00038-05501 

Medusa Cement Company 

(Plant) 

DISAPPROVAL OF SETTLEMENT 

ORDER OF ASSIGNMENT 

The Solicitor has filed a motion to approve settlement 

in the above-captioned proceeding. The Solicitor proposes 

to settle the twenty violations in this case for the original 

assessments total of $1,341. 

Six of the violations were originally assessed for $20 

apiece. The Solicitor advises that one of these violations 

involved a moderate degree of negligence and five involved a 

low degree. The Solicitor also states that in each violation 

the occurrence of an injury would have been unlikely.· He 

notes that abatement was accomplished in each instance. 

However, the Solicitor gives no information to support his 

representation5 regarding negligence and gravity. 

The Act makes very clear that penalty proceedings 

before the Commission are de nova. The Commission itself 

recently recognized that i~is not bound by penalty assessment regulations adopted by the Secretary but rather that in 

a proceeding before the Commission the amount of the penalty to 

be assessed is a de nova determination based upon the six 

statutory criteriEispecified in section llO(i) of the Act 

and the information relevant thereto developed in the course 

of the adjudicative proceeding. Sellersburg Stone Company, 

5 FMSHRC 287 (March 1983). Indeed, if this were not so, the 

Commission would be nothing but a rubber stamp for the 

Secretary. Of course, the Commission is not bound by 30 

C.F.R. § 100.4 which was the basis of six $20 ''single 

penalty assessments." 

1806 
The fourteen remaining violations were assessed for 

amounts ranging from $39 to $136. The Solicitor advises 

that four of these violations involved no negligence and ten 

involved a low degree of negligence. The Solicitor also 

states that each of these violations was significant and 

substantial. H~ notes that abatement was accomplished in 

each instance. - Here again, the Solicitor gives no information to support his conclusions regarding negligence or 

gravity. The inspector checked boxes concerning negligence 

and gravity for all fourteen of these violations. Most of 

the checked boxes coincide with the Solicitor's conclusions. 

In one instance, Citation No. 2089069, however, the inspector indicates no negligence while the Solicitor indicates a low level of negligence. 

In many other cases I have previously stated that I 

cannot base a settlement approval upon an inspector's checks 

in boxes on a form without some explanation from the Solicitor. 

As already pointed out, under section llO(i) of the Act I am 

charged with the responsibility of.determining an appropriate 

penalty in light of the six specified criteria. The Solicitor 

has told me nothing about size, prior history, or ability to 

continue in business. 

Accordingly, the proposed settlements must be Denied. 

In another case involving this operator (LAKE 83-80-M) 

I disapproved a similarly inadequate settlement motion from 

this Solicitor and ordered him to submit additional information. However, the additional information he submitted 

still did not support approval of the proffered settlement 

and I therefore, assigned the case for hearing. Assignment 

of this case also appears to be the most expeditious manner 

of proceeding. See also LAKE 83-74-M, LAKE 83-77-M and 

LAKE 83-81-M. 

In light of the foregoing, this case is assigned to 

Administrative Law Judge James A. Broderick. 

1809 
All future communications regarding this case should be 

addressed to Judge Broderick at the following address: 

Distribution: 

Federal Mine Safety and 

Health Review Commission 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, VA 22041 

Telephone No. 703-756-6215 

Rafael Alvarez, Esq., Office of the Solicitor, U. s. Department of Labor, 230 South Dearborn Street, 8th Floor, Chicago, 

IL 60604 (Certified Mail) 

Mr. Thomas Thimm, Plant Manager, Medusa Cement Company, 

Bells Bay Road, P. o. Box 367, Charlevoix, MI 49720 

(Certified Mail) 

/ln 

1810 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 14, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

MEDUSA CEMENT COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 83-76-M 

A.C. No. 20-00038-05502 

Medusa Cement Company 

(Plant) 

DISAPPROVAL OF SETTLEMENT 

ORDER OF ASSIGNMENT 

The Solicitor has filed a motion to approve settlement 

in the above-captioned proceeding. The Solicitor proposes 

to settle the two violations in this case for the original 

assessments total of $105. 

Citation No. 2089083 was issued for a violation of 30 

C.F.R. § 56.ll-l because a build-up of cement was noted on 

the stairway and walkway at the bottom of the transfer 

elevator. The violation was assessed at $85. The Solicitor 

states that the operator demonstrated a low degree of negligence but he gives no basis for this assertion. The Solicitor 

further states that the violation was significant and substantial but again he gives no reasons. The inspector 

checked boxes indicating that negligence was low and that 

occurrence was reasonably likely and could reasonably be 

expected to result in lost workdays or restricted duty. 

Citation No. 2089085 was issued for a violation of 30 

C.F.R. § 56.11-12 because the cover plate for the No. 2 fuel 

oil pump pit was not in place. The violation was assessed 

at $20. The Solicitor states that the operator demonstrated 

a low degree of negligence and that there was no likelihood 

of an injury. However, the Solicitor provides no information 

to support these representations. 

The Act makes very clear that penalty proceedings before 

the Commission are de novo. The Commission itself recently 

recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in a proceeding before the Commission the amount of the penalty to 

1811 
be assessed is a de novo determination based upon the six 

statutory criteria-specified in section llO(i) of the Act 

and the information relevant thereto developed in the course 

of the adjudicative proceeding. Sellersburg Stone Company, 

5 FMSHRC 287 (March 1983). Indeed, if this were not so, the 

Commission would be nothing but a rubber stamp for the 

Secretary. Of course, the Commission is not bound by 30 

C.F.R. § 100.4 which was the basis of the one $20 "single 

penalty assessment" in this penalty proceeding. 

The Solicitor has told me nothing about size, prior 

history, or ability to continue in business. Under section 

llO(i) of the Act I am charged with the responsibility of 

determining an appropriate penalty in light of the six 

specified criteria. 

In another case involving this operator (LAKE 83-80-M) 

I disapproved a similarly inadequate settlement motion from 

this Solicitor and ordered him to submit additional information. However, the additional information he submitted 

still did not support approval of the proffered settlement 

and'I therefore, assigned the case for hearing. Assignment 

of this case also appears to be the most expeditious manner 

of proceeding. 

Accordingly, the settlement motion is Denied and this 

case is assigned to Administrative Law Judge James A. 

Broderick. 

All future communications regarding this case should be 

addressed to Judge Broderick at the following address: 

/ln 

Federal Mine Safety and 

Health Review Commission 

Off ice of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, VA 22041 

Telephone No. 703-756-6215 

Paul Merlin 

Chief Administrative Law Judge 

1812 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 14, 1983 

SECRETARY OF LABOR, 

MI~E SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

. Petitioner 

v. 

MEDUSA CEMENT COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 83-77-M 

A.C. No. 20-00038-05503 

Medusa Cement Company 

(Plant) 

DISAPPROVAL OF SETTLEMENT 

ORDER OF ASSIGNMENT 

The Solicitor has filed a motion to approve settlement 

in the above-captioned proceeding. The Solicitor proposes 

to settle the eleven violations in this case for the original 

assessments total of $691. 

Six of the violations were originally assessed for $20 

apiece. The Solicitor advises that two of these violations 

involved a moderate degree of negligence and four involved a 

low degree. The Solicitor also states that in each violation 

the occurrence of an injury would have been unlikely. He 

notes that abatement was accomplished in each instance. 

Three of these $20 violations, which involved the 

failure to properly locate emergency stop devices at unguarded 

pinch points, were originally determined to be significant 

and substantial violations. Each citation was modified 

because, the inspector found, "the endangered party would 

probably be able to activate the emergency stop cord or 

would be drawn into it which would activate the emergency 

stop and accomplish its purpose of minimizing injury. 

Therefore [the citation] is modified to indicate the occurrence is unlikely." The inspector's statement that an 

endangered party "probably" could activate the emergency 

cord or otherwise "be drawn into it" does not by itself 

constitute a sufficient basis to conclude whether or not 

the violation was significant and substantial. On the 

contrary, the statement is particularly vague and uninformative. Most importantly, for present purposes I do not 

have any basis upon which to determine gravity. 

1813 
Another of the $20 violations, which involved the 

failure to guard a drive chain, also was determined originally to be a significant and substantial violation. The 

citation was modified because, according to the inspector, 

roping off an area in front of and to the side of the chain 

drive and attaching a sign to the rope "would alert anyone 

coming on to the scene to the unusual condition and would 

make it unlikely that anyone would be injured as a result of 

the missing guard." The inspector's statement, alone, does 

not justify a $20 penalty, which in my opinion, most often 

denotes an absence of gravity. 

The Act makes very clear that penalty proceedings 

before the Commission are de novo. The Commission itself --- recently recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that in 

a proceeding before the Commission the amount of the penalty 

to be assessed is a de novo determination based upon the six 

statutory criteria specified in section llO(i) of the Act 

and the information relevant thereto developed in the course 

of the adjudicative proceeding. Sellersburg Stone Company, 

5 FMSHRC 287 (March 1983). Indeed, if this were not so, the 

Commission would be nothing but a rubber stamp for the 

Secretary. The recitation by the Solicitor of bare conclusions is not a sufficient basis upon which I can predicate 

settlement approvals of $20 apiece. Of course, as I previously have held the Commission is not bound by 30 C.F.R. 

§ 100.4 which is the basis of the six $20 "single pen~lty 

assessments." 

The five remaining violations were assessed for amounts 

ranging from $85 to $136. The Solicitor advises that one of 

these violations involved a moderate degree of negligence 

and four involved a low degree. The Solicitor also states 

that each of these violations was significant and substantial. 

He notes that abatement was accomplished in each instance. 

Here again, the Solicitor gives no information for his conclusions regarding negligence and gravity. "Significant and 

substantial" is not the same as gravity. The inspector did 

check boxes concerning negligence and gravity for all five 

of these violations. Most of the checked boxes coincide 

with the Solicitor's conclusions. In .one instance, Citation 

No. 2089050, however, the inspector indicates a moderate 

degree of negligence while the Solicitor indicates a low 

degree. 

1814 
In many other cases I have previously stated that I 

cannot base a settlement approval upon an inspector's checks 

in boxes on a form without some explanation from the Solicitor. 

As already pointed out, under section llO(i} of the Act I am 

charged with the responsibility of determining an appropriate 

penalty in light of the six specified criteria. In addition 

to inadequate data on gravity and negligence, the Solicitor 

has told me nothing about size, prior history, or ability to 

continue in business. 

Accordingly, the proposed settlements must be Denied. 

In another case involving this operator (LAKE 83-80-M) 

I disapproved a settlement motion from this Solicitor and 

ordered him to submit additional information. However, the 

additional information he submitted still did not support 

approval of the proffered settlement and I therefore, 

assigned the case for hearing. Assignment of this case also 

appears to be the most expeditious manner of proceeding. 

See also LAKE 83-74-M, LAKE 83-75-M and LAKE 83-81-M. 

In light of the foregoing, this case is assigned to 

Administrative Law Judge James A. Broderick. 

All future corrununications regarding this case should be 

addressed to Judge Broderick at the following address: 

Distribution: 

Federal Mine Safety and 

Health Review Corrunission 

Office of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, VA 22041 

Telephone No. 703-756-6215 

Chief Administrative Law Judge 

Rafael Alvarez, Esq., Office of the Solicitor, U. s. Department of Labor, 230 South Dearborn Street, 8th Floor, Chicago, 

IL 60604 (Certified Mail) 

Mr. Thomas Thirrun, Plant Manager, Medusa Cement Company, 

Bells Bay Road, P. o. Box 367, Charlevoix, MI 49720 

(Certified Mail) 

/ln 

1815 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 14, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

v. 

MEDUSA CEMENT COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 83-81-M 

A.C. No. 20-02514-05502 

Medusa Cement Company 

(Plant) 

DISAPPROVAL OF SETTLEMENT 

ORDER OF ASSIGNMENT 

The Solicitor has filed a motion to approve settlement 

in the above-captioned proceeding. The Solicitor proposes 

to settle the three violations in this case for the original 

assessments total of $98. 

Citation No. 2088997 was issued for a violation of 30 

C.F.R. § 56.14-1 because guarding was not provided for the 

counterweight wheel for a shaker screen. The violation was 

assessed at $20. The Solicitor states that the operator 

demonstrated a moderate degree of negligence and that an 

injury was unlikely to occur. The Solicitor, however, provides no information to support these assertions. 

The Act makes very clear that penalty proceedings 

before the Commission are de novo. The Commission itself --- recently recognized that it is not bound by penalty assessment regulations adopted by the Secretary but rather that 

in a proceeding before the Commission the amount of the 

penalty to be assessed is a de novo determination based 

upon the six statutory criteria specified in section llO(i) 

of the Act and the information relevant thereto developed 

in the course of the adjudicative proceeding. Sellersburg 

Stone Company, 5 FMSHRC 287 (March 1983). Indeed, if this 

were not so, the Commission would be nothing but a rubber 

stamp for the Secretary. The mere recitation by the 

Solicitor of bare conclusions is not a sufficient basis 

upon which I can approve $20 penalty assessments. 

Citation Nos. 2089063 and 2089064 were issued for 

failure to properly maintain a fire extinguisher and failure 

to clear a walkway of material causing a slip and fall 

1816 
hazard, respectively. The violations were assessed at $39 

apiece. The Solicitor states that the operator demonstrated 

a low degree of negligence in both instances but he provides 

no information to support this assertion. The Solicitor 

further states that the violations were significant and 

substantial but again he gives no reasons. In both citations, 

the inspector checked boxes indicating that negligence was 

low and that occurrence was reasonably likely and could 

reasonably be expected to result in lost workdays or restricted 

duty. I have previously stated that I cannot base a settlement 

approval upon an inspector's checks in boxes on a form 

without some explanation from the Solicitor. As already 

noted, under section llO(i) of the Act I am charged with the 

responsibility of determining an appropriate penalty in 

light of the six specified criteria, including gravity. 

In absence of other evidence, $39 would appear a low penalty 

amount. The Solicitor has told me nothing about size, prior 

history, or ability to continue in business. 

In another case involving this operator (LAKE 83-80-M) 

I disapproved a similarly inadequate settlement motion from 

this Solicitor and ordered him to submit additional information. However, the additional information he submitted 

still did not support approval of the proffered settlement 

and I therefore, assigned the case for hearing. Assignment 

of this case also appears to be the most expeditious manner 

of proceeding. See also LAKE 83-74-M, LAKE 83-75-M and 

LAKE 83-77-M. 

Accordingly, the settlement motion is Denied and this 

case is hereby assigned to Administrative Law Judge James A. 

Broderick. 

All future communications regarding this case should be 

addressed to Judge Broderick at the following address: 

/ln 

Federal Mine Safety and 

Health Review Commission 

Office of Administrative Law Judges 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, VA 22041 

Telephone No. 703-756-6215 

Chief Administrative Law Judge 

1817 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 14 1983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

U.S. STEEL MINING CO., INC., 

Respondent 

Docket No. PENN 83-52 

A.C. No. 36-05018-03507 

Cumberland Mine 

DECISION 

Appearances: 

Before: 

Thomas A. Brown, Jr., Esq., and Matthew J. Rieder, 

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

Labor, Philadelphia, Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

This case involves a single citation issued September 9, 1982, 

alleging a violation of 30 C.F.R. § 75.200 because Respondent failed 

to comply with its approved roof control plan. Respondent does not 

deny that the violation occurred, but denies that it was significant and substantial, and contests the amount of the penalty. Pursuant to notice, the case was heard in Uniontown, Pennsylvania, on 

June 22, 1983. Steve Yurkovich testified on behalf of Petitioner; 

Don Laurie and Rudy Juracko testified on behalf of Respondent. 

Both parties have filed posthearing briefs. Based on the entire 

record, and considering the contentions of the parties, I make the 

following decision: 

FINDINGS OF FACT 

1. Respondent is the owner and operator of an underground 

coal mine in Greene County, Pennsylvania, known as the Cumberland 

Mine. 

2. The subject mine produces in excess of 1 million tons of 

coal annually. Respondent produces in excess of 15 million tons 

of coal annually. Respondent is a large operator. 

1818 
3. In the 24 months prior to the violation alleged herein, 

the subject mine had 32 assessed violations of 30 C.F.R. § 75.200. 

This history of prior violations is not such that a penalty otherwise appropriate should be increased because of it. 

4. The imposition of a penalty in this case will not affect 

Respondent's ability to continue in business. 

5. The,approved roof control plan in effect at the subject 

mine at all times pertinent to this proceeding required that in all 

track haulage intersection spans a minimum of one crib or two posts 

be installed as suppl~mentary roof supports in one or more of the 

inactive approaches (Government Exh. 2) . 

6. On September 9, 1982, supplementary roof supports were not 

present in either of the approaches to the track haulage road at 

the intersection of the No. 3 entry and the 21st crosscut in the 

63 Face South section of the subject mine. Citation No. 2011731 

was issued charging a violation of 30 C.F.R. § 75.200. 

7. The roof in the cross cut was "potted out" in an area of 

about 80 or 90 square feet. The roof was split inby the intersection and starting to break. 

8. Ten roof bolts had been installed in the potted out area, 

which apparently occurred during the mining cycle when the miner 

operator cut higher than normal. The ten bolts were three or four 

more than called for in the roof control plan. The mining of this 

area took place about 14 weeks prior to the issuance of the 

citation. 

9. Header blocks were added to the bolts in the potted out 

area to catch loose material around the bolt. 

10. The violation was abated September 9, 1982, by the 

installation of two posts in the right side of the intersection. 

They were later replaced by cribs in October or November of 1982. 

ISSUES 

1. Was the violation of such nature as could significantly 

and substantiallv contribute to the cause and effect of a mine 

safety or health-hazard? 

2. What is the appropriate penalty for the violation? 

CONCLUSIONS OF LAW 

1. Respondent is subject to the provisions of the Federal 

Mine Safety and Health Act of 1977 in the operation of the subject 

mine, ang I have jurisdiction over the parties and subject matter 

of this proceeding. 

1819 
2. The condition described in Finding of Fact No. 6 was a 

violation of the approved roof control plan and therefore of 

30 C.F.R. § 75.200. 

3. The violation referred to above was of such nature as could 

significantly and substantially contribute to the cause and effect 

of. a mine safety hazard. 

DISCUSSION 

The roof control plan requires additional supports at track 

haulage intersections to help prevent roof falls along the 

haulage roads. Not all roof control plans have such a requirement, 

and the MSHA Inspector admitted that such a requirement is not 

necessary for haulage intersections unless the roof conditions are 

bad. However, the intersection in question had a large potted out 

area and was beginning to break. The inspector described the roof 

in the intersection as "bad." In such a place, he believed that 

additional supports were necessary to prevent a roof fall. I conclude that a roof fall was reasonably likely to occur as a result 

of the violation and, if it occurred, it would likely cause serious 

injuries to miners. This judgment must be made considering the 

conditions present at the time the citation was issued. The fact 

that the roof has not fallen and the cribs are apparently not 

bearing weight as of the hearing date is not determinative of the 

question. 

4. The violation was serious. Roof falls are the.most common 

cause of fatalities in the nation's mines. 

5. The violation was obvious. Respondent should have been 

aware of it. It resulted from negligence. 

6. Based on the criteria in section llO(i) of the Act, I 

conclude that an appropriate penalty for this violation is $250. 

ORDER 

Based on the above findings of fact and conclusions of law, IT 

IS ORDERED 

1. Citation No. 2011731, including its designation as significant and substantial, is AFFIRMED. 

2. Respondent shall, within 30 days of the date of this order, 

pay the sum of $250 for the violation found herein to have occurred. 

~~~ James A. Broderick 

Administrative Law Judge 

1820 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 14, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

ROSS ISLAND SAND & GRAVEL 

COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 83-111-M 

A.C. No. 35-00540-05501 

Ross Island Plant 

DISAPPROVAL OF SETTLEMENT 

ORDER OF ASSIGNMENT 

On September 28, 1983, I ordered the Solicitor to 

submit additional information to support the proposed 

settlements of $20 apiece for the two violations involved in 

this matter. The Solicitor has now responded. 

With respect to Citation No. 2225917 the Solicitor 

advises as follows: 

In regard to this citation, detailing 

the fact that a work deck area behind a 

screen where the scalper machine was located, 

was being littered with wood and other debris, 

a violation of 30 CPR 56.11.1, if the inspector 

were to testify he would state in regard to 

negligence: that the negligence involved was 

ordinary negligence. The wood scattered 

around the workplace was obvious and was the 

result of the company's failure to correct 

said condition. 

In regard to the gravity of the situation, 

the inspector would testify that there were 

approximately two or three persons working in 

the area and it was probable that they would 

trip or fall. The type of injury that might 

occur is unpredictable as it would depend 

entirely on the nature of the fall, but was 

unlikely to cause lost work days or restricted 

duty. 

1821 
With respect to Citation No. 2225918 the Solicitor 

advises as follows: 

In regard to Citation 2225918 detailing 

the fact that an acetylene bottle, located in 

the welding bay, was not secured, a violation 

of 30 CFR 56.16-5, if the inspector were to 

testify, he would state in regard to negligence: that the negligence involved was 

ordinary negligence, in that the operator 

failed to exercise reasonable care to prevent 

and correct the condition. The bottle was in 

plain view and obviously unsecured. 

In regard to the gravity of the situation, 

the inspector would testify that there were 

two to three men working in the area all the 

time doing welding or working at the front 

end of a loader. The probability of an 

accident occurring was 'probable' because 

although there was no flammable material 

around, there remains the possibility of 

pressure accumulating and the bottle acting 

like a trajectory. The gravity of an injury 

if it were to occur would be unpredictable 

depending upon the length of time the bottle 

was unsecured and the direction it took. It 

would be expected that a minimal number of 

days would be lost or work restricted. 

In light of the foregoing, I am unable to approve $20 

settlements for either of these violations. Although the 

operator is small and without a prior history, gravity and 

negligence in both instances appear at first blush to be 

much greater than would be consistent with $20 penalties . 

. At the very least, the inspector's statements raise questions 

which should be resolved at hearing. 

Accordingly, the motion for settlement is Denied. This 

case is hereby assigned to Administrative Law Judge Virgil E. 

Vail. 

1822 
All future communications regarding this case should be 

addressed to Judge Vail at the following address: 

Distribution: 

Federal Mine Safety and 

Health Review Commission 

Office of Administrative Law Judges 

333 W. Colfax Avenue, Suite 400 

Denver, CO 80204 

Telephone No. 303-837-3577 

Paul Merlin 

Chief Administrative Law Judge 

Rochelle Kleinberg, Esq., Office of the Solicitor, u. S. 

Department of Labor, 8003 Federal Office Building, Seattle, 

WA 98174 (Certified Mail) 

Mr. R. G. Tuttle, Corporate Director, Ross Island Sand & 

Gravel Company, 4315 South East .McLoughlin Blvd., P. o. Box 

02219, Portland, OR 97202 (Certified Mail) 

/ln 

1823 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 17 1983 

CLINCHFIELD COAL COMPANY, CONTEST PROCEEDING 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

CLINCHFIELD COAL COMPANY, 

Respondent 

DECISION 

Docket No. VA 82-51-R 

Order and Citation No. 2038802; 

6/18/82 

Hurricane Creek Mine 

CIVIL PENALTY PROCEEDING 

Docket No. VA 83-24 

A. C. No. 44-01773-03509 

Hurricane Creek Mine 

Appearances: Fletcher A. Cooke, Esq., Clinchfield Coal Company, 

Lebanon, Virginia, for Contestant/Respondent; 

Paul Thompson, General Counsel, Pittston Coal 

Group, Lebanon, Virginia, for Contestant/Respondent; 

David E. Street, Esq., Office of the Solicitor, u. S. 

Department of Labor, Philadelphia, Pennsylvania, for 

Respondent/Petitioner. 

Before: Judge Steffey 

A hearing was held on April 27 and 28, 1983, in Abingdon, 

Virginia, in the above-entitled proceeding pursuant to sections 

lOS(d) and 107(e), 30 U.S.C. §§ 815(d) and 817(e), of the Federal Mine Safety and Health Act of 1977. The parties indicated 

at the conclusion of the hearing that they wished to file posthearing briefs. Counsel for both parties filed simultaneous 

initial posthearing briefs on August 17, 1983, and counsel for 

Clinchfield Coal Company filed a reply brief on September 9, 

1983. 

Issues 

The subject of the hearing was the issuance by MSHA on 

June 18, 1982, of Order and Citation No. 2038802, pursuant to 

sections 107(a) and 104(a) of the Act, requiring all persons to 

be withdrawn from a roof-fall area in the 2 Left Section of 

Clinchfield's Hurricane Creek Mine and alleging that a violation 

1824 
of 30 C.F.R. § 75.200 had occurred. Clinchfield claims in its 

application for review filed on July 19, 1982, in Docket No. 

VA 82-51-R, that;. no imminent danger existed and that no violation 

of section .75.200 occurred. The Secretary of Labor filed on 

April 6, 1983, in Docket No. VA 83-24, a petition for assessment 

of civil penalty seeking to have a civil penalty assessed for the 

alleged violation of section 75.200 alleged in Order and Citation 

No. 2038802. 

' 

The three basic issues raised by the parties are: (1) whether a violation of section 75.200 occurred; (2) whether an imminent 

danger existed on June 18, 1982, when Order No. 2038802 was issued, 

and (3) what civil penalty should be assessed under section llO(i) 

of the Act if a violation of section 75.200 is found to have 

occurred. 

Summary of the Evidence 

Counsel for the Secretary of Labor and counsel for Clinchf ield Coal Company entered into the following stipulations (Tr. 

7-8): (1) Clinchfield is the owner and operator of the Hurricane 

Creek Mine involved in this proceeding. (2) Clinchfield and the 

Hurricane Creek Mine are subject to the Act. (3) The administrative law judge has jurisdiction to hear and decide the case. (4) 

The inspector who issued Order No. 2038802 on June 18, 1982, under sections 107(a) and 104(a) of the Act is a duly authorized 

representative of the Secretary of Labor. (5) A true and correct 

copy of Order No. 2038802 was properly served upon Clinchfield. 

(6) All witnesses are accepted generally as experts in coal mine 

health and safety. (7) Imposition of civil penalties will not 

affect the operator's ability to continue in business. (8) 

Clinchfield is a medium-sized coal company which produces about 

3,000,000 tons of coal annually. (9) The Hurricane Creek Mine 

is a medium-sized mine. (10) The Mine Safety and Health Administration and the Virginia Division of Mines conducted a joint 

investigation on June 4, 1982, of an accident which occurred at 

the Hurricane Creek Mine on June 2, 1982, and also conducted on 

June 18, 1982, a reinvestigation of the accident, but the MSHA 

and Virginia personnel who participated in:the reinvestigation 

on June 18, 1982, were not involved in the issuance of Order No. 

2038802 (Tr. 328) • 

The issues in this proceeding must be resolved in light of 

the witnesses' testimony which is summarized in the following 

paragraphs: 

1. Nickie Brewer, a coal-mine inspector from MSHA's Norton, 

Virginia, Office conducted a spot inspection at Clinchfield's 

Hurricane Creek Mine on June 18, 1982. He was accompanied into 

the mine by Supervisory Inspector E. C. Rines, and by Denver 

Meade, -·a member of the United Mine Workers of America and chairman of the safety committee at the Hurricane Creek Mine (Tr. 10-

12; 78; 130). 

1825 
2. The three men started their inspection in the No. 1 

entry of the 2 Left Section and when they reached the last open 

crosscut between the Nos. 5 and 6 entries, they encountered some 

extensive overhanging brows which Brewer found to be an imminent 

danger. Therefore, at 12:00 noon he issued Order No. 2038802 

dated June 18, 1982, under section 107(a) of the Act. Order No. 

2038802 also cited a violation of 30 C.F.R. § 75.200 under section 104(a) of the Act (Tr. 12; 20; 73). The condition or practice given in the order reads as follows (Exh. 1, p. 1): 

An unsupported, overhanging, arching rock brow 

that showed separation (cracked and broken) was present along the left rib of the No. 5 entry, right 

crosscut of the 2 Left (005) Working Section where a 

roof fall had occurred and a continuous-mining machine 

had been recovered from under fallen roof material. 

This brow began approximately 57 feet inby the centerline off the No. 5 entry and extended inby approximately 20 feet. The brow arched toward the center of 

the entry approximately 9 feet and was 2 feet thick. 

Another unsupported rock brow was present along 

the right rib of the same entry crosscut, beginning 

approximately 54 feet inby the same centerline and 

extending inby approximately 18 feet. The brow overhung from 22 inches to approximately 9 feet out over 

the entry. Unsupported, fractured roof was also 

present immediately inby the fall area in the No. 6 

entry measuring 9 feet by 9 feet extending inby to 

the face and right rib of the No. 6 entry. 

At the time of this inspection there was no 

activity in this vicinity and the area was dangered 

off. However, a continuous-mining machine had been 

recovered in this area prior to this inspection. 

3. Order No. 2038802 was terminated on December 6, 

1982, and the reason given for terminating the order was that 

(Exh. 1, p. 2): 

The safe procedure for recovering mine machinery 

from area where roof falls have occurred has been discussed with the workmen on all shifts. Also the area 

where the roof fall had occurred had been dangered and 

barricaded off. The company also has no intention of 

mining in the area of the roof fall. 

4. Brewer testified that on June 18 he found no danger 

sign of any kind to warn persons of the hazards of going into 

the crosscut in which the unsupported brows existed (Tr. 46; 

318-319). In his order, however, Brewer had stated that "* * * 

there was no activity in this vicinity and the area was dangered 

1826 
off." Brewer said that the area was not dangered off until after 

he had hung red tags in the fall area to warn persons of the existence of the imminent danger (Tr. 46). Brewer's supervisor 

suggested that since Brewer, rather than Clinchfield, had posted 

danger signs, Brewer should modify his order to remove the ambiguous reference to the area's having been dangered off (Tr. 56). 

Therefore, on January 18, 1983, Brewer issued a modification of 

the order reading as follows: 

Order No. 2038802 issued June 18, 1982, is hereby 

modified to include the following statement: 

The approaches to this area of violation prior to 

the issuance of the order of withdrawal were not dangered off. 

5. In support of his finding of the existence of an imminent 

danger, Brewer introduced as Exhibit 2 a diagram of the way the 

overhanging brows appeared to him when he examined them by going 

into the crosscut from the No. 5 entry. Brewer wrote the letter 

"A" on Exhibit 2 to show the location of the right rib of No. 6 

entry inby the brows (Tr. 22). The letter "B" on Exhibit 2 shows 

the location of the left brow which was 20 feet long, was arched 

out over the center of the crosscut for a distance of 9 feet, and 

was about 2 feet thick. Brewer was especially concerned about a 

crack at the place where the left brow began (Tr. 13). He interpreted the existence of the crack as an indication that the brow 

was just hanging there "waiting to fall" (Tr. 22; 32). Brewer 

wrote the letter "C" on Exhibit 2 to show the location of the 

right brow which was 18 feet long, arched out over the crosscut 

a distance of from 22 inches to 9 feet, and was 1-1/2 to 2 feet 

thick. Brewer placed the letter "D" on Exhibit 2 to mark the 9-

foot square area in the roof of the No. 6 entry where the roof 

was unsupported, cracked, and broken (Tr. 24). 

6. Brewer stated that the brows described in summary paragraph No. 5 were the remainLng edges of a roof fall which had 

occurred in the crosscut on June 2, killing two miners and covering up Clinchfield's continuous-mining machine (Tr. 33). Brewer 

said that a motor and a control bank had to be replaced on the 

continuous-mining machine before it could be extricated from the 

roof fall and it was his belief that the miners were exposed to 

unsupported roof while they were in the process of replacing the 

parts. Brewer introduced as Exhibit 4 a diagram showing that the 

overhanging brows would have been over the head of anyone replacing parts on the continuous-mining machine or working the controls 

to extricate the continuous-mining machine from the crosscut (Tr. 

34-39). 

7. Although no coal was being produced in 2 Left Section 

at the time Brewer wrote the order citing an imminent danger, he 

said that the continuous-mining machine recovered from the rooff all area was about 120 feet away from the fall area and that if 

1827 
Clinchfield had succeeded in getting the miner repaired by that 

evening, active production of coal would have been resumed (Tr. 

48-50; 64). Brewer also claimed that the crosscut had to be 

considered a place where miners were regularly required to work 

because preshift examinations of the area would have had to have 

been made in order for repairmen to work on the disabled contin·-

uous-mining machine (Tr. 18-19). Since he had found no danger 

sign or breaker posts when approaching the crosscut from the No. 

5 entry, he said that it was quite likely to qssume that the preshift examiner would go into the crosscut to the No. 6 entry to 

take an air reading and be killed by one of the unsupported 

brows (Tr. 19-20). Brewer also believed that Clinchfield's failure to support the brows was associated with a high degree of 

negligence because supervisory personnel were in the crosscut at 

the time the continuous-mining machine was recovered and yet they 

had taken no action to correct the hazardous conditions which 

existed when he inspected the crosscut on June 18 (Tr. 41). 

8. Brewer's supervisor, E. C. Rines, supported Brewer's 

exhibits and his belief that an imminent danger existed. Rines 

emphasized the height of the brows where they terminated against 

the roof cavity, their 9-foot extension from the ribs toward the 

center of the crosscut (Tr. 91), and the fact that there were no 

bolts in the brows and that the only bolts they saw were in the 

center of the crosscut (Tr. 93), except for a single bolt near 

the rib in the right brow close to the point where the crosscut 

intersected with the No. 6 entry (Tr. 92; Exh. 3, p. 1). Rines 

believed that single bolt had failed to pull out when the roof 

fall occurred. Rines said that even if Clinchfield had erected 

a danger sign at the intersection of the No. 5 entry and the 

crosscut cited in the order, the existence of a danger sign 

would not be a reason to prevent an inspector from issuing an 

imminent-danger order (Tr. 310-311). 

9. Larry Coeburn was the MSHA inspector normally assigned 

to perform inspections at the Hurricane Creek Mine (Tr. 126). 

He was not with Brewer and Rines when the imminent-danger order 

was issued, but he accompanied Clinchfield's personnel when they 

went to examine the crosscut on June 22 and he concurred with 

Brewer's and Rines' belief that the unsupported brows in the 

crosscut constituted a very hazardous condition. He believed 

that if the brows had fallen, they would necessarily have fallen 

across the middle of the crosscut. He said that when he went to 

the roof-fall area on June 22, there was still no physical obstruction to prevent a miner from entering the hazardous crosscut from the No. 5 entry. Therefore, he participated in cutting 

timbers and boards so that they could erect actual barricades at 

each end of the roof-fall area to preclude persons from entering 

the area unless they removed the barriers (Tr. 125). At the 

time they erected the barricades, actual production of coal was 

being conducted in the 2 Left Section just two crosscuts inby 

1828 
the crosscut in which the imminent danger had been cited and 

still existed (Tr. 128). 

10. Denver Meade, the safety committeeman who accompanied 

Brewer on his inspection of the 2 Left Section, stated that the 

likelihood of the brows' falling was "[j]ust about as great a 

chance as it could get. I made the statement up there it was 

like working close to a cocked gun, working up there" (Tr. 130-

131). Meade participated in installing roof bolts and in erecting crossbars outby the area of the roof fall. He said that he 

saw no supports whatsoever under the brows cited in the irnminentdanger order and that he was just about as confident as one can 

get in stating that there were no roof bolts in the brows (Tr. 

131). Meade also testified that a company official, Gail Kizer, 

went out from under both permanent and temporary supports to 

attach ropes to rocks so that the rocks could be pulled off of 

the continuous-mining machine which had been covered up in the 

roof fall (Tr. 132). Meade placed an "X" on page 1 of Exhibit 3 

to show the location of one of the rocks which were pulled out 

before the continuous-mining machine could be removed (Tr. 137). 

11. A preshift examiner, Robert Vickers, testified that he 

preshifted the 2 Left Section between 9 p.m. and midnight on 

June 17, 1982, and he introduced as Exhibit A a preshift examiner's report showing that he wrote the words "Danger off at fall" 

on the line for noting hazards in the No. 6 entry. Vickers said 

that the notation was made because he saw a Pepsi or Coke can 

with illuminated tape on it hanging from a roof bolt about eye 

level in the No. 5 entry near the crosscut leading to the rooffall area. Vickers claimed that a reflectorized can was used 

in the Hurricane Creek Mine as a danger sign and that miners 

know to examine the area inby such cans for hazardous conditions 

before entering such areas. Vickers said his notation was intended to mean that the entire fall area and both the approaches 

from entries Nos. 5 and 6 had been "dangered off'' (Tr. 149-150). 

Vickers stated that he did not go inby the reflectorized can and 

that he inspected the No. 6 entry by going through the crosscut 

outby the roof-fall area to examine the No. 6 entry. Vickers 

could nbt recall when the can first appeared in the No. 5 entry, 

but he made another preshift examination between 9 and midnight 

on June 18 and the can was still hanging in the No. 5 entry 

where he had observed it on June 17 (Tr. 155). Vickers also 

believed that there was a reflectorized can in the No. 6 entry 

(Tr. 156). Vickers went so far as to assure the Secretary's 

counsel that he was as certajn that there was a can in both the 

No. 5 and No. 6 entries as he was that he was sitting in the 

courtroom (Tr. 157). 

12. Logan Busch, a Clinchfield miner with 13 years of 

experience, including 8 years of operating a continuous-mining 

machine, participated in the removal of the continuous miner 

which had been covered up by the roof fall in the crosscut between Nos. 5 and 6 entries (Tr. 179-180). He and another miner 

1828 
worked for an entire shift bolting the cavity left in the roof 

which fell on the continuous miner (Tr. 191). They stood on 

top of the continuous miner and worked their way around cribs 

built on top of the miner (Tr. 184). The stoper, or pneumatic 

drill, they were using weighs about 200 pounds and is very difficult to use in the cramped conditions they encountered on top 

of the miner and on the side of the miner (Tr. 191-195; 201-203). 

Busch said that they installed roof bolts every place they could 

reach with the stoper. Some of the area on the right side of 

the miner was too high to reach with the steel they were using 

{Tr. 185) and they could not bolt the roof over and immediately 

outby the ripper head because the ripper was cutting coal at the 

time the roof fell and the rock at the top of the head and immediately behind the head was still lying on top of the miner and 

there was no room at all to use the stoper in that area (Tr. 183). 

13. Busch, who has assisted in recovering about seven or 

eight continuous miners from roof falls (Tr. 181), and some other 

Clinchfield employees went to the 2 Left Section on Sunday, 

June 13, 1982, to remove the continuous-mining machine after the 

roof had been bolted and most of the rocks had been removed from 

the sides of the continuous miner. Busch and his supervisor, 

Don Cross, removed some remaining rock from behind the boom of 

the miner while a repairman, Roy Sauls, installed a pump and a 

valve block on the right side of the miner (Tr. 180). Busch 

then positioned himself at the continuous miner's controls, but 

the miner was not yet free enough to be trammed from the area 

until a rope was attached to the miner and hooked to a scoop 

{Tr. 185). By using the ripper head to dislodge rocks near the 

front of the miner and by relying upon the scoop's assistance, 

Busch was able to back the miner out of the crosscut (Tr. 186). 

Busch stated that there were bolts over the deck of the miner 

which made him believe it was safe for him to operate the controls (Tr. 182). He was, nevertheless, aware of the crack in 

the left brow, but he concluded that the left brow was caught 

against firm rock in the center of the bolted roof-fall cavity. 

He further believed that if the left brow had fallen, it would 

have f~llen on the continuous miner at a point inby the operator's controls where he was situated (Tr. 203-204). 

14. After Busch and the other members of the recovery team 

had added oil to the miner's hydraulic system, they succeeded in 

tramming ·it outby the crosscut for about a break and a half and 

they left it there for evaluation as to the need for further repairs (Tr. 190). Busch says that the reflectorized can, described 

in summary paragraph No. 11 above, was "still" in the No. 5 entry 

on June 13, but he thinks or is "pretty sure" that they also 

erected a single timber in the intersection of the No. 5 entry 

with the crosscut and that they wrote the word "Danger" on that 

single timber {Tr. 190). After Busch had trammed the miner out 

of the crosscut, no supports at all were left in the roof-fall 

1830 
area other than those which had been installed with the stoper 

prior to removal of the miner. Since Busch had been unable to 

install any bolts near the front of the continuous miner, there 

was naturally no.support of any kind at the far end of the roof 

fall where the crosscut intersected the No. 6 entry (Tr. 189). 

15. Roy Sauls, a repairman with 13 years of experience, 

including 12-1/2 years of experience in the Hurricane Creek Mine, 

has assisted in recovery of continuous-mining machines from 

seven or eight roof falls (Tr. 205; 212). He replaced the "C" 

pump and valve block on the right side of the miner on Sunday, 

Jun~ 13, just before the miner was trammed from the crosscut. 

He worked at the edge of the right brow in doing so and the brow 

had neither roof bolts nor temporary supports under it at the 

time he did the work (Tr. 207-208). He examined the brow and 

felt that the fall area had been made as safe as a fall area can 

be made. While he considered it safe for him to do the repair 

work, he also expressed the opinion that "[t]here's a possibility there could have been another fall in there anywhere" (Tr. 

209) • Sauls stayed around on June 13 until his supervisors and 

he had examined the continuous-mining machine and it was the 

consensus that the miner would have to be disassembled and taken 

to the central shop to be rebuilt because the damage done to it 

by the roof fall was too extensive to be repaired underground 

(Tr.211). 

16. Don Cross has worked for Clinchfield for 18 years and 

he was the supervisor in charge of recovery of the continuousmining machine on June 13, 1982 (Tr. 213). His account of the 

recovery of the continuous miner does not differ from Busch's 

explanation which has been summarized in paragraph Nos. 12, 13, 

and 14 above. There was likewise little difference in the testimony of Busch and Cross as to the setting of a timber outby the 

crosscut with the word "Danger" written on it after removal of 

the continuous miner from the crosscut. Just as Busch had stated 

that he "was not for sure" and "believed" that they had erected 

such a timber (Tr. 190), so did Cross qualify the setting of the 

timber "to the best of [his] knowledge" (Tr. 215). Cross, like 

Busch, also stated that the reflectorized warning can was "still" 

hanging in the No. 5 entry at the approach into the crosscut 

(Tr. 215). Cross' credibility also suffers somewhat from his 

inconsistent statement on cross-examination that he had only 

worked 1 day in the fall area (Tr. 216) as compared with his 

statement during direct examination that "* * * we had worked 

on the area the shift previous" (Tr. 214). 

17. Monroe West has been Clinchfield's safety director 

since September 1, 1977. Prior to that, he served for 18 years 

in various positions with the Bureau of Mines and MSHA, including several years as subdistrict manager of MSHA's Norton, 

Virginia, Office (Tr. 217). He was in the No. 5 entry and crosscut on June 18 when the imminent-danger order was issued, but he 

1831 
did not see the ref lectorized can allegedly observed by other 

Clinchfield witnesses (Tr. 223; 227). West introduced as Exhibit Ca copy of the Hurricane Creek Mine's roof-control plan 

which was in effect on June 18. West stated that paragraph 3(a) 

of the roof-control plan provides as follows (Tr. 223): 

(a) Upon completion of the loading cycle, a 

reflectorized warning device, such as a "stop" sign, 

shall be conspicuously placed to warn persons approaching any area that is not permanently supported. 

It is to be emphasized that the warning device has 

been placed to cause the person to stop, examine, 

and evaluate the roof and rib conditions prior to 

entering the area--even after temporary supports 

have been installed. 

West said that a ref lectorized can was used at the Hurricane 

Creek and other mines to warn miners of hazardous conditions and 

that miners will not enter the area beyond such a warning device 

even if no physical barrier is erected to prevent them from going into the area beyond such a can (Tr. 223-225). 

18. West was asked to examine the preshift report made by 

an examiner for the oncoming 8-a.m.-to-4-p.m. shift on June 18 

and that report has no notation at all to show that the reflectorized can did or did not exist in the No. 5 entry of the 2 

Left Section (Tr. 230). West stated that it is not necessary to 

preshift a section which is idle if there is no activity in the 

section (Tr. 228), but he said that preshifts were required when 

miners were working in the 2 Left Section to determine the exact 

locations of roof bolts or to perform repairs on the continuousmining machine (Tr. 228). 

19. Ronald Hamrick, an employee of the Virginia Division 

of Mines with 30 years of coal-mining experience, testified that 

he was in the 2 Left Section on June 2, 4, and 18, 1982, as a· 

participant in the original investigation and reinvestigation of 

the roof fall which occurred on June 2 (Tr. 249-250). On June 18, 

he was in the No. 6 and No. 5 entries and he recalls seeing a 

reflectorized can hanging in the No. 5 entry. He looked beyond 

the can into the crosscut and saw roof bolts and believed that 

they had ~orgotten to remove the can because it appeared that 

the crosscut had already been permanently supported. He did not 

go more than 10 or 15 feet into the crosscut because his supervisor called him about the time he saw the can and they went 

inby the crosscut and examined the face areas and torqued roof 

bolts (Tr. 251-252). Hamrick did not see the reflectorized can 

on June 4 and does not think one existed at that time (Tr. 258). 

Hamrick said that he probably made some notes about the investigation but that he did not have the notes with him and that he 

doubts if he would have made a notation about observing the reflectorized can because that is a common occurrence (Tr. 258). 

1832 
Hamrick also stated that Clinchfield's attorney had referred to 

the can in a telephone conversation prior to the time he appeared 

as a witness in this proceeding (Tr. 259). Hamrick did not see 

a reflectorized can in the No. 6 entry (Tr. 261). 

20. Earl Hess has worked for Clinchfield for 25 years and 

is superintendent of the Hurricane Creek Mine (Tr. 262). He 

testified that the roof fall occurred on Wednesday, June 2, 1982, 

that the first investigation occurred on Friday, June 4. The mine 

was idle for the ~iners' vacation from June 2 to June 10, 1982 

(Tr. 227; 238). They began the work preparatory to recovering 

the continuous-mining machine on Monday, June 7, by having miners 

bolt the roof outby the fall area. That work continued, including the installation of crossbars from the No. 5 entry on into 

the crosscut up to the boom of the continuous miner, and the 

stopering or bolting of the roof-fall cavity above the continuous 

miner. The miner was recovered on Sunday, June 13, and was taken 

to the end of the track "about" Wednesday, June 16, so that it 

could be disassembled and transported to the central shop for 

rebuilding. Normal or routine production in the 2 Left Section 

did not resume until July 12, 1982, according to Hess (Tr. 262-

26 7) • 

21. Hess testified that they mined the crosscut inby the 

one in which the roof fall occurred and that they went inby the 

roof fall by proceeding inby in the No. 6 entry. They never did 

connect up the No. 6 entry with the area where the roof fall 

occurred and where Inspector Brewer had found the 9-f oot square 

area of unsupported and cracked roof (Tr. 265; 268). The decision not to proceed with normal mining from the face side of the 

No. 6 entry was made, however, after Brewer issued the imminentdanger order on June 18, 1982 (Tr. 266). Hess stated that the 

Hurricane Creek Mine had only three continuous-mining machines 

at the time the roof fall occurred. After the continuous miner 

damaged in the roof fall had been removed for repair to the central shop, another one had to be brought into the mine in order 

for them to continue mining activities in the 2 Left Section. 

On June 18, 1982, when the imminent-danger order was issued, the 

closest active mining then in progress was about 2,000 feet away 

in the 2 Right Section (Tr. 264-265). 

22 .. Paul Guill is Clinchfield's chief engineer (Tr. 158). 

He presented as Exhibit B a diagram of the roof-fall area showing 

the continuous-mining machine's location in the crosscut and the 

number of roof bolts he and his surveyors found in the crosscut 

(Tr. 160). Guill testified that he and his assistants set up 

transits at points marked with the numbers "1691" and "1692" on 

Exhibit B. From those points they "shot" the roof bolts and 

plotted each of the roof-bolt locations on Exhibit B (Tr. 161-

162). Guill shows dotted lines and solid lines to mark the beginning and ending edges of the brows cited in Inspector Brewer's 

imminent-danger order. Guill explained that his Exhibit B 

1833 
depicts the brows in more than one plane with the dotted lines 

showing where the brows begin at the normal roof line, or 6-1/2 

feet above the mine floor. The solid lines on Exhibit B show 

the places where the roof fall ended (Tr. 166). Although an 

examination of Inspector Brewer's Exhibit 3, page 1, appears to 

show more roof bolts in the center of the crosscut than Guill 

depicts in his Exhibit B, that is not really the case because 

Guill's "modes of representation are different" from Brewer's 

as a result of the three-dimensional aspects of Guill's roofbolt exhibit (Tr. 169). On Exhibit 3, page 1, Inspector Brewer 

shows 13 roof bolts in the immediate roof-fall area if one counts 

the single roof bolt near the rib where the word "roof bolt" 

appears. Examination of Guill's Exhibit B shows 20 roof bolts 

in the roof-fall area, but page 2 of Exhibit 3 shows roof bolts 

only inby the point where the brows begin and that commencement 

point is at the junction of the boom with the frame of the continuous-mining machine (Tr. 283; 295; Exh. 3, p. 2). Since 

Guill's Exhibit B shows at least 7 bolts outby the place where 

Brewer's Exhibit 3 begins to show the locations of roof bolts in 

the fall area, Guill's and Brewer's exhibits both reflect the 

existence of 13 roof bolts in the fall area. The letter "D" was 

placed on Guill's Exhibit B to denote the fact that Guill agreed 

with MSHA that no roof bolts had been installed in the mine roof 

above the ripper head and for several feet outby the ripper head 

(Tr. 176) ~ 

23. In rebuttal of Clinchfield's case, the Secretary's 

counsel recalled all of his witnesses. Rines, Brewer, and Meade 

each testified unequivocally that they were in both the No. 5 

and No. 6 entries on June 18 from five to seven different times 

at the place where Clinchfield's witnesses claimed they saw the 

reflectorized can. They stated that the centerline from which 

they made their measurements as to the extent of the brows and 

the location of roof bolts was established very close to the 

place where the ref lectorized can had allegedly been hung and 

that they did not see such a can on any of their numerous trips 

in and out of the entries (Tr. 280; 318; 322). They all stated 

that they are familiar with the use of reflectorized cans as 

danger signs and that they would have seen it if it had existed 

in either the No. 5 or No. 6 entry (Tr. 280; 318; 322). Coeburn 

was not in the crosscut on June 18, but was there on June 22 

when Guili and the surveyors took sightings to spot the roof 

bolts in the crosscut and he stated that no reflectorized can 

was hanging in the No. 5 entry on that day (Tr. 325). 

24. Rines also testified on rebuttal that the timber with 

the word "Danger" written on it, described by Clinchfield's 

witnesses Busch and Cross did not exist on June 18 (Tr. 281). 

Moreover, Rines stated that he was in the crosscut before the 

miners' bodies were recovered from the roof fall and that he 

knows that he could have taken a stoper and could have bolted 

the left and right brows either by resting the stoper on the 

1834 
continuous-miner or by standing on the mine floor and using an 

extended piece of steel for drilling into the roof cavity at 

its highest point of about 14 feet. He said that the installation of roof bolts in the scattered bolting pattern used by 

Clinchfield's witness Busch was unacceptable (Tr. 304). Rines 

stated that he could have bolted the roof-fall area with a proper 

number of bolts and would still have been protected by the temporary supports which he himself had helped to install (Tr. 287-

288). Rines admitted during cross-examination, however, that 

the roof under the roof fall just immediately outby the head of 

the ripper did not have sufficient clearance on top of the continuous-mining machine for Busch or anyone else to install roof 

bolts (Tr. 305)~ 

25. Rines also insisted during his rebuttal testimony that 

the miners exposed themselves to the unsupported ~eft and right 

brows during the time they were recovering the continuous miner 

from the roof-fall area (Tr. 306), although he had stated previously during direct examination that he could not say that anyone was exposed to the unsupported brows during removal of rock 

because he did not see Clinchfield's employees remove the rocks 

(Tr. 90). Rines admitted that he was not a geologist (Tr. 296), 

but he stated that the Jawbone coal seam being mined in the 

Hurricane Creek Mine contains "slips" which result in roof falls 

like the one which happened on June 2 and that it is easy to 

"misjudge the way the planes lie in a slippery roof'' (Tr. 286). 

Consideration of Parties' Arguments 

Docket No. VA 82-51-R 

The Issue of Whether a Violation of Section 75.200 Occurred 

The Portion of Section 75.200 Violated 

Pages 4 through 14 of Clinchfield's initial brief are devoted to arguing that no violation of section 75.200 was proven 

by MSHA. Clinchfield's brief (p. 5) begins its argument by 

claiming that the inspector failed to specify what portion of 

section 75.200 had been violated. At transcript page 20 his 

counsel asked him "[w)hy do you say that there was a violation 

of 75.200". His reply was that section 75.200 "requires that 

the roof and that the ribs be adequately supported. And the 

ribs were not adequately supported, or brows." 

At transcript page 73, Clinchfield's counsel asked the 

inspector: 

Q Mr. Brewer, in the order you cited, 30 CFR 

Section 75.200, which refers to the roof-control plan, 

just for purposes of clarity, what was the specific 

violation of roof-control plan? 

1835 
A I didn't write the roof-control plan. I 

wrote 200, but everything that's under 200 is not 

the roof-control plan. I wrote failure to adequately support the roof and ribs. 75.202, it could have 

been written there, too. 

The second sentence of section 75.200 reads as follows: 

* * * The roof and ribs of all active underground 

roadways, travelways, and working places shall be 

supported or otherwise controlled adequately to protect persons from falls of the roof or ribs. * * * 

Based on the testimony quoted above, I find that the inspector 

clearly explained the portion of section 75.200 which he believed 

had been violated. 

Exposure of Miners to Hazardous Brows on June 13, 1982 

Clinchfield's brief (p. 6) .alleges that Brewer thought that 

the miners who recovered the continuous-mining machine from the 

roof-fall area were exposed to unsupported roof, but Clinchfield 

claims that none of the inspectors were present when the continuous miner was recovered and do not know whether any miners were 

exposed to unsupported roof or brows. Clinchfield also cites 

the testimony of Busch and Sauls, who assisted in recovery of 

the continuous miner, in support of its claim that no one was 

exposed to unsupported roof or ribs when the miner was recovered. 

As summary paragraph No. 6, supra, shows, Brewer introduced 

Exhibit 4 for the sole purpose of showing that Sauls would have 

been exposed to the unsupported right brow when he replaced a 

pump and a valve block on the continuous miner before it was recovered from the fall area. Sauls' own testimony supports 

Brewer's belief. During his direct testimony, Sauls first said 

he wasn't exposed to the unsupported brows and then reversed himself and stated that "I won't say I wasn't, but the mine top was 

bolted over top of where we was working" (Tr. 207). Sauls also 

agreed that there were no bolts in the brows and that they did 

not have any temporary supports under them (Tr. 208). Also as I 

have noted in summary paragraph No. 15, supra, Sauls stated that 

there was ~ possibility that a fall could have occurred at any 

time. Additionally, as indicated in summary paragraph No. 13, 

supra, Busch was concerned sufficiently about the crack in the 

left brow, that he gave consideration to the question of whether 

it would fall while he was tramming the continuous miner from 

the fall area. 

If one examines the fall area as depicted in Exhibits B and 

C, page 2, showing the location of the continuous miner in the 

crosscut, and if one takes into consideration that the continuous 

1836 
miner is from 10 to 11 feet wide (Exh. C, p. 12) and was situated 

in a crosscut 20 feet wide with 9-foot brows overhanging the 

crosscut, it would not have been possible for the miners to have 

worked on the continuous miner without having been exposed to injury or death by the falling of the unsupported brows. As explained in,summary paragraph No. 22, supra, Clinchfield's Exhibit 

B, when properly evaluated, fails to controvert the fact that 

the brows were unsupported by roof bolts. Moreover, as noted in 

summary paragraph No. 10, supra, Meade was present when rocks 

were being removed from the top of the continuous miner and Meade 

stated unequivocally that he had seen one of Clinchfield's company officials go completely out from under supported roof in 

order to attach ropes to rocks being pulled from the fall area. 

It should be noted that Brewer alleged a violation of section 75.200 under section 104(a) of the Act which provides that 

an inspector may issue a citation for a violation of the Act or 

a mandatory safety standard if he is engaged in an inspection or 

an investigation and that he may issue the citation if he "believes" that a violation occurred. I find that the preponderance 

of the evidence in this proceeding shows that the inspector had 

ample grounds for believing that the miners were exposed to the 

hazards of the unsupported brows when they were engaged in removing the continuous miner from the roof-fall area. 

Hazards Existing on June 13 versus Hazards Existing on June 18 

Clinchfield's brief (pp. 6-7) argues that the crosscut was 

much more safely supported on June 13 when the continuous miner 

was recovered than it was on June 18 when the inspector wrote 

his order. The testimony of Clinchfield's witnesses does not 

support those claims. Busch stated that he had installed roof 

bolts where possible and the exhibits show that he had installed 

13 roof bolts along the middle of the crosscut's roof (Exh. 3, 

p. l; Summary paragraph No. 22). Sauls testified that there 

were no bolts in the brows or temporary supports under the brows 

before the continuous miner was removed (Tr. 208). Busch stated 

that he could not get any bolts in the roof on the right side of 

the crosscut because the roof was too high to reach with the 

stoper and that he had not placed any bolts near the ripper head 

or for several feet outby the ripper head because there was not 

enough cl~arance between the roof and the top of the continuous 

miner (Tr. 192-194). Busch does not even claim to have put more 

than one bolt in either brow (Tr. 193). Finally, Busch said 

that he kicked the last rocks off the continuous miner by starting the ripper head (Tr. 186). Therefore, Busch was just as 

vulnerable to a probable fall of the brows at the time the contin~ous miner was being removed as the other operator was when 

he was killed by the previous roof fall which occurred in that 

identical place on June 2. The preponderance of the evidence 

shows that there were two unsupported brows at the time the c · 

183'( 
continuous miner was removed on June 13 and there were still 

two unsupported brows when the inspectors examined the fall 

area on June 18 and issued the imminent-danger order. No significance at all can be placed on Clinchfield's emphasis on the 

collars or crossbars which had been set in the No. 5 entry outby the roof-fall area because those collars were set before the 

miner was removed and they continued to exist after the miner 

was removed (Tr. 186; 195). 

The Alleged Timber Inscribed With Word "Danger" 

Clinchfield's brief (p. 7) concedes that the roof-fall 

area was hazardous after the continuous miner was removed, but 

claims that the area was "dangered off" by a timber set in the 

middle of the entry by Busch and Cross who allegedly wrote the 

word "Danger" on that timber. Clinchfield's brief quotes the 

testimony of both Busch and Cross in support of its claim that 

a timber was set in the entry after the continuous miner was removed, but the setting of the timber is not corroborated by any 

other witness. The preshift examiner, who claims to have seen 

a reflectorized can hanging in the No. 5 entry, did not mention 

seeing the timber. The Virginia mine inspector, who allegedly 

saw the can, did not mention the timber. None of the three inspectors who were in the fall area saw the timber. Clinchfield's 

safety director, who was in the fall area, did not mention the 

timber. 

Clinchfield's brief (pp. 7-8) quotes from the testimony of 

both Busch and Cross in supporting its claim that a breaker 

bearing the word "Danger" had been set outby the fall area, but 

Clinchfield's brief (p. 7) drops a very significant sentence 

from the beginning of Busch's statement and indents the quotation to make it appear that the quotation is the complete answer 

given by Busch. That omitted sentence reads "I'm not for sure." 

In the remaining part of Busch's statement about the setting of 

the timber he uses the word "believe" and the phrase "pretty 

sure". 

Cross is not very positive in asserting that he set a timber with the word "Danger" written on it. Clinchfield's brief 

(p. 7) also quotes from Cross' testimony with an indentation 

which makes it appear that the entire statement is given. Significantly, however, before Cross made the portion of his statement quoted on page 7 of Clinchfield's brief, he testified as 

follows (Tr. 215): 

A Charlie and his men wanted to check how much 

damage was done [to] it. So Logan [Busch] and I 

went back to -- of course, we helped them move it 

down some first -- we went back up to the crosscut. 

And, to the best of my knowledge, we set one timber 

in front of the place. We were going to breaker it 

off. But we was running close on time, and we were 

1838 
getting paid double-time. [Clinchfield's quotation 

begins at this point.] So we set one timber. And 

I had a piece of chalk, railroad chalk, in my pocket 

that we use and I wrote "Danger" on it from top to 

bottom. 

Over the years, I have found that when witnesses are making 

statements of doubtful certainty, they qualify the statements 

with the phrase "to the best of my knowledge". Busch was more 

forthright than Cross about the setting of the timber in that he 

just made a flat announcement at the beginning of his statement 

that he was "not for sure". The purpose of a timber with the 

word "Danger" written on it is to warn persons of a hazard. 

That timber would accomplish no purpose if no one is able to 

find it. Yet, as indicated above, at least three of Clinchfield's 

witnesses and all four of the Secretary's witnesses were in the 

crosscut where the alleged timber was supposed to have been set 

and not one of them ever saw the timber. Therefore, i find that 

the preponderance of the evidence fails to support a conclusion 

that a timber with the word "Danger" on it was ever set in the 

crosscut. 

One further point needs to be· made with respect to the alleged timber with the word "Danger" on it. Paragraph 19(b) of 

Clinchfield's roof-control plan provides as follows (Exh. C, 

p. 9) : 

(b) All roof falls and other areas in the 

active workings where the mine roof material has 

been removed from its natural location by any means 

and is not being cleaned up shall be posted off at 

each entrance to the area by at least two rows of 

posts (or the equivalent) installed on not more 

than 5-foot centers across the opening. [Emphasis 

supplied.] 

In the quotation of Cross' testimony above, he stated that "* * * 

[w]e were going to breaker it off" but that since thev were running close on time, he thought they might have set one timber 

with the word "Danger" written on it. Cross was a supervisor 

with 18 years of experience and his testimony shows that he knew 

he should have set at least two rows of posts in conformance 

with the rbof-control plan to "breaker off" the crosscut, but 

he let the fact that he was running close on time cause him to 

omit taking the safety precaution required by the roof-control 

plan. One of the reasons that the inspectors issued the imminentdanger order was the fact that they could find no indication that 

Clinchfield had erected any danger signs to warn miners either 

to stay out of the hazardous crosscut or to approach it only with 

great caution. 

183~ 
The Alleged Ref lectorized Can 

Clinchfield's brief (pp. 8-9) makes the argument that it 

had properly hung a "warning device", or reflectorized can, in 

the No. 5 entry as required by paragraph 3(a) of its roof-control 

plan (Summary paragraph No. 17, supra). Clinchfield argues that 

since it is only required to hang such a warning device outby 

each place after a cut of coal is removed by the continuous miner 

before permanent supports are installed, that it was in compliance with its roof-control plan with respect to the unsupported 

brows observed by the inspectors on June 18. Although I shall 

hereinafter find that the ref lectorized can had not been hung 

in this instance, Clinchfield would not have been in compliance 

with its roof-control plan even if the alleged reflectorized can 

had been hung. That argument must be rejected for at least two 

reasons. First, Clinchfield's roof-control plan does not envision that Clinchfield will simply hang a ref lectorized can 

outby each working place when the continuous miner is withdrawn 

and leave the place unsupported for weeks at a time. On the 

contrary, the roof-control plan provides that temporary supports 

will be erected within 5 minutes after the miner has finished 

cutting a place, unless Clinchfield is using a roof-bolting 

machine equipped with an automated temporary roof-support 

system (ATRS). If the roof-bolting machine is so equipped, it 

is still expected that permanent roof bolts will be installed 

within a short period of time after a place has been cut. Moreover, if the ATRS bar cannot be positioned firmly against the 

roof, Clinchfield is then required to install temporary supports 

within 5 minutes after the continuous miner has completed the 

taking of a cut of coal (Exh. 3, pp.· 5: 13-15). Since the roof 

in the crosscut where the roof fall had occurred formed a slant 

from 6-1/2 feet at the rib to 13 or 14 feet in the center of the 

entry, Clinchfield's ATRS bar could not have been positioned 

flat against the roof and Clinchfield's roof-control plan required it to rnstall temporary supports under the brows in the 

crosscut, but none had been set. 

The second reason for rejecting Clinchfield's claim that it 

had done all it was required to do under its roof-control plan 

to warn persons about the hazard of the unsupported brows is that 

paragraph 19 of its roof-control plan specifies the procedures which will be followed where a roof fall has occurred and, 

as indicated on page 16, supra, paragraph 19(b) required Clinchfield to install "at least two rows of posts" across both approaches to the crosscut, that is, across both the Nos. 5 and 6 

entries. Clinchfield had installed such breakers across the No. 

6 entry, but had done nothing to warn persons approaching the 

crosscu~ from the No. 5 entry other than to hang an alleged reflectorized can in the No. 5 entry. 

Clinchfield's brief (p. 9) attempts to justify its failure 

to set breakers in the No. 5 entry before June 18, or to take 

1840 
any more safety precautions than it did before June 18, by arguing that it had decided not to continue mining in the roof-fall 

area and that nothing more than the hanging of a ref lectorized 

can needed to be done because no miners would ever have had to 

work in the immediate vicinity of the hazardous brows. Inspector 

Brewer thought on June 18, at the time he wrote his order, that 

Clinchfield was planning to continue developing the No. 6 entry 

from the face side of the roof fall (Tr. 63). Supervisory Inspector Rines said that Clinchfield had not abandoned its intention of continued development from the face side of the roof-fall 

area until after the imminent-danger order was written on June 18 

(Tr. 83; 85-86). Clinchfield does not deny that it abandoned its 

intention of development from the face side of the roof-fall area 

after the order was issued on June 18, but claims that, until its 

decision to bypass the fall area was made, "* * * it was safe and 

reasonable to danger the area off with the reflectorized sign in 

the same manner miners are warned against going inby the face 

area where there is unsupported roof" (Br., p. 9). 

In addition to the reasons I have already given for rejecting 

Clinchfield's claim that it was reasonable, or even in compliance 

with its roof-control plan, to leave the No. 5 entry outby the 

crosscut marked only with an alleged reflectorized can, I find, 

as the following discussion shows, that Clinchfield failed even 

to hang the alleged reflectorized can. 

There are a number of doubtful aspects to Vickers' testimony 

concerning the reflectorized can which he claims to have seen in 

the No. 5 entry. First, his notation, "Danger off at fall" (Exh. 

A), was made in the preshift book with respect to the No. 6 entry, 

not the No. 5 entry, where he and three other witnesses claim to 

have seen the can (Vickers, Tr. 151; Busch, Tr. 190; Cross, Tr. 

213; Hamrick, Tr. 251). Since Vickers first approached the fall 

area from the No. 5 entry and claims to have seen the can in the 

No. 5 entry, there is no obvious reason for him to have failed 

to make the notation about dangering off the area on the line for 

noting hazardous conditions in the No. 5 entry, especially since 

he stated on direct examination that hanging the can was a sufficient warning to danger off the entire fall area regardless of 

whether one approached it from the No. 5 or the No. 6 entry (Tr. 

150) . Vickers did not even mention that he had also seen a reflectorizeq can in the No. 6 entry until I asked that question 

after he had failed to state that fact during both direct and 

cross examination (Tr. 156). 

Second, Vickers took an air reading in the No. 6 entry for 

determining air velocity for the return entry (Tr. 151). There 

is no reason for him to have failed to see about eight breaker 

posts which were erected across the No. 6 entry because those 

breaker posts were observed by three of MSHA's witnesses and one 

Clinchfield witness and were considered to be an indication that 

1841 
hazardous conditions existed beyond the breakers (Coeburn, Tr. 

125; Hamrick, Tr. 251; Rines, Tr. 281; Brewer, Tr. 319). Therefore, it is more likely than not that Vickers made the notation 

of "Danger off at fall" because he had seen the breakers. in the 

No. 6 entry and later decided that a can he had seen at some 

other place in the mine was actually observed in the No. 5 entry. 

Third, Vickers is the only witness who claims to have seen 

a reflectorized can in the No. 6 entry (Tr. 151; 156-157). No 

other witness corroborated his claim that a can had been placed 

in both the No. 5 and No. 6 entries (Tr. 251; 280; 318-319). 

Another reason to doubt Vickers' claim that he saw a can suspended from a roof bolt in the No. 6 entry is that bottom materials had been removed from the floor in the No. 6 entry which 

made the height from the floor to the mine roof 8 feet in the No. 

6 entry, as opposed to the roof's normal height of 6-1/2 feet 

(Tr. 280). Vickers stated that the cans are suspended by a wire 

from a roof bolt and that they hang down about a foot from the 

roof so as to be about eye level. In describing the cans, he 

made no distinction about the height of the roof in the No. 6 

entry as compared with the No. 5 entry (Tr. 156). 

Fourth, Vickers allegedly saw the reflectorized.can during 

his 9 p.m.-to-midnight preshift examination on June 17, but the 

preshift examiner who checked the 2 Left Section at 6 a.m. on 

June 18, or less than 8 hours later, did not indicate that he had 

or had not seen a danger sign in either the No. 5 or No. 6 entry. 

Although three MSHA witnesses testified with great certainty that 

the can did not exist in the No. 5 or the No. 6 entry during the 

day shift on June 18 when the imminent-danger order was issued, 

and although Clinchfield's safety director did not see the can 

during the day shift on June 18 (Tr. 224; 227), Vickers testified 

that the can was still hanging in the No. 5 entry when he made 

another preshift examination about 9 p.m. on June 18 (Tr. 

155) . 

Fifth, Clinchfield's other witnesses, who heard Vickers 

testify that the can was hanging in the No. 5 entry on June 17 

and 18, testified that the can was "still" hanging there on -

June~3 when they recovered the continuous-mining machine (Tr. 

190; 215). Since Vickers had testified that he did not know when 

the can first appeared in the No. 5 entry (Tr. 155), a witness 

with an independent recollection of having seen the can would not 

be likely to refer to the can as "still" han~i~g there on 

June 13 when no one had claimed to have seen it before June 17. 

The only witness called by Clinchfield's attorney who appeared to have an independent recollection of having seen the 

reflectorized can in the No. 5 entry was the Virginia mine inspector, Hamrick, who said that he saw the can about 10 a.m. on 

June 18, but Hamrick also inspected the area of the 2 Left Section 

inby the crosscut where the roof fall occurred and since Clinch1842 
field's roof-control plan requires that such a "reflectorized 

warning device" be hung outby any place from which coal has been 

removed by the continuous-mining machine prior to installation 

of permanent roof bolts (Exh. C, par. 3(a)), Hamrick could just 

as easily have seen a ref lectorized can outby one of the other 

face areas, rather than in the No. 5 entry outby the roof-fall 

area •. That is especially probable in view of Hamrick's testimony 

that he had been asked by Clinchfield's counsel about the can a 

considerable period of time after he had been in the mine on 

June 18. Moreover, Hamrick said that it would not have occurred 

to him to make a notation of having seen the can in his notes 

which he probably took because seeing the cans is such a common 

occurrence (Summary paragraph No. 19, supra). If they are such 

a common occurrence and make such a slight impression on Hamrick's 

mind as not to be noteworthy, it is just as likely that he saw 

the can some other place in the mine during the day shift on 

June 18 as it is that he saw it in the No. 5 entry where three 

other witnesses failed to see the can during the day shift on 

June 18 even though they entered the No. 5 entry just as Hamrick 

was leaving it (Tr. 293). 

On the basis of the above discussion, I find that the preponderance of the evidence fails to support Clinchfield's claim 

that a "reflectorized warning device" had been hung in the No. 5 

entry prior to the time that the inspector issued imminent-danger 

Order No. 2038802 on June 18, 1982. 

Clinchfield's brief (pp. 9-11) argues at some length that 

Supervisory Inspector Rines cannot support the Secretary's claim 

that miners were exposed to the hazards of the unsupported brows 

when the continuous-mining machine was being removed from the 

roof-fall area. My discussion above has already shown that Sauls 

was unwilling to state for certain that he was not exposed to a 

possible fall of the unsupported brows when he replaced the pump 

and valve on the continuous miner on June 13 (Summary paragraph 

No. 15, supra). The union committeeman, Meade, stated unequivocally that a company official went out from under supported roof 

when he was tying ropes to rocks to pull them out of the fall 

area (Summary paragraph No. 10, supra). 

Clinchf ield is correct in saying that no MSHA personnel were 

present when the continuous miner was removed from the roof-fall 

area on June 13 and it is true that the inspectors can only speculate about their belief that miners were exposed to the hazards 

of the unsupported brows when they were recovering the continuo~s 

miner, but the testimony of witnesses Sauls and Meade support a 

finding that the brows were unsupported at the time the miner was 

recovered and that Clinchfield employees were exposed to those 

hazards at the time the miner was recovered. 

1843 
Judge Koutras' decision, Mathies Coal Co., 4 FMSHRC 1121 

(1982), relied upon by Clinchfield on pages 11 and 12 of its 

brief is not applicable to the facts in this case because Judge 

Koutras did not have witnesses in that case who supported the 

inspector's belief that a.violation of section 75.200 had occurred, whereas in this proceeding, there is testimony by at 

least two eyewitnesses who support the inspectors' belief that 

miners were exposed to the hazards of the unsupported brows when 

the continuous miner was being recovered from the crosscut. 

Interpretation of Portion of Section 75.200 

The final argument made in Clinchfield's brief (pp. 12-14) 

is that the violation of section 75.200 alleged by MSHA cannot 

be proven because the unsupported brows described in the inspector's order and citation were not in an active working place and 

therefore their existence in the mine cannot be considered a violation of the portion of section 75.200 relied on by the inspector. As previously indicated, the portion of section 75.200 relied upon by the inspector reads as follows: 

* * * The roof and ribs of all active underground roadways, travelways, and working places shall be supported 

or otherwise controlled adequately to protect persons 

from falls of the roof or ribs. * * * 

Clinchfield states that the definition of "active workings" is 

"* * * any place in a coal mine where miners are normally required to work or travel." Clinchfield argues that no miners 

were "required to work or travel" anywhere in the vicinity of 

the roof-fall area after June 13, 1982, when the continuous 

miner was removed from the crosscut. Clinchfield contends that 

after the miner was removed on June 13, 1982, the only work 

done in 2 Left Section where the roof fall occurred was the moving of the continuous miner to the end of the track where it was 

disassembled and taken out of the mine. Clinchfield argues that 

the nearest active working section on June 18 when the order was 

issued consisted of the 1 and 2 Right Sections which were 2,000 

feet away from the 2 Left Section. Clinchfield also argues that 

the mere fact that a preshift examiner came to the No. 5 entry 

outby the crosscut on June 17 and 18, 1982, cannot be considered 

sufficien~ activity to make the roof-fall area an active working 

place because the preshift examiner observed the ref lectorized 

can in the No. 5 entry and the breaker posts in the No. 6 entry 

and did not enter the crosscut, so that it cannot be said that a 

miner was required to travel in the crosscut on June 18 when the 

order was issued. 

There is conflicting testimony as to how much activity was 

in progress on June 18, 1982, when the order was issued. Clinchfield' s Superintendent Hess stated that the continuous miner was 

1844 
moved to the end of the track on June 16, 1982, and was disassembled and removed from the mine for rebuilding at some point after 

June 16 and that active mining did not occur again in that 1 Left 

Section until July 17, 1982 (Tr. 263; 267). The inspector and 

the union safety committeeman, on the other hand, stated that the 

continuous miner removed from the fall area was only one or two 

breaks, or 120 feet, away from the fall area on June 18 (Summary 

paragraph No. 7; Tr. 136). Moreover, Inspector Coeburn was in 

the fall area :on June 22 and he testified that active mining was 

in progress only two crosscuts inby the roof-fall area on June 22 

(Tr. 128). 

Even if one disregards all the conflicting evidence as to 

the extent of the activity in 1 Left Section on June 18, 1982, 

there is no dispute by anyone as to Vickers' contention that he 

performed a preshift examination in the crosscut on both June 17 

and 18 and there is no dispute that another person made a preshif t examination on June 18 (Summary paragraph Nos. 11 and 18, 

supra). Both preshift examiners took an air reading in the No. 6 

entry for the purpose of determining the velocity of the air in 

the return entry (Tr. 151; 232). The Commission found in Old 

Ben Coal Co., 3 FMSHRC 608, 609 (1981), that an accumulati~of 

loose coal existed in "active workings" in circumstances where 

the cited area was required to be inspected at least once a week, 

was traveled as an escape route, and was rock-dusted periodically. 

In its Old Ben decision, the Commission cited two cases in which 

the former Board of Mine Operations Appeals had made rulings 

about the circumstances which constitute active workings. In one 

of those cases (Mid-Continent Coal and Coke Co., 1 IBMA 250 

(1972)), the former Board stated that if only one miner passes 

through an area to make an inspection, an accumulation of float 

coal dust would be a hazard to him. 

Clinchf ield argues that the preshift examiners saw the reflectorized can and did not enter the crosscut and that they were, 

therefore, not required to travel in the roof-fall area within 

the meaning of the definition of "active workings". 

Clinchfield's safety director stated that a possible travelway for the taking of an air reading would have been through the 

crosscut in which the roof fall had occurred although he believed 

that was not the "easiest legitimate route" (Tr. 232) . Inspector 

Brewer thought that the preshift examiner would just about have 

to have traveled through the crosscut to examine the return entry 

(Tr. 19). The preshift examiner who checked the 1 Left Section 

on the morning of June 18, 1982, did not make an entry about any 

danger he may have seen in the roof-fall area and, in the absence 

of his testimony, no one knows whether he traveled through the 

crosscut or not (Tr. 232). In any event, the continuous miner 

was actively engaged in cutting coal on June 2 when the roof .fall 

occurred and no decision to bypass the roof fall was made until 

1845 
after the order was issued on June 18 (Tr. 84-86). Therefore, 

at the time the preshift examinations were made, the area where 

the roof fall occurred was within the definition of "active 

workings" because, as I have shown above, no reflectorized can 

existed to warn the preshift examiners that the roof-fall area 

was to be avoided and, even if the reflectorized can did exist, 

the roof-fall area had not been cleaned up or bolted, and 

Clinchfield was obligated under paragraph 19(b) of its roofcontrol plan to install two rows of posts across the crosscut at 

the No. 5 entry. As the Commission stated in E~ Paso Rock 

Quarries, Inc., 3 FMSHRC 35, 40 (1981): 

* * * The 1977 Mine Act imposes a duty upon operators 

to comply with all mandatory safety and health standards. It does not permit an operator to shield itself 

from liability for a violation of a mandatory standard 

simply because the operator violated a different, but 

related, mandatory standard. * * * 

The Commission also held in Penn Allegh Coal Company, Inc., 

4 FMSHRC 1224, 1227 (1982) that a Judge is not bound by the 

opinions of any single witness, but should base his legal conclusions "* * * upon the evidence of record considered as a 

whole." I have hereinbefore thoroughly reviewed all of the evidence presented by both Clinchf ield and the Secretary and conclude that Clinchfield did violate section 75.200 because it had 

left hazardous unsupported brows in the crosscut between the Nos. 

5 and 6 entries on the 2 Left Section without supporting them or 

otherwise controlling them adequately to protect persons from 

falls of the roof or ribs as required by section 75.200 of the 

Act. The area was within an active working place and miners were 

traveling in the area to make preshift examinations. 

The Issue of Whether an Imminent Danger Existed 

Alleged Dangering Off 

Clinchfield's brief (pp. 15-20) argu~s that the unsupported 

brows observed by Inspector Brewer did not constitute an imminent 

danger because the crosscut where the brows existed had been 

dangered off and no mining activity was in progress on the 2 

Left Section. As to Clinchfield's claim that the area had been 

dangered off, I incorporate in this portion of my decision the 

discussions on pages 15-16 and 18-20, supra, in which I found 

that neither the reflectorized can nor the timber with the word 

"Danger" written on it ever existed at the intersection of the 

No. 5 entry and the crosscut in which the unsupported brows were 

observed by the inspector. 

Assuming, arguendo, that the reflectorized can and timber 

had been erected by someone at sometime, the fact remains that 

1846 
they could not be found by MSHA's three witnesses or Clinchfield's 

own safety director on June 18, 1982, when the imminent-danger 

order was issued. A warning device which cannot be found by four 

people serves no purpose and cannot be used in support of a claim 

that the unsupported brows had been dangered off to prevent persons from going into the crosscut where the brows could fall upon 

them. Also, as I have previously explained on pages 16-17, supra, 

Clinchfield was required by paragraph 19(b) of its roof-control 

plan to install two rows of posts across the entrance to the rooffall area at the No. 5 entry approach and it had failed to do so. 

Moreover, even if a reflectorized can and a "Danger" timber had 

been placed at the intersection of the No. 5 entry and the hazardous crosscut, Lt was Clinchfield's responsibility to assure that 

those warning devices continued to remain in a conspicuous place 

where they could be seen by persons who might have gone into the 

crosscut. 

The excerpt on page 18 of Clinchfield's brief to the testimony of its witness Vickers who testified that a reflectorized 

can is "* * * just like a stop sign is to a driver out on the 

highway" has no force and effect because a stop sign on the highway, which a motorist cannot find, does not warn a motorist of a 

dangerous intersection any more than a can, which a .miner cannot 

find, warns a miner of a hazard in a coal mine. For the reasons 

given above, I must reject Clinchfield's defense to the issuance 

of the imminent-danger order to the extent that its defense is 

based on the claim that it had properly dangered off the rooffall area where the imminent danger existed. 

Removal or Nonexistence of Persons Did Not Eliminate Imminent Danger 

The remaining arguments raised in Clinchfield's brief (pp. 

19-20) in support of its claim that no imminent danger existed 

in the roof-fall area reveal a basic misunderstanding on Clinchf ield' s part as to what constitutes an imminent danger under the 

Act. That misunderstanding is most clearly expressed on page 20 

of Clinchfield's brief where it is contended that there was "* * * 

no activity present in the area which could constitute an imminent danger at the time the 107(a) order was issued". It is clear 

from the foregoing quotation that Clinchfield believes that no 

imminent danger can be found to exist unless at least one person 

is actually engaged in some type of work so close to the imminent 

danger that he will probabiy be killed before the imminent danger 

can be abated. Clinchfield is confusing the nonexistence of persons in the vicinity of the imminent danger with the nonexistence 

of the hazard which produces the imminent danger. 

Clinchfield's confusion is obvious from the facts in the 

cases which it cites in support of its argument that the removal 

of persons from the imminent danger abates the imminent danger. 

On page 19 of its brief, e.g., Clinchfield cites Old Ben Coal Co., 

184'7 
6 IBMA 256 (1976), in which the former Board of Mine Operations 

Appeals upheld a judge's decision finding that no imminent danger 

existed in a situation in which an inspector had issued an imminent-danger order because he had seen a miner, before the order 

was issued, riding on top of a locomotive with his legs hanging 

over the side of the locomotive. The Board agreed with the judge 

that the imminent danger no longer existed at the time the order 

was written because the miner had jumped off the locomotive. 

Clinchfield claims that the Board's rationale in the Old Ben 

case applies to the facts in this case because no actual coal 

production was in progress and no one had any reason to be in the 

crosscut where the unsupported brows existed. The fallacy in 

Clinchf ield' s argument is' that when the miner jumped off the locomotive in the Old Ben case, he eliminated the existence of the 

imminent danger at the time he jumped off the locomotive because 

the imminent danger was coexistensive with the miner's presence 

on the locomotive, whereas in this proceeding, the imminent danger 

continued to exist after the inspector wrote his order, regardless 

of the fact that no person was observed by the inspectors to be 

standing under the unsupported brows. Thus, nonexistence of 

persons in the roof-fall area did not automatically abate or 

terminate the existence of the imminent danger. 

Another case which Clinchfield mistakenly cites in support 

of its claim that no imminent danger existed is Judge Boltz's 

decision in CF & I Steel Corp., 3 FMSHRC 99 (1981), in which 

Clinchf ield states that the judge vacated an imminent-danger 

order "* * * because prior to its issuance the operator had removed miners from the area, ceased production work in the affected section and no power was energized in that section" 

(Brief, p. 20). Judge Boltz himself explained the difference 

between abating an imminent danger and removal of persons from 

the proximity of the imminent danger in his decision in another 

C F & I case, 3 FMSHRC 2819 (1981) as follows (at p. 2823): 

I would characterize the holding of the first 

cited case somewhat differently. Pittsburgh Coal 

Company, supra, [2 IBMA 277 (1973)] ·stands for the 

proposition that the presence of 1.5 volume per 

centum or more of methane will support the issuance 

of an imminent danger withdrawal order. Id. at 277, 

279. The Valley Camp Coal Company, supra; [l IBMA 

243 (1972)] stands for the proposition that an order 

of withdrawal can properly be issued if no miners 

are in the mine because an order of withdrawal not 

only takes the miners out of the mine, but also keeps 

them out until the danger has been eliminated. Id. 

at 248. In Secretary of Labor, Mine Safety and 

Health Administration (MSHA) v. C F & I Steel Corporation, supra, [3 FMSHRC 99 (1981)] I concluded that 

1848 
the danger presented by the accumulation of methane 

had been eliminated. That is not the case with the 

matter at hand. The accumulation of methane existed 

on May 8, '1980, having been only recently discovered, 

could reasonably be expected to cause death or serious physical harm before the danger posed had been 

eliminated. No abatement was in progress. Therefore, 

I find that the order of withdrawal is valid and 

shoul'd be affirmed. 

Clinchfield also mistakenly cites Judge Koutras' decision 

in Climax Molybdenum Co., 2 FMSHRC 2976 (1980), in support of 

its claim that removal of miners from a hazardous area eliminates 

or abates an imminent danger. It is true that Judge Koutras 

vacated an imminent-danger order in the Climax case but he vacated 

the order primarily because the inspector was not sure that. the 

exposed electrical connections cited in the order would have 

shocked or killed any person who might have touched them--not 

because the miners closest to the wires were 500 to 600 feet from 

the alleged imminent danger (2 FMSHRC at 2980). 

In its reply brief (pp. 2-11), Clinchfield cites additional 

cases in support of the same arguments which I have rejected 

above. For example, on page 7 of its reply brief, Clinchfield 

quotes from the former Board's decision in Eastern Associated 

Coal Corp., 2 IBMA 128 (1973), in which the Board stated at page 

137, "* * *a condition or practice cannot be imminently dangerous if the specific and usual mining activity can safely continue in the area during (or prior to) the abatement process". 

Clinchfield then argues as follows (Brief, p. 7): 

* * * In the present case, the condition was abated 

through the dangering off of the area in question, 

but it could also have been abated through the resumption of the normal mining operations. Either 

way, miners were protected against any reasonable 

expectation that the condition could cause death or 

physical harm to a miner." 

Neither of the conclusions made by Clinchfield in the above 

quotation is correct. The hazardous condition created by the . 

existence .of the unsupported brows was not eliminated by Clinchfield' s alleged dangering off of the roof-fall area. Again, 

assuming arguendo, that the roof-fall area had been dangered 

off by the erection of a warning device, that action had no 

salutary effect whatsoever on the hazardous nature of the unsupported brows. They would have remained just as likely to 

fall on any person entering the area after the alleged warning 

device was erected as they would before the warning device was 

erected. 

1848 
In fact, Clinchfield never did take any action whatsoever 

to abate the imminent danger by installing supports in or under 

the brows. Supervisory Inspector Rines testified that MSHA 

normally follows the provisions of section 107(a) which states 

that an imminent-danger order is to remain in effect "* * * until an authorized representative of the Secretary determines 

that such imminent danger and the conditions or practices which 

caused such imminent danger no longer exist." Rines said that 

Clinchfield never did abate the imminent danger cited in the 

order, but they terminated it at Clinchfield's request after 

the inspectors had personally participated in erecting posts 

and nailing boards on the posts to make certain that no miners 

could enter the roof-fall area. 

As for Clinchfield's claim that the roof-fall area would 

have been supported if a decision had been made to continue mining in that area, it is obvious that no one could have started 

cutting coal under the brow in the No. 6 entry without first 

installing permanent roof supports to assure that the brows 

would not fall. Since the roof and brows were too hazardous 

for normal mining operations to begin before the brows and roof 

had been supported, the former Board's statement in the Eastern 

Associated case, supra, does not apply to the facts in this case 

because the "usual mining activity" could not have been carried 

on while the mine roof and brows were being restored to an 

acceptable condition of safety. 

Another case which Clinchfield cites in its reply brief 

(P. 9) is Judge Carlson's decision in Western Slope Carbon, Inc., 

5 FMSHRC 795 (1983), in which Clinchfield claims that Judge 

Carlson held that before an accumulation of float coal dust can 

be considered to be an imminent danger, the coal dust must be in 

suspension. Judge Carlson merely noted that both suspension of 

the dust and a spark would all have to be present before an explosion could occur. The primary reason that the judge failed 

to find occurrence of an imminent danger was MSHA's lack of proof 

as to the existence of an ignition source (5 FMSHRC at 799). 

Additionally, it should be noted that the court in Freeman Coal 

Mining Co. v. Interior Bd. of Mine Op. App~, 504 F.2d 741 (7th 

Cir. 1974), specifically rejected the operator's argument in 

that case that a finding of imminent danger could not properly 

be made in .the absence of a suspension of float coal dust in 

the air, an ignition source, and a concentration of methane. 

Section 3(j) Definition and "Probable As Not" Gloss 

Clinchfield's initial brief (p. 15) does correctly quote 

the definition of an imminent danger given in section 3(j) of 

the Act, i.e., "'imminent danger' means the existence of any 

condition--or practice in a coal or other mine which could reasonably be expected to cause death or serious physical harm before 
such condition or practice can be abated." The facts given in 

surnrnary paragraph Nos. 2, 4-8, and 10, supra, support my conclusion that an imminent danger existed in the roof-fall area between Nos. 5 and 6 entries on June 18, 1982, when imminent-danger 

Order No. 2038802 was issued. The unsupported brows could reasonably have been expected to cause death or serious physical harm 

before such brows could be adequately supported. 

The former Board augmented the definition of section 3(j) in 

its decision in Freeman Coal Mining Co., 2 IBMA 197 (1973), as 

follows (at p. 212) : 

[w]ould a reasonable man, given a qualified inspector's 

education and experience, conclude that the facts indicate an impending accident or disaster, threatening to 

kill or to cause serious physical harm, likely to occur 

at any moment, but not necessarily immediately? The 

uncertainty must be of a nature that would induce a 

reasonable man to estimate that, if normal operations 

designed to extract coal in the disputed area proceeded, 

it is at least just as probable as not that the feared 

accident or disaster would occur before elimination of 

the danger. * * * 

The Seventh Circuit affirmed the Board's definition and finding 

of an irnrninent danger in the Freeman case previously discussed 

above. Therefore, the Board's expanded definition of irnrninent 

danger is a part of the present law pertaining to irnrninent danger. 

In Pittsburg & Midway Coal Mining Co., 2 FMSHRC 787 (1980), the 

Cornrnission affirmed a judge's decision finding existence of an 

irnrninent danger. In doing so, however, the Commission made the 

following observation (at p. 788): 

* * * In this regard, we note that whether the question of imminent danger is decided with the "as probable as not" gloss upon the language of section 3(j), 

or with the language of section 3(j) alone, the outcome here would be the same. We therefore need not, 

and do not, adopt or in any way approve the "as probable as not" standard that the judge applied. With 

respect to cases that arise under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., 

we will examine anew the question of what conditions 

or practices constitute an imminent danger. * * * 

I am not aware of any case in which the Commission has expressed 

a further opinion as to the definition of imminent danger, but I 

believe that my findings of an irnrninent danger in this proceeding would be supported by the preponderance of the evidence regardless of whether the original language of section 3(j} is 

used or the ''as probable as not" standard is applied. Inspector 

1851 
Brewer specifically applied his education and experience as a 

coal miner and as an inspector in making his determination that 

an imminent danger existed. He began his discussion by noting 

that the area had not been dangered off, that he had to consider 

the area as an active working place because the miners were still· 

working on the continuous miner which had been removed from the 

roof-fall area in order for the miners to work on the section 

for any purpose, that he felt the brows posed an imminent hazard 

to anyone who might go into the roof-fall area (Tr. 17), that he 

knew there had been three unintentional roof falls in the Hurricane Creek Mine in the last year which had covered up continuous 

miners, and that with that background of knowledge, the existence of unsupported, overhanging, arching brows triggers the 

feeling, "if you're a coal miner", that an imminent danger 

exists (Tr. 18). The inspector further testified that he issued 

the imminent-danger order to assure that the only miners who 

would be sent into the roof-fall area would be going there solely to correct the hazards associated with the existence of the 

unsupported brows (Tr. 20). 

On cross-examination the inspector stated that if normal 

mining operations had resumed, a section foreman, a continuousminer operator, a helper, and a shuttle-car operator, would be 

exposed to the hazards caused by the unsupported brows (Tr. 49). 

Although the inspector agreed that no actual mining operations 

were in progress in the 2 Left Section on the day the order was 

issued, he said that there was no mining activity at that time 

because the continuous miner was torn up and the miners were 

waiting to get an operative machine on the section. He further 

stated that his concern was that the continuous miner might be 

repaired and that active mining would occur by that evening (Tr. 

50) • 

As a matter of fact, when Inspector Coeburn was in the rooffall area on J~ne 22, he stated that active mining was in progress only two crosscuts inby the roof-fall area and Mine Superintendent Hess agreed that the 2 Left Section had been developed 

inby the roof-fall area and that the decision to bypass the rooff all area had been made only after the imminent-danger order was 

issued (Tr. 128; 266; 268). 

The preponderance of the evidence, therefore, shows that it 

was just as probable as not that the unsupported brows would 

have fallen on one or more miners and would have injured or 

killed them if normal mining activities had been resumed before 

the brows were properly supported. Although Clinchfield argues 

in its reply brief (p. 10) that the first action that would have 

been taken if normal mining activities had been resumed in the 

roof-fall area would have been to support the roof properly, 

that is not an eventuality which the inspectors could leave to 

doubt. It is a fact that the two rows of posts required by 

1852 
paragraph 19(b) had not been installed and the inspectors could 

find no warning device required by paragraph 3(a) of the plan. 

As the court stated in Old Ben Coal Corp. v. Interior Bd. of 

Mine Op. App., 523 F.2d 25 (7th cir. 1975), the inspector cannot 

wait until the danger is immediate because then no one could 

stay in the mine to correct the hazardous conditions which he 

has found (523 F.2d at 34). 

For the reasons hereinbefore given, I find that imminentdanger Order No. 2038802 was properly issued on June 18, 1982, 

under section 107(a) of the Act and it will hereinafter be 

affirmed. 

Docket No. VA 83-24 

The Issue of What Civil Penalty Should Be Assessed 

Penalty Proceedings Before Commission and Judges Are De Novo 

Since I have already found in the preceding portion of this 

decision that a violation of section 75.200 occurred because 

Clinchf ield had failed to support the brows in the crosscut between the Nos. 5 and 6 entries in the 2 Left Section after the 

continuous-mining machine was recovered from the roof-fall area 

on June 13, 1982, it is necessary that I assess a civil penalty 

pursuant to the six criteria which are listed in section llO(i) 

of the Act (Tazco, Inc., 3 FMSHRC 1895 (1981)). The parties 

entered into stipulations which govern two of the criteria. 

First, it was stipulated that imposition of a civil penalty 

would not affect Clinchfield's ability to continue in business. 

Second, it was stipulated that Clinchfield is a medium-sized 

company and that the Hurricane Creek Mine here involved is a 

medium-sized mine. 

Respondent's initial brief (pp. 21-23) requests that the 

Secretary's special assessment proposed under 30 C.F.R. § 100.5 

be vacated if I should find that there is any merit to the Secretary's allegation that a violation of section 75.200 occurred. 

When an operator requests a hearing before one of the Commission's 

administrative law judges in a civil penalty proceeding, the proceeding is de novo and the judge is required to assess a penalty 

under the.sIX criteria listed in section llO(i) of the Act without giving any consideration to the Secretary's proposed penalty 

or the procedures utilized by the Secretary to arrive at his 

proposed penalty (Rushton Mining Co., 1 FMSHRC 794 (1979); 

Shamrock Coal Co., 1 FMSHRC 799 (1979); Kaiser Steel Corp., 1 

FMSHRC 984 (1979); u. s. Steel Corp., 1 FMSHRC 1306 (1979); . 

Pittsburth Coal co., 1 FMSHRC 1468 (1979); Peabody Coal Co., 1 

FMSHRC 1 94 (l979); Co-Op Mining Co., 2 FMSHRC 784 (1980); and 

Sellersburg Stone Co., 5 FMSHRC 287 (1983)). 

1853 
Inasmuch as it is necessary for me to make findings concerning the four criteria as to which the parties entered into 

no stipulations, I shall consider the merits of Clinchfield's 

arguments pertaining to those four criteria without expressing 

any opinion as to the merits of the findings made by the Secretary in reaching his proposed penalty. 

The Secretary's brief requests that I assess the civil 

penalty of $3,000 proposed by the Secretary in Docket No. VA 

83-24, but the Secretary supports the proposed penalty by relying upon the evidence introduced in this proceeding. Therefore, 

it is appropriate to consider the Secretary's arguments also, 

but those arguments will likewise be evaluated without giving 

any opinion as to whether I agree or disagree with the findings 

made by the Secretary in arriving at his special assessment of 

$3,000. 

History of Previous Violations 

Neither Clinchfield's initial brief (pp. 21-23) nor its 

reply brief (p. 12) specifically discusses the criterion of 

Clinchfield's history of previous violations. The Secretary's 

brief (p. ,16) asserts that the criterion of history of previous 

violations was a matter of stipulation, but the only transcript 

reference the Secretary makes in support of that assertion is 

to page 140 of the transcript where Clinchfield's counsel did 

not object to the introduction of Exhibit 5 which is a computer 

printout listing prior violations at the Hurricane Creek Mine. 

Exhibit 5 shows that Clinchfield has previously violated section 75.200 on five occasions prior to June 18, 1982, when the 

violation here involved was cited. One of those prior violations was assessed under MSHA's single penalty assessment procedure and the penalty paid was, therefore, only $20. Section 

100.3(c) states that previous violations assessed under the 

single penalty provisions of the regulations will not be used 

in evaluating the criterion of history of previous violations, 

but as I indicated above, penalty assessments in cases before 

the judges are de novo and I am not bound: by the Secretary's 

penalty procedures described in section 1·00. 3 of the regulations. 

Moreover, it should be noted that section llO(i) of the Act 

appears to give the Secretary a considerable amount of flexibility in_ proposing penalties, whereas section llO(i) specifi-· 

cally provides that the Commission "shall" consider all six 

criteria in determining civil penalties. 

I consider violations of section 75.200 to be among the 

most serious violations which can occur in coal mines because 

roof falls still account for a large number of deaths in coal 

mines every year. An operator should conscientiously follow 

its roof-control plan and all other provisions of section 75.200 

at all times. Clinchfield's history of five violations of section 75.200 may not be passed over lightly. Therefore, I find 

1854 
that any penalty assessed under the other five criteria should 

be increased by $400 under Clinchfield's history of previous 

violations. 

Negligence 

As to the criterion of negligence, the Secretary's brief 

(p. 16) claims that Clinchfield showed a high degree of negligence in ~failing to support the brows. The Secretary argues 

that Clinchfield could have bolted the unsupported brows prior 

to removal of the continuous miner and notes that 5 days after 

the removal of the miner, the brows were still unsupported when 

the roof-fall area was examined by MSHA's inspectors and no 

danger signs could be found. Clinchfield's reply brief (p. 12) 

argues that the miners were not exposed to the unsupported brows 

when they recovered the continuous miner. 

In its initial brief (pp. 21-22), Clinchfield argues that 

it was not negligent because it had posted a warning device 

(reflectorized can) in accordance with its roof-control plan. 

Clinchfield cites the testimony of Busch, Cross, Vickers, and 

Hamrick in support of its contention that the reflectorized 

can had been hung at the intersection of the No. 5 entry and 

the crosscut in which the unsupported brows existed, but I have 

heretofore given on pages 15-16 and 18-20, supra, my reasons 

for finding that the reflectorized can and timber with the word 

"Danger" written on it did not exist. Clinchfield additionally 

argues that if I should find that the designated area was not 

properly dangered off, I should take into consideration that 

such failure to danger properly was the result of a misinterpretation of the regulations, rather than an indication of 

negligence for which Clinchfield should be severely penalized. ' 

It is difficult to understand why Clinchfield was as little 

concerned about supporting the brows as the evidence in this 

case indicates. I have already alluded to the fact that even 

if a reflectorized can had been hung at the intersection of the 

No. 5 entry and the crosscut containing the unsupported brows, 

it was incumbent upon Clinchfield's management to assure itself 

that the "warning device" continued to remain situated where it 

could be seen by anyone coming into the roof-fall area to make 

a preshift examination. The evidence clearly shows that only 

one preshift examiner made any notation about the dangering off 

of the roof-fall area and he did not make that notation until 

June 17, 1982, or 4 days after the continuous miner was removed. 

from the crosscut. The next morning, June 18, three MSHA witnesses and Clinchfield's safety director could not find that 

"warning device" even though MSHA's witnesses specifically 

looked for some sort of warning to advise miners as to the 

hazardous nature of the unsupported brows. ,. 

The record does not contain any explanation to show why 

Clinchfield's mine foreman or mine superintendent would have 

1855 
been unaware of the hazardous nature of the roof-fall area in 

view of the fact that two employees had been killed there by 

the roof fall on June 2. Brows which were still unsupported on 

June 18, or 16 days after the roof fall, cannot be considered 

to be of no consequence, particularly since Clinchfield did not 

decide to bypass the hazardous roof-fall area until June 18 

after the imminent-danger order had been issued (Tr. 266). 

Also, as I have previously noted on pages 16-18, supra, Clinchfield's roof-control plan required it to install two rows of 

posts outby the roof-fall area since it had not gone in and 

cleaned up the crosscut. Even if one accepts Clinchfield's 

argument that management had not decided whether to bypass the 

roof-fall area entirely or to go in and support the area and 

continue mining there, that is still no reason for Clinchfield 

to leave the area without at least installing the two rows of 

posts which are required to be installed outby a roof-fall area 

if the area has not been cleaned up (Exh. C, par. 19(b)). 

In light of the above discussion, I can find no mitigating 

circumstances to soften a conclusion as to Clinchfield's negligence in failing to support the hazardous brows or, in the alternative, at least making certain that the area was continually marked by a highly visible warning device or two rows of 

posts. The preponderance of the evidence supports a finding 

that Clinchf ield was grossly negligent in allowing the violation 

of section 75.200 to occur. Therefore, I find that $2,000 of 

the penalty should be assessed under the criterion of negligence. 

Gravity 

The Secretary's brief (pp. 15-16) argues, as to the criterion of gravity, that the violation was very serious. The 

Secretary states that the miners doing recovery work on the continuous miner were exposed to the unsupported brows, that one of 

Clinchfield's division superintendents went out from under supported roof when he was wrapping a rope around rocks to drag 

them from the roof-fall area, and that the brows were left unsupported on June 13 after the continuous: miner was recovered, 

thereby exposing any miner who might pass. through the crosscut 

to the immediate hazard of the unsupported brows. 

Clinchfield's reply brief (p. 12) claims that the miners 

were not exposed to the unsupported brows when they were recovering the continuous miner on June 13 and that the Secretary 

has improperly alleged that the violation existed on June 13 

because the inspectors were not present when the continuous 

miner was being recovered and therefore can only speculate as 

to what occurred on June 13. It must be borne in mind that the 

violation of section 75.200 is for not supporting the brows or 

otherwise controlling them adequately to protect persons from 

falls of the roof or ribs. The violation began to exist on 

1856 
June 13 when the continuous miner was recovered and continued 

to exist until June 22 when the roof-fall area was physically 

barricaded _to prevent anyone from entering the area. I am, of 

course, interpreting section 75.200 to mean that the physical 

barricades were sufficient to control tha area so as to protect 

persons from a fall of the unsupported ribs. 

The evidence conclusively shows beyond any doubt that the 

brows began to .be unsupported on June 13 because Clinchfield's 

witnesses stat~d that no bolting was done in the roof-fall area 

except with the stoper, that all bolting was done before the 

continuous miner was recovered, and that no bolting was done 

after the miner was removed from the crosscut (Tr. 189; 191; 

209). Since no witness has been able to refute the inspector's 

finding that the brows were unsupported, the violation of section 75.200 existed on June 13 and continued to exist up to 

June 22 when the inspectors and Clinchfield's employees barricaded the area to prevent persons from entering the area. 

I have already discussed the fact that the crosscut was 20 

feet wide and that the overhanging brows extended out from the 

ribs toward the center of the crosscut for a distance of up to 

9 feet from both the right and left sides of the crosscut. In 

such circumstances, anyone installing parts on the side of the 

continuous miner, which was from 10 to 11 feet wide, was necessarily exposed to the hazard of having the unsupported brows 

fall on him (Tr. 208). Sauls' testimony shows that he was not 

positive but that he was exposed to the hazards of the unsupported brows (Tr. 207). Busch stated that he considered the 

fact that the left brow might fall at the very moment he was 

tramming the continuous miner from the roof-fall area (Tr. 203-

204). Finally, Meade testified that he saw one of Clinchfield's 

officials go inby all supports to attach ropes to rocks so that 

they could be pulled from the roof-fall area (Tr. 132). 

The hazards associated with the unsupported brows cannot 

be divorced from a realization that they were the remaining portion of roof surrounding an area of roof :which had fallen so 

suddenly on June 2 that two miners were killed before they could 

escape the falling rock. There was still a crack on the left 

rib which was sufficiently obvious to be of concern to the 

miner who was tramming the machine out of the fall area on 

June 13. The evidence, therefore, supports a finding that the 

unsupported brows continued to pose a threat to anyone who might 

pass through the crosscut. 

Clinchfield argues in its initial brief (p. 22) that even 

if I find that the brows constituted a hazard, that it would be 

improper to accept Inspector Brewer's evaluation to the effect 

that four miners (operator and helper on continuous miner, 

shuttle car operator, and section foreman) would have been exposed to injury or death if the brows had fallen. Clinchfield 

1857 
claims that no miners would have gone into the roof-fall area 

for any purpose other than to support the brows properly if 

Clinchfield had decided to continue mining from the face side 

of the roof-fall area and that if normal mining activities had 

been resumed, the number of people exposed would have been only 

the number of miners required to support the roof in accordance 

with Clinchfield's roof-control plan. 

It is possible, of course, that the number of miners who 

would have been required to support the roof p~operly would involve more than the operator and helper on the roof-bolting 

machine, but that is a matter which was not discussed during 

the hearing. Consequently, there is no evidence to show that 

the inspector properly concluded that if Clinchfield had succeeded in repairing the continuous miner by the evening shift 

on June-18, its employees would have trammed the continuous 

miner back into the crosscut and resumed cutting coal without 

giving any consideration at all to the fact that the area of 

the crosscut nearest to the No. 6 entry was completely unsupported and the fact that a 9-foot square area of roof immediately outby the face of the No. 6 entry was not bolted or otherwise supported. 

It is a fact that the continuous miner was so badly damaged 

by the roof fall that it had to be entirely removed from the 

mine for rebuilding in Clinchfield's central shop. Therefore, 

the most likely injury or death which would have occurred on 

June 18, if the brows had fallen, would have been to cause injury to a preshift examiner who might have passed through the 

crosscut for the purpose of taking an air reading to compute air 

velocity in the No. 6 return entry. When the continuous miner 

was recovered on June 13, only Sauls was exposed while the pump 

and valve were replaced, and when the actual tramming of the 

miner began, only Busch was operating the controls. When the 

rope was being tied to rocks inby any roof supports, only 

Clinchfield's mine official was exposed. The preponderance of 

the evidence,. therefore, supports a finding that any fall of the 

brows on June 13, or thereafter, up to a~d including the time 

the violation was cited on June 18 would.have been one person. 

Nevertheless, if the brows had fallen, they would have been likely to kill anyone on whom they might have fallen. In such circumstanc~s, the violation must necessarily be considered to be 

very serious and I find that $1,000 of the penalty should be 

assessed under the criterion of gravity. 

Good-Faith Abatement 

The sixth and final criterion remaining to be considered 

is whether Clinchfield made a good-faith effort to achieve rapid 

compli~nce after the citation was written. The Secretary's 

brief (p. 16) alleges that "[n]o good faith was shown concerning 

1858 
abatement of the violation." Clinchfield's reply brief does not 

discuss good-faith abatement, but in its initial brief (p. 23), 

Clinchfield argues that it did demonstrate good faith in abating 

the violation because it actively participated in physically constructing a barricade on each side of the roof-fall area consisting of both timbers and boards, together with erecting "Danger" 

signs, to make certain that no person would go into the rooffall area. Clinchfield also states that it made the decision on 

June 18, after the order was written to abandon the affected portion of the No. 6 entry. Clinchfield contends that the aforesaid 

actions should be given consideration because, although the order 

was not terminated until December 6, 1982, Supervisory Inspector 

Rines agreed that all the actions summarized in the order of 

termination as reasons for terminating it had been taken by 

June 22, 1982 (Tr. 104-105). 

When inspectors issue orders, they normally withdraw personnel from the area of danger and the orders do not specify a time 

within which the hazards have to be corrected because it is 

assumed that the operator's having to withdraw personnel from 

the area of danger will be a sufficient incentive to cause the 

operator to take immediate corrective action. Since the violation here involved was written as part of an imminent-danger 

order, the inspector did not insert any time in his order to. 

show when the violation of section 75.200 was required to be 

abated (Exh. 1, p. 1). Consequently, even though Clinchfield 

did nothing to barricade the roof-fall area between June 18 and 

June 22 when the barricades were constructed, it must be borne 

in mind that the order was written on a Friday and the barricades 

were constructed on a Tuesday. In the interim between Friday and 

Tuesday, the area was dangered off by the tags hung outby the 

fall area by Inspector Brewer. In such circumstances, it can 

hardly be found that Clinchfield showed a lack of good faith in 

abating the violation because there may have been some understandable confusion in the minds of Clinchfield's management as 

to what action it needed to take after the area had been dangered 

off by the inspector's imminent-danger order. 

For the foregoing reasons, I find th~t Clinchfield showed 

good faith in abating the violation by agreeing with MSHA's personnel that physical barricades should be constructed despite 

the fact that Clinchfield's roof-control plan required the construction of only two rows of timbers outby the roof-fall area. 

The fact that Clinchfield's management had decided to bypass the 

No. 6 entry, rather than continue mining from the face side where 

the roof-fall had occurred, is another reason to accept Clinchfield' s argument that it was not required to take any action toward abating the violation other than agreeing to construct the 

physical barricades on each side of the roof-fall area on June 22. 

1858 
It has always been my practice neither to increase nor decrease a penalty otherwise assessable under the other criteria 

when I find that an operator has demonstrated a good-faith effort 

to achieve rapid compliance. A penalty is increased if the operator fails to show good-faith abatement and is decreased if the 

operator is able to demonstrate that he took some extraordinary 

action in achieving rapid compliance. Since I have found that 

Clinchfield made a good-faith effort to achieve rapid compliance, 

the penalty otherwise assessable in this proceeding will not be 

increased or decreased under the criterion of good-faith abatement. 

Total Assessment 

By way of summary, a medium-sized operator is involved, payment of penalties will not cause it to discontinue in business, 

there was a somewhat adverse history of previous violations of 

section 75.200, the violation was associated with gross negligence, the violation was very serious, and there was a goodfaith effort to achieve rapid compliance. The operator's size 

was taken into consideration in indicating that a penalty of 

$400 would be assessed under the criterion of history of previous violations, that $2,000 would be assessed under the criterion 

of negligence, and that $1,000 would be assessed under the criterion of gravity. Therefore, a total penalty of $3,400 will 

hereinafter be assessed for the violation of section 75.200 

alleged in Order and Citation No. 2038802 dated June 18, 1982. 

WHEREFORE, it is ordered: 

(A) Clinchfield Coal Company's application for review of 

Order No. 2038802 filed on July 19, 1982, in Docket No. VA 82-51-

R is dismissed and Order No. 2038802 dated June 18, 1982, is 

af firrned. 

(B) Clinchfield Coal Company shall, within 30 days from 

the date of this decision, pay a civil penalty of $3,400 for the 

violation of section 75.200 alleged in O~der and Citation No. 

2038802 dated June 18, 1982. 

Richard 

~C.J¥fl C. Steffey ~ Administrative Law Judge 

Distribution: 

Fletcher A. Cooke, Esq., Clinchfield Coal Company, P. 0. Box 

4000, Lebanon, VA 24266 (Certified Mail) 

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

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

Philadelphia, PA 19104 (Certified Mail) 

1860 

yh 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 OCT 171983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

,v. 

KENNECOTT MINERALS COMPANY, 

UTA~ COPPER DIVISION, 

Respondent 

Before: Judge Morris 

. . 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 81-393-M 

A/C No. 42-00149-05017 F 

Utah Copper Division 

DECISION 

The secretary of Labor, on behalf of the Mine Safety and 

Health Administration, (MSHA), charges respondent Kennecott 

Minerals Company with violating Title 30, Code of Federal 

Regulations, Section 55.9-20, a safety regulation promulgated 

under the Federal Mine Safety and Health Act, 30 u.s·.c. S 801 

et seq. (the "Act"). 

A hearing on this case and related cases involving the 

parties commenced in Salt Lake City, Utah on September 20, 1983. 

At the hearing the petitioner moved to amend his proposed 

civil penalty by reducing it to $700 from $1,000. 

As grounds therefor the petitioner states the negligence of 

the operator was less than originally assessed. (Tr. 8). 

In view of the amendment respondent moved to withdraw its 

notice of contest. (Tr. 9-10). 

For good cause shown and pursuant to Commission Rule 29 

C.F.R. 2700.11 the motions are granted and I enter the following: 

ORDER 

1. Citation 576293 and the proposed penalty, as amended, in 

the amount of $700, are affirmed. 

2. Respondent is ordered to pay said sum within 30 days of 

the date of this decision. 

Law Judge 

1861 
FEDERAL MINE SAFETY AND HEALTH REVIEW· coMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

GCT 19 l98a 5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 . 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

on behalf of 

EARNEST GADDY, 

Complainant 

v. 

ANCHOR STONE COMPANY, 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No: CENT 81-258-DM 

(MD 81-83) 

DECISION APPROVING SETTLEMENT 

Before: Judge Moore 

The parties have reached a settlement in the above that 

is satisfactory to each. I approve the settlement. 

Respondent is accordingly ORDERED to pay forthwith the 

sum of $7, 436. 86, to ~ir ~ .~Gaady. The case is DISMISSED. 

Distribution: 

~ c 0odj~.r Charles c. Moore, Jr., 

Administrative Law Judge 

Mr. Earnest R. Gaddy, 136 No. 108th East Avenue, Collinswood, 

OK 74021 (Certified Mail) 

Charles S. Plumb, Esq.,. Doerner, Stuar~, Saunders, Daniel & . 

Anderson~ 1200 Atlas Life Building, Tulsa, OK 74103 

(Certified Mail) 

Ronnie A. Howell, Esq., Office of the Solicitor, U.S. Deoartment of Labor, 555 Griffin Square, Dallas, TX 75202 

(Certified Mail) 

1862 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 OCT 19 8 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , Petitioner 

v. 

R.F.H. COAL COMPANY, 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 83-246 

A. C. No. 15-12624-03503 

No. 1 Mine 

DECISION APPROVING SETTLEMENT 

Before: Judge Steffey 

Counsel for the Secretary of Labor filed on October 13, 

1983, in the above-entitled proceeding a motion for approval of 

settlement. Under the settlement agreement, respondent would 

pay civil penalties totaling $10,000 instead of the penalties 

totaling $47,580 proposed by the Mine Safety and Health Administration. 

There are unique circumstances which warrant the approval 

of greatly reduced penalties in this proceeding. The No. 1 Mine 

was operated by five members of a single family. On January 20, 

1982, four of the family members and three employees were underground and the remaining member of the family was on the surface 

of the mine when an enormous explosion occurred at the working 

faces. The explosion was propagated to the surface of the mine 

and the force of the explosion was so great that it killed all 

seven persons working underground and completely destroyed or 

considerably damaged all mining equipment in its path, including 

equipment on the surface of the mine. Respondent's owners are 

the widows of the four family members who were killed in the explosion with the exception of one owner who lost her brother and 

three uncles in the tragedy. 

Financial data submitted by respondent's counsel indicate 

that the ~ne had no taxable income in the last year of its operation. The mine in which the explosion occurred has been permanently abandoned and sealed and the corporation has no inten~ 

tion of reentering the coal business at any time in the future. 

In such circumstances, the pay~ent of civil penalties amounting 

to $10,000 will undoubtedly be adequate to serve as a deterrent 

against future violations of the mandatory health and safety 

standards as intended by the Federal Mine Safety and Health Act 

of 1977. The untimely death of four members of the same family, 

the oldest of whom was only 39 years of age, will likewise re~ 

main as a permanent and painful memory for all persons involved. 

1863 
Section llO(i) of the Act requires that six criteria be used 

in determining civil penalties. One of the six criteria is whether the payment of penalties will cause the operator to discontinue in business. Although respondent has already ceased to 

operate a coal business, I. believe that the criterion of whether 

payment of penalties would cause an operator to discontinue in 

business is intended for application to factual GOnditions such 

as have been shown to exist in this proceeding. 

The motion for approval of settlement has proposed an allocation of the $10,000 in settlement penalties among the eight 

violations alleged in the pertinent orders and citations in a 

manner which is appropriate if one takes into consideration the 

other five criteria listed in section llO(i) of the Act. 

According to MSHA's report of the underground explosion 

which occurred on January 20, 1982, the cause of the explosion 

was the firing of an explosive charge in the No. 6 entry which 

blew flames into the No. 5 entry in which coal dust was still in 

suspension from a prior explosives shot. MSHA's investigators 

found reason to believe that an inadequate amount of rock dust 

had been applied outby the entry in which the dust explosion 

occurred because the expl9sion was propagated from the face area 

of the mine clear to the surface of the mine. MSHA also found 

that a contributing factor to the explosion was respondent's 

failure to erect brattice curtains to within 10 feet of the working faces. Additional contributing factors were omission of 

stemming materials in the boreholes and insertion of excessive 

·quantities of explosives in each borehole. 

One of the violations pertained to failure to store explosives in the proper manner and place, but since the improperly 

stored explosives did not have anything to do with the explosion 

which occurred.on January 20, 1982, MSHA did not recommend a 

large penalty for that alleged violation. Likewise, the alleged 

violation pertaining to the existence of cigarettes, cigarette 

lighter~, and cigarette butts in the mine was not assigned a 

large penalty because there was no evidence that a lighted cigarette had contributed to the cause of the explosion. The motion 

for approval of settlement has appropriately allocated the largest portions of the settlement penalties to the alleged violations whicp seem to have contributed most to the cause of the 

explosion. 

The above discussion shows that MSHA appropriately evaluated 

the two criteria of gravity and negligence in determining its 

proposed penalties. MSHA also considered the criterion of whether the operator showed a good-faith effort to achieve rapid 

compliance by noting that all of the alleged violations were 

abated when the respondent permanently abandoned and sealed the 

mine. 

1864 
As to the criterion of the size of respondent's business, 

the proposed assessment sheet in the official file shows that 

the mine only produced 3,364 tons of coal on an annual basis. 

That amount. of production warrants only a zero assignment of 

penalty points under the penalty formula described in 30 C.F.R. 

§ 100.3. The sixth and final criterion to be considered is respondent's history of previous violations. The proposed assessment sheet indicates that respondent was cited for only one violation of the mandatory health and safety standards prior to the 

writing of the citations and orders involved in this proceeding. 

That is a very favorable history of previous violations and warrants assignment of zero penalty points under section 100.3(c) 

of the penalty formula used by MSHA. 

The discussion above shows that the large penalties proposed by MSHA were based primarily upon the criteria of gravity 

and negligence associated with the alleged violations, but MSHA 

could hardly have proposed smaller penalties than it did in 

light of the disastrous consequences of the violations which 

were described in the citations and orders and in MSHA's accident 

report. Therefore, I conclude that MSHA appropriately proposed 

the penalties hereinbefore discussed and that the parties' settlement agreement should be _approved for the reasons heretofore 

given. 

WHEREFORE, it is ordered: 

(A) The motion for approval of settlement filed October 13, 

1983, is granted and the parties' settlement agreement is approved. 

(B) Pursuant to the settlement agreement, respondent, within 30 days from the date of this decision, shall pay civil penalties totaling $10,000.00 which are allocated to the respective 

alleged violations as follows: 

Citation No. 1196101 4/16/82 § 75.316 ....•.. $ 

O~der No. 1196102 4/16/82 § 75.401 ...••••... 

Order No. 1196103 4/16/82 § 75.1306 ..•..•.•. 

Citation No. 1196108 4/16/82 § 75.1702 ....•• 

Order No. 1196112 4/16/82 § 75.1303 .....••.. 

Order No. 1196112 4/16/82 § 75.400 •..••••... 

Orde~ No. 1196112 4/16/82 § 75.403 ..••.•••.. 

Citation No. 1196141 4/16/82 § 75.304 •.•.•.. 

1,400.00 

1,300.00 

500.00 

160.00 

2,350.00 

2,350.00 

1,520.00 

420.00 

Total Settlement Penalties in This Proceeding $10,000.00 

Richard ~e.rJ~ C. Steff~ ~ Administrative Law Judge 

1866 
Distribution: 

Edward H. Fitch IV, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilsori Boulevard, Arlington, VA 22203 

(Certified Mail) 

Arnold Turner, Jr., Esq., Turner, Hall & Stumbo, P.S.C., Attorney 

for R.F.H. Coal Company, Hall-Ranier Building, 15 South Lake 

Drive, Prestonsburg, KY 41653 (Certified Mail) 

1866 

yh 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 19 llJ 

SECEETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

U.S. STEEL MINING COMPANY, INC., 

Respondent 

Docket No. PENN 83-40 

A.C. No. 36-05018-03506 

Cumberland Mine 

DECISION 

Appearances: 

Before: 

David A. Pennington, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

In the above proceeding, the Secretary seeks civil penalties 

for three alleged violations of mandatory safety standards. Each 

of the violations was originally cited as significant and substantial. However, at the hearing, the Secretary moved to have 

the significant and substantial designation .removed from Citation 

No. 2011911, charging a violation of 30 C.F.R. § 75.400, and from 

Citation No. 2011829, charging a violation of 30 C.F.R. § 75.701. 

Pursuan~ to notice the case was heard in Pittsburgh, Pennsylvania, 

on August 30, 1983. Clarence Moats and Ferdinard Spoljarick 

testified on behalf of Petitioner; Charles Lemunyon and Barry 

Nelson testified on behalf of Respondent. Each party filed a 

posthearing brief. Based on the entire record and considering the 

contention~ of the parties, I make the following decision. 

FINDINGS AND CONCLUSIONS COMMON TO ALL VIOLATIONS 

1. Respondent is the owner and operator of an underground 

coal mine in Greene County, Pennsylvania, known as the Cumberland 

Mine. 
2. Respondent is subject to the provisions of the Federal 

Mine Safety and Health Act of 1977 in its operation of the subject 

mine, and I have jurisdiction over the parties and subject matter 

of this proceeding. 

3. The subject mine produces 1,175,000 tons of coal annually; 

Respondent produces approximately 15 million tons annually. 

Respondent is a large operator. 

4. In the 24-month period prior to the issuance of the 

citations involved herein, 464 violations were assessed at the 

subject mine, 293 of which were designated significant and substantial. Seventy of these violations were of 30 C.F.R. § 75.400, 

51 of which were designated significant and substantial. Two violations of 30 C.F.R. § 75.701 were cited during the same 24-month 

period. This is a moderate history of previous violations, and 

penalties otherwise appropriate should not be increased because of 

it. 

5. The imposition of civil penalties in this proceeding will 

not affect Respondent's ability to continue in business. 

6. In the case of each citation involved herein, the violation 

was abated promptly and in-good faith. 

7. Whether a cited violation is properly designated as a 

significant and substantial violation is per se irrelevant to a 

determination of the appropriate penalty to be-assessed. The 

penalties hereinafter assessed are based on the criteria in 

section llO(i) of the Act. 

8. The subject mine is classified as a gassy mine. It 

liberates in excess of 4,900,000 cubic feet of methane in a 

24-hour period. 

CITATION NO. 2011911 

This citation, issued August 17, 1982, charges a violation of 

30 C.F.R. § 75.400 because of an accumulation of loose coal. The 

accumulation ranged between 3 and 12 inches deep, was 16 feet wide 

and 16 feet long. It was inby the section dumping point crusher 

feeder. The area was dry. The surrounding area had been rock- · 

dusted. The section was idle and the power was off. The accumulation was not present on the previous day. The hazard presented by 

this condition is the possibility that it could contribute to a 

mine fire if one should occur. Such an event was unlikely however. 

I conclude that a violation was established, which was not significant and substantial. The violation was moderately serious, and 

the evidence does not show that it resulted from Respondent's 

negligence. I conclude that an appropriate penalty for this 

violation is $50. 

1868 
CITATION NO; 2011827 

This citation, issued August 31, 1982, charges a violation of 

30 C.F.R. § 75.400 because of an accumulation of loose coal and 

coal dust on and around the chain conveyor electric drive motor in 

the longwall section. The mine area was wet. The motor was dry 

and was hot to the touch. The motor is completely enclosed in an 

oblong compartment. There were vents on the side. The accumulation was on the top and partially covered and obstructed the vents 

on the side. I conclude this condition constituted a violation of 

30 C.F.R. § 75.400. The hazard presented was that the motor could 

heat up and cause a fire. I conclude that the violation was 

significant and substantial since such an occurrence was likely 

if the motor continued running. The violation was serious, and 

since it had been present for some time, was the result of 

Respondent's negligence. I conclude that an appropriate penalty 

for this violation is $150. 

CITATION NO. 2011829 

This citation, issued September 2, 1982, charges a violation 

of 30 C.F.R. § 75.701, because the metal frame of a cable skid 

carrying approximately 100-feet of energized cable was not grounded. 

The standard requires that "metallic frames, casings, and other 

enclosures of electric equipment that can become 'alive' through 

failure of insulation or by contact with energized parts shall be 

grounded .••. " The cable skid involved here is used to convey 

the cable and to store it. It consists of a sled with two runners 

and a floor and pipes or standards on the side. I do not consider 

this to be a metallic frame or other enclosure of electric equipment 

covered by the standard. Therefore, I conclude that a violation was 

not established, and the petition will be dismissed with respect to 

this citation. 

ORDER 

Based on the above findings of fact an.d conclusions of law, 

IT IS ORDERED 

1. Citation No. 2011911 is AFFIRMED but the violation was not 

significant and substantial. 

2. Citation No. 2011827 is AFFIRMED as properly charging a 

significant and substantial violation. 

3. Citation No. 2011829 is .VACATED and the penalty petition 

is DISMISSED with respect to it. 

1868 
4. Respondent shall, within 30 days of the date of this 

decision, pay the following penalties for violations found herein 

to have occurred: 

Distribution: 

CITATION 

2011911 

2011827 

Total 

PENALTY 

$ 50 

150 

$200 

Jcvvws kl81t?/t~i_ James A. Broderick 

Administrative Law Judge 

David A. Pennington, Esq., Office of the Solicitor, U.S. Department 

of Labor, Room 14480 Gateway Building, 3535 M.arket Street, 

Philadelphia, PA 19104 (Certified Mail) 

Lo~ise Q. Symons, Esq., 600 Grant Street, Room 1580, 

Pittsburgh, PA 15230 (Certified Mail) 

1870 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 24, 1983 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

SHAMROCK COAL CO. , INC. , 

Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 83-207 

A.C. No. 15-02502-03507 

No. 18 Mine 

DENIAL OF OPERATOR'S REQUEST TO WITHDRAW 

ORDER TO SOLICITOR TO SUBMIT 

SETTLEMENT MOTION OR INFORMATION 

On May 5, 1983, the Solicitor filed a penalty proposal 

in the above-captioned action. The operator failed to 

answer and on September 14, 1983, I issued a show cause 

order. 

By letter dated September 22, 1983, the operator advises 

it wishes to withdraw its request for hearing enclosing a 

copy of a memorandum dated September 6, 1983, written by the 

MSHA District Manager, Barbourville, Kentucky to an MSHA 

official stating that this order should not have been 

specially assessed. The District Manager requests that this 

item be assessed under the regular formula. 

After the penalty proposal was filed by the Solicitor, 

this Commission had exclusive jurisdiction under the Act. 

The only way a penalty now can be approved and assessed is 

by the Commission under section 110 of the Act. The District 

Manager had no authority to act as he did. The operator's 

motion to withdraw must therefore be Denied. 

It appears that the most expeditious way to handle this 

matter would be for the Solicitor to discuss the matter with 

the operator in order to determine if the matter can be 

appropriately settled. If so, the Solicitor then should 

file a settlement motion. If the matter cannot be settled, 

the Solicitor should advise me so the case can be assigned 

and set down for hearing. 

1871 
Accordingly, it is Ordered that the Solicitor advise me 

of the status of this case within 45 days of the date of 

this order. 

Paul Merlin 

Chief Administrative Law Judge 

Distribution: 

Carole M. Fernandez, Esq., Office of the Solicitor, U. S. 

Department of Labor, 280 U. S. Courthouse, 801 Broadway, 

Nashville, TN 37203 (Certified Mail) 

Mr. Gordon Couch, Safety Director, Shamrock Coal Company, 

P. 0. Box 130, Manchester, KY 40962 (Certified Mail) 

/ln 

1872 
·FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, loth FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

OCT 251983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

UNITED STATES STEEL MINING 

COMPANY , INC. , 

Respondent 

Docket No. PENN 83-47 

A.C. No. 36-03425-03507 

Docket No. PENN 83-63 

A.C. No. 36-03425-03509 

Maple Creek No. 2 Mine 

DECISION 

Appearances: 

Before: 

David A. Pennington, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, 

Pennsylvania, for Petitioner; 

Louise Q. Symons, Esq., Pittsburgh, Pennsylvania, 

for Respondent. 

Judge Broderick 

STATEMENT OF THE CASE 

The above docket numbers were consolidated for hearing and 

decision since they involve citations issued in September and 

October 1982, at the same mine. Two citations are included in 

Docket No. PENN 83-47, and three are involved in PENN 83-63. Pursuant to notice, the case was heard in Pittsburgh, Pennsylvania, 

on August 30, 1983. Francis E. Wehr, Sr., Alvin Shade, and Okey 

Wolfe testified on behalf of Petitioner; William K. Schlaupitz, 

Paul Shipley, Robert c. Tishman and Paul Gaydos testified on behalf 

of Respondent. Both parties have filed posthearing briefs. Based 

on the entire record, and considering the contentions of the 

parties, I make the following decision. 

FINDINGS AND CONCLUSIONS COMMON TO BOTH DOCKET NUMBERS 

1. At all times pertinent to these proceedings, Respondent 

was the owner and operator of an underground coal mine in 

Washington County, Pennsylvania, known as the Maple Creek No. 2 

Mine. 

1873 
2. Respondent is subject to the provisions of the Federal 

Mine Safety and Health Act of 1977 in its operation of the subject 

mine, and I have jurisdiction ov~r the parties and subject matter 

of these proceedings. 

3. The subject mine has an annual production of more than 

800,000 tons of coal. Respondent produces more than 15 million 

tons of coal annually. Respondent is a large operator. 

4. The assessment of civil penalties in these proceedings 

will not affect Respondent's ability to continue in business. 

5. In the 24-month period prior to the issuance of the 

citations involved herein, there were 498 assessed violations at 

the subject mine, 440 of which were designated significant and 

substantial. Of these, 47 were violations of 30 C.F.R. § 75.400, 

88 were violations of 75.503. This history of prior violations 

is not such that penalties otherwise appropriate should be increased 

because of it. 

6. In the case of each citation involved herein, the violation was abated promptly and in good faith. 

7. The subject mine has been classified as a gassy mine. It 

liberates more than 1 million cubic feet of methane in a 24-hour 

period. 

8. Whether a cited violation is properly designated as a 

significant and substantial violation is per se irrelevant to a 

determination of the appropriate penalty to be-assessed. The 

penalties hereinafter assessed are based on the criteria in 

section llO(i) of the Act. 

DOCKET NO. PENN 83-47 

1. Citation No. 2011340, issued September 8, 1982, charges 

a violation of 30 C.F.R. § 75.400 because of an accumulation of 

loose coal along a belt line. The accumul~tion varied from 1 to 

35 inches deep, was approximately 75 feet long and 12 to 36 inches 

wide. There is no dispute as to the existence of the accumulation, 

but the evidence is conflicting as to its nature. The inspector· 

testified that it was wet on top but beneath the top layer there 

were layers of dry coal and coal dust. He also testified that the 

mine floor was dry. The assistant mine foreman testified that 

the accumulation was called muck, that it was "soupy" and could 

not be shovelled without being dried out. He also testified that 

the mine floor was wet. In order to abate the violation, rock 

dust had to be applied to soak up the water, before the accumulation could be handled by shovels. I find that there was an 

accumulation and that it was of combustible material. I further 
find, however, that the accumulation was so wet that the likelihood 

of it contributing to a mine fire was low. I conclude that a violation was shown which was not significant and substantial. The 

condition should have been observed during the preshift examination and cleaned up. I conclude that an appropriate penalty for 

this violation is $50. 

2. Citation No. 2011268, issued September 10, 1982, charges 

a violation 0£ 30 C.F.R. § 75.503 because the conduit was pulled 

out of the packing gland on power wires on a shuttle car. The 

inspector testified that a permissibility hazard was unlikely 

because of the location of cable. The violation was originally 

designated as significant and substantial, but this designation 

was removed at the hearing. I conclude that a violation occurred 

which was not significant and substantial. The violation was not 

serious. Since Respondent has been cited for this condition on a 

number of occasions previously, I conclude that it resulted from 

negligence. I conclude that an appropriate penalty for this 

violation is $50. 

DOCKET NO. PENN 83-63 

1. Citation No. 2010997, {ssued October 4, 1982, charges a 

violation of 30 C.F.R. § 75.400, because of an accumulation of 

loose coal on the mine floor along the rib of the 48 room entry, 

and in the crosscut between 47 and 48 room along the inby rib. 

The accumulation was present along the entire entry and the entire 

crosscut. The accumulation averaged 18 inches wide and 20 inches 

deep. It had been left by the previous shift. The coal was damp. 

The roof bolter was in the crosscut and the other mining machinery 

had been in the area and would return to the area. The subject 

mine is gassy and has experienced face ignitions. Because of these 

factors, and the extent of the accumulation, I find that the violation was reasonably likely to contribute to a mine fire. It was a 

significant and substantial violation and was serious. The extent 

of the accumulation (80 feet) leads me to conclude that Respondent 

was negligent in not cleaning it up earlier. I conclude that an 

appropriate penalty for this violation is $250. 

2. Citation No. 2010998, issued October 4, 1982, charges a 

violation of 30 C.F.R. § 75.503, because of a loose bolt on the 

headlight of a shuttle car. The bolt was one of four holding the 

headlight lens assembly to the body of the headlight. The hazard 

presented by this permissiblity violation is that a methane ignition in the compartment could escape to the mine atmosphere and 

cause a fire or explosion. Mining was not occurring at the time. 

The ventilation was sufficient on the section. Sparking occurs 

within the headlight. Normally the shuttle car does not approach 

within 20 feet of the face. I conclude that this permissibility 

violation was reasonably likely to cause an injury. It was significant and substantial. The violation was serious. There is 

1875 
no evidence that it resulted from Respondent's negligence. I 

conclude that an appropriate penalty for this violation is $100. 

3. Citation No. 2011000, issued October 7, 1982, charges a 

violation of 30 C.F.R. § 75.400 because of. an accumulation of loose 

coal on the mine floor from rib to rib up to 3 feet deep and 8 feet 

wide in the 50 room entry. The accumulation had apparently been 

bulldozed up into a pile at the end of a prior shift. An idle 

shift followed and the accumulation was not clean~d up. The accumulation was more than .is normally associated with one cut. The 

coal was dry with a layer of rock dust on top. The continuous 

mining machine had broken down while in the process of cleaning the 

accumulation during the last previous operating shift. I conclude 

that a violation of the standard was shown. This was an accumulation of combustible material. The hazard presented was that it 

could contribute to a mine fire. The accumulation was substantial 

and I conclude that the violation was significant and substantial 

because it was reasonably· likely to result in serious injury. The 

violation was serious. Petitioner has not established that it was 

caused by Respondent's negligence. I conclude that an appropriate 

penalty for this violation is $100. 

ORDER 

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

IT IS ORDERED 

1. Citation Nos. 2011340 and 2011268 are AFFIRMED, but the 

significant and substantial designations are REMOVED. 

2. Citation Nos. 2010997, 2010998 and 2011000 are AFFIRMED 

as issued. They charge significant and substantial violations. 

3. Respondent shall pay within 30 days of the date of this 

decision civil penalties for the following v~olations found herein 

to have occurr~d: 

CITATION 

2011340 

2011268 

2010997 

2010998 

2011000 

Total 

PENALTY 

$ 50 

50 

250 

100 

100 

$550 

J

CUW-5 ,44Jm~ James A. Broderick 

Administrative Law Judge 

1876 
Distribution: 

David A. Pennington, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail} 

Louise Q. Symons, Esq., 600 Grant Street, Room 1580, 

Pittsburgh, PA 15230 (Certified Mail} 

/fb 

1877 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 OCT 2 81983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

: Docket No. WEST 80-446-M 

: MSHA Case No. 05-03415-05009 V 

v. . . C-SR-10 Mine 

ENERGY FUELS NUCLEAR, INC., 

Respondent . . 

DECISION 

Appearances: Robert Lesnick, Esq., Office of the Solicitor, 

United States Department of Labor, Denver, Colorado 

for Petitioner: 

Before: 

Timothy Borden, Esq., Energy Fuels Corporation, 

Denver, Colorado 

for Respondent. 

Judge Carlson 

This case, heard under prov1s1ons of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 801 et seq. (the "Act"), arose 

from a February 12, 1980 inspection of the C-SR-10 underground 

uranium mine of Energy Fuels Nuclear, Inc. (Energy Fuels). The 

Secretary of Labor seeks a civil penalty of $2,000.00 because 

Energy Fuels allegedly compelled miners to drive a 60 foot ventilation raise while working from ladders, in violation of the mandatory 

standard published at 30 C.F.R. § 57.7-52, which provides: 

Persons shall not drill from -

(a) Positions which hinder their access to control 

levers: 

1878 
(b) Insecure footing or insecure staying: or 

(c) Atop equipment not suitable for drilling. _:; 

Energy Fuels denies that any violation occurred. It claims 

that the inspector acted on misinformation and an erroneous belief 

that the technique used in the beginning stages of driving the raise 

was to be used ~hroughout the entire construction process. 

The case was heard in Denver, Colorado with both parties represented by counsel. The parties originally asked leave to submit 

post-hearing briefs, but later asked that the case be decided without 

briefs. 

ISSUE 

The issue to be decided here is whether Energy Fuels violated 

the mandatory standard cited, and, if so, what civil penalty should 

be assessed. 

REVIEW OF THE EVIDENCE 

The undisputed evidence of record shows that Energy Fuels, some 

months prior to the inspection in this case, foresaw a need to drive 

a vertical ventilation raise from a lower level drift to an abandoned 

room in an upper level. The planned height of the raise was to be 

approximately 60 feet. The drift itself was approximately seven feet 

1/ The inspector initially charged a violation of 30 C.F.R. 

§ 57.3-20, a ground support standard. The citation was administratively modified by the inspector to charge a qsafe accessq 

infraction under 30 C.F.R. § 57.11-1. At trial, counsel for the 

Secretary moved for leave to amend a second time to charge violation 

of 30 C.F.R. § 57.7-52. While the government's indecision in 

selecting the appropriate standard is scarcely praiseworthy, all 

standards mentioned were arguably related to the nature of the 

hazard described in the citation, and it was apparent at trial that 

the final amendment occasioned no prejudice to the operator. The 

final amendment was therefore allowed, and the hearing proceeded 

upon a charge that 30 C.F.R. § 57.7-52 was violated. I also note 

that the inspector's initial action was designated an qorderq under 

section 104(d)(l) of the Act, but was modified to a citation the next 

day when the inspector apparently recognized that there was no previous 

citation under that section which would serve as a proper predicate for 

a withdrawal order. This case was therefore tried as a citation 

matter. 

1879 
from floor to back. The base of the raise was to be located in a 

cross-cut intersecting the main drift. The raise was to be approximately 5 x 5 feet in cross section and to rise at an approximate 

angle of 60 degrees.l/ work on the drift was begun before the 

safety inspection on February 12, and was completed after that date. 

Beyond these few background facts, most of the evidence presented by 

the parties was in sharp conflict. 

The government premised its case upon the understanding of its 

inspector, Rosendo Trujillo, that Energy Fuels intended to drive the 

entire raise with miners working from ladders. Since it was 

undisputed that miners working in the raise would remove the overhead 

rock by drilling and blasting, it followed that the supporting leg of 

the drill would have been rested on a ladder rung below the feet of 

the drill operator. This, according to Trujillo, would have 

imperiled the driller. Because of the weight of the drill, and 

vibrations caused by its operation, the operator could easily be 

dislodged from the ladder, causing a dangerous fall. 

Two miners, Clifford Lynn and Leroy Lynn, testified for the 

Secretary. They had the same understanding as Inspector Trujillo about 

the techniques to be used in driving the raise. 

The first to testify was Clifford Lynn, a shifter or lead miner. 

He maintained that Doug Mempa, the mine foreman, had asked him to drive 

the raise. Mempa, he testified, had informed the miners of the plan 

for the raise project about two weeks before the February 12 inspection. Lynn's understanding was that the entire raise was to be driven 

by one miner working from a ladder or ladders. The witness stated that 

he had never worked on a raise, but that he believed, along with other 

miners to whom the project was explained, that such a procedure was 

unsafe. According to Mr. Lynn, Mempa made no mention of the use of 

scaffolds or staging as work platforms for the contemplated drilling; 

nor were any scaffolding parts available in the mine. Mempa, he said, 

did mention that the miner would be tied off to a J bolt secured in the 

back or side of the raise. 

Lynn refused to work in the raise, he testified, and was told by 

Mempa he would be fired. He was in fact discharged on the Monday 

before the Secretary's inspection. 

ll The Secretary's witnesses insisted that the raise was driven at a 

90 degree angle, but I note that the Secretary's own narrative 

findings for a special assessment, a part of the file, describe 

the angle as 60 degrees. 

1830 
Another miner, Leroy Lynn, a cousin of Clifford Lynn, left his 

employment as a miner with Energy Fuels sometime in "the first part 

of February." He, too, had refused to work in the raise because of a 

belief that it was to be driven from ladders. The termination of his 

employment, however, stemmed from reasons other than his refusal to 

work on the raise. According to Leroy Lynn, Doug Mempa, the foreman, 

had asked him to work on the raise, and he had refused. The witness 

had no experience in driving raises, but he testified that Mempa had 

explained that the 4 foot by 4 foot wide raise would be driven 65 

feet at a 90 degree angle. At the time his employment ended he had 

not worked in the raise, Lynn testified, nor had he seen any other 

miner work there. At no time, he testified, did he see any timbering 

or other supplies which could be used to build scaffolding. The 

raise had been driven about 6 to 10 feet when he last saw it before 

his job at the mine was terminated, he said. 

Inspector Trujillo came to the mine on February 12 in response 

to a telephone complaint. According to the inspector, most of bis 

information came from interviews of the two former miners who 

testified and two other miners who were still on the job. These men 

gave him to understand that Foreman Mempa had informed them that the 

raise would be driven from ladders with the pneumatic drill and that 

the miner who operated the drill would be secured by lanyards to a 

J bolt anchored in the sidewall. 

Trujillo testified that no one was in the raise when he saw it, 

but that at that time it had been driven to a distance of about 9 to 

10 feet above the back of the drift. He also observed a muck pile in 

the raise which reached to a height of 8 to 9 feet from the back of the 

raise. The drift itself, he testified, was about 8 feet high (Tr. 

10 0) • 

Inspector Trujillo also maintained that he had no doubts as to 

the accuracy of what the miners told him because Doug Mempa, who was 

present a part of the time, did not deny that management intended to 

drive the entire raise from ladders. Moreover, Trujillo observed a 

10 foot wooden ladder lying in the drift near the raise, but he saw 

no materials for building a platform. He further testified that 

Mempa and two other representatives of management asked him, "What's 

wrong with driving a bald-headed raise?" (A bald-headed raise is 

one driven from ladders without the use of timbers, staging or 

platforms.) 

The inspector assumed that a series of ladders would be tied or 

fastened together to achieve the height necessary to complete the 

entire raise. Use of ladders, he testified, would subject the miner 

drilling from the ladder to great risk of falling and thus serious 

injury. His chief concern was that the leg of the drill would 

necessarily rest upon a ladder step or rung. The vibrations from the 

1881 
heavy drill (over 100 pounds) would quite likely break the ladder, 

Trujillo maintained, or would dislodge the miner from his precarious 

position even if the ladder did not break. 

Energy Fuels' witnesses presented a far.different version of the 

facts. They did agree that at the time of the inspector's visit no 

staging or platforms we-re in place. They contended, however, that 

such structures could not be installed until the raise had been driven 

several feet above the back of the drift. The stulls or timbers upon 

which the planking for the platforms were to rest must, of necessity, 

be fastened to the side-walls of the raise, they maintained. 

The operator's general foreman, Robert Mussleman, testified that 

plans for driving the raise were frequently discussed with miners 

before the project was begun. According to Mussleman, management's 

plan had always called for the use of a form of scaffolding or staging 

which would be moved upward as the raise progressed. Metal supports 

known as Montgomery ward hitches would first be inserted into the 

walls. These would support 8 x 8 inch timbers which in turn support 

the 2 x 8 inch lagging or planking which would serve as the drilling 

platform. According to the Mussleman's description, the miner would 

stand on the planking and rest the leg of the drill there. He would 

then proceed to drill the back above him with drill steels varying from 

2 to 6 feet long. Charges would then be inserted, the planking 

removed, and charges detonated. The broken rocks would then fall to 

the floor of the crosscut below. As the raise advanced, new hitches 

and timbers would then be installed. Additionally, Mussleman asserted, 

separate safety lines attached to J bolts would be secured to both the 

miner and the heavy drill. 

Mussleman testified that ladders were indeed to be used to allow 

access to the various levels of the staging as the raise advanced. 

He also indicated that the first few feet of the raise was, of 

necessity, to be "bald headed." Explbsive rounds, he testified, 

would be fired to push the raise far enough to install timbers. No 

drilling, he asserted, would be done from a ladder. Rather, the 

miner doing the drilling would stand atop the large muck pile in the 

crosscut at the base of the raise. The top of the raise would be 

leveled, planking would be placed there to form a solid footing, and 

the drill leg would rest on the planking. A ladder would be used, he 

explained, only to insert the charges for the third round. (After 

the second round, the miner could reach the back of the raise with 

the drill steel from a fully extended drill to drill the holes, but 

could likely not reach that far by hand to insert the charges.) 

Mussleman claimed that all necessary supplies for the stagings 

were in the mine by the time of the February 12 inspection. The 

Montgomery Ward hitches and the planking were at the mine from former 

projects, he testified, and the 8 x 8 inch timbers were brought in by 

him in January. 

1882 
Mussleman recalled that the raise was between 6 and 12 feet 

high when the citation issued, and the muck pile was around 5 feet 

high. At one point he acknowledged that a miner could have stood on 

the ladder to drill, but that in any event the drill leg would have 

been rested on the muck pile. He insisted that the drill leg would 

break a ladder rung if rested there. 

Mussleman acknowledged that no plan for the construction of the 

scaffolding systems had been placed on paper until after Inspector 

Trujillo's inspection (Tr. 123). 

Bernie Willey, a miner whose employment at the mine ended in 

August of 1980, also testified for Energy Fuels. Willey indicated 

that he drilled the last 50 feet of the raise from scaffolding. His 

description of the technique used conformed to the description of the 

staging system which Mussleman claimed to be management's plan. 

Willey also testified that he was present when Mussleman 

explained the raise plan, including the use of staging or scaffolding. The explanation took place before the inspection. The 

witness had understood that in the early stages, the miner would 

stand on a ladder but brace the drill leg on the muck pile (Tr 162). 

Willey's participation began, however, about a month after the 

citation. At that time the top of the raise was about 15 feet high. 

Doug Mempa, the mine foreman at the times relevant to this 

case, testified that he explained the raise project to the miners 

before it began, and that he at no time represented that the raise 

would be driven from ladders. Moreover, he maintained that all 

necessary timbers, hitches, and planking were at the mine before the 

drilling began. The stulls or timbers were delivered by Mr. Mussleman, 

he testified, during a snowstorm in January: the other supplies were 

already present. Mempa asserted that he saw the raise daily from the 

time it was begun. 

According to Mempa, a miner named Kenneth Chad did the first work. 

The first rounds fired by Chad "booted," leaving an uneven hole. Mempa 

then drilled and shot the next round to "square up" the raise. Mempa 

insisted that neither he nor Chad drilled from a ladder: it was done 

from the top of the muck pile. He did not believe a ladder was lying 

in the drift during Inspector Trujillo's visit, but conceded one could 

have been, because ladders were sometimes used in the drift. 

Mempa testified that at the time of the inspection he measured the 

height of the raise from the top of the drift and found it to be 9 

feet. The drift itself was 7 feet high. Therefore, the total height 

of the raise was 16 feet. He did not measure the height of the muck 

pile but estimated it to be about 5 feet. (Tr. 195-196.) 

188d 
The drill, with the support leg fully extended reached 8 1/2 feet, 

according to Mempa, which, with a 6 foot drilling steel allowed a reach 

of approximately 14 feet (Tr. 222). 

Richard D. Husted, mine safety and envirbnmental engineer ~or 

Energy Fuels, testified that he saw the raise on February 12, 1980, or 

a day or two before. While there, he saw materials suitable for 

building scaffolding. 

In rebuttal, Inspector Trujillo testified that in a subsequent 

visit to the mine on March 18, 1980 to check on abatement of the 

alleged violation, that it appeared that another round had been fired, 

making the raise about 2 or 3 feet higher. During his rebuttal 

testimony he made clear that he had never seen a miner working in the 

raise. He also acknowledged that if a miner had in fact been able to 

stand on a lower rung of the ladder to drill while resting the drill 

leg on the muck pile, such activity might not constitute a violation. 

DISCUSSION 

Even a cursory review of the record in this case reveals that the 

secretary's evidence is wholly circumstantial. Neither the inspector 

nor any other witness for the government saw anyone at work in the 

raise. The question, then, is whether the circumstantial evidence is 

strong enough to establish violation. For the reasons which follow, I 

hold that it is not. 

I have no doubt that if the inspector were correct, if the entire 

raise were to have been driven from ladders, the procedure would have 

been patently hazardous and a clear violation of the standard 

ultimately cited. More particularly, I am convinced that if the leg of 

the heavy drill were rested on a rung of the same ladder upon which the 

miner operating the drill was standing, a violation would occur, no 

matter what the height of the raise. I am not convinced, however, that 

any violation had occurred at the time of the inspector's citation. 

The circumstantial evidence presented by the Secretary was of two 

types: the words of two miners who related their understanding that the 

entire raise was to be driven from ladders without platforms, and the 

observations of these witnesses and the inspector of the raise itself 

up to February 12, 1980. 

No one disputes that the raise was finished from platforms of the 

sort that the inspector approved. The government would suggest, of 

course, that the Lynns understood correctly that Energy Fuels 

originally intended to drive the entire raise from ladders, and altered 

that intent only after the inspector's visit and citation. Assuming 

that the drilling and blasting activity was done lawfully, up to the 

time of the inspection, the government's suggestion raises a troublesome question: what steps, if any, may the Secretary take under the Act 

to prevent a prospective violation? 

1881 
I do not believe that that question need be addressed at any 

length here. As I read the Act, it contains no language ~hich 

contemplates present sanctions to prevent possible future or intended 

violations of mandatory standards. That question need not be 

entertained because I find persuasive the operator's claims that it 

intended from the time of conception of the raise project to use 

platforms. In reaching this conclusion, I rely principally on the 

testimony of Bernie Willey, a miner whose employment with Energy Fuels 

had ended well before the hearing. He therefore lacked any discernable 

motive to shade or slant his testimony. Willey fully supported the 

management ~estimony that plans to use platforms were made clear to 

miners before the raise began. I make no judgments as to the good 

faith of the Lynns in professing otherwise, but I find that they were 

mistaken in that belief. 

This leaves but a single issue to decide. Did the size and shape 

of the raise at the time of inspection reveal the use of a ladder as a 

drill rest in violation of the standard? As mentioned before, no 

witness testified that any miner used a ladder rung as a base for the 

drill leg. The Lynns inferred that someone did because they had been 

told that the entire raise would be drilled from ladders. Inspector 

Trujillo drew the same inference based upon what he was told by miners 

who never observed the actual work, and from his knowledge of the 

driving of "bald headed" raises in other mines at other times (Tr. 

209-210). 

Against these inferences I must weigh the evidence of Doug Mempa, 

the foreman who actually directed the other miners who worked in the 

raise before February 12, 1980, and who, himself, apparently did most 

of that work. He testified emphatically that all drilling was done 

using the muck pile as a base. He also provided the only testimony 

concerning the actual measurements of the raise on the date of inspection. I note that Mempa's measurements were generally consistent 

with the estimates of other witnesses. I further note that, given the 

height of the raise at the time of the inspection, Mempa's representations that drilling up to that time was done from the muck pile were 

plausible. Since the top of the raise was 9 feet above the back of the 

7 foot drift, the top of the raise was but 11 feet above the muck pile. 

Thus, a drill which extended to 8 1/2 feet, used in conjunction with a 

6 foot drill-steel, could have been rested on the muck pile to allow 

placement of the last charges detonated before the inspection. I 

therefore accept the first-hand testimony of Mempa, who actually 

directed and participated in this early phase of the project, over the 

speculations of those witness who did not see the work done. 

In summary, no one seriously contends that any violation occurred 

unless a miner rested the drill leg on a ladder rung. No credible 

evidence demonstrates that the drill was handled in that way. Consequently, I must conclude that no violation was proved. 

1885 
CONCLUSIONS OF LAW 

Based upon the entire record and upon the factual determinations 

reached in the narrative portion of this decision, it is concluded: 

(1) That the Commission has jurisdiction to decide this case. 

(2) That the credible evidence of record fails to establish that 

Energy Fuels violated the mandatory safety standard published at 30 

C.F.R. § 57.7-52. 

(3) That the Secretary's citation and attendant proposal of civil 

penalty must be vacated. 

ORDER 

Accordingly, the citation and petition for assessment of a penalty 

are hereby vacated. 

Distribution: 

Certified Mail to 

ohn A. Carlson 

Administrative Law Judge 

Robert Lesnick, Esq., Office of the Solicitor 

United States Department of Labor, 1585 Federal Building 

1961 Stout Street, Denver, Colorado 80294 

Timothy Borden, Esq., 3 Park Central, Suite 900 

1515 Arapahoe Street, Denver, Colorado 80202 

/blc 

188ti 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 OCT 2 81983 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

WESTMORELAND COAL COMPANY, 

Respondent 

Docket No. WEVA 83-170 

A.C. No. 46-03140-03507 

Hampton No. 3 Prep. Plant 

DECISION APPROVING SETTLEMENT 

Before: Judge Kennedy 

The parties move for approval of a settlement of the 

captioned matter at 80% of the $1,000 amount initially assessed. 

The record shows that as a result of the operator's 

unwarranted disregard for compliance a dangerous accumulation 

of float coal dust and loose coal was found in the operator's 

Hampton No. 3 Preparation Plant. The violation was of such 

a nature that it could significantly and substantially contribute 

to a mine fire if not promptly abated. The reduction in the 

penalty is predicated on the parties' claim that the chain of 

causation was physically attenuated by the absence of any obvious 

source of an electrical ignition and the ready availability of 

adequate fire suppression equipment. 

Neither of these circumstances would preclude a fire that 

could result from roller friction and that could propagate an 

explosion of the float coal dust if the co-al dust under and 

around the belt conveyors were cast into suspension as the 

result of other unforeseen circumstances. The potential of the 

violation as a contributing factor to a fire hazard is readily 

foreseeable, that to an explosion remote if not speculative. 

Under the S&S criteria Congress intended an operator be 

held liable not only for the gravity and negligence involved 

in the immediate violation but also for its reasonably foreseeable consequences, i.e., its contribution to a significantly 

and substantially greater hazard or danger. Here, for example, 

the immediate hazard was a slipping hazard due to the presence 

of water mixed with the coal sludge. But if roller friction 

in the coal dust caused an ignition a mine fire could result. 
It is possible perhaps even probable that the fire suppression 

system would render the fire harmless but on the other hand it 

might not. The redundancy in a protective or safety system 

cannot excuse a condition that could significantly and substantially contribute to a major hazard. A serious consequence 

was, therefore, readily foreseeable from the condition found. 

As I view it, the dispositive issue in applying the S&S criteria 

is one of reasonable foreseeability of a significant and substantial contribution by the underlying violation to a serious mine 

health or safety hazard. Reasonable probability that the hazard 

forseen will actually occur is merely another factor that adds 

to the substantiality of the hazard, not to its existence. 

There is a widespread belief that unless a violation 

immediately creates a reasonable probability of a reasonably 

serious injury or illness it cannot be classified as significant 

and substantial and must perforce be classified as trivial. 

30 C.F.R. 100.4. This constitutes a serious misreading not only 

of the statutory language but also of the Congressional intent. 

Congress intended violations be cited as significant and substantial where they are of such a nature as "could" significantly 

and substantially "contribute" to the "cause or effect" of a 

mine safety or health hazard. Sections 104(d), (e). This does 

not mean that the violation cited in a 104(d) (1) citation must, 

standing alone, present a "significant and substantial" hazard 

or even a "major" hazard or danger to safety and health. The 

S&S standard, written by miners for miners, was designed to 

provide an early warning or alert with respect to violations 

with an incipient potential for disaster. Compare, Scotia Coal 

Company, 4 FMSHRC 89 (1982); Sen. Rpt. 95-181, 95th Cong. 1st 

Sess. 32 (1977). Unless violations with the potential for 

contributing to such disasters as Scotia are prevented they 

will continue to recur as recent history amply attests. 

S&S violations may be either serious or nonserious depending 

upon their immediate consequences. Thus, while there was 

little likelihood that the static condition observed in this 

case would result in a reasonably serious injury it was fully 

capable of contributing to a hazard with disasterous potential--

a potential that was reasonably foreseeable if the condition was 

not promptly abated. It is precisely for this reason that 

nonserious violations may be of "such a nature" as to contribute 

to a serious mine hazard while a serious violation may have no 

potential for creating anything other than a need for prompt 

abatement. Here, for example, if it were convincingly shown 

that the fire suppression system was capable of dousing the fire 

before it became dangerous the violation would still be serious 

but would lack the potential for making a significant and 

substantial contribution to a hazard capable of causing death 

1886 
or bodily harm. The operator, of course, has the burden of 

persuasion with respect to rebutting a prima facie violation 

is S&S. Miller Mining Co. v. FMSHRC, 3 MSHC 1017 (9th Cir. 

1983); Old Ben Coal Corp. v. IBMOA, 523 F.2d 25, 39 (7th Cir. 

1975). 

Gravity always depends upon the potential for adverse 

consequences and must be evaluated in the light of the potential 

of a violation for such consequences. The immediate consequence 

of an ignition in the presence of a small quantity of even a 

5% concentration of methane may be negligible but unless the 

condition, i.e., the "cause" of the ignition or the source of 

the bleeder; e.g., an impermissibility or a ventilation violation or both rs-eliminated and prevented the existence of each 

condition or violation is of "such a nature" as may, i.e., 

"could" significantly and substantially "contribute" to-a much 

larger ignition, namely an explosion that may take out an 

entire section or an entire mine. 

It is a misnomer and confuses analysis to refer to the 

"significant and substantial" hazard defined by Congress as an 

S&S "violation." Congress used the subjunctive mood and the 

present tense conditional, verb "could" to express its concept 

of a "hazard" that might materialize at some indefinite time 

if the underlying "violation," whether serious or nonserious 

in its immediate consequences were not abated and the hazard 

aborted. 

While an S&S hazard is not an imminent danger because 

the certainty of its occurrence is less obvious and the time 

less definite, it is, as the Scotia case so dramatically 

demonstrated, just as deadly and dangerous. The difficulty 

in perception when coupled with the conseq~ences of misperception are so grave as to argue strongly for resolving 

doubts in favor of the evidence or testimony that supports 

the S&S finding. Consequently, if a hazard is reasonably 

foreseeable it should be considered significant and if it is 

of such a nature that it is capable of "contributing" to a 

condition or practice that could result in serious physical 

harm it should be deemed substantial. 

I firmly believe that if the S&S standard is to have the 

scope intended by Congress, it must be used to prevent the 

occurrence of violations that sow the seeds of disaster for 

either individual miners or groups of miners. Operators owe 

miners a duty not only to prevent serious violations but all 

violations of whatever gravity that may contribute to hazards 

with serious consequences for the health and safety of the 

industry's most important resource--the miner. 

1889 
Applying the standard indicated, and based on an 

independent evaluation and de novo review of the circumstances, I find the settlement proposed is in accord with 

the purposes and policy of the Act. 

Accordingly, it is ORDERED that the motion to approve 

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

that the operator pay the amount of the settlement agreed 

upon, $800, on or before Friday, November 18, 1983, and that 

subject to payment the captioned atter be DISMISSED. 

Distribution: 

Jo eph B. Kennedy 

Administrative Law 

Janine c. Gismondi, Esq., Office of the Solicitor, U.S. 

Department of Labor, 3535 Market St., Philadelphia, PA 

19104 (Certified Mail) 

F. Thomas Rubenstein, Esq., P.O. Drawer A & B, Big Stone 

Gap, VA 24219 (Certified Mail) 

/ejp 

1890