NOVEMBER 

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

Secretary of Labor, MSHA v. Kerr-McGee Nuclear Corporation, DENV 79-201-P; 

(Judge Lasher, October 24, 1979) 

Secretary of Labor, MSHA v. Scotia Coal Company, BARB 78-306, etc.; 

(Interlocutory Review) 

Review was Den:i:ed in the following cases during the month of November: 

Mid-Continent Coal & Coke Co., v. Secretary of Labor, MSHA, DENV 79-29-P; 

(Judge Broderick, October 1, 1979) 

Secretary of Labor, MSHA v. Southern Ohio Coal Company, VINC 79-110-P & 

VINC 79-114-P; (Judge Koutras, October 19, 1979) 

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

(Judge Kennedy, May 24, 1979) Review was vacated. 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY .Ai."'ID HEALTH 

ADMINISTRATION (MSHA) 

and 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 13, 1979 

Docket Nos. HOPE 78-469 

HOPE 78-470 

HOPE 78-471 

HOPE 78-472 

HOPE 78-473 

HOPE 78-474 

UNITED MINE WORKERS OF AMERICA HOPE 78-475 

(UMWA) HOPE 78-476 

v. 

MONTEREY COAL COMPANY 

DEC ISON 

For the reasons stated in our decision in Old Ben Coal Company, 

No. VINC 79-119 (October 29, 1979), the decision of the administrative 

law judge is reversed and the case is remanded for further proceedings 

consistent with the above decision. 

A. E. Lawson, Commissioner 

\ \\\ ~ . . "/\\ / ~~~~lt(W~ Marian PeaJlmjh Nease, Commissioner 

Backley, Commissioner, dissenting: l,/ 

I would affirm the decision of Judge Michels for the reasons set 

forth in his decision and in my dissent in Old Ben Coal Co., No. 

VINC 79-119. The judge has reject?d the absolute or strict liability 

theory and has found, after an extensive analysis of the evidence, that 

Monterey "neither supervised nor controlled the shaft-sinking activity 

performed by Frontier-Kemper." The improper manner of the "shaftsinking activity," particularly the operation of the winches involved, 

79-11-6 

1781 
the lack of a loading platform and the presence of men under hoisted 

loads was the cause of the cited violations. The record clearly reflects 

that the judge's finding as to the lack of control over this activity by 

Monterey is supported by substantial evidence. Accordingly, I am unable 

to find tpe necessary relationship between the violations charged and 

Monterey which I would require as set forth in my dissent in Old Ben. 

I therefore must disagree with the all too brief opinion of the majority. 

oner 

1782 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY Ai'lD HEALTH 

ADMINISTRATION (MSHA), 

November 14, 1979 

v. Docket No. DENV 79-201-P 

KERR-McGEE NUCLEAR CORPORATION 

DIRECTION FOR REVIEW AND ORDER 

The decision of the Administrative Law Judge is directed for 

review. It is found that the Judge's decision may be contrary to law or 

Commission policy, and .that a novel question of policy is presented. 

The issue is whether the Judge's decision meets the requirements of 

Commission Rule 65(a), 29 CFR §2700.65(a). 

This case arose when the Secretary of Labor sought the assessment 

of a civil penalty against Kerr-McGee Chemical Corporation for an 

alleged violation of a mandatory mine safety standard. The Judge held a 

hearing, and, at its conclusion, orally announced a decision from the 

bench that was read into the record. Several weeks later, the Judge's 

written decision was issued. That decision states: 

This proceeding arose under section llO(a) of the Federal Mine 

Safety and Health Act of 1977. A hearing on the merits was held in 

Denver, Colorado, on September 27, 1979, at which both parties were 

well represented by counsel. After considering evidence submitted 

by both parties and proposed findings of fact and conclusions of 

law proffered by counsel during closing argument, I entered a 

detailed opiniox:i on the record. It was found that the violation 

charged in the withdrawal order did not occur. 

The petition having no merit, this proceeding is dismissed. 

We conclude that this decision does not meet the requirements of 

Commission Rule 65(a), 29 CFR §2700.65(a). That rule requires judges' 

decisions to be written, requires that they "include findings of fact, 

conclusions of law, and ~he reasons or bases for them on all the material 

issues of fact, law,. or discretion presented by the record .•• ", and 

states that "[i]f a decision is-announced orally from the bench, it 

shall be reduced to writing after the·filing of the transcript." The 

Judge's written decision here, however, does not include findings of 

fact, conclusions of law, or the reasons or basis for them, nor was the 

bench decision included in the written decision. 

79-11-8 

1783 
The Judge's decision is therefore vacated. The case is remanded to 

the Judge for the entry of a decision in accordance with the Commission's 

Rules of Procedure. 

Jei;ime R. Waldie, Chairman 

1784 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

PEABODY COAL COMP ANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

and 

UNITED MINE WORKERS OF 

AMERICA (UMWA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 14, 1979 

Docket No. VINC 77-40 

LOCAL UNION NO. 1670, DISI~ICT 

12, UNITED MINE WORKERS OF 

AMERICA 

Docket No. VINC 77-50 

v. 

PEABODY COAL COMPANY 

DECISION 

These proceedings arise under the Federal Coal Mine Health and 

Safety Act of 1969. 30 U.S.C. §801 et~· (1976) (amended 1977) ["the 

1969 Act"]. They involve an application for review of a withdrawal 

order (VINC 77-40) issued under section 104(a) and an application for 

compensation (VINC 77-50) filed under section llO(a). Both applications 

relate to the withdrawal order and were consolidated by the administrative law judge. 

The judge held that the withdrawal order was validly issued and 

awarded compensation to 334 miners found to be idled by the order. The 

judge further ordered the payment of six percent interest "per month" 

from the date that the withdrawal order was issued to the date of his 

decision. The Commission granted Peabody's petition for discretionary 

review. For the reasons that follow, we affirm the judge's decision but 

modify his award of interest. 

79-11-7 

1785 
On Tuesday, November 23, 1976, Peabody discovered a "gob fire" 1/ 

at its River King Underground Mine No. 1. A Mining Enforcement and 

Safety Administration (MESA) inspector, who was present at the mine when 

the fire was detected, immediately issued a withdrawal order under 

section 103(f). 2/ The inspector ordered the withdrawal of miners, 

except those miners needed to remove equipment and to erect temporary 

seals. Later that day, a MESA supervisor arrived at the mine to monitor 

the fire. 

The· installation of temporary seals was completed on Wednesday, 

November 24th, and liquified carbon dioxide was pumped into the fire 

area to displace oxygen sustaining the fire. Because the next day was 

a holiday, Thanksgiving, the MESA supervisor decided to wait until 

Friday, November 26th, to test the atmosphere behind the temporary seals 

for carbon monoxide and oxygen. 

On Friday, after additional carbon dioxide was pumped into the fire 

area, the MESA supervisor and inspector, together with Illinois State 

inspectors, took instrument readings and bottle samples of the air 

behind the temporary seals. Because the instrument readings showed that 

the carbon monoxide and the oxygen levels in the fire area were "still 

high", the inspection team decided to wait until Monday, November 29th, 

to conduct further tests of the atmosphere. In the meantime, the 

bottle samples were sent to the state laboratory for analysis. 

Later on Friday, the MESA supervisor was notified of the laboratory 

results concerning the bottle samples. The supervisor stated that the 

results were "very close" to the instrument readings and that this 

indicated to him that the mine fire was reore extensive than first 

believed. The supervisor then called the inspector and instructed him 

to proceed to the mine on Saturday to issue a withdrawal order under 

l/ A "gob fire" is defined in A Dictionary of Mining, Mineral and 

Related Terms, U.S. Department of the Interior, Bureau of Mines (1968), 

as: 

a. Fire originating spontaneously from the heat of decomposing gob 

[i.e., the refuse or waste left in the mine] •••• b. A fire 

occurring in a worked-out area, due to ignition of timber or broken 

coal left in the gob •••• c. Fire caused by spontaneous heating of 

. the coal itself, and which may be wholly or partly concealed •••• 

J:../ Section 103(f) provided in part: 

In the event of any accident occurring in a coal mine, an authorized representative of the Secretary, when present, may issue such 

orders as he deems appropria~ to insure the safety of any person 

in the coal mine •••• 

1786 
section 104(a). 11 The inspector went to the mine on Saturday but was 

unable to issue the order because at the time only a watchman was there. 

At sometime ori Saturday, additional carbon dioxide was pumped into the 

fire area. 

On Monday, November 29th, after receiving further instructions from 

his supervisor, the inspector returned to the mine and issued the section 

104(a) withdrawal order at 7:10 a.m. In the order, the inspector 

described the alleged imminent danger as follows: 

A mine fire (gob) existed in.the area of rooms nos. 1 through 8 off 

of A entry No~ 3 West, sub Main North. Management did detect the 

fire and voluntarily withdrew the men from the mine. 

Because the miners had been withdrawn from the mine following the 

discovery of the fire on the previous Tuesday, no miners were working on 

the 12:01 a.m. to 8:00 a.m. shift when the section 104(a) order was 

issued. Eight miners reported for work, however, for the succeeding 

8:01 a.m.to 4:00 p.m. shift. In order to resolve a possible contractual 

dispute over reporting pay, Peabody permitted the eight miners to work 

the first four and one-half hours of their shift. 

On Thursday, December 2nd, after completion of the permanent seals 

and of tests indicating that the concentrations of carbon monoxide and 

oxygen were within "acceptable limits", the section 104(a) withdrawal 

order was modified to permit mining operations in all unsealed areas of 

the mine. 

On review Peabody advances several arguments as to why the judge 

erred in holding that the withdrawal order was validly issued. Peabody 

argues that the order is "fatally defective" because it failed to 

adequately describe the imminent danger in accordance with the requirements of section 104(e) of the 1969 Act. That section provided in part: 

Notices and orders ••• shall contain a detailed description of the 

conditions or practices which cause and constitute an imminent 

danger ••• and, where appropriate, a description of the area of the 

coal mine from which persons must be withdrawn and prohibited from 

entering. 

11 Section 104(a) provided: 

If, upon any inspection of a coal mine, an authorized representative of the Secretary finds that an imminent danger exists, such 

representative shall determine the area throughout which such 

danger exists, and thereupon shall issue forthwith an order 

requiring the operator of the.mine or his agent to cause immediately all persons, except those referred to in subsection (d) 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 imminent danger no longer exists. 

-1787 
Peabody's argument is without merit. On its face the order informs 

Peabody that a gob fire existed in a specified area of the mine. The 

order complied with section 104(e) and sufficiently apprised Peabody of 

the alleged imminent danger. We also note that Peabody has not suggested any additional information that the order, in its view, shoμld 

have contained. 

Peabody also argues that the judge erred in upholding the withdrawal order because the order lacked a "sufficient factual basis". 

Peabody asserts that the order, issued on Monday, ~ovember 29th, was 

based upon stale data obtained by MESA on Friday, November 26th. It 

asserts that neither the MESA supervisor nor the inspector was aware of 

the actual conditions that existed in the mine at the time that the 

section 104(a) order was issued. In this regard, Peabody states that 

the MESA representatives failed to take into account the fact that 

additional carbon dioxide was pumped into the fire area after the tests 

were conducted on Friday, November 26th. 

We reject this argument. The NESA supervisor and the inspector 

testified that the conditions created by the mine fire constituted an 

imminent danger. The supervisor stated that an imminent danger exis~s 

anytime there is a fire in the mine, regardless of its size. With 

respect to the tests conducted on Friday, he stated that they confirmed 

the existence of a fire, as well as the fact that the fire was larger 

than originally believed. The supervisor also testified that the fire 

presented the danger of an explosion because both oxygen and an ignition 

source were present in the mine a.nd only a fuel was needed. He testified that there were cavities in the mine roof in the area of the fire 

that could have contained pockets of such a fuel--methane--and that due 

to the inaccessibility of the fire area it was impossible to determine 

what concentrations of methane were present. He further testified that 

the temporary seals would not have withstood the force of an explosion 

"with any size at all", and that such an explosion would have disrupted 

the mine's ventilation system and introduced carbon monoxide into the 

mine. On the basis of these conditions, the supervisor concluded that 

an imminent danger existed and that it was not necessary for the inspector to have conducted additional tests for carbon monoxide and oxygen 

before issuing the withdrawal order. The inspector testified that in 

view of the area of the mine involved, he believed that the fire was 

still burning when the order was issued on Monday, November 29th. He 

further stated that, even if the fire was not burning at that time, it 

could reignite if the carbon dioxide were removed and oxygen reintroduced into the sealed area. It was the inspector's conclusion that an 

imminent danger existed as long as there was a fire behind the temporary 

seals. 

1788 
In view of. this evidence, we cannot agree with Peabody that the 

withdrawal order was based on "stale information" and "speculation and 

conjecture". The circumstances known at the time that the withdrawal 

order was issued were more than sufficient to warrant the issuance of a 

section 104(a) withdrawal order. 

Peabody also raises several arguments concerning the manner in 

which the order was issued. First, it asserts that the order is invalid 

because it was issued by the inspector, even though it was the inspector's supervisor who made the determination that an imminent danger 

existed. This argument is unpersuasive. Section 104(a) should not be 

read to require that the Secretarial representative who determines that 

an imminent danger exists be the same representative who issues the 

withdrawal order. Such a restrictive reading would unnecessarily 

frustrate the protection of miner safety and health. The facts of this 

case amply illustrate the weakness of this argument. Here, the MESA 

supervisor determined that an imminent danger existed, but the circumstances warranted that the inspector issue the order. At the time 

that the supervisor received the results of the lab analysis and 

instructed the inspector to issue the order, the inspector was about 

five to ten miles from the mine, while the supervisor was approximately 

seventy miles away. In any event, the inspector testified that he too 

believed that the mine fire constituted an imminent danger. 

Second, Peabody argues that the order is invalid because it was not 

issued "forthwith" as required by section 104(a) and therefore is invalid. 

We disagree. The order was issued for an imminently dangerous condition 

believed to exist at the time when it was issued. The fact that the 

order was not issued at the time that the fire was initially discovered, 

or when the instrument readings showed the carbon monoxide and oxygen 

levels were high, does not render the order fatally defective. Therefore, we conclude that the order was timely issued. 

Third, Peabody contends that in issuing the section 104(a) order 

the MESA representatives were motivated by a desire to aid the UMWA to 

obtain compensation for the miners, rather than by safety and health 

considerations. We reject this contention. The evidence does not 

establish any such motive. Rather, the evidence establishes that the 

order properly was issued upon a finding of an existing imminent danger. 

1789 
For these reasons, we affirm the judge's conclusion that the withdrawal order was validly issued, We now turn to the issues raised 

concerning the judge's award of compensation. 

The judge granted the UMWA's application for compensation. He 

awarded one hour of compensation to the miners who were scheduled to 

work the 12:01 a.m. to 8:00 a.m. shift on the day that the section 

104(a) withdrawal order was issued and four hours of compensation to the 

miners who were scheduled to work the succeeding 8:01 a.m. to 4:00 p.m. 

shift. The eight miners who worked the first four and one-half hours of 

the succeeding shift were awarded three and one-half hours of compensation. For the following reasons, we .affirm the judge's conclusion that 

the miners were entitled to compensation under section llO(a) of the 

1969 Act. !!._/ 

Peabody argues that the judge erred in awarding one hour of compensation to the miners who were scheduled to work the 12:01 a.m. to 

8:00 a.m. shift, contending that section llO(a) expressly limits the 

awarding of compensation to miners who are "working during the shift"· 

when a withdrawal order is issued. In the present case, as a result of 

their previous withdrawal, no miners were in fact working when the order 

was issued. Therefore, Peabody submits the miners are not entitled to 

compensation, We disagree, The miners normally scheduled to work the 

12:01 a.m. to 8:00 a.m. shift were idled within the meaning of section 

llO(a) for the last hour of their shift by the section 104(a) withdrawal 

order. After the section 104(a) withdrawal order was issued, the miners 

were prevented from working the balance of their shift by that order, 

even though a section 103(f) order was concurrently in effect. Therefore, 

the miners are entitled to compensation under section llO(a). See ' -- Roscoe Page v. Valley Camp Coal Co., 6 IBMA 1 (1976); Clinchfield Coal 

Co., 1 IBMA 33 (1971). 

!!_/ Section llO(a) provided in part: 

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

under section 104 of this title, all miners working during the 

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

be entitled to full compensation by the operator at their regular 

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

the balance of such shift. If such order is not terminated prior 

to the next working shift, all miners on that shift who are idled 

by such order shall be entitled to full compensation by the operator at their regular rates of·pay for the period they are idled, 

but for not more than four hours of such shift, 

1790 
Peabody also argues that the judge erred in awarding four hours 

compensation to miners normally scheduled to work the succeeding 8:01 

a.m. to 4:00 p.m. shift because the miners were notified several days 

beforehand not to report for work. For the reasons stated above, we 

also reject this argument. When the section 104(a) order was issued, 

the miners normally scheduled to work the next shift were idled by that 

order and are entitled to four hours compensation under section llO(a). 

With respect to the eight miners who worked the first four and onehalf hours of the 8:01 a.m. to 4:00 p.m. shift, Peabody argues that the 

judge erred in awarding three and one-h~lf hours of compensation. 

Peabody submits that miners on the shift after a withdrawal order is 

issued are entitled to be compensated only for the first four hours of 

the shift. Because these miners worked and were paid for the first four 

and one-half hours of the shift, Peabody contends that they were not 

idled by the order and are not entitled to compensation. We rejected a 

similar argument in Local Union 5869, District 17, UMWA v. Youngstown 

Mines Corp., 1 FMSHRC 990 (1979). In Youngstown, we observed that 

section llO(a) does not limit the award of compensation to only the 

first four hours of the succeeding shift, and held that miners who 

worked for the first four hours of their shift were entitled to compensation for the final four hours because the withdrawal order was 

still outstanding at the time that the miners were sent home. See also 

Local Union No. 3453, District 17, UMWA v. Kanawha Coal Co., No. HOPE 

77-193 (September 4, 1979), petition for reconsideration denied, 

September 25, 1979. Therefore, we reject Peabody's argument and hold 

that the judge was correct in awarding the eight miners three and onehalf hours of compensation. 

Peabody further contends that the judge erred in awarding compensation because the UMWA failed to.affirmatively show that all of the 

miners to whom compensation is due elected the UMWA to proceed on their 

behalf. We find no such requirement in either the 1969 Act or the 

procedural rules under which the application for compensation was 

filed. 5/ Furthermore, as it is undisputed that the UMWA was the 

"authorized representative" of the miners at the mine, to require the 

affirmative showing suggested by Peabody would be to place an additional 

procedural impediment to the filing of an application for compensation 

and frustrate the remedial purpose of section llO(a). 

'ii 43 CFR §4.560 et seq. (1977). 

1791 
Finally, the judge properly determined that interest is awardable 

under section llO(a) of the 1969 Act. Youngstown Mines Corp., supra. 

We modify the judge's decision, however, and award interest at a rate 

of six percent per year from the date compensation was due to the date 

payment is made. Peabody'< cir-··1ment that tl'e ill1WA' s failure to specifically request interest until its post-hearing brief was filed renders 

the interest award improper is rejected. In its application for compensation the UMWA requested "such other relief as may be deemed just 

and proper." Also, this objectioR was not raised before the judge even 

though the UMWA requested interest on November 28, 1977, and the judge's 

decision was not issued until March 1, 1978. Furthermore, to deny 

interest would be to award the miners less than the full compensation 

mandated by section llO(a). 

As modified, the judge's decision is affirmed. 

R. Waldie, Chairman 

I ,.1.._ 

! .• 1 

L;(-/ i . 

· ..~ 

FraJik F ./Jestrab', 

.; 

.',_ ~ ~ ~·' . .· : a r: I g..{t~i'\J A. E. Lawson, Commissioner 

~\J(LU ~~WJL(A l\loJμg Marian Pearlman Nease, Commissioner 

I· 

1792 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

STASH BROTHERS, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 15, 1979 

.. Docket No. PITT 79-44-P 

ORDER 

On June 22, 1979, the Commission directed this case and Cut Slate, 

Inc., No. WILK 79-13-P, for review sua sponte, to consider and set forth 

our policy on hearing site locations. The Commission's policy on this 

matter was fully addressed in our decision in Cut Slate, 1 FMSHRC 796 

(July 25, 1979). Our concern in directing review has therefore been 

satisfied, and it is unnecessary to consider this case further. 

Accordingly, the direction for review is vacated. 

79-11-10 

1793 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

BECKLEY COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 15, 1979 

v. Docket No. HOPE 77-92 

IBMA No. 77-52 

SECRETARY OF LABOR~ 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

DECISION 

This appeal was pending befo~e the Interior Department Board of 

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

the Commission for decision. 30 U.S.C.A. §961 (1979). The administrative 

law judge found a violation of 30 CFR 75.307-1 which requires in pertinent 

part that an examination for methane be made at the face of each working 

place "immediately prior" to the entry of electrical equipment into the 

working place. He assessed a penalty of $300. We affirm the judge's 

decision. 

On February 4, 1976, a MESA inspector issued a notice of violation 

of 30 CFR §75.307-1. He had observed a roof bolting machine move into a 

working place, and had not seen anyone conduct a methane test prior to 

the machine's entry. The inspector made a methane examination at the 

face about five minutes before the roof bolting machine was moved into 

the working place. The section foreman also made a methane examination 

at the face before telling the roof bolter operator to proceed to the 

working place. The parties disputed the exact time of the section 

foreman's test. 

Beckley argues that the MESA inspector's methane examination 

fulfilled the requirement of the regulation. We disagree. The statute 

imposes a duty upon the operator to comply. 1/ 

Beckley also argues that the foreman's examination was made . ~~ 

"immediately prior" to moving the roof bolter into the working place. 

The judge disagreed and found that it "was made at some point in time 

prior to the immediate movement of the roof bolter inby the crosscut, 

that is, prior to the time that it took the roof bolter to move out of 

the [old] working place and into the [new] working face", and therefore 

did not meet the "immediately prior" requirement of the regulation. 

J.D. at 23. As the judge held, "I find t;;ha J.aps~ of t:ime and the time 

interval does not meet the 'innnedi.ately·~;~/' 'bf i~t:!tegulation and 

constitutes a violation." Id. We agree. · · · '"··. 

1/ 30 U.S.C. §80l(g)(2)(1976)(amended U.S.C.A. 1979). 

U.S.C. §817(c)(amended U.S.C.A. 1979). 

1794 

See also 30 

79-11-9 
Finally, Beckley argues that the notice of violation does not 

adequately describe a violation, and that consequently it was prejudiced 

in preparing its defense. We also reject this argument. The notice 

contained the standard allegedly violated along with a written description of the condition leading to its issuance. '!:../ In light of this 

Beckley was fully apprised of the allegations against it. 

Accordingly, the judge's decision is affirmed. 

'!:../ The notice of violation stated in relevant part: 

James Richardson, roof bolter operator, supervised by Tom Cochran 

was observed tramming the roof bolting machine into the no. 47 

crosscut ••• before making an examination for methane ••• 

1795 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMDHSTRATION 

v. 

THE HELEN MINING COMPANY 

November 21, 1979 

Docket No. PITT 79-11-P 

DECISION 

The question here is whether a mine operator must pay ~ miners' 

representative for the time he spends accompanying a mine inspector 

during a "spot" inspection required ·by section 103(i) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. ["the 1977 

Act" or "the Act"]. Administrative Law Judge Merlin crswered that 

question in the negative. We affirm. 

I. 

On April 3, 1978, an inspector from the Department of Labor's Mine 

Safety and Health Administration (MSHA) began a lengthy inspection of 

the entirety of an underground mine operated by Helen Mining. The 

inspection was completed almost three months later, on June 27, 1978. 

This type of inspection, which is commonly called a "regular inspection" 

or "regular entire mine inspection", is required to be made at least 

four times a year by the third sentence of section 103(a) of the 1977 

Act. 1/ 

On .l\pril 6, 1978, the inspector interrupted the regular inspection 

to conduct a spot inspection required by section 103(i). That section 

requires the Secretary of Labor to conduct at least one "spot" inspection during every five working days at irregular intervals of every mine 

that liberates excessive quantities of methane. This was such a mine. 

The inspector concentrated his efforts on areas where methane could 

accumulate, and attempted to determine the amount of ventilation in 

those areas. He tested for methane concentrations with a methanometer 

and for air velocity with an anenometer; these are generally the only 

tests made during a spot gas inspection. 

11 Section 103(a) of the 1977 Act is reproduced at pages 2-3,infra. 

79-11-14 

1796 
Before the spot inspection began, the inspector notified Helen 

Mining officials and representatives of the miners of his intention to 

interrupt the regular inspection to conduct a spot inspection. Helen 

Mining's safety director told the miners' representative, }fr. McAfoos, 

that he would not be paid for the time he spent accompanying the inspector on the spot inspection. Mr. McAfoos decided to accompany the 

inspector anyway because he thought that his union would compensate him. 

The spot inspection consumed about five hours; Mr. McAfoos, a mechanic, 

left after three hours to assist in the repair of a continuous mining 

machine. 

Helen Mining did not include payment in Hr. McAfoos' next pay check 

for the three hours he spent accompanying the inspector. When the 

inspector learned of this from Mr. McAfoos, he issued a citation under 

section 104(a) alleging a violation of section 103(f). When Helen 

Mining again declined to compensate Mr. McAfoos, the inspector issued a 

withdrawal order under section 104(b) for failure to abate; the withdrawal order did not require the withdrawal of miners from mining 

operations, however. The Secretary later sought from the Commission the 

assessment of a penalty against Helen Mining for its alleged violation 

of section 103(f), and a hearing was held before Administrative Law 

Judge Merlin. Helen Mining argued to Judge Merlin that because section 

103(f) required "walkaround pay" only for inspections made pursuant to 

section 103(a), and the spot inspection here was made under section 

103(i), it was not required to pay :t1r. McAfoos.. The Judge concurred in 

this view; he held that no violation had occurred and he therefore did 

not assess a penalty. The Secretary filed a petition for discretionary 

review, which the Commission granted on April 11, 1979. On July 31, 

1979, we heard oral argument. 

The first and third sentences of section 103(f) of the 1977 Act 

read as follows: 

[l] Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by his 

miners shall be given an opportunity to accompany the Secretary or 

his authorized representative during the physical inspection of 

any ••. mine made pursuant to the provisions of subsection (a) [of 

section 103]. • •. [3] Such representative of miners who is also an 

employee of the operator shall suffer no loss of pay during the 

period of his participation in the -inspection made under this 

subsection. [Sentence numbers and emphasis added.] 

Section 103(a) reads in part as follows: 

[l] Authorized representatives of the Secretary ••• shall make 

frequent inspections and investigations in ••• mines each year for 

the purpose of (1) obtaining, utilizing, and disseminating information relating to health and safety conditions, the causes of 

1797 
accidents, and the causes of diseases and physical impairments 

originating in such mines, (2) gathering information with respect 

to mandatory health or safety standards, (3) determining whether 

an imminent danger exists, and (4) determining whether there is 

compliance with the mandatory health or safety standards or with 

any citation, order, or decision issued under this title or other 

requirements of this Act. [Second sentence omitted.] ••• [3] In 

carrying out the requirements of clauses (3) and (4) of this 

subsection, the Secretary shall make inspections of each underground ••• mine in its entirety at least four times a year, and of 

each surface ••• mine in its entirety at least two times a year. 

[4] The Secretary shall develop guidelines for additional inspections of mines based on criteria including, but not limited to, the 

hazards found in mines subject to this Act, and his experience 

under this Act and other health and safety laws. [5] For the 

purpose of making any inspection or investigation under this Act, 

the Secretary, or any authorized representative of the·secretary, 

••• shall have a right of entry to, upon, or through any ••• mine. 

[Sentence numbers added.] 

Before Judge Merlin, the Secretary relied upon an MSHA interpretative bulletin, 43 Fed. Reg. 17546 (1978), to argue that the spot 

inspection here was made pursuant to section 103(a) because it was made 

for purposes stat~d in the first sentence of section 103(a)--to determine 

whether imminent dangers or violations existed. The Judge, however, 

concluded that if this view were adopted, all inspections would be 

inspections under section 103(a) and that the phrase "pursuant to the 

provisions of [section 103(a)]" in the first sentence of section 103(f) 

would be rendered meaningless. He held that the MSHA interpretative 

bulletin was not binding upon him, 2/ and he further found that the 

Secretary's position was contrary t~ a clear statement on this point in 

the legislative history of section 103(f). 

II. 

We examine at the outset the Secretary's objection that Judge Merlin 

failed to accord "proper deference" to MSHA's interpretative bulletin. 

The Secretary relies primarily on Certified Color Manufacturers Ass'n v. 

Mathews, 543 F.2d 284, 294 (D.C. Cir. 1974), where the court stated that 

"review is guided by the considerable deference traditionally owed the 

interpretation of a statute by the head Qf the agency charged with its 

administration", and NYS Department of Social Services v. Dublino, 413 

U.S. 405 (1973), where the Supreme Court observed that "the construction 

of a statute by those charged with its execution should be followed unless 

there are compelling indications that it is wrong •... " Id. at 421, quoting 

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 331 (1969); and Dandridge 

v. Williams, 397 U.S. 471, 481-482 (1970). 

Ji The Judge cited Bituminous Coal Operators Ass'n v. Marshall, 82 F.R.D. 

350, 353 (D.D.C. 1979), appeal docketed, No. 79-1279 (D.C. Cir., March 13, 

1979). 

1798 
The difficulties with the Secretary's argument are that it ignores 

the language and structure of the 1977 Act, that it fails to recognize 

the proper roles of the Commission and the Secretary, and that it would, 

if adopted, frustrate the purposes for which Congress established the 

Commission as a wholly independent agency. Under the Secretary's view, 

the Commission could not study a problem afresh and make an independent 

judgment on matters of law and policy. Its task would be little more 

than to find the facts, accord considerable deference to the Secretary's 

position, and determine whether there are compelling indications that 

his construction of the 1977 Act is wrong. Congress, however, invested 

the Commission with the authority to decide questions of both law and 

policy (sections 113(d)(2)(A)(ii) and (d)(2)(B)), and it intended that 

the Commission do so independently. 

The Senate committee that drafted the bill from which the 1977 Act 

was largely derived, S. 717, 95th Cong., 1st Sess. (1977), considered 

several alternatives to the establishment of an independent Commission. 

It considered and rejected the arrangement under the Federal Coal Mine 

Health and Safety Act of 1969, 30 U.S.C. §801 (1976)(amended 1977)["the 

1969 Act"], in which adjudication as well as prosecution, investigation, 

and standards-making were all placed in the hands of the Secretary of 

the Interior. Although the Secretary of the Interior had delegated his 

adjudication responsibilities under the 1969 Act to the Office of Hearings 

and Appeals and the Board of Mine Operations Appeals, the Board nevertheless was not independent of the Secretary of the Interior. ]./ 

The Senate committee followed instead the example that Congress had 

set under the Occupational Safety and Health Act of 1970, 29 U.S.C. §651 

et seq. That statute established the Occupational Safety and Health 

Review Commission, which has been recognized as an independent 

]./ For example, the Board held that it was not free to apply its own 

precedent in the face of a Secretarial Order expressing a contrary view. 

Republic Steel Corp., 5 IBMA 306, 309-311, 1975-76 OSHD ,[20,233 (1975) 

("policy of the Department, as established by the Acting Secretary"), 

rev'd on other grounds, 581 F.2d 868 (D.C. Cir. 1978), withdrawal order 

aff'd on remand, 1 FMSHRC 5, 1 BNA MSHC 2002, 1979 OSHD ,[23,455 (1979), 

pet. for rev. filed, No. 79-1491 (D.C. Cir., May 11, 1979); Cowin & Co., 

6 IBMA 351, 365, 1976-77 OSHD ,[21,171 (19_76), remanded on other grounds, 

No. 76-1980 (D.C. Cir., May 26, 1978), withdrawal order aff'd, 1 FMSHRC 

20, 1MSHC2010, 1979 OSHD ,[23,456 (1979). When the Board decided a 

group of major cases against the Mining Enforcement and Safety Administration, the Secretary of the Interior stayed the Board's decisions and 

proceedings under the "supervisory powers" he reserved to "render the 

final decision [in any case]." 43 CFR §4.5 (1977); Secretarial Order of 

January 19, 1977, staying effect of Eastern Associated Coal Corp., 7 

IBMA 133, 1976-77 OSHD ,[21,373 (1976) (on reconsideration en bane), and 

staying proceedings in nine other cases. ~ ~~ 

1799 
agency with a law- and policy-making role. See, ~._g_., Brennan v. Gilles & 

Catting, Inc., 504 F.2d 1255, 1262, 1266-1267 (4th Cir. 1974). The 

Senate committee bill thus established this Commission under the 1977 

Act as an independent agency with an express policy role. !±_/ Senator 

Williams, the chief architect of the Senate bill, confirmed the important 

role of the new Commission, when, while introducing the Senate bill, he 

stated to the Senate that under the bill "[t]he procedure for determining 

operator responsibility and liability is assigned to a truly independent .•• 

Commission •••• " 1977 Legis. Hist. at 89. 2_/ 

The cases cited by the Secretary are inapposite. They deal with 

the deference that federal courts often accord to those administrative 

agency heads who alone have been entrusted by Congress with all administrative and policy functions under a statute. The Commission, however, 

is not entirely in the position of a court and the Secretary is not in 

the position of most agency heads. Inasmuch as the 1977 Act divides 

administrative and policy responsibilities between the Commission and 

the Secretary, neither has exclusive expertise in the subject matter 

covered by the 1977 Act. See our decision in Old Ben Coal Company, No. 

VINC 79-119 (October 29, 1979)(slip op. at 5). 

!±_/ See S. Rep. 95-181, 95th Cong., 1st Sess., at 47 (1977)["S. Rep."], 

reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 

95th Cong., 2d Sess., Legislative History of the Federal Mine Safety 

and Health Act of 1977, at 653 (1978)["1977 Legis. Hist."]. 

Sf We also note Senator Williams' statement during our confirmation 

hearings as indicative of the Commission's intended role. Senator 

Williams stated: 

* * One of the essential reforms of the mine safety program is the 

creation of an independent Federal Mine Safety and Health Review 

Commission charged with the responsibility for assessing civil 

penalties for violations of safety or health standards, for reviewing the enforcement activities of the Secretary of Labor, and for 

protecting miners against unlawful discrimination. 

It is our hope that in fulfilling its responsibilities under 

the Act, the Commission will provide just and expeditious resolution of disputes, and will develop a uniform and comprehensive 

interpretation of the law. Such actions will provide guidance to 

the Secretary in enforcing the Act_and to the mining industry and 

miners in appreciating their responsibilities under the law. When 

the Secretary and mine operators understand precisely what the law 

expects of them, they can do what is necessary to protect our 

Nation's miners and to improve productivity in a safe and healthful 

working environment. 

* * 

Nomination Hearing, Members of Federal Mine Safety and Health Review 

Commission, Before the Senate Committee on Human Resources, 95th Cong., 

2d Sess., 1 (1978). 

1800 
Our position is buttressed by the conclusion reached by the Fourth 

Circuit when it examined the similar relationship between the Occupational 

Safety and Health Review Commission and the Secretary of Labor. In 

Gilles & Cotting, supra at 5, the court rejected an attempt by the 

Secretary to reduce that Commission to "little more than a specialized 

jury, an agency charged only with fact finding."_ It found that that 

Commission "was designed to have a policy role and its discretion 

therefore includes some questions of law." 504 F.2d at 1262. The 

Occupational Safety and Health Review Commission has itself adopted a 

similar view of its role under OSHA. United States Steel Corp., 5 BNA 

OSHC 1289, 1294-1295, 1977-78 OSHD ~[21, 795 (1977). 

Finally, the Secretary relies upon the legislative history of the 

1977 Act for support for his position. Although that history states 

that the Commission is to accord weight to the Secretary's views, it 

does not support the more far-reaching result that he seeks here. The 

Senate committee report states only that because the Secretary "is 

charged with responsibility for implementing this Act, it is the 

intention of the Committee, consistent with generally accepted precedent, that the Secretary's interpretations of the law and regulations 

shall be given weight by both the Commission and the courts." S. Rep. 

at 49; 1977 Legis. Hist. at 637. The most apposite and well reasoned 

precedent does not require the Commission to accord to the Secretary's 

view of the statute the degree of deference he claims here, however. 

Moreover, the Senate committee did not state that the Secretary's views 

are entitled to "considerable deference" or are to be controlling unless 

there are compelling indications that they are wrong. The Senate conunittee stated only that "weight" is owed. The Secretary's broader reading 

is inconsistent with the Senate committee's and Congress' intention that 

the Commission be truly independent of the Secretary and with the policy 

role that the 1977 Act entrusted to the Commission. 

In accordance with this expression of congressional intent, we will 

accord special weight to the Secretary's view of the 1977 Act and the 

standards and regulations he adopts under them. His views will not be 

treated like those of any other party, but will be treated with extra 

attention and respect. Although this weight may vary with the question 

before the Commission, especially where the Secretary has gained some 

special practical knowledge or experience through his inspection, 

investigation, prosecution, or standards--making activities, it will not 

rise to the inappropriate level the Secretary has sought here. The 

issue in this case is one of statutory interpretation. Resolution of 

such questions is a primary role of the Commission. With this in mind, 

we now turn to the merits of this case. 

1801 
III. 

The starting point of our discussion of this matter of first 

impression is the language of the statute. Southeastern Community College 

v. Davis, 99 S.Ct. 2361, 60 L.Ed. 2d 980, 987-988 (1979). Both parties 

claim that the plain language of the statute unambiguously supports · 

thei:ir opposing views •. 6/ We find that the statute is ambiguous and does 

not clearly favor either position. 

As Judge Merlin observed, adoption of the Secretary's view would 

ren~er meaningless _the phrase,"pursuant to the provisions of subsection 

(a)" in the opening sentence of section 103(f). The Secretary has also. 

offered no satisfactory explanation of why Congress used the phrase "any 

inspection" in sections 103(a), 104(g)(l) and 107(a) of the 1977 Act, 

why it did not carry over that phrase from- the walkaround provision of 

the 1969 Act, lf and why it instead used 11 pursuant to the provisions of 

subsection (a)" in the 1977 Act. 

Even if we were to overlook this infirmity in the Secretary's-argument, the text and structure of the 1977 Act would still not clearly 

support his view. Several different types of inspections are described 

in sections of the 1977 Act other than section 103(a). See sections 

103(g)(l), 103(i), 202(g), and 303(x). 8/ The only inspection that 

section 103(a) describes specifically, however, is the regular inspection, which is not described elsewhere in the. Act. Thus., even if the 

Secretary were correct in arguing that the third and fourth clauses of 

the first. sentence of section l.03(a) encompass all .types of inspections, 

one could still reasonably believe that the phrase "pursuant to the 

provisions o.f subsection (a)" in section 103(f) was intended.to a,ccord 

the right to walkaround pay to the only inspection specifically and 

exclusively described in section 103(a)--the regular inspection. 

2_/ Inasmuch as both parties also claim that the legislative background 

or history favors their positions, we need not in any event consider 

only the plain language of the Act no matter how clear it may appear on 

superficial examination. Train v. Colorado Public Interest Research 

Group, 426 U.S. 1, 9-10 (1976). 

lf Section 103(h) of the 1969 Act read as follows: 

At the connnencement of any inspection of a coal mine by an authorized representative of the Secretary,.the authorized representa-

'tiye of the miners at the mine at the time of such inspection shall 

be given an opportunity to.accompany the authorized representative 

of the Secretary on such inspection. 

8/ Section 103(g)(l) requires the Secretary to conduct a."special" 

inspection if a miner or miners' representative has reasonable grounds 

to believe that a violation or imminent danger exists, and gives.written 

notice to the Secretary. Section 103(i) requires the Secretary to make 

"spot" inspections at stated intervals ·of mines liberating excessive 

quantities of explosive gases, of mines in which a gas ignition or 

explosion has occurred in the past five years that caused death or 

serious injury, and of mines with some other especially hazardous condition. Section 202(g) requires the Secretary to make frequent "spot" 

inspections to obtain compliance with the health standards in Title II 

of the Act. Section 303(x) requires the Secretary to inspect a formerly 

inactive or abandoned mine before mining operations commence. 

1802 
The construction offered by the operators is also problematic, 

however. Helen llining conceded during oral argument that if its construction of the statutory language is followed, miners would have no 

right to accompany inspectors even without pay in other than regular 

inspections. Under this construction, miners woul.d have fewer walkaround rights under the 1977 Act than coal miners had under the 1969 

Act• We share the Secretary's grave doubts that this was what Congress 

intended. 

The legislative history of the walkaround provisions of the 1977 

Act clarifies the matter, however. Although a walkaround pay right had 

been written into the Senate bill, the House bill merely continued the 

right in the 1969 Act to accompany the inspector and did not expressly 

provide for walkaround pay. J_/ The conflicting bills were referred to 

a conference coimnittee which reported its bill to the House and Senate. 

The conferees' written report stated only that "[t]he conference substitute conforms to the Senate bill." 10/ The conference committee did, 

however, change the opening sentence of""°what is now section 103(f) by 

striking the phrase "physical inspection of any mine under subsection 

Qi" and substituting "physical inspection of any coal or other x:iine 

made pursuant to the provisions of subsection (a)•:. 11/ 

Although there are no definite indications of how the Senate construed the.conference or Senate bills on this point, there is clear 

evidence of how the Senate and House conferees construed the conference 

bill. Representative Perkins, the chief House conferee and the chairman 

of the House committee that drafted the liouse bill, made the customary 

oral report to the House describing the agreement reached by the conference committee. His statement on this point was as follows: 

* * * Hr. Speaker, before concluding my remarks I would like to address 

one aspect of the conference [bill] that seems to be somewhat 

ambiguous. 

Section 103('a) of the conference [bill] provides [in part] that. •.• 

!!) S. 717, §104(e)(as passed by Senate), Legis. Hist. at 1115; R.R. 

4287, 95th Cong., 1st Sess., at 78-81 (1977)(as reported), reprinted 

in 1977 Legis. Hist. at 266, 343-346; sane, as substituted for Senate 

bill, 1977 Legis. Hist. at 1260, 1263-1265. 

10/ S. Con£. Rep. ~o. 95-461, 95th Cong., 1st Sess. (1977) ["Con£. 

Rep~'']~ reprinted in 1977 Legis. Hist. at 1279, 1323. 

11/ Con£. Rep. at 10; 1977 Legis. Hist. at 1288. 

1803 
(i]n carrying out the requirements of clauses (3) and (4)--concerning 

imminent dangers or compliance with standards--the Secretary shall 

make insp·ections of each underground coal or other mine in its 

entirety at least four times a year and of each surface coal or 

other mine in its entirety at least two times a year. 

In addition to the regular inspections of each mine in its entirety 

as specified in section 103(a), section 103(g)(l) provides that 

whenever a representative of a miner, or a miner at a mine where 

there is no such representative, has reasonable grounds to believe 

that a violation or imminent danger exists, such representative or 

miner shall have a right to obtain an immediate inspection. Further, 

section 103(i) provides for additional inspections for any mine 

which liberates excessive quantities of methane or other explosive 

gases, or where a methane or gas ignition has resulted in death or 

serious injury, or there exists some other especially hazardous 

condition. 

Section 103(f) provides that a miner's representative authorized by 

the operator's miners shall be given an opportunity to accompany 

the inspector during the physical inspection and pre- and postinspection conferences pursuant to the provisions of subsection 

(a). Since the conference (bill] reference is limited to the 

inspections conducted pursuant to section 103(a), and not to those 

pursuant to section 103(g)(l) or 103(i), the intention of the 

conference committee is to assure that a representative of the 

miners shall be entitled to accompany the Federal inspector, 

including pre- and post-[inspection] conferences, at no loss of pay 

only during the four regular inspections of each underground minei 

and two regular inspections of each surface mine in its entirety 

including pre- and post-inspection conferences. 

* * * Section 103(h) of the 1969 act provided generally that--

At the commencement of any inspection ••• the authorized representative of the miners at the mine ••• shall be given an 

opportunity to accompany the authorized representative of the 

Secretary on such inspection. 

Since the conference [bill] does not ref er to any inspection, as 

did section 103(h) of the 1969 act, but, rather to an inspection of 

any mine pursuant to subsection (a), it is the intent of the committee to require an opportunity to accompany the inspector at no 

loss of pay only for the regular inspections mandated by subsection 

(a), and not for the additional inspections otherwise required or 

permitted by the act. Beyond these requirements regarding no loss 

of pay, a representative authorized by the miners shall be entitled 

to accompany inspectors during any other inspection exclusive of 

the responsibility for payment by the operator. 

* * * 

1804 
1977 Legis. Hist. at 1356-1358 (emphasis added). The thrust of Hr. Perkins' 

statement is that it was the intention of the Senate and House conferees 

to preserve the right under the 1969 Act to accompany the inspector on 

all inspections, bu.t to accord a walkaround pay right for only regular 

inspect ions. 

The Secretary argues that Mr. Perkins' statement cannot be resorted 

to for the purpose of construing a statute contrary to its plain terms 

or its purpose. He also argues that Mr. Perkins' statement should be 

disregarded because it is only "an isolated remark by a single Congressman". 

We are unable to share this reasoning. First, the literal language 

of section 103(f) does not clearly favor the Secretary's interpretation. 

Second, the modern rule is that legislative history can be resorted to 

even if statutory language is thought to be clear. See note 6, supra. 

Third, Representative Perkins was not merely setting forth his personal 

opinion of how section 103(f) should be interpreted. He was stating the 

intention of the conference committee, and was therefore speaking as 

more than a "single Congressman". Moreover, as the Secretary and other.> 

familiar with mine safety and health legislation are well aware, Representative Perkins has always been more than a "single Congressman" in 

this field. As a principal sponsor of both the 1969 and 1977 Acts, 

chairman of the House Committee on Education and Labor during their 

consideration and passage, and chief conferee for the House when both 

statutes were given final form in conference committees, Mr. Perkins was 

instrumental in the passage of the 1969 Act and highly influential in 

the passage of the 1977 Act. Mr. Perkins' statement was clear, 

detailed, and prepared with obvious care. It was carefully delivered 

solely to inform the House of the conferees' agreement. We also note 

that the Secretary has not pointed to, nor have we found, a subsequent 

statement by any conferee or other member of Congress that the walkaround pay right extends beyond regular inspections, or disavowing ~r. 

Perkins' statement of the conferees' intention. Compare Train v. 

Colorado Public Interest Research Group, 426 U.S. 1, 23 (1976), with 

American Smelting & Refining Co. v. O.S.H.R.C., 501 F.2d 504, 510 (8th 

Cir. 1974). 

We conclude that Hr. Perkins' statement of the conference committee's intention is dispositive here. Not only is Mr. Perkins' 

statement the only passage in the legisiative history that speaks 

specifically to this question and clarifies an ambiguity in the statute, 

1805 
but, more importantly, it reflects the conferees' understanding of the 

walkaround pay·right and is therefore the basis upon which the conferees 

agreed to it. 12/ Inasmuch as our purpose is to ascertain and effectuate the legislative intent (Philbrook v. Glodgett, 421 U.S. 707, 713 

(1975)), and Mr. Perkins' clear and unequivocal statement of the conference committee's understanding is the best guide to that intent, we 

follow it here. 

Accordingly, the judge's decision is affirmed. 

Jerdfue R. Waldie, Chairman 

~~lcut\.~furutlA 'j~ Marian Pearlman Nease, Commissioner 

12/ When the two Houses of the 95th Congress were considering mine 

safety and health legislation, there were not, as there sometimes is, 

identical or closely similar bills reported out of committee in each 

House. The House and Senate bills were in many respects quite different. 

On the matter of walkaround pay, they were very different, for the bill 

passed by the House had no walkaround pay provision. When these very 

different bills were referred to a conference conunittee, the conferees 

were faced with reconciling many important differences between the two 

bills. The complexity of the task is indicated by the length and detail 

of the 31-page report. It is therefore quite understandable that not 

all conferees' agreements or understandings were discussed in the conference report, especially on a point that did not go to the heart of 

the proposed legislation. The conference report itself stated that the 

"principal differences between the Senate bill, the House [bill] and the 

[conference bill] are noted below." Conf. Rep. at 37; 1977 Legis. Hist. 

at 1315 (emphasis added). And inasmuch_as the House conferees largely 

receded and agreed to the Senate bill over the House bill, it is quite 

understandable that when Mr. Perkins introduced the conference bill to 

the House he felt it necessary to make to the House a more detailed 

presentation of the conferees' actions. 

1806 
Jestrab, Commissioner, dissenting: 

In the Petition for Discretionary Review granted by Order 

dated October 29, 1979 in Secretary of Labor, Mine Safety and 

Health Administration (MSHA), on behalf of Arnold J. Sparks, Jr., 

Applicant v. Allied Chemical Corporation, Respondent, Docket 

No. WEVA 79-148-D (September 27, 1979), now pending before the 

Commission, the Petitioner, Allied Chemical Corporation argued 

that that case and Kentland-Elkhorn Coal Corporation v. Secretary 

of Labor, PIKE 78-339 (March 8, 1979), likewise pending before 

the Commission, and this case contain a common question of law. 

I think this is corr~ct. Allied argued extensively in its petition 

that based upon a reading of the statute and its legislative 

history, the decision of Judge Merlin here was correct, and that 

the decision of Judge Kennedy in Allied was wrong. I disagree. 

I dissent here for reasons set out in the Decision and Order of 

Administrative Law Judge Kennedy in Allied Chemical Corporation 

above. For convenience of counsel in this case, the Commission's 

administrative iaw judges, and the Bar the portion of Judge 

Kennedy's opinion which I think relevant, follows: 

At issue in this litigation is the extent 

of miner's walkaround rights, i.e., the right 

to accompany an inspector and to receive normal 

compensation while doing so. This right is 

recognized in section 103(f), 30 U.S.C. §813(f), 

of the Act, which provides that a representative 

of the miners shall be given an opportunity to 

accompany an inspector for the purpose of aiding 

in the "inspection of any coal or other mine made 

pursuant to [section 103(a)]." !:_/ Any such 

representative of the miners who is also an employee of the operator "shall suffer no loss of 

pay during the period of his participation in 

the inspection." Respondent contends that there 

are certain types of inspections to which the 

right to compensation does not attach, in particular, spot inspections for extrahazardous conditions pursuant to the mandate of section 103(i). 

~/ Section 103(f), 30 U.S.C. §813(f), of the Act provides: 

"Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by his 

miners shall be given an opportunity to accompany the Secretary 

or his authorized representative during the physical inspection 

of any coal or other mine made pursuant to the provisions of 

subsection (a), for the purpose of aiding such inspection and to 

participate in pre- or post-inspection conferences held at the 

mine. Where there is no authorized miner representative, the 

Secretary or his authorized representative shall consult with a 

reasonable number of miners concerning matters of health and 

safety in such mine. Such representative of miners who is also 

1807 
The scope of the Secretary's mine inspection authority is delimited by section 

103(a), 11 which directs "frequent" inspection 

of all mines for four purposes: (1) to obtain 

information relating to health and safety conditions and the causes of accidents; (2) to 

gather information relating to mandatory standards; (3) to determine whether imminent dangers 

exist; and, (4) to determine compliance with 

mandatory standards, citations, orders, or 

decisions. With respect to imminent dangers and 

compliarice, the Secretary is directed to inspect 

each mine "in its entirety at least" four times 

per year for underground mines. and two times 

per year for surface mines. In addition to this 

minimum requirement for complete inspections, 

the Secretary is directed to establish guidelines for additional inspections based on his 

experience under the Mine Act "and other health 

and safety laws." 

fn. 2 (continued) 

an employee of the operator shall suffer no loss of pay during 

the period of his participation in the inspection made under this 

subsection. To the extent that the Secretary or authorized 

representative of the Secretary determines that more than one 

representative from each party would further aid the inspection, 

he can permit each party to have an equal number of such additional representatives. However, only one such representative 

of miners who is an employee of the operator shall be entitled 

to suffer no loss of pay during the period of such participation 

under the provisions of this subsection. Compliance with this 

subsection shall not be a jurisdictional prerequisite to the 

enforcement of any provision of this Act." 

11 Section 103(a), 30 U.S.C §813(a), of the Act reads in pertinent part: 

"Authorized representatives of the Secretary or the Secretary 

of Health, Education, and Welfare shall make frequent inspections 

and investigations in coal or other mines each year for the purpose of (1) obtaining, utilizing, and disseminating information 

relating to health and safety conditions, the causes of accidents, 

and the causes of diseases and physical impairments originating 

in such mines, (2) gathering information with respect to mandatory health or safety standards, (3) determining whether an 

imminent danger exists, and (4) determining whether there is 

compliance with the mandatory health or safety standards or with 

any citation, order, or decision issued under this title or other 

requirements of this Act. In carrying out the requirements of · 

this subsection, no advance notice of an inspection shall be provided to any person, except that in carrying out the requirements 

of clauses (1) and (2) .of this subsection, the Secretary of Health, 

Education, and Welfare may give advance notice of inspections. 

In carrying out the requirements of clauses (3) and (4) of this 

1808 
Thus, it is apparent that the substantive authority for carrying out inspections 

for the purpose of obtaining information and 

insuring compliance is to be found in section 

103(a). The regular compliance inspections 

are to be carried out frequently, but, in no 

event less than two or four times yearly. 

In addition to the minimum requirements 

for compliance inspections, two other subsections establish special procedures for 

triggering inspections for compliance and information. Section 103(g)(l) ii provides that 

at the request of a representative of the 

miners who has reasonable grounds to believe 

that a violation or imminent danger exists an 

immediate special inspection may be had. 

Section 103(i) 'ii provides for "spot" inspections for methane accumulations in gassy 

mines and for "other especially hazardous 

conditions" on an accelerated schedule. 

fn. 3 (continued) 

subsection, the Secretary shall make inspections of each underground coal or other mine in its entirety at least four times 

a year, and of each surface coal or other mine in its entirety 

at least two times a year. The Secretary shall develop guidelines for additional inspections of mines based on criteria 

including, but not limited to, the hazards found in mines 

subject to this Act, and his experience under this Act and other 

health and safety laws." 

ii Section 103(g)(l), 30 U.S.C. §813(g)(l), of the Act reads in 

pertinent part: 

"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 ins~ection by giving notice to the 

Secretary or his authorized representative of such violation or 

danger." 

'ii Section 103(i), 30 U.S.C. §813(i), of the Act reads: 

"Whenever the Secretary finds that a coal or other mine 

liberates excessive quantities of methane or other explosive 

gases during its operations, or that a methane or other gas 

ignition or explosion has occurred in such mine which resulted in 

death or serious injury at any time during the previous five years, 

or that there exists in such mine some other especially hazardous 

condition, he shall provide a minimum of one spot inspection by his 

1809 
Respondent takes the position that the 

compensation right under section 103(f) extends only to the minimum of four mandatory 

inspections "of the mine in its entirety," 

and that any other or additional inspections 

are without the coverage of the section. 

Maintaining that these "regular" inspections 

are the "only inspections made pursuant to 

Section 103(a)" (Brief, p. 5), respondent 

asserts that only a representative of miners 

participating in such a "regular" inspection 

is entitled to be paid. Respondent claims 

that since the inspection giving rise to 

the instant complaint was made pursuant to 

section 103(i), and since "there is no requirement in Section 103(i) that the operator pay a representative of miners for 

participation in such a spot inspection" 

(idJ, the miner Sparks is not entitled to 

compensation. 

The Secretary, on the other hand, takes 

the position that the language of the compensation provision of section 103(f) clearly 

and unambiguously encompasses all inspections carried out for the purposes enumerated 

in the four clauses of th~ first sentence of 

section 103(a). Relying on the Interpretative 

Bulletin of April 25, 1978, 43 F.R. 17546, the 

Secretary maintains that the "inclusion of 

a statutory minimum number of inspections at 

fn. 5 (continued) 

authorized representative of all or part of such mine during 

every five working days at irregular intervals. For purposes 

of this subsection, 'liberation of excessive quantities of 

methane or other explosive gases' shall mean liberation of more 

than one million cubic feet of methane or other explosive 

gases during a 24-hour period. When the Secretary finds that 

a coal or other mine liberates more than five hundred thousand 

cubic feet of methane or other explosive gases during a 24-

hour period, he shall provide a minimum of one spot inspection 

by his authorized representative of all or part of such mine 

every 10 working days at irregular intervals. When the Secretary finds that a coal or other mine liberates more than two 

hundred thousand cubic feet of methane or other explosive gases 

during a 24-hour period, he shall provide a minimum of one spot 

inspection by his authorized representative of all or part of 

such mine every 15 working days at irregular intervals." 

1810 
each mine is no more than an additional 

requirement, clearly directed at the Secretary, which does not affect the participation 

right." 43 F.R. at 17547. Therefore, the 

Secretary concludes that because they are 

carried out for the purpose of obtaining 

information or determining whether imminent 

dangers, violations or especially hazardous 

conditions exist, the inspections triggered 

by sections 103(i) and (g)(l) "are clearly 

conducted 'pursuant to' section 103(a)." 

Id. 

In support of its position, respondent 

cites two previous decisions by administrative 

law judges which concluded that operators are 

not required to pay employees who accompany 

MSHA inspectors on other than the "regular", 

i.e., entire mine inspections. Kentland-· 

Elkhorn Coal Corporation v. Secretary of labor, 

PIKE 78-339 (March 8, 1979), appeal pending; 

Secretary of Labor v. Helen Mining Company, 

PITT 79-11-P (April 11, 1979), appeal pending. 

In Kentland-Elkhorn, an MSHA electrical 

specialist conducted an inspection of the 

operator's preparation plant. At the time 

of this inspection, another inspector was in 

the process of carrying out one of the "r.=gular" 

inspections of the mine in its entirety. That 

inspector was accompanied by a miner who was 

paid. The electrical specialist was also 

accompanied by a representative of the miners, 

and upon the operator's refusal to pay that 

miner, a citation and subsequently a withdrawal. 

order issued. In a review proceeding, the 

operator contended that section 103(f) only 

grants miner representatives the right to participate in an inspection without suffering 

loss of pay during a "regular" inspection of 

the entire mine and since the inspection at 

issue was a spot electrical inspection, it had 

properly refused to pay the miner. The administrative law judge agreed with these contentions and held that the right to participate without loss of pay is limited to "regular" 

inspections of the entire mine. 

1811 
A similar conclusion was reached in 

Helen Mining Company, supra, with respect 

to a spot inspection required by section 

103(i). Since the miie involved in that 

case was particularly gassy, it had to be 

frequently inspected for possible accumulations of methane. The inspector i~volved 

had been in the process of making one of 

the "regular" inspect ions of the m'ine in its 

entirety during the previous 3 days, but he 

interrupted this inspection so that he could 

investigate areas where accumulations of 

methane might exist in order to determine 

whether those areas were adequately ventilated.· The inspector was informed that the 

representative of the miners who accompanied 

him on the methane inspection would not be 

paid, whereupon a citation and subsequently 

a withdrawal order issued. At the hearing, 

the operator contended that section 103(f) 

only requires that the miner representative 

who participates in an inspection of the 

entire mine must be paid. ~/ Again, the 

administrative law judge agreed with these 

contentions and vacated the citation and 

order. 

Both these cases turned on the authority 

ascribed to certain remarks made by Congressman Perkins, Chairman of the Committee on 

Education and Labor. These remarks were made 

after the Conference Committee had made its 

~/ The operator's argument proves too much, because if 

accepted it would lead to the conclusion that the miner initially 

requested must accompany the inspector during the whole of the 

entire mine inspection. Recognizing that in many cases such 

complete inspections take a consider~ble amount of time, even 

weeks or months, it is unrealistic to assume that one particular 

miner would be assiined to accompany t~e inspector exclusively, 

especially considering that no one miner possesses the expertise 

to assist the inspector in investigating all the areas of a large 

and complex mine. 

1812 
final report and 21 days after the Senate 

had passed the bill. l/ In attempting 

to clarify what he considered to be an 

ambiguity in this aspect of the Conference 

Report, he stated that: 

Section 103(f) provides 

that a miner's representative 

* * * shall be given an opportunity to accompany the inspector during the physical inspection and pre- and post-inspection 

conferences pursuant to the provisions of subsection (a). Since 

the conference report reference 

is limited to the inspections conducted pursuant to section 103(a), 

and not those pursuant to section 

103(g)(l) or 103(i), the intention of the conference committee is 

to assure that a representative of 

the miners shall be entitled to 

accompany the federal inspector, 

including pre- and post-conferences, 

at no loss of pay only during the 

four regular inspections of each 

underground mine in its entirety 

* * * 

Committee Print, LEGISLATIVE HISTORY OF 

THE FEDERAL MINE SAFETY AND HEALTH ACT OF 

1977, 95th Cong., 2d Sess (July 1978) at 1357 

(hereinafter cited as~· Hist.) 

7/ The Conference Committee voted to accept the Conference 

Report on October 3, 1977 (~. Hist. at 1279), the Senate 

vote to accept the Conference Report on October 6, 1977 

(~. Hist. at 1347), and a Concurrent Resolution to effect 

corrections was agreed to on October 17, 1979 [sic] (~. 

Hist. at 1351). It was not until October 27, 1977, that 

Congressman Perkins made his remarks to the House. (~. 

Hist. at 1354). There is no evidence that Congressman Perkins' 

gloss on section 103(f) was ever brought to the attention of 

or approved by the Senate. 

1813 
This seemingly unequivocal statement 

concerning the intended scope of section 

103(f) was, however, followed by a comparison of the cognate provisions of the 1969 

Act which indicates some possible confusion 

on Congressman Perkins' part. He recognized 

that section 103(a) of the 1969 Act did not 

include the provision directing the Secretary 

to "develop guidelines for additional inspections of mines based on criteria including, 

but not limited to, * * * his experience under 

this act and other health and safety laws." 

(Emphasis added.) He then correctly pointed 

out that the participation right section of 

the 1969 Act,section 103(h), provided that a 

representative of the miners may accompany an 

inspector on "any" inspection, but that the 

1969 Act did not have a compensation provision. 

He then went on to state: 

Since the conference report 

does not refer to any inspection, 

as did section 103(h) of the 1969 

fact, but rather to an inspection 

of any mine pursuant to subsec -

tion (a), it is the intent of the 

committee to require an oppo.rtunity 

to accompany the inspector at no 

loss of pay only for the regular 

inspections mandated by subsection 

(a), and not for the additional 

inspections otherwise required or 

permitted by the Act. [Emphasis 

added. ] · 

~- Hist. at 1358. 

Thus, a fair reading of the whole of 

Congressman Perkins' statement concerning the 

seeming ambiguity found in section 103(f) 

indicates that his r~aL concern was that 

the right to pay for exercise of the walkaround 

right not be extended to the "additional inspections" permitted under the new section 103(a), 

but would be limited to the "frequent inspections" 

authorized and required by the first sentence of 

that section. Thus, it appears that when Congress 

limited the right to pay to inspections "pursuant 

to subsection (a)," it may have intended to 

exclude from that right inspections made under 

1814 
guidelines issued by the Secretary calling 

for "additional inspections,"..!_.~., inspections other than those mandated by the 

statute. In other words, there are two 

categories of inspections, statutory section 

103(a) inspections and nonstatutory Secretarial inspections. Congress may well have 

wished to protect the operators from an 

unlimited expansion of the right to pay 

based on. "additional inspections" authorized only by the Secretary and particularly 

where they were for· the purpose of aiding 

in the exercise of his responsibilities 

under "other health and safety laws." 

Indeed, the greater weight of the legislative history supports this interpretation. 

First, it sbould be noted that the provision 

at issue was included in the Senate version 

of the bill and the Joint Explanatory Statement of the Conference Committee clearly indicates that "to encourage miner participation * * * one such representative of miners, 

who is also an employee of the operator, [shall] 

be paid by the operator for his participation 

in the inspection and conferences. The House 

amendment did not contain these provisions. The 

conference substitute conforms to the Senate 

bill." Leg. ¥..ist. at 1323. It is significant 

to note that nowhere in the Conference committee statement is the pur~orted limitation on 

the compensation right advanced by Congressman 

Perkins discussed or alluded to. 

In the Senate's consideration of the 1977 

Act, miner participation in inspections was 

recognized as an essential ingredient of a 

workable safety plan. Senator Javits, one of 

the managers of the bill, explained the critical importance of the walkaround right as part 

of a comprehensive scheme to improve both safety 

and productivity in the mines: 

First, greater miner participation in health and safety matters, 

we believe, is essential in order to 

increase miner awareness of the safety 

and health problems in the mine, and 

secondly, it is hardly to be expected 

that a miner, who is riot in business 

for himself, should do this if his 

activities remain uncompensated. 

1815 
In addition, there is a general 

responsibility on the operator of the 

mine imposed by the bill to provide a 

safe and healthful workplace, and the 

presence of miners or a representative 

of the miners accompanying the inspector 

is an element of the expense of providing a safe and healthful workplace * * *· 

But we cannot expect miners to engage 

in the safety-related activities if they 

are going to do without any compensation, 

on their own time. If miners are going 

to accompany inspectors, they are going 

to learn a lot about mine safety, and 

that will be helpful to other employees 

and to the mine operator. 

In addition, if the worker is along 

he knows a lot about the premises upon 

which he works and, tPerefore, the inspection can be much mo~e thorough. We 

want to encourage that because we want to 

avoid, not incur, accidents. So paying 

the worker his compensation while he makes 

the rounds is entirely proper * * *· We 

think safe mines are more productive 

mines. So the operator who profits from 

this production should share in its cost 

as it bears directly upon the productivity 

as well as the safety of the mine * * *· 

It seems such a standard business practice that is involved here, and such an 

element of excellent employee relations, 

and such an assist to have a worker who 

really knows the mine property to go 

around with an inspector in terms of contributing to the health and safety of the 

operation, that· I should think it would be 

highly favored. It seems to me almost 

inconceivable that we could ask the individual to do that, as it were, in his 

own time rather than as an element in the 

operation of the whole enterprise. 

~· Hist. at 1054-1055. 

Senator Williams, Chairman of the Committee 

on Human Resources, also discussed the importance of the walkaround right in the context 

of improving safety consciousness on the part 

of both miners and management: 

1816 
It is the Committee's view that 

such participation will enable miners 

to understand the safety and health 

requirements of the Act and will enhance miner safety and health awareness. To encourage such miner participation it is the Committee's intention that the miner who participates in 

such inspection and conferences be 

fully compensated by the operator for 

the time thus spent. To provide for 

other than full compensation would be 

inconsistent with the purpose of the 

Act and would unfairly penalize the miner 

for assisting the inspector in performing his duties. 

~· Hist. at 616-617. 

In lighi of the broad policy expressed in the 

Act of protecting miners and making inspections 

more effective, it is difficult to understand why 

the isolated remarks of Congressman Perkins have 

been acc~rded so much weight. In contrast, similar 

remarks by other members of the House and Senate 

are conspicuous by their absence. It would seem 

that if Congress had intended by section 103(f) 

to create two separate categories of sta~utory 

walkaround rights, one compensable and one non-compensable, 

there would have been at least some debate on this 

departure from the general scheme of the Act. Otherwise, there exists an arguably invidious discrimination. 

In any event, it is questionable whether resort 

to legislative history has a place in the application of the statutory language in question. T.V.A. 

v. Hill, 437 U.S. 153, 184 n. 29 (1978). On its 

face:-Bection 103(f) is clear and unambiguous, and 

therefore reliance on t6e explanatory comments of 

a single Congressman appears unnecessary. Schiaffo 

v. Helstoski, 492 F.2d 413, 428 (3rd Cir. 1974). 

It has been consistently held that as a matter 

of statutory construction it is error to place 

undue emphasis on a portion of the legislative 

history where to do so sacrifices the object of 

the legislation. "Not even formal reports - much 

less the language of a member of a committee - can 

be resorted to for the purposes of construing a 

1817 
a statute contrary to its plain terms." , 

·Committee for Humane Legislation v. 

Richardson, 414 F. Supp. 297, 308 (D.D.C. 

1976), modified 540 F.2d 1141 (D.C. Cir. 

1976); citing Pennsylvania Railroad Company v. International Coal Mine Company 

~U.S. 184, 199 (1912); F.T.C. v. 

Manager, Retail Credit Company, 515 F. 2d 

988, 995 (D.C. Cir. 1975). It must be 

remembered that the proper function of 

legislative history is to resolve ambiguity, not to create it. United States 

v. Missouri Pacific Railroad Company, 278 

U.S. 269, 278 (1929); Montgomery Charter 

Service v. W.M.A.T.A., 325 F.2d 230, 233 

(D.C. Cir. 1963); Elm City Broadcasting 

Corporation v. United States, 235 F.2d 

811, 816 (D.C. Cir. 1956). 

Itshould be noted that these sections 

of the Mine Safety Act serve a broad remedial purpose, and as such should be given a 

liberal construction, and any asserted 

exceptions to those provisions should be 

given a strict, narrow interpretation. 

Phillips v. Interior Board of Mine Operations Appeals, 500 F.2d 772, 782 (D.C. Cir. 

1974), cert. denied, 430 U.S. 938 (1975). 

Finally, when a statutory interpretation 

that promotes safety conflicts with one that 

serves another purpose, the first must be 

preferred. District 6, UMWA v. IBMA, 562 

F.2d 1260, 1265 (D.C. Cir. 1977)-.~-

Accordingly, whether based on an analysis 

of the relevant legislative history or through 

application of accepted canons of statutory 

construction, I find that the reference in 

section 103(f) to inspections "made pursuant 

to subsection (a)" includes all inspections 

made for the purposes enumerated in the four 

clauses of the first sentence of that subsection, 

and is not limited to the minimum number of 

inspections of the mine in its entirety mandated by the third sentence of that subsection. 

Law 
Commissioner Lawson, dissenting: 

Although I am not in disagreement with my colleague, 

Commissioner Jestrab, my analysis of the case before us is 

somewhat different from that set forth by Judge Kennedy in 

Secretary of Labor et al v. Allied Chemical Corporation, 

Docket No. WEVA 79-148-D. I am therefore setting forth my 

individual reasons for joining in the dissent from the views 

of the majority herein. 

My colleagues in the majority conclude that the right 

to walkaround pay does not extend to all inspections made to 

discover violations or imminent dangers. Their holding is 

inconsistent with both the language and the purpose of the 

1977 Act, and rests upon a single statement in the legislative 

history that, in the circumstances here, cannot be considered 

authoritative. I would hold that the right to walkaround 

pay applies to all inspections made to discover violations 

or imminent dangers and would accordingly reverse and remand 

this ca~e for further proceedings. 

The language of section 103(f) is straightforward. It 

gives miners' representatives the right to accompany the 

inspector ''during the physical inspection of any ••. mine 

made pursuant to the provisions 6f subsection (a)'' of 

section 103~ and guarantees that the representative of 

miners ''shail suffer no loss of pay during the period of his 

participation •••• " Section 103(f) thus accords a right to 

compensation coextensive with the right to accompany. 1/ 

The majority's bifurcation of these rights is flatly -

inconsistent with this statutory language. 

!/ The only exception to this principle is of no consequence 

here. Section 103(f) contains an express limitation on 

the number of miners' representatives entitled to walkaround pay when more than one miners' representative 

accompanies an inspection party. 

1819 
The question is, then, how broad is the right to 

accompany the inspector? Helen Mining maintained during 

oral argument that the right to accompany does not extend to 

all i.nspec t ions. None of my colleagues accept this reading 

of the statute, nor do I. Like them, I do not believe that 

Congress intended to narrow the broad right to accompany 

granted by the 1969 Act. The 1969 Act's walkaround provision 

granted a right to accompany the inspector on all inspections. 

The purpose of the 1977 Act was to promote rather than 

weaken mine safety and health, and to encourage rather than 

discourage miner participation in inspections. The Senate 

committee that drafted the walkaround provisions of the 1977 

Act stated not only that the right to accompany in the 1977 

Act is "based on that in the [1969] Coal Act" (S. Rep. at 

28; 1977 Legis. Hist. 616)(reproduced at 28, infra), but 

that the purpose of the 1977 Act was to establish "a 

strengthened mine safety and health program." S .. Rep. at 13; 

1977 Legis. Hist. at 601 (emphasis added). 2/ The phrase 

"pursuant to the provisions of subsection (a)" should be 

read in light of this indisputable congressional purpose. 

Inasmuch as there can be no dispute that this was not intended 

to limit the miner's right to accompany the inspector, it 

cannot be read to limit the right to walkaround pay. 

Other considerations buttress this reading of the Act. 

Even if I were to consider the language of the 1977 Act 

without reference to the 1969 Act, or to the exprassed 

congressional intention to strengthen the mine safety laws, 

I would not construe the phrase "pursuant to the provisions 

of subsection (a)" as has Helen Mining. First, the phrase 

appears to be a simple cross-reference to the provision that 

describes all inspections--section 103(a)--rather than a 

limitation. Second, even if considered as a limitation, the 

inspection here is not excluded by that phrase. The Secretary 

argues that simply because a type of inspection is 

specifically treated in another provision of the Act does 

not mean that it is outside section 103(a). I agree. 

Although the spot gas inspection in this case was required 

to be conducted with a certain frequency by section 103(i), 

it was conducted "pursuant to the provisions of subsection 

(a)" since its purpose was to determine "whether an imminent 

danger exists" and "whether there- is compliance with the 

mandatory health or safety standards." 

!I The legislative history relied on by my colleagues 

confirms that no diminution of the right to accompany 

was intended. See 1977 Legis. Hist. at 1358, reproduced 

in the majority decision at 9. 

1820 
This point is best illustrated by supposing that 

section 103(i) did not exist at all. In that case, if the 

Secretary were to adopt a schedule of spot gas inspections 

identical to that mandated by section 103(i), there would be 

no question that the inspection fell within the provisions 

of section 103(a). Yet, because Congress decided instead to 

enhance miner health and safety by statutorily mandating the 

frequency of such inspections, the right to walkaround pay 

is limited. This is senseless. Not only does this result 

bear no relationship to the purpose for the inclusion of 

section 103(i), it contravenes that purpose. Section 103(i) 

covers not only gassy mines, which present great dangers of 

fires and explosions and in which ventilation and methane 

control are critical, but also mines in which there are 

"some other especially hazardous conditions". The majority 

has thus discouraged miner participation in inspections of 

those mines that are among the most dangerous to miner 

health and safety. Under the majority's holding, a miner 

who requests a special inspection pursuant to section 103(g) 

(1), would not be paid for participating in the inspection 

to, fc~ example, personally show the inspector the condition 

that he or she requested be inspected, or explain why the 

miner believed the condition is dangerous. 

My colleagues maintain that section 103 is ambiguous 

and does not "clearly" support the Secretary's position. 

I find it ~lain and unambiguous on its face and would 

therefore deem it unnecessary to look at legislative history 

as a guide to its meaning. lf I do so here only because the 

majority relies almost entirely on a statement by Congressman 

Perkins (supra) to support its position. That some sections 

of the 1977 Act use the phrase "any inspection" merely 

reflects the different sources of the statutory language,±/ 

rather than ambiguity. That the language of the 1969 Act was 

not copied precisely, and that section 103(a) refers 

spesifically and exclusively to only regular inspections, are 

ambiguities only if one believes--which the majority apparently 

does not--that Congress intended to accord miners fewer walkaround rights under the 1977 Act than under the 1969 Act. 

When section 103 is read in historical context and in 

consonance with the entire statute, these alleged ambiguities 

disappear. 

3/ TVA v. Hill, 437 U.S. 153, 184 n.29 (1978) 

4/ Much ofsection 103 (f), including the phrase "under 

subsection (a)" in the Senate bill, was derived from 

29 U.S.C. §657(e), section 8 (e) of the Occupational 

Safety and Health Act of 1979, 29 U.S.C. §651 ~ ~· 

The last sentence of section 103(a) and the first 

sentence of section 107(a) were derived from sections 

103 (b) (1)-- and 104 (a) of the 1969 Act. 

1821 
The authoritative portions of the legislative history 

of section 103(f) also support the Secretary's interpretation 

of the walkaround pay right. The Senate committee that 

drafted the walkaround pay provisions of the 1977 Act stated 

in its report the reasons for according the right to walkaround pay: 

The right of miners and miners' representatives 

to accompany inspectors. 

Section 104(e) contains a provi~ion based 

on that in the [1969] Coal Act, requiring that 

representatives of the operator and miners be 

permitted to accompany inspectors in order to 

assist in conducting a full inspection. It is 

not intended, however, that the absence of such 

participation vitiate any citations and penalties issued as a result of an inspection. The 

opportunity to participate in pre- or postinspection conferences has also been provided. 

Presence of a reprnsentative of miners at opening 

conference helps min~rs to know what the concerns 

and focus of the inspector will be, and attendance 

at closing conference will enable miners to be 

fully apprised of the results of the inspection. 

It is the Committee's view that such participation 

will enable miners to understand the safety and 

health requirements of the Act and will enhance 

miner safety and health awareness. To encourage 

such miner participation it is the Committee's 

intention that the ~iner who participates in such 

inspection and conferences be fully compensated by 

the operator for time thus spent. To provide for 

other than full compensation would be inconsistent 

with the purpose of the Act and would unfairly 

penalize the miner for assisting the inspector in 

performing his duties. The Committee also recognizes 

that in some circumstances, the miners, the operator 

or the inspector may benefit from the participation 

of more thari one representative of miners in such 

inspection or conferences, and this section authorizes 

the inspector to permit additional representatives 

to participate. 

1822 
S. Rep. at 28-29; 1977 Legis. Hist. at 616-617. The 

Senate report does not limit either the rights to accompany 

or to walkaround pay. Indeed, it states that the right to 

accompany is 'ibased on that in the [1969] Coal Act", which, 

as noted above, extended to all inspections. It states a 

legislative purpose applicable to all inspections and 

nowhere evidences so much as a suggestion that the right to 

walkaround pay is not coextensive with the right to accompany. 

The conference committee's report summarized the Senate 

b~ll's provisions, and declared that its purpose was ''to 

encourage miner participation". The committee made only a 

technical, non-substantive change in the first sentence of 

section 103(f), and stated that "[t]he conference [bill] 

conforms to the Senate bill." Conf. Rep. at 45; 1977 Legis. 

Hist. at 1323. ii 

These Senate and conference reports therefore provide 

no support for the majority position. In short, the Act 

makes inseparable the right of miners to accompany inspectors 

on walkaround and to receive pay. 

ii The conference report states: 

Both the Senate bill and the House amendment 

contained provisions permitting miners' representatives to accompany inspectors on mine inspections. 

The House amendment did so by adopting Section 103(h) 

of the Coal Act. The Senate bill permitted miners' 

representatives to participate not only in the actual 

inspection of the mine itself, but also in the preor post-inspection conferences held at the mine. 

Under the House amendment this right was limited 

to the actual inspection of the mine. The Senate 

bill required the Secretary to consult with a 

reasonable number of miners if there was no authorized 

representative of miners. The House amendment did not 

contain this protection for unorganized miners. The 

Senate bill permitted the Secretary's representative 

to permit more than one miner representative to 

participate in such inspection and conferences, and 

further, to encourage miner participation, 

provided that one such representative of miners, who 

is also an employee of the operator, be paid by the 

operator for his participation in the inspection and 

conferences. The House amendment did not contain 

these provisions. 

The conference substitute conforms to the 

Senate bill. 

1823 
The majority, however, reaches beyond the Act and even 

the Senate and conference reports. It seizes upon a statement 

made by Representative Perkins on the floor of the House and 

construes the Act in a manner in consistent with both i t.s 

language and purpose. 

Assuming arguendo that Mr. Perkins' statement reflected 

the intent of the conference committee, it does not follow 

that those views are determinative here. If the views of the 

conference committee are presented to or are available to 

both Houses before they vote to accept a conference bill, 

such views would no doubt be of more significance than is 

here the case. The joint explanatory statement in the 

conference report, or the oral presentation by the chief 

conferee of each House, ordinarily provides each House with 

an explanation of the conferees' agreement. !/ The members 

of each House can therefore be informed of the reasons why 

the final bill has been shaped in a certain way or resembles 

a bill of one House. It is primarily for this rea~on that 

in the ordinary case the intention of the conferees can be 

safely said to be a convincing guide to the intention of the 

entire Congress. 

This is not the ordinary case, however. The conference 

report did not mention the agreement later attested to by 

Representative Perkins; to the contrary, it conveyed the 

distinct impression that the broad walkaround pay right 

granted by the Senate bill was unchanged, for it stated that 

the conference bill "conforms to the Senate bill. 11 Senator 

Williams, the primary architect of the Senate bill and the 

chief conferee for the Senate, did not mention the point 

during his presentation of the conference bill to the Senate. 

The conference bill itself could not plausibly be said to 

have put the Senate on notice of the conferees' agreement 

because the language of the conference bill unmistakably 

grants a right to walkaround pay which is coextensive with 

the right to accompany the inspector; the same is true of 

the Senate report and the Senate bill. 

6/See 2 U.S.C. §109c(a)(Senate rule), and House Rule 

- XXVII(l)(c), requiring that conference bills be 

accompanied by a joint explanatory statement that 

is "sufficiently detailed and explicit to inform the 

[House and Senate] as to the effect which the amendments or proposition contained in such report will 

have upon the measure to which those amendments or 

propositions relate." See also, Jefferson's Manual 

§542 at 276 (1977). - --

1824 
Finally, and fatal to the majority's contention, 

Representative Perkins' statement of the conference committee's 

~ontrary understanding was made 21 days after the Senate 

voted. ll Therefore, when the Senate voted to accept the 

conference bill, there was no indication before the Senate, 

nor would the Senate have had reason to suspect, that the 

conference bill, the conference report and the Senate report 

were not reliable guides to the conference committee's 

agreement. The Senate could have only believed that the 

conference bill meant what it said. Although arguably the 

vote of the House may have reflected the view of the conference 

committee, the same cannot be said of the vote of the Senate. 

It is a basic principle that the content of the law 

must depend upon the intent of both Houses, not of just 

one. Department of the Air Force v. Rose, 425 U.S. 352, 

366-368 (1976), quoting Vaughn v. Rosen, 523 F.2d 1136, 

1142-1143 (D.C. Cir. 1975). Cf. K. Davis, Administrative 

Law Treatise §3A.31 at 175 (1970 Supp. to 1st ed.). In this 

case, to follow the conferees' interpretation would violate 

this principle, for the Senate cannot be said to have been 

aware of or suspect, let alone assent to, the conferees' 

interpretation. What is equally paradoxical, however, is 

that not to follow the conference committee's view may 

perhaps fail to give effect to the House's intention. 

Congressional intent can best be determined, however, 

by looking to the stated purpose of the walkaround pay right 

as expressed in bills and documents th~t were available to 

both Houses before they voted, and most importantly, the 

language of the statute that the entire Congress passed. 

ff. Department of the Air Force v. Rose, 425 U.S. at 365-367; 

Jordan v. Department of Justice, 591 F.2d 753, 768 (D.C. Cir. 

1978)(en bane); Vaughn v. Rosen, 523 F.2d at 1142-1143; 

Hawkes v. IRS, 467 F.2d 787, 794, 796-797 (6th Cir. 1972); 

Getman v. NLRB, 450 F.2d 670, 673 n.8 (D.C. Cir. 1971). See 

also March~United States, 506 F.2d 1306, 1314 & n.33 

(D.C. Cir. 1974). 

ll These remarks were made on October 27, 1977; the Senate 

had voted to accept the Conference Report on October 6, 

1977. 1977 Legis. Hist. at 1347, 1354. 

1825 
The right to walkaround pay is clearly expressed in 

the Senate report and the conference report. Congress 

insisted upon miners' participation in inspections, in 

order that safety and health hazards be exposed, brought 

to the attention of the Secretary and.eliminated promptly. 

This would also aid the inspector and result in a valuable 

reciprrical benefit to the miners, who would thereby lea~n 

more about health, safety and mine hazards. Assuring that 

miners' representatives are paid during all inspections 

serves these purposes. In so obsetving, I give w~ight to 

the S•cretary's opinion that his inspectors wtll be aided 

by the miners' participation in these inspections. 

Most importantly, section 103(f) is simply not 

susceptible to the construction urg·ed by t.he operators. 

As noted, the language of the statute clearly makes the 

right to walkaround pay coextensive with the right to 

accompany the inspector, and it is impossible to hold that 

Congress intended to deny miners the right to accompany the 

inspector. I therefore dissent. 

A--:: E. Lawson, Commissioner 

1826 
FEDERAL MIN~ SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

November 21, 1979 

v. Docket Nos. BARB 77-266-P 

BARB 76X465-P 

JIM WALTER RESOURCES, INC., and 

COWIN AND COMPANY 

DECISION 

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

of 1969, 30 U.S.C. §801 et~ (1976) (amended 1977) _[1969 Act]. The 

administrative law judge vacated a notice of violation and dismissed 

penalty assessment petitions. We· granted the 5L~retary's petition for 

discretionary review. 

On June 9, 1975, an accident occurred in the production shaft at 

Jim Walter Resources' Brookwood No. 4 Mine. Cowin and Company, an 

independent contractor, was sinking the shaft. One of the tugger ropes 

broke which was operating a clamshell used in excavation. Over 1,000 

feet of wire rope fell, striking and killing a Cowin employee who was 

working at the shaft bottom. 

A notice of violation was issued to Jim Walters by an inspector of 

the Mining Enforcement Safety Administration (MESA). The notice alleged 

a violation of 30 CFR §77.1903(b) and described the allegedly violative 

condition or practice as follows: 

The American National Standards Institute "Specifications for 

the use of wire ropes for mines" Mll.1-1960 was not used as 

a guide in the use, installation and maint. of wire ropes 

used for hoisting at the three shafts under construction at 

the No. 4 mine. 

The notice was terminated after the condition had been abated. On 

August 2, 1976, MESA filed a petition for assessment of civil penalty 

pursuant to section 109(c) of the 1969 Act, alleging that Cowin and 

Company, as statutory agent of Jim Walter Resources, "knowingly authorized, 

ordered· o.r carried out" a violation of the mandatory safety standards 

set forth in 30 CFR §77.1903(b). On July 13, 1977, MESA filed a petition 

for assessment of civil penalty against Jim Walter Resources under 

section 109(a) of the 1969 Act. 

79-11-13 

1827 
The administrative law judge disposed of the cases on the ground 

that the notice of violation was not sufficiently specific on its face 

to satisfy the requirements of section 104(e) of the 1969 Act~ l./ We 

reverse and remand. 

The judge concluded that any notice charging a violation of 

30 CFR §77.1903(b) should set out "the specific ANSI standard allegedly 

violated, as well as the circumstances which led MSHA (MESA) to believe 

· compliance was not being achieved so that an adequate defense can be 

made." He emphasized that this was particularly true in a civil penalty 

case filed under section 109(c), where a respondent is charged with a 

knowing violation. 

In holding that the lack of specificity was fatally defective to 

the notice, the judge relied in partdon Armco Steel Corp., 8 IBMA 88, 

1977-78 OSHD CCR ,[22,089 (1977), aff'd on teconsidetatfon, 8 IBMA 245, 

1978 OSHD CCR ,[22,550. In that decision the Interior Board of Mine 

Operations Appeals (Board) held that section 104(e) of the 1969 Act 

required each notice and order to contain a specific written description 

of the pertinent conditions or practices. A withdrawal order in that 

case was vacated for failing to adequately describe the conditions which 

allegedly constituted an imminent danger. The Board refused to look 

beyond the "four corners" of the withdrawal order and held that they 

could not consider any other written or oral communication of the 

description concerning the hazardous conditions in determining whether 

the requirements of section 104(e) had been met. Armco, supra, 

8 IBMA 88 at 96;· 8 IBMA 245 at 252. Although the judge iri Armco had 

ruled that MESA's failure to meet the requirements of section 104(e) 

could be treated as a technical defect since the operator had suffered 

no prejudice as a result of the nonspecificity, the Board reversed this 

ruling and held that a lack of prejudice was not dispositive of the 

issue. The Board emphasized that the specificity standards of section 

104(e) were also applicable to the requirements of section 107 of the 

Act. Section 107(b) requires that a copy of any notice or order be 

mailed immediately to a representative of the miners and state mine 

officials. Section 107(a) requires that the miners be notified 

immediately by posting a copy of the notice or order on the mine 

bulletin board. 

l./ Section 104(e) provided in part: 

Notices and orders issued pursuant to this section shall 

contain a detailed description of the conditions or 

practices which cause and constitute an imminent danger 

or a violation of any mandatory health or safety 

standard •••• 

1828 
Returning to the facts before us in the instant case, we hold that 

even if the notice itself was insufficiently specific, ~/ this defect 

alone would not render the notice invalid. 

The primary reasons compelling the statutory mandate of specificity 

is for the purpose of enabling the operator to be properly advised so 

that corrections can be made to insure safety and to allow adequate 

preparations for any potential hearing on the matter. We find that these 

purposes of section 104(e) have been satisfied here. The operators do not 

claim any difficulty in being able to identify and thereby abate the 

allegedly violative condition. Nor does it appear that either Jim Walter 

or Cowin was deprived of notice sufficient to enable them to defend at 

hearing. They did not request more sp~cif ic notice of the alleged 

violations in prehearing motions, nor did they request a continuance 

when evidence regarding alleged noncompliance with specific ANSI standards 

was introduced at the hearing. Instead, they defended on the merits. 

The operators did not claim prejudice in preparing a defense until the 

post-hearing brief where the claim appears in a perfunctory footnote. 

Although the judge concluded that MESA's failure to cite the specific 

ANSI standard deprived the respondent of reasonable notice.as to the 

violation charged, his analysis was confined to the "four corners" of 

the notice as required by Armco. The judge noted that MESA could have 

easily modified the notice to include the particular ANSI standards 

involved. The judge further noted that the June 9, 1975, accident 

report prepared by the same MESA inspector who issued the subject notice 

of violation, 

included therein a specific reference to an ANSI recommendation pertaining to the minimum ratio of drum or sheave diameter to the rope diameter and a finding that the ratios in 

use were one-third less than the recommended minimum. 

[Dec. at p. 36.] 

The accident report, which was received by the operators long before the 

hearing, also notes excessive wear on the wire rope. These two conditions described in the accident report compose the essential elements of 

the testimony at the hearing regarding alleged non-compliance with ANSI 

standards. We read the notice of violation in conjunction with the 

accident report, and conclude that the operators were not prejudiced in 

preparing their defense. Therefore, any lack of specificity on the face 

of the notice does not affect its validity. 

!:_/ The Secretary appears to argue that the notice was sufficiently 

specific because it alleged that the ANSI standards were not 

used~ a guide. 30 CFR §77.1903(b) states that the ANSI standard 

"shall be used as guide in the use, selection, installation, and 

maintenance of wire ropes used for hoisting." The judge did not 

accept the Secretary's argument. Because of our holding today, 

we find it unnecessary to pass upon this point. 

1829 
We believe the notification requirements of section 107 should play 

little, if any, role in interpreting the minimum standards mandated by 

section 104(e). The objective of healthful and safe mines may be advanced 

when miners, their representatives, and state mine officials are fully 

informed of mine conditions by notices and orders utilizing specific 

written descriptions of the pertinent conditions or practices. However, 

an overly restrictive interpretation of section 104(e) will invalidate 

notices and orders where no prejudice has resulted to the mine op.erator. 

Because this will, on balance, hinder rather than promote mine safety 

and health, we decline to follow the Board's approach in Armco. 

We accordingly reverse and remand this case for further proceedings. 

In so doing we note that while numerous standards and regulations have 

been promulgated in implementation of the 1969 Act, a civil penalty 

sanction is authorized under section 109(a) only for a violation of a 

mandatory standard or other provisions of the Act. In addition to the 

the other issues raised, in remanding we instruct the judge to address 

.the threshhold question of whether 30 CFR §77.1903(b) is a mandatory 

safety standard for which a civil penalty may.be assessed or whether the 

regulation is merely advisory. 

Jeome R. Waldie, Chairman 

A. E. Lawson, Commissioner 

~R&n10m'4i Marian Pea~man N°Oase, Commissioner -~ 

1830 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

November 30, 1979 

v. Docket No. MORG 79-26-P 

COALTRAIN CORPORATION 

DECISION 

On November 22, 1978, the Secretary of Labor filed a petition for 

assessment of civil penalty against Coaltrain Corporation seeking penalties totaling $625 for seven alleged violations of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c.A. §801 et~· (1978). On 

December 11, the president of Coaltrain, a strip mine operator with five 

employees, answered pro se, denying the alleged violations and requesting a hearing. On May 1, 1979, the administrative law judge issued a 

notice of hearing and pretrial order which set forth extensive pre-. 

hearing requirements. Initial responses to the pretrial order were 

timely filed on May 25 by Coaltrain and the Secretary. In its response, 

Coaltrain set forth its version of the facts and circumstances concerning each alleged violation, as requested by the pretrial order, and 

again requested a hearing. On June 15, the Secretary timely responded 

to the second portion of the pretrial order, listing his intended hearing witnesses and exhibits. Coaltrain did not respond to the second 

portion of the order. On June 20 the judge -TM sponte ent_ered a 

default decision against Coaltrain for failing to "fully respond to 

the pretrial order ••• or to show cause why such failure should be 

excused." 1/ The judge ordered Coaltrain to pay a penalty of $625. 

On July 20, we directed review -TM sponte. 

We reverse. The record contains no indication that this small, pro 

se operator was not acting in good faith in attempting to comply with 

the pretrial requirements by setting forth its position on each of the 

1/ The judge did not conduct a show cause proceeding, pursuant to 

interim procedural rule 26 prior to entering the default. Rather, he 

apparently acted upon a statement in the pretrial order that "except for 

good cause shown -in advance thereof, any failure to comply in full and 

on time with the provisions of this order shall be deemed cause for the 

issuance of an order of dismissal or default." 

79-11-20 

1831 
seven alleged violations in this relatively uncomplicated penalty case. 

In the circumstances of this case, we find that Coaltrain substantially 

complied with the pretrial order and that the judge erred in defaulting 

the operator. 1:../ 

Accordingly, the judge's decision is reversed and the case is 

remanded for further proceedings. ~ e ~ 

. Jer me R. Waldie, Chairman 

~'!J c 

1 

\1 

/ 

A. 

t?c 

E. Lawson, 

~ .~~·~ Commissioner 

\_,\}_~~UUA \l,~~1~\D.,l\ \\&~ ~rian Pearlman Nease, Commissioner 

Jj The Secretary, who did not move before the judge to default the 

operator, took essentially this position in his brief to the Commission 

on review. 

1832 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

KENTLAND-ELKHORN COAL 

CORPORATION, 

.v. 

SECRETARY OF LABOR~ 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

and 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

November 30, 1979 

Docket No. PIKE 78-399 

UNITED MINE WORKERS OF AMERICA 

DECISION 

The question here is whether a mine operator must pay a miners' 

representative for the time he spends accompanying a mine inspector 

during a special electrical inspection of a mine. Administrative Law 

Judge Lasher answered that question in the negative. We affirm. 

On May 23, 1978, Vernon Hardin, an inspector from the Department of 

Labor's Mine Safety and Health Administration, began a specialized 

electrical inspection of a coal mine and preparation plant operated by 

Kentland-Elkhorn Coal Corporation. The purpose of the inspection, which 

lasted at least 21 days, was to make a "complete electrical examination 

of the ••• mine and preparation plant." The inspector used equipment 

such as voltmeters and ohmmeters for testing electrical circuits. By 

coincidence, the electrical inspection took place when another inspector 

was making a "regular inspection", i.e., one of the four inspections of 

an entire mine that the third sentence of section 103(a) of the Federal 

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

Act"] requires the Secretary to conduct every year. Judge Lasher found, 

and it is not disputed, that the specialized electrical inspection was 

not conducted as a part of the regular inspection, and that the regular 

inspection was conducted independently by the other inspector. 

79-11-17 

1833 
On May 23 and 24, 1978, Douglas Blackburn, a miner employed by 

Kentland-Elkhorn accompanied inspector Hardin during the electrical 

inspection as the miners' representative. Before the inspection began, 

Kentland-Elkhorn officials informed Hardin that Blackburn would not be 

paid for the time he spent accompanying Hardin. Blackburn was not paid, 

and on June 20, 1978, Hardin issued to Kentland-Elkhorn a citation under 

section 104(a) of the 1977 Act alleging a violation of section 103(f). 

The alleged violation was not abated by the time fixed in the citation, 

and, on June 23, 1978, Hardin issued a withdrawal order under section 

104(b). The order, which did not require the withdrawal of miners from 

mining operations, was terminated 20 minutes after its issuance, after 

Kentland-Elkhorn officials paid Blackburn for his time. 

Kentland-Elkhorn then sought Commission review of the citation and 

withdrawal order, and a hearing was held before Judge Lasher. KentlandElkhorn argued to Judge Lasher that the right to "walkaround pay" 

granted by section 103(f) is confined to regular inspections, and cited 

the language and the legislative history of section 103(f) to support 

its argument. The Judge concurred in this view, and vacated the citation 

and withdrawal order. The Secretary filed a petition for discretionary 

review, which we granted on April 11, 1979. On July 31, 1979, we heard 

oral argument in this case and in Helen Mining Co., No. PITT 79-11-P, · 

decided on November 21, 19 79. 

In Helen Mining, we decided a question similar to this one. We 

found that section 103(f) of the 1977 Act is ambiguous and did not 

clearly point to a solution to the problem raised there. We examined 

the portion of the legislative history upon which Kentland-Elkhorn 

relies here--a statement by Representative Perkins to the House of 

Representatives stating the intention of .the conference committee to 

limit the right to walkaround pay to regular inspections--and found it 

dispositive of the question there. We arrive at the same conclusion 

here. As in Helen Mining, the words of the statute standing alone do 

not clearly support the position of any party, and we believe that the 

intention of Congress to limit walkaround pay to regular inspections was 

most clearly evidenced by Mr. Perkins' statement. 

Accordingly, the _judge's decision is affirmed. 

Je me R. Waldie, Chairman 

< 

Richard V. Backley, Connnissioner 

-~ullA ~ (\ \~l\\Q I,,\ \y (U_Q 

Marian Pearlman Nease, Commissioner 

1834 
Commissioner Jestrab, dissenting: 

I join my colleague, Commissioner Lawson, in 'dissenting from 

the majority opinion. There is no inspection 

in the 1977 Act. The statutory authority for 

section 103(a). Section 103(f) expressly 

walkaround pay. A fortiori, my dissent · 

PITT 79-11-P, is applicable here. 

Commissioner Lawson, dissenting: 

In Helen Mining Company, No. , the majority denied 

walkaround pay "during a 'spot' inspectio·n e ired by section 103(i) 11 

of the 1977 Act. In the present decision t e majority, without deter-. 

mining the statutory authorization for the e ectrical inspection, appears to be extending its holding in Helen and to deny walkaround pay 

for all inspections except so-called "regular inspections." 

For the reasons stated in my dissent in Helen Mining, I find 

section 103(f) of the Act to be clear and unambiguous in mandating 

walkaround pay for all inspections made pursuant to section 103(a) 

without regard to their frequency. This inspection is authorized 

by section 103(a) and a miner accompanying the inspector is therefore entitled to walkaround pay. 

I therefore dissent. 

A. E. Lawson, Commissioner 

1835 

ADMINISTRATIVE LAW JUDGE DECISIONS 

NOVEMBER 1 - 30, 1979 

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

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

. Petitioner 

v. 

EASTERN COAL CORPORATION, 

Respondent 

Civil Penalty Proceeding 

Docket Nos. Assessment Control Nos • 

PIKE 79-42-P 15-14315-02012V 

Stone No. 7 Mine 

PIKE 79-43-P 15-04316-:02013V 

Stone No. 8 Mine 

DECISION APPROVING SETTLEMENT 

Counsel for the Mine Safety and Health Administration filed on 

October 22, 1979, in the above-entitled proceeding motions for approval 

of settlements. Under the settlement agreement reached by the parties 

in Docket No. PIKE 79-42-P, respondent has agreed to pay civil penalties 

totaling $30,000 instead of the penalties totaling $77,000 proposed by 

the Assessment Office. Under the settlement agreement reached by the 

parties in Docket No. PIKE 79-43-P, respondent has agreed to pay a civil 

penalty of $3,000 instead of the penalty of $10,000 proposed by the 

Assessment Office. The Assessment Office arrived at its proposed Penalties 

.in both dockets by waiving the formula provided for in 30 CFR 100.3 and 

making findings with respect to the six criteria set forth in Section llO(i) 

of the Federal Mine Safety and Health Act of 1977. All of the nine violations involved in this proceeding are based on orders of withdrawal written 

under the unwarrantable failure provisions of Section 104(c)(2) of the 

Federal Coal Mine Health and Safety Act of 1969. The Assessment Office 

determined that exorbitant penalties of $10,000 should be assessed for 

eight of the alleged violations and and.that a penalty of $7,000 should 

be ·assessed for the ninth alleg~d violation. As will hereinafter be shown, 

respondent's agreement to pay a total of $33,000 in both dockets instead 

of the $87,000 proposed by the Assessment Office is an appropriate settlement which should be approved. 

General findings with respect to four of the six criteria can be made 

and those findings will be considered to be applicable for.determining 

penalties with respect to all nine of the alleged violations. The remaining two.criteria, namely, the negligence and gravity associated with the 

alleged violations, should be specifically considered with respect to each 

alleged violation. Respondent demonstrated a good faith effort to achieve 

rapid compliance with respect to all of the orders of withdrawal bedause 

the violations cited in the nine orders were abated on the same day the 

orders were written with respect to seven orders and the violations cited 

in the remaining.,-two orders were abated by the next day after the orders 

were written. The computer printouts accompanying the motions for approval 

of settlement show that respondent is controlled by the Pittston Company. 

On the basis of that information, I find that respondent is a large operator 

1837 
MSHA v. Eastern, Docket Nos. PIKE 79-42-P, ~al. 

and that penalties should be assessed in an upper range of magnitude 

insofar as they are based on the criterion of the size of respondent's 

business. Since there are no data in the file showing otherwise, I find 

that payment of penalties will not cause resp1..adent to discontinue in 

business, The computer printouts show that respondent has a significant 

history of previous violations and that criterion was taken into consideration by the parties in arriving at the large penalties which respondent 

has agreed to pay in settling the two cases involved in this proceeding. 

Docket No. PIKE 79-42-P 

Order No. 1 RHH (6-28) dated August 19, 1976, cited respondent for a 

violation of Section 75.400 because oil, grease, loose coal, and coal dust 

had been allowed to accumulate on the continuous-mining machine. The 

Assessment Office proposed that a penalty of $10;000 be assessed for this 

alleged violation of Section 75.400. In order for a penalty of $10,000 

to be warranted, the evidence would have to show that larger accumulations 

than the ones described in the order existed and there would have to be 

an indication that a very hazardous ignition source existed, such as a 

bare wire. Additionally, the presence of methane should be shown. Finally, 

in orde~ to prove that a violation of Section 75.400 existed, the inspector's 

testimony would have to satisfy the tests established by the former Board 

of Mine Operations Appeals in Old Ben Coal Co., 8 IBMA 98 (1977), namely, 

that the accumlations had existed for an unreasonable period of time and 

that the operator had failed to clean them up within a reasonable time 

after becoming aware of the existence of the accumulations or after the 

operator should have become aware of them if the operator had been duly 

diligent in inspecting its equipment. The fact that the parties agreed 

to settle the issues raised with respect to this alleged violation of 

Section 75.400 is a fair indication that the inspector would not have 

been able.to show the existence of all the serious factors required to 

sustain the assessment of a maximum penalty of $10,000. Respondent's 

agreement to pay a penalty of $3,000 for accumulations of combustible 

materials on the continuous-mining machine is a reasonable amount to pay 

for the violation of Section 75.400 alleged in Order No; 1 RHH. 

Order No. 3 Rllli (6-50) dated August 23, 1976, cited a violation of 

Section 75.518 because the fuse for a water pump had been bridged over 

with a piece of copper wire with the result that the pump was not prov:ided with short circuit or overload protection. The Assessment Office 

proposed that a penalty of $10,000 be assessed for this alleged violation 

of Section 75.518. I have always looked upon the bridging of fuses as 

being a matter of gross negligence because the person who bridges a fuse 

knows that he is destroying the protection against shock and fires which 

a fuse is designed to provide, The gravity of the violation, however, · 

depends on whether an actual shock hazard existed at the time the order 

was written and on the likelihood that a fire would hav~ occurred. In 

view of the fact that the order shows only potential hazards, the degree 

of gravity associated with the alleged violation is not so great as to 

1838 
MSHA v. Eastern, Docket Nos. PIKE 79-42-P, ~ ~· 

warrant assessment of a maximum penalty. Therefore, I find that respondent's agreement to pay a penalty of $5,000 is reasonable and should be 

approved. 

Order Nq. 1 CGW (6-55) dated August 19, 1976, cited respondent for a 

violation of Section 75.400 because loose coal, coal dust, grease, and oil 

had been allowed to accumulate on a continuous-mining machine. The Assessment Office proposed that a penalty of $10,000 be assessed for this violation of Section 75.400. Order No. 1 RHH, supra, alleged the occurrence 

of an identical violation in a different section of the mine at the same 

· time on the same day as the instant order was written. The observations 

made with respect t"o the violation of Section 75.400 cited in Order No. 1 

RHH are equally applicable to the violation cited in the instant order. 

There is no explanation in the motion for approval of settlement for the 

fact that respondent has agreed to pay only $2,000 in settlement of the 

violation of Section 75.400 alleged in the instant order, but agreed to 

pay $3,000 for settlement of the violation of Section 75.400 alleged in 

Order No. 1 RHH. The conditions which existed in one section of the mine 

probably were more hazardous than those which existed in the other section 

and I am concluding, in the absence of any information to the contrary, 

that the inspector who wrote the prio~ order would have been able to show 

greater negligence or gravity, or both, than the inspector who wrote the 

instant order. In any event, I would not normally assess more than $2,000 

for an alleged violation of Section 75.400 when the accumulations were 

cited on a single piece of mining equipment. Therefore, I find that 

respondent's agreement to pay a penalty of $2,000 for having a dirty mining 

machine is reasonable and should be accepted.· 

Order No. 2 CGW (6-57) was written on August 19, 1976, and cited 

respondent for a violation of Section 75.400 because loose coal, coal dust, 

grease, and oil were allowed to accumulate .on a roof-bolting machine. 

The accumulations here involved are alleged to have occurred on the same 

day and in the same section as the accumulations which were cited on the 

continuous-mining machine in Order No. 1 CGW, supra. The existence of 

accumulations on two different pieces of equipment in the same section of 

the mine on the same day adds to the hazards to which respondent's miners 

would have been exposed. Nevertheless, in the absence of any showing of 

actual ignition hazards and the possibility that the inspector would not 

have been able at a hearing to prove the elements constituting a violation 

of Section 75.400 as they were set forth by the. former Board in the lli ~ 

case, supra, I find that respondent's agreement to pay a penalty of $2,000 

for this alleged violation of Section 75.400 is reasonable and should be 

approved. It should be noted that when Order No. 2 CGW was written, it 

also alleged the occurrence of other violations, but the order was subsequently modified by the inspector to allege a violation of only Section 75.400. Consequently, there is no need for me to consider in this 

case the other· violations which were originally cited by the inspector. 

1839 
MSHA v. Eastern, Docket Nos. PIKE 79-42-P, ~ !.!.· 

Order No. 1 FIJ (6-92) dated October 12, 1976, cited respondent for 

a violation of Section 75.200 because the roof-control plan was not 

being complied with in that the operator of the continuous-mining machine 

had advanced 4 feet inby permanent support and because the pillar was being split from both the side and the end. The Assessment Office proposed 

that a penalty of $10,000 be assessed for this alleged violation of 

Section 75.200. Violations of the roof-control plan are generally the 

most hazardous of all violations because roof falls kill and injure more 

miners than any other single occurrence in underground mines. I am 

willing to accept respondent's agreement to pay a penalty of $4,000 in 

this instance in the absence of any facts showing that there were broken 

places in the roof or other signs indicating that the roof was in innnediate 

danger of falling. 

Order NQ. 2 FIJ (6-94) dated October 12, 1976, cited respondent for 

a violation of Section 75.601 because the fuse for the hoist at the loading ramp had been bridged over with wire. The conunents made with respect 

to Order No. 3 RHH, supra, apply to the violation of Section 75.601 all~ged 

in the instant order. Respondent has agreed to pay $5,000 for this alleged 

violation in lieu of the penalty of $10,000 proposed by the Assessment 

Office. In both instances, respondent has agreed to pay a penalty of 

$5,000 which should be approved on the basis of the conunents which have 

already been made in considering Order No. 3 RHH above. 

Order No. 3 FIJ (6-96) dated October ~2, i976,· cited respondent for a 

violation of Section 75.701-3 because the roof-bolting machine had not been 

provided with a frame ground in that the frame ground wire was disconnected 

in two poorly made temporary splices and was disconnected in the cable 

reel. The primary hazard to which miners are exposed by the nonexistence 

of a frame ground is electrocution. The Assessment Office proposed that 

a penalty of· $10,000 be assessed for this alleged violation. There are .. · 

no facts in the file which show that the·floor in the vicinity of the 

roof-bolting machine was damp or that there were bare wires which would 

almost certainly have exposed the miners to electrocution. In the absence 

of specific facts showing that the alleged violation was extremely grave, 

I find that respondent's agreement to pay a penalty of $4,000, instead 

of the penalty of $10,000 proposed by the Assessment Office, should be 

approved. 

Order No. 1 FIJ (6-112) dated October 27, 1976, cited .respondent for 

a violation of Section 75.301 because a volume of only 6,375 cubic feet 

of air per minute was reaching the last open crosscut instead of the minimum volume of 9,000 cubic feet per minute required by Section 75.301. The 

Assessment Office proposed that a penalty of $7,000 be assessed for thi~ 

alleged violation. The fact that respondent was providing over· 2/3 of the 

required volume of air would not have made the circumstances associated 

with this violation serious enough and would not have involved enough 

negligence, to warrant a proposed penalty of $7,000 unl~ss there had been 

in existence a combustible concentration of methane. In the absence of 

1840 
MSHA v. Eastern, Docket Nos. PIKE 79-42-P, ~ .!!_. 

any factors showing that the violation was unusually hazardous, respondent's agreement to pay a penalty of $5,000, instead of the $7,000 proposed 

by the Assessment Office, is reasonable and should be approved. 

Docket No. PIKE 79-43-P 

Order No. 1 FIJ (7-31) dated May 2, 1977, cited respondent for a 

violation of Section 75.200 because respondent was not complying with 

the provisions of its roof control plan.in that roadway posts were not 

being set, the proper sequence of mining was not being followed, and 

reflectorized devices were not being used to warn miners of the existence 

of unsupported roof. The conunents which have been made above in.considering Order No. 1 FIJ (6-92) in Docket No. PIKE 79-42-P are applicable 

to the instant order. The Assessment Office proposed that a penalty of 

$10,000 be assessed for this violation. The fact that the operator of the 

continuous-mining machine had advanced 4 feet inby permanent support makes 

. the.violation of Section 75.200 alleged in Order No. 1 FIJ (6-92) more 

serious than the violation of Section 75.200 alleged in the instant orde·r 

and justifies respondent's agreement to pay $3,000 for the violation of 

Section 75.200 alleged in the instant order in lieu of the payment of 

$4,000 agreed upon with respect to the violation of Section 75.200 alleged 

in Order No. 1 FIJ (6-92), supra. Therefore, respondent's agreement to 

pay a penalty of $3,000 should be approved. 

WHEREFORE, it is ordered: 

(A) For the reasons hereinbefore given, the motion for approval of 

settlement is granted and the settlement agreement is approved. 

(B) Pu~suant to the settlement agreement, Eastern Coal Corporation, 

shall, within 30 days from the date of thjs decision, pay civil penalties 

totaling $33,000 which are allocated to the respective alleged violations 

as follows: 

Docket No. PIKE 79-42-P 

Order No. 1 RHH (6-28) 8/19/76 § 75.400 ................. $ 3,000.00 

Order. No. 3 RHH (6-50) 8/23/76 § 75.518 ................ 5,ooo.oo 

Order No. 1 CGW (6-55) 8/19/76 § 75.400 ................ 2,000.00 

Order No. 2 CGW (6-57) 8/19/76 § 75.400 ................ 2,000.00 

Order No. 1 FIJ (6-92) 10/12/76 § 75.200 . . . . . . . . . . . . . . . . 4,000.00 

Order No. 2 Fij (6-94) 10/12/76 § 75.601 ............... 5,000.00 

Order No. 3 FIJ (6-96) 10/12/76 § 75.701-3 ............. 4_,ooo.oo. 

Order No. 1 FIJ (6-112) 10/27 /76 § 75.301 .............. 5 2 000.00 

Total Settlement Penalties in Docket No. 

PIKE 79-42-P .................................... $ 30,000.00 

1841 
MSHA v. Eastern, Docket Nos. PIKE 79-42-P, ~ !!.!,. 

Docket No. PIKE 79-43-P 

Order No. 1 FIJ (7-31) 5/2/77 § 75.200 ................. $ 3.ooo.oo 

Total Settlement Penalties in Docket 

No. PIKE 79-43-P .•..........•..............•........ 3,000.00 

Total Settlement Penalties in This Proceeding •••••••• $ 33,000.00 

~e~·e;J~b Administratiye Law Judge 

Distribution: 

Darryl A. Stewart, Attorney, Office of the Solicitor, U.S. Department 

of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Gary W. Callahan, Esq., Attorney for Eastern Coal Corporation, 

Lebanon, VA 24266 (Certified Mail) 

1842 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

'015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

GOLDEN R COAL COMPANY, 

Respondent . . .. 

Civil Penalty Proceeding 

Docket No. BARB 79-301-P 

A.O. No. 15-10364-03002 

Preparation Plant 

DECISION 

Appearances: George Drumming, Jr., Attorney, U.S. Department of 

Labor, Office of the Regional Solicitor, Nashville, 

Tennessee, for the petitioner; 

Byron W. Terry, Safety Director, Seymour, Indiana, 

for the respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of civil penalty filed by the petitioner pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a), on 

March 6,. 1979, charging the respondent with one alleged violation of 

the provisions of 30 CFR 77.1605(k) .. The alleged violation was cited 

on September 18, 1978, by an MSHA inspector in Citation No. 400123, 

which states as follows: 

Berms or guards are not provided on the outer bank of 

the elevated roadway at the dumping location. The elevated 

roadway extends 75' outby the hopper and is approximately 

15'-20' high at the highest point. Trucks using this roadway are in reverse operation. If over travel were to occur 

overturning could result in a serious or fatal injury. 

Respondent filed an answer to the petition on April 6, 1979, taking exception to the citation, and defending on the following grounds: 

(1) The mine area in question had been previously 

inspected by MSHA and no mention was ever made of the 

existence of any hazard. 

1843 
(2) In the respondent's op1n1on, the outside limit of 

the backing area, although not protected by a guard rail or 

high berm, did have a roll that a truck driver could "feel" 

and known that he was approaching the outside of the road, 

thus eliminating any hazard. 

(3) The inspector would not permit the construction 

of a berm but would only accept a guard rail. 

By notice of hearing issued May 9, 1979, the matter was scheduled 

for hearing on August 24, 1979, and the parties appeared on that date 

and presented evidence and testimony in support of their respective 

positions. 

Issues 

The principal issues presented in this proceeding 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 in this proceeding~ and, if so, (2) the appropriate civil 

penalty that should be assessed against the respondent for the 3lleged 

violation based upon the criteria set forth in section 110( i) of the 

Act. Additional issues raised by the parties are identified and disposed of in the course of this decision. 

In determining the amount of any 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 demonstrat~d 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, 

30 u .s.c. § 801 ~ ~· 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Connnission Rules, 29 CFR 2700.1 et~· 

Discussion 

Stipulations 

The parties stipulated to the following (Tr. 5, 6): 

1844 .. 
1. Respondent's prior history of violations consists of 

seven violations which were assessed against, and paid by, the 

respondent. 

2. Respondent's average daily coal production is 250 tons and 

respondent employs two production employees. 

3. Any civil penalty assessed by me in this matter will not 

adversely affect respondent's ability to remain in business. 

4. Respondent's mining business is subject to the requirements 

of the Act. 

Petitioner's Tes.timony 

MSHA inspector Earl T. Leisure testified that he conducted a 

safety and health inspection, including the roads, records, and equipment, at the preparation plant in question. During the inspection, 

Inspector Leisure testified that he examined a roadway that was used 

by contract coal trucks to dump coal into a hopper. The roadway is 

approximately 125 feet long, 15 or 16 feet high at its maximum point, 

and elevated for some 75 feet at its highest point. The degree of 

the slope of the elevated roadway varied from 35 to 45 degrees, and 

the roadway was constructed of crushed limestone adjacent to a coal 

stockpile (Tr. 15). The roadway did not have berms or guards as 

required by mandatory safety standard section 77.1605(k), which 

requires that elevated roadways be provided with berms or guards 

along the outer banks in order to prevent coal trucks from accidentally overturning (Tr. 18). The trucks back up along the entire 

length of the roadway, and in the event of rain, coal spillages, 

and dust, the roadway tends to become slick, narrow and hazardous 

(Tr. 20). Although truck drivers use the rearview mirror in backing up along the righthand side of the elevated roadway, they cannot 

see directly behind them in dumping coal into the hopper (Tr. 18). 

Having a spotter to direct drivers in dumping the coal may provide 

some protection against accidents; however, the spotter would not 

provide the safety protection that section 77.1605(k) provides. 

Serious injuries and fatalities are likely to occur at the elevated 

roadway, especially when large moving trucks may faill or overturn 

15 feet to the ground level. If the truck load is 20 tons or more, 

the chances for serious injuries and fatalities are increased substantially (Tr. 19). Inspector Leisure took pictures of the roadway, the adjacent slope, and the hopper facility, after the citation 

was abated (Exh. P-14, Nos. 1-5). 

After issuing the citation, Inspector Leisure discussed the 

requirements of section 77.1605(k) with the respondent, and the 

inspector believed that guards along 75 feet of the roadway were 

better than berms because the width of the roadway is too small 

to accommodate berms. Respondent abated the citation by installing 

1845 
125-foot guards along the entire 125 feet of the roadway and did 

an exceptional job in achieving compliance within the time fixed 

for abatement (Tr. 25). Mr. Leisure believed the respondent should 

have been aware of the condition cited and the hazard presented 

because it was obvious that the roadway was elevated (Tr. 23). 

Responding to questions as to whether the five photographs were 

accurate descriptions of the coal-dumping operation when the 

citation was issued, Inspector Leisure testified that the coal 

stockpile depicted in photograph Nos. 1 and 2 did not exist when 

the citation was issued, and that 15 or 20 feet of the existing 

guardrail was not included in photograph No. 2 (Tr. 33). 

On cross-examination, Inspector Leisure testified that if 

coal trucks were to run off the road, they we·re likely to overturn 

on the elevated roadway, and he was aware of an accident at another 

mine where a coal truck overturned when the driver backed into a 

2-foot hole (Tr. 41). Although he has not driven coal trucks on 

elevated roadways, Inspector Leisure testified that truck drivers 

normally use their rearview mirrors in backing up to the hopper, 

and at other mines he has observed truck drivers open the door and 

look out the left side of the truck in backing up to the hopper 

(Tr. 45). On the question of driver visibility, Inspector Leisure 

testified that the trucks are approximately 25 feet in length.and 

if a driver operating in reverse were to open the door and look 

to his left, he would be unable to see on the right side of the 

truck (Tr. 49). 

On recross-examination, Inspector Leisure testified that he 

spoke with Mr. C. J. Rust on the telephone about the citation after 

:t was issued and informed him that the condition cited constituted 

a violation and that he could not allow the respondent to install 

a guardrail without being cited for a safety violation (Tr. 50). 

On bench examination, Inspector Leisure testified about the 

.coal dumping operation at the preparation. plant owned by Mr. Rust, 

and he indicated that a guardrail was located near the hopper which 

was used by the drivers as a guide in positioning the trucks before 

dumping coal into the hopper. Once the 20-ton trucks are in position, 

drivers dump the locally-produced coal into the hopper. When he 

issued the citation, Inspector Leisure testified that he did not see 

any. work activity, including spotters, workme.n, coal, stockpiled 

along the elevated roadway, and no trucks were.using the road or 

dumping coal into the hopper (Tr. 59). During his 3-1/2 years as a 

Federal coal mine inspector, Inspector Leisure testified that he does 

not have knowledge of any truck accidents or near misses at 

respondent's preparation plant (Tr. 60). 

Responding to a question as to how a mine inspector determines 

when a facility is an elevated roadway, Inspector Leisure testified 

that there are no statutory criteria, customary guidelines or manuals to assist in making that kind of determination. He also stated 

1846 
there are no statutory criteria, customary guidelines, or manuals 

that are used by coal inspectors in determining whether the facility 

is a roadway, ramp, dtunping location or haulage road (Tr. 91-94). 

Respondent's Testimony 

Mine operator Chester J. Rust testified that his company had 

installed a 15- to 20-foot galvanized steel guardrail at the hopper 

to prevent trucks from overturning or overbacking (Tr. 63). Previous MSHA inspections were conducted at the tipple area in question 

but no previous comments were ever made about the lack of guards or 

that the roadway in question was considered to be an elevated roadway. He believes a haul road is one where trucks travel to the mine 

or on a road at some speed and he never considered the road leading 

up to the hopper in question as a roadway. He considered the use of 

a spotter, who is there much of the time, and a "roll" at the edge of 

the roadway, which would give the driver a "feel" that the truck were 

starting to slide, as sufficient safety precautions. Further, he did 

not install guardrails because he did not believe they were required', 

and this was based on the fact that the area was strictly a "back-up" 

are8 for the trucks and not a hual road. Previous inspectors had not 

cited the violation (Tr. 64-65). 

Mr. Rust identified 11 photographs which were taken of the roadway and hopper area in question, all of which were taken after the 

condition was abated (Exhs. R-1 - R-11), and he described what each 

photograph depicted (Tr. 70-74). In response to bench questions, he 

indicated that in the event a truck backed off the slope adjacent to 

the hopper, it would take an inexperienced driver for it to overturn. 

He also indicated that he was given no option to erect a berm rather 

than a guardrail, and he would have considered a berm since it is 

cheaper, but a berm would have reduced the size of the coalyard (Tr. 

76). He did not discuss the matter of any option with the inspector 

but was simply told he had to install a guardrail (Tr. 87). 

On cross-examination, Mr. Rust defined a "roadway" as any place 

that trucks travel in forward gear, and a "ramp" was defined as any 

place that trucks travel in reverse (Tr. 78). He would consider the 

ramp to be elevated for at least half the distance of the 125 feet 

described as a "road." A spotter is not always present and it is 

possible that one is not there when the trucks travel up in reverse 

(Tr •. 78-80). 

Findings and Conclusions 

Fact of Violation 

Respondent is charged with a violation of 30 CFR 77.1605(k), 

which states: "Berms or guards shall be provided on the outer bank 

of elevated roadways .

11 

1847 
The initial question presented is whether petitioner has established that the location cited is in fact an elevated roadway. As 

for the question of whether the alleged."roadway" was elevated, I 

find that the testimony of the inspector with respect to the surrounding topography, terrain, slope, etc., of the area cited, 

including the photographs introduced by the parties, establishes 

that the unprotected portion of the roadway in question is in fact 

elevated. In my view, the location and elevation of the hopper from 

the bottom of the incline where the. trucks begin their ascent by 

backing up along the 125-foot area described by the inspector is of 

sufficient height above the adjacent terrain to create a hazard in 

the event a truck ran off the unprotected elevated portion of the 

roadway in questiQn. 

The question as to whether the area characterized by the inspector as a "roadway" was in fact a roadway within the meaning of the 

cited safety standard is in dispute. During the course of the hearing, respondent argued that the area cited was not in fact a roadway, 

but a portion of the dumping facility covered by section 77 .1605(1), 

which requires berms or other devices to prevent overtravel and 

overturning at dumping locations (Tr. 94-106). In support of its 

argument in this regard, respondent .suggests that the area characterized as a "roadway" is in fact a ramp and part of the dumping 

facility where trucks simply turn around and back up to unload. 

Petitioner .obviously believes that the area is in fact an extension 

of the main roadway leading to that area, and that the portion 

leading to the.hopper is in fact a roadway. Petitioner seeks a broad 

interpretation of the cited standard to include the area where the 

trucks actually back up in reverse along the entire length of the 

"roadway." 

Although the term "roadway" is is not further defined by statute 

or regulation, the Dictionary of.Mining, Minerals and Related Terms 

(1968) at page 931, defines it in part as "[a]n underground passage, 

whether used for haulage purposes or for men to travel to and from 

their work.'' While we are dealing in the instant case with a. surface 

roadway, I find the definition equally applicable even though .the 

dictionary definition refers to underground. Webster's New World 

Dictionary of the American Language," Second College Edition, defines 

the term "road" in part as 11 a way; path; course." The· term "ro.adway" 

is defined as "that part of a road used by cars, trucks, etc; traveled 

part of a road. 11 

After careful consideration of all of the testimony and evidence 

adduc.ed in this proceeding, including the arguments presented by the 

parties in support of their respective positions, I conclude that 

petitioner has the better part of the argument and that its interpretation and application of section 77.1605(k) is correct and I find 

that the area cited by the inspector was in fact a roadway within the 

·meaning of section 77.1605(k). Although it is true that subsection 

1848 
(1) requires berms and other protective devices to prevent overhaul 

and overturning at dumping locations, and may be interpreted to 

require only berms, that subsection is limited to dumping locations. 

On the facts presented here, I construe this to mean the hopper location and not the elevated portion of the roadway which is used by the 

trucks as a means of access to the hopper. Although at the time of 

the inspection respondent had already installed guardrails at the 

entrance to the hopper (see photograph exhibits), it apparently did 

so in compliance with subsection (1) and not (k). Further, I take 

note of the fact that subsection (i) dealing with ramps and dumps, 

and sections 77.1608(a) and (b) dealing with dumping locations and 

haulage roads, and truck spotters, distinguish between the actual 

dumping lbcation. and the actual hazards which may be encounter.ed by 

a truck while it is traveling or using the haulage road to reach the 

actual dumping area. In the circumstances, I cannot conclude that 

petitioner's interpretation of subsection (k) is overly broad. 

It seems clear to me that the roadway is regularly used by coal 

haulage trucks transporting coal onto mine property for dumping and 

processing at the hopper, and the only means of travel to that point 

is by way of the roadway used by the trucks to back up to the hopper. 

After dumping their loads, the trucks travel back down the roadway 

and leave. The purpose of the cited safety regulation is to protect 

the truck drivers and to prevent injuries to men traveling the roadway in the course of their mining duties. It is clear from the 

evidence presented that the roadway is elevated and that the failure 

to provide some means of protection along the unguarded elevated 

portion of the roadway constitutes a violation of section 77 .1605(k). 

The citation is AFFIRMED. 

Gravity 

The unprotected portion of the elevated roadway in questio11 presented a potential hazard to the truck driver in the event that his 

loaded coal truck were to go over the elevated portion while backing 

up to the hopper. Although the inspector saw no trucks on the roadway at the time the citation issued, the fact is that the trucks 

backed up the incline on a regular basis to dump their loads and the 

hazard was ever-present. Respondent~s testimony reflects that a 

spotter is not always present and that not all truck drivers are 

experienced and have the "feel" for the road •. The roadway is in 

fact. elevated, and not withstanding the fact that the grass along 

the embankment may have been cut without incident, it seems clear 

that in the event a loaded coal truck were to go over the ebankment 

while backing up, serious injury would result. In the circumstances, 

I find that the violation is serious. 

Negligence 

Respondent takes the position that it made a good-faith effort at 

compliance when it determined that the area cited was a ramp and not 

1849 
a roadway. However, the fact remains that the roadway in question 

was in fact elevated for at least 75 feet and respondent should have 

recogvized the potential hazard and installed a protective barrier of 

some sort,. whether it be a berm or guardrail. · The fact that previous 

MSHA inspectors had not cited the location is immaterial. The question presented is whether the inspector who issued the citation wu 

correct in his interpretation of the cited standard, and I believ~ 

that he was. Further, while there was a disp4te as to whether the 

inspector gave the respondent any option as to how to achieve compliance, that is, whether to install a berm or guardrail, the fact is 

that respondent accepted the guardrail and went beyond the minimum 

requirements to achieve compliance, and I am not convinced that 

respondent really disagreed with the inspector or that the inspector 

acted arbitrarily. Further, while the respondent may have in good 

faith misinterpreted the application of section 77.1605(k), the fact 

is that a potential hazard was pre.sented by not having the roadway 

guarded, and respondent's failure to take reasonable precautions 

in the circumstances to correct a condition which it reasonably 

should have recognized constitutes ordinary negligence. 

Size of Business and Effect of Civil Penalty on Respondent's Ability 

to Remain in Business 

The parties stipulated that respondent's daily coal production 

averages 250 tons and that respondent employs two production 

people at its facility. I find that respondent is a small coal 

mine operator. In addition, the parties stipulated that any civil 

penalty assessed in this matter will not adversely affect respondent's 

ability to remain in business, and that is my finding. 

History of Prior iiolations 

The seven previous citations for which respondent has paid a 

total of $630 in civil penalties does not constitute a significant 

history of prior violations. I have.also considered the fact that 

this is the first citation for a violation of section 77.1605(k). 

Good Faith Compliance 

The conditions cited in this case were promptly abated by the 

respondent within the time fixed by the inspector. In addition, 

having viewed the mine operator on the stand during the course of 

his testimony, and considering the presentation of the ·safety 

director during the course of the hearing, I am favorably impressed 

with the fact that the respondent is safety-conscious, and while 

respondent may not agree with the interpretation placed on section 

77.1605(k) by MSHA on the facts of this case, I find that it made 

a good-faith effort at compliance and not only installed protective 

guardrails at the elevated areas of the roadway in question, but 

installed such protective barriers along the entire length of the 

roadway. These factors have been considered by me in assessing a 

civil penalty in this case. 

1850 
ORDER 

In view of the foregoing findings and conclusions, and taking 

into account the statutory requirements of section llO(i) of the Act, 

I find that a civil penalty in the amount of $85 is reasonable for 

the violation which has been established and respondent is ORDERED to 

pay that amount for Citation No. 400123 within thirty (30) days of the 

date of this decision and order. Upon receipt of payment, this matter 

should be dismissed. 

~~~~/. orge A.)Koutrh i?..'/,/~!c;- 1 · --

~ dminis rative Law Judge 

Distribution: 

George Drumming, Jr., Attorney, U.S. Department of Labor, 

Office of the Regional Solicitor, 280 U.S. Courthouse, 

801 Broadway, Nashville, TN 37203 (Certified Mail) 

Byron W. Terry, Safety Director, Golden R Coal Company, 

Main Office, P.O. Box 100, Seymour, IN 47274 (Certified 

Mail). 

1851 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BETHLEHEM MINES CORPORATION, 

Respondent 

Civil Penalty Proceeding 

Docket No. PITT 78-412-P 

A.C. No. 36-00958-02027 V 

Somerset No. 60 Mine 

DECISION 

Appearances: Leo J. McGinn, Esq., Trial Attorney, Office of the 

Solicitor, Division of Mine Safety and Health, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, 

Virginia 22203; for Petitioner; 

T. W. Ehrke, Esq., Room 1871 Martin Tower, Bethlehem, 

Pennsylvania 18016, for Respondent. 

Before: Judge Fauver 

This case was brought by the Secretary of Labor under section 

109 of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. 

· § 801 et seq., 1/ for assessment of civil penal ties for alleged violations of mandatory safety or health. standards. The case was heard 

at Pittsburgh, Pennsylvania, on January 29, 1979. Both sides were 

represented by counsel, who have submitted their proposed findings, 

"conclusions and briefs following receipt of the transcript. 

Having considered the evidence and contentions of the parties, 

I find that the preponderance of the reliable, probative, and substantial evidence establishes the following: 

FINDINGS OF FACT 

1. At all pertinent times, Respondent, Bethlehem Mines Corporation, operated an underground coal mine .known as the Somerset No. 60 

Mine, in Washington County, Pennsylvania, which produced coal for 

1/ In 1977, Congress passed the Federal Mine Safety and Health Act of 

1977., 30 U.S.C. § 801 et ~' which superseded the 1969 Act. This 

proceeding arose under the original statute. The "Act" for the purpose 

of this decision, therefore, refers to the 1969 Act before amendment. 

1852 
sales in or affecting interstate commerce. The mine produces about 

4,000 tons of coal per day and employs about 500 people. The annual 

production of Bethlehem Mines Corporation is about 10 million tons of 

coal. 

2. About 7:45 on the morning of August 30, 1977, a federal mine 

inspector, John N. Poyle, began a regular inspection of the Somerset 

No. 60 Mine, accompanied by Robert Swarrow, an inspector-trainee, 

Clinton Cantini, a federal mine inspector, and George Kupar, a company inspector. 

3. The group began its coμrse along the belt haulage system at 

the point where coal was discharged from the conveyor belt into 7-ton 

mine cars. They walked up two crosscuts, at which point Inspector 

Cantini went through isolating doors into the intake escapeway while 

the others continued along the belt system. 

4. Although production had not yet begun on the day shift, they 

noticed that the belt ran intermittently. At the first belt-to-belt 

transfer point, about 800 feet inby the discharge point, walking 

toward the stage loader, Inspector Poyle began to find loose coal and 

dust. When he reached the stage loader, another 1000 feet from the 

first transfer point, he noticed that the bottom rollers, which were 

about 12 inches off the ground, were submerged in fine, dry coal dust 

for a distance of about 25 feet and that loose coal was accumulated 

underneath the stage loader at the point where it dumped unto the No. 

3 belt. 

5. Inspector Poyle tested the. coal for thickness and moisture 

content with his hand and determined it was dry. The company inspector took no measurements and made no tests of the coal and coal dust. 

6. The accumulation of loose coal and coal dust ranged in 

depth from 4 inches to 2-1/2 feet. Inspector Poyle measured the 

depth and length of the accumulations using a 6-foot rule and a 

25-foot tape. 

7. Inspector Poyle indicated in his underground notes, but not 

in his order, that the "belt rollers" were stuck. The ends of the 

belt were frayed and the strands of the belt were getting caught 

in the rollers. 

8. At the point where the stage loader joined the face conveyor, 

about 20 feet from the first accumulation, Inspector Poyle observed 

another accumulation of loose coal and coal dust--ranging in depth 

from 6 inches to 3 feet for a distance of about 20 feet, with a maximum height of about 3 feet. The coal was rather damp at this location, probably because of the water sprays on the shearing equipment, 

and it was somewhat larger in size. There was also coal dust on the 

stage loader. 

1853 
9. Inspector Cantini rejoined the group at this point where 

Kupar, Swarrow, Poyle, and six men were standing on the opposite side 

of the belt. He observed both of the accumulations described by 

Inspector Poyle. 

10. Inspector Poyle issued a section 104(c)(l) order of withdrawal, which stated: 

There was an accumulation of loose coal and coal dust 

on the belt haulage for 53 D face (longwall) section (023) 

at the face conveyor ranging in depth from 6 inches to 

3 feet for approximately 20 feet and accumulations of loose 

coal and coal dust at the stage loader ranging in depth 

from 4 inches to 2-1/2 feet for a distance of approximately 

25 feet. The bottom belt was running in loose coal and 

~oal dust. Electrical components and power wires a source 

of ignition were near the accumulations. 

11. On November 4, 1977, this order was modified to a notice of 

violation under section 104(c)(l) of the Act because the inspector's 

supervisor determined that the necessary antecedent to a 104(c)(l) 

order, a notice of violation, had not first been issued. 

12. The longwall machine at the time of the inspection had 

160 chock-type roof supports, each one capable of supporting 400 tons 

of force against the roof. The longwall machine had a 20-ton shearing 

mechanism with cutter bits, which rip the coal from from the face. 

As the cutter moved back and forth along the face, a path of about 

30 inches of coal was mined off. At the completion of each sequence, 

the conveyor with the shearing machine would "jump" 30 inches to be 

in place for the next pass. The 160 roof supports advanced one at 

a time until the panel was mined down about 600 square feet. When 

sufficient pressure and stress on the roof were reached, the roof 

would cave in, leaving a gob area. 

13. As the coal was sheared off (at a rate of about 14 tons 

per minute), it landed on the face conveyor, which transported it 

across the face and dumped it at a 90-degree angle onto the stage 

loader, which was another chain conveyor (about 70 feet long). The 

face conveyor was attached to the tail end of the stage loader by 

a sliding bracket, allowing it to move and slide along the tailpiece. Ideally, they· were to be in direct line with each other but 

there was no piece of equipment designed to keep them aligned. 

14. Sideboards were often.placed on the stage loader to prevent 

spillage of the coal received from the face conveyor, however, 

neither mine safety standards nor company rules required sideboards 

at this location. 

1854 
15. The stage loader was in a direct line with the No. 3 belt 

conveyor, which carried coal successively to the No. 2 belt and the 

No. 1 belt, which finally discharged it into 7-ton mine cars for 

rail haulage out of the mine. 

16. Behind the cutting drum of the longwall machine there was a 

mechanism called a "cowl," which scraped all but a small percentage 

of the coal onto the face conveyor. Part of the longwall apparatus 

itself was also designed to pick up coal spillage as the machine 

advanced. 

17. Around the stage loader, where the roof was supported, 

miners shoveled up the loose coal, but because the roof ahead" of the 

chock canopy was unsupported, they.did not, as a practice, go out 

into that area to clean up what the machine had missed. 

18. At times, due to pressures and stresses in the rock, the 

roof would break and fall before the supports were advanced. When 

this occurred, pieces of rock would often be very large, sometimes 

several feet long, 25 to 30 inches wide, and 6 to 8 inches thick. 

The rocks would move down the face conveyor, and at the intersection 

with the stage loader a bridging action would occur with large pieces 

of rock bridging over the top of the stage loader and preventing the 

material from being carried away. When rocks started spilling out 

into the entry on both sides of the face conveyor and on both sides 

of the stage loader, the condition would worsen until it was noticed 

and the machinery was shut down. At this point the large pieces of 

rock would be broken up with sledge hammers, and the spillage would 

be cleaned up. 

19. Before the inspection Respondent had designed a special 

cleanup program, in addition to its MSHA approved program, specifically for the Somerset No. 60 Mine. 

20. This cleanup plan was part of a standard book developed as a 

guideline for the foremen, and was used in the level "one" training 

program. The subject of cleaning up combustible materials was part 

of weekly employee safety meetings, and part of the monthly management s.afety meetings. 

21. At the time of the inspection, there were 10 people on the 

longwall face, all of whom at sometime during the working day were 

involved in some cleanup activity. In the stage loader area, there 

were two "headgate" operators, one of whom had a primary responsibility to be at the control panel at all times. The other did 

utility-type work, including breaking rocks, shoveling, and rock 

dusting, and was generally responsible for cleaning the stage 

loader area. 

1855 
22. Ther·e were also four "utility men" on the longwall, who 

worked only on the day shift, whose primary responsibility was to 

clean around the belt conveyors of the longwall and to keep that 

area rock dusted. 

23. One of the duties of the section foreman was to keep the 

headgate operator alert, so that the very moment he saw a piece of 

rock large enough to cause a bridging effect he would shut down 

the conveyor. 

24. Routine cleanup was normally done at the end of a production shift, before the next shift began production. 

25. Before the inspector's arrival, the day foreman, Bob 

Jacobson, had arrived on the section and observed that there were 

accumulations along the belt haulage system and that no one was 

cleaning them up. He immediately instructed his men to clean up 

this condition. 

26. These accumulations should not have gone unnoticed by the 

previous shift foreman (who failed to report the condition in the 

books). 

27. After Bob Jacobson gave instructions to his men, he began 

his daily run through the mine while they went to their breakfast. 

By the time he returned, the inspector had arrived and issued the 

withdrawal order. In.spector Poyle was unaware that a cleanup assignment had been given, and that the men were on a breakfast break, when 

he arrived and when he later issued the order. 

28. When Inspector Poyle arrived on the section, the six men 

were standing around the stage loader, none of them was shoveling, 

and they complained to him about the previous shift's failure to 

clean up accumulations. 

29. ·Inspector Poyle observed the men just standing around talking, and no one appeared to be eating. 

30. Where there are accumulations of fine, dry coal _and coal 

dust, friction caused by stuck rollers could ignite the fine coal and 

propagate a mine fire. If a methane ignition occurred, the dust 

could be lifted up into the air, dried out by the heat and travel 

through the mine in a ball of fire. At the longwall, there were 

about 10 or 12 people who could have been affected immediately by an 

explosion or mine fire. 

31. Power wires, electrical components, and stuck rollers 

were possible sources of ignition or fire. 

1856 
DISCUSSION 

The conditions cited in the notice of violation were observed 

by Inspector Poyle at about 9:30 a.m., shortly after the day shift 

had arrived on the section. The belt was being run intermittently, 

in an apparent effort to correct a problem. The inspectors testified 

that the accumulations described in the notice had existed at least 

from the previous shift, and possibly had been allowed to build up 

over a longer period. 

Respondent's defense that friction between the section crews 

resulted in the refusal by the day shift to clean up accumulations 

left by the previous shift must be rejected. It· is the responsibility of the Respondent to prevent the accumulation of substantial 

quantities of loose coal and coal dust, and to oversee its employees 

to see that this is done whether or not there is friction between 

crews. Moreover, there is no solid evidence supporting Respondent's 

speculation that the failure to clean up the accumulations was the 

result of friction between the crews. 

Respondent's explanation that the accumulation at the face 

conveyor-stage loader juncture was caused by unusual rock conditions 

encountered during the longwall operations is also rejected. Both 

inspectors testified that they observed no large pieces or rock. 

This observation supports the inspectors' expert opinion that 

this accumulation was due to the failure to control spillage as the 

coal came off the pan line onto the stage loader. Inspector Poyle 

testified that no side boards were provided and. that the stage loader 

was not lined up properly to catch the coal as it came off the 

pan line. Even if were assumed that large rock pieces might have 

caused the accumulations, the evidence plainly shows that Respondent 

al.lowed sizeable accumulations as described in the notice to build 

up over a period of time and not to be cleaned up from one shift 

to another. In addition, the explanation concerning unusual rock 

conditions is not relevant to the unwarranted accumulation found 

along the stage loader-belt No. 3 site. 

CONCLUSIONS OF LAW 

1. The undersigned judge has jurisdiction over the parties and 

the subject matter of the above proceeding. 

2. Respondent violated 30 CFR 75.400 by allowing accumulations 

of loose coal and coal dust as alleged in the Notice of Violation. 

3. Based upon the statutory criteria for assessing a civil 

penalty for a violation of a mandatory safety standard, Respondent 

is assessed a penalty of $1,000 for the above violation., 

1857 
WHEREFORE IT IS ORDERED that Bethlehem Mines Corporation shall 

pay the Secretary of Labor the assessed civil penalty, in the amount 

of $1,000, within 40 days from the date of this decision. 

Distibution: 

Leo J. McGinn, Esq., Trial Attorney, Office of the Solicitor, 

Division of Mine Safety and Health, U.S. Department of Labor, 

4015 Wilson Blvd., Arlington, VA 22203 

T. W. Ehrke, E-sq., Room 1871 Martin Tower, Bethlehem, PA 

18016 (Certified Mail) 

1858 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 · 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. HOPE 79-72-P 

A.C. No. 46-01477-03003 

v. 

SEWELL COAL COMPANY, 

Docket No. HOPE 79-73-P 

A.c. No. 46-01477-03004 

Appearances: 

Before: 

Respondent .,_,: 

: Docket No. HOPE 79-~4-P 

A.C. No. 46-01477-03005 

Docket No. HOPE 79-114-P 

A.c. No. 46-01477-03006V 

Docket No. HOPE 79-115-P 

A.C. No. 46-01477-03008 

Docket No. HOPE 79-147-P 

A.C. No. 46~01477-03010 

'Docket No. HOPE 79-148-P 

A.c. No. 46-01477-03012 

Docket No. HOPE 79-149-P 

A.c. No 46-01477-03016 

Sewell No. 4 Mine 

DECISION AND ORDER APPROVING 

SETTLEMENT OF CIVIL PENALTY PROCEEDINGS 

Stephen P. Kramer, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Gary w. Callahan, Esq., Lebanon, Virginia, for 

Respondent. 

Administrative Law Judge Michels. 

These proceedings were brought pursuant to section llO(a) of 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a). 

The petitions for assessment of civil penalties were filed by the 

1859 
Mine Safety and Health Administration on October 17, 1978, November 9, 

1978, and December 13, 1978. Thereafter, answers were filed by the 

Respondent. A hearing was held on October 9, 1979, in Charleston, 

West Virginia, at which both parties were represented by counsel. 

Evidence was received on Citation No. 44827 (June 19, 1978), 

which is docketed in HOPE 79-149-P (Tr. 4-92). After the conclusion 

~f the taking of evidence on this citation, the parties advised the 

court that they had agreed to a settlement of all the citations in 

all of the dockets, including the citation upon which evidence had 

been taken (Tr. 92). The settlement, it was stated, computed out to 

75 percent of the proposed assessment (Tr. 92). 

Upon questioning from the bench, the parties placed the following general representations on the record as to the justification 

for the settlement: 

MR. KRAMER: Well, Your Honor, one of the areas, 

of course, as you are aware, I think, it's approximately 

thirteen violations in this case that involves sanding 

devices and many of those are assessed -- they're just 

common citations assessed at as much as eight hundred 

dollars. And being realistic about it I wouldn't expect 

Your Honor to assess anything approaching that high an 

assessment on those particular citations. 

I would expect violations to range more in the 

four to five hundred dollar range. So I would expect 

Your Honor to reduce those. 

JUDGE MICHELS: In other words, you believe as to 

that-group which constitutes eleven Df the twenty-two 

citations that the assessment may have been excessive? 

MR. KRAMER: Yes, I do, Your Honor. 

JUDGE MICHELS: All right. Do you have any other 

reasons? 

MR~ KRAMER: There are some other individual violations which I believe fall in the same category, mostly 

which in my view are slightly overassessed. 

I believe with respect to the three withdrawal 

orders, those assessments are reasonable. I believe 

there were three withdrawal orders assessed for a total 

of a little over seven thousand dollars. I felt from 

the facts in those cases that those were pretty fair 

assessments and so those I would not prppose to reduce 

very significantly. 

1860 
.JUDGE MICHELS: Is this HOPE 79-114-P with citations 

046376, 043421, and 043461? 

MR. KRAMER: That's correct, Your Honor. 

JUDGE MICHELS: You would not reduce those 

significantly? 

MR. KRAMER: That's correct. And I think that is 

primarily my feelings on the cases, Your Honor. 

JUDGE MICHELS: Do you have anything to add to that, 

Mr. Callahan? 

MR. CALLAHAN: Your Honor, not other than my general 

feeling that a good number of these citations were overassessed. There are some factual difficulties that might 

arise during trial, if we were to try the cases involving 

sanding devices. I believe, however, there is enough 

question on both parts that we can reasonably settle these 

cases without going into those facts per se, and that a 

settlement would certainly be proper in this instance. 

(Tr. 95-97). 

Thereupon, a .decision was issued from the bench approving 

the proposed settlement, subject to the submission by Petitioner 

of more detailed information on the amounts allocated for the 

individual citations and the reasonableness of the proposed 

disposition. 

JUDGE MICHELS: Thank you very much, gentlemen. 

The sum of it is then, for the dockets, for all of 

the dockets which I previously identified for the record, 

and all of the citations therein, the parties have agreed 

to settle for seventy-five percent of the assessments 

made by the Office of Assessment. 

As Mr. Kramer has explained, certain of these citations dealing with sanding devices may have been, and 

it's his view were, overassessed and would not bear in 

all probability an assessment of that amount after a 

hearing. 

Furthermore, as I understand, Mr. Kramer would 

not reduce significantly at least those citations which 

deal with the float coal and loose dust which are in 

HOPE 79-114-P. 

1861 
Furthermor.e, Mr. Kramer will in due course submit 

a final proposed settlement in which he will allocate or 

proposes to allocate among all of the citations the 

amount agreed upon in settlement * * * [and] as to ea.ch 

of the individual citations, he will there further express 

his view as to why the settlement is fair and reasonable. 

Considering all of those circumstances, it is my 

view that the settlement proposed for all of these 

citations, including that citation which has been heard 

here today, would be fair and reasonable. 

I do not believe that it would be an undue lowering 

or lessening of the penalties. 

Accordingly, I will accept the agreement, or the 

settlement, that the parties have entered into. 

(Tr. 97-98). 

On October 24, 1979, counsel for Petitioner submitted its 

motion which allocates the total settlement in the following 

manner which is hereby incorporated as part of the agreement: 

CITATION NO. 

HOPE 79-72-P 

43415 

43416 

43418 

HOPE 79-73-P 

43436 

43437 

43438 

43439 

43443 

43446· 

HOPE 79-74-P 

43455 

43470 

HOPE 79-114-P 

46376 

43421 

43461 

STANDARD 

75.1403 

7 5.1403 

75.316 

75.1403 

75.1403 

75.1403 

75.1725(a) 

75.1403 

75.200 

75.323 

75.200 

75.400 

75.400 

75.400 

ASSESSMENT 

$ 420 

590 

395 

530 

530 

530 

530 

530 

590 

240 

470 

3,000 

1,000 

3,000 

1862 

SETTLEMENT 

$ 100 

200 

100 

400 

400 

400 

200 

300 

590 

100 

470 

3,000 

1,000 

3,000 
CITATION NO. 

HOPE 79-115-P 

44009 

HOPE 79-147-P 

44055 

HOPE 7 9-148-P 

44443 

44457 

44458 

44459 

HOPE 79-149-P 

44827 

STANDARD 

75.302-1 

75.1403 

75.1403 

75.1403 

75.1403 

75.1403 

75.11©3-l 

ASSESSMENT 

$ 420 

395 

590 

800 

800 

800 

920 . $17 ,080 

SETTLEMENT 

$ 100 

395 

400 

;oo 

300 

--.__300 

655 

$12,810 

In Hsmotion, Petitioner made the following statements with 

reference to the settlement: 

. Citation 43415 was reduced since the left inby sanding 

device and the two outby sanding devices were still operational. Thus sand could be delivered to the two left 

wheels while traveling inby and sand could be delivered 

to all 4 wheels while traveling outby. Consequently, the 

degree of gravity is small. 

Citation 43416 was reduced since it was th.e emergency 

brake which was inoperative due to low brake fluid. The 

main system was operational and the gravity was therefore 

small. 

Citation 43418 was reduced since this citation was 

based upon the fact that 2 of the water sprays had been 

intentionally plugged with wood -- apparently to increase 

the.water pressure to the other sprays. The inspector 

inferred, therefore, that the spray system could not have 

been adequately checked and, if necessary, serviced at · 

the beginning of each shift and after each cut of coal 

is mined as required by the methane and dust control plan. 

Thus, MSHA would not be able to di:r,:ectly establish negligence on the part of the Respondent other than for the 

2 sprays intentionally plugged. 

1863 
Citation Nos. 43436, 43437 and 43438 were reduced 

since the gravity of the violations does not appear to be 

as high as that assigned by the assessment off ice. 

Citation 43439 was reduced, since it was the emergency brake which was inoperative and the main braking 

system was operational. Thus the gravity was reduced. 

Citation 43443 was reduced, since only 2 of the 4 

sanding devices were inoperative and the inspector did 

not remember which they were. Thus there may have been 

an operational ~ander for each direction of travel 

reducing the gravity. 

Citation 43455 was reduced because there is some 

question of whether the condition described by the 

inspector constitutes a violation of 75.323. 

Citation 44009 was reduced because there is some 

question of whether the condition described by the 

inspector constitutes a violation of 74.302-1. 

Citation Nos. 44443, 44457, 44458 and 44459 were 

reduced, since they appear to have been over assessed 

by the assessment off ice and only 2 of the 4 sanding 

devices were defective for 44458 and 44459. 

Citation No. 44827 was reduced, since the testimony 

at the hearing seemed to indicate that the Respondent 

did make some effort to abate the v~olation within the 

time given. Thus there was not a total lack of good 

faith abatement on their part. 

Other than Citation No. 44827, the Respondent demonstrated a good faith abatement effect. Other considerations are that the Respondent is a large operation and 

has a previous history of violations. MSHA believes that 

this settlement fairly reflects the six criteria and that 

the penalties are adequate to promote future compliance. 

Respondent orally advised the court that it does not object 

to the allocations or the supporting statements made by counsel 

for MSHA. 

After considering the above, I hereby AFFIRM my approval of the 

settlements for these dockets. 

1864 
ORDER 

IT IS ORDERED that Respondent pay total penalties of $12,810 

within 30 days of the date of this decision. 

Distribution: 

Franklin P. Michels 

Administrative Law Judge 

Stephen P. Kramer, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Gary w. Callahan, Esq., Sewell Coal Company, Lebanon, VA 24277 

(Certified Mail) 

1865 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW. JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, YIRG tNIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

on behalf of Eugene Marshall, 

Applicant 

v •. 

CLINCHFIELD COAL. COMPANY, 

Respondent 

Complaint of Discrimination 

Docket No. VA 79-64-D 

·ccD 78-268) 

McClure No. 2 Mine 

RULING ON MOTION AND 

ORDER OF DISMISSAL 

This is a discrimination complaint filed by the Secretary on 

behalf of Eugene Marshall, pursuant to section 105(c)(2) of the 

Federal Mine Safety and Health Act of 1977. By order dated 

August 3, 1979, the parties were placed on notice that thi's matter 

was scheduled for hearing on October 10, 1979. The record shows 

that all parties, including the Applicant, Mr. Marshall, were 

served in a timely manner with this notification of hearing 1/. 

Thereafter, on September 7, 1979, at a telephone conference in 

which counsel for both parties participated, the Secretary's motion 

to continue the hearing date was granted and, as counsel for the parties were then advised, the hearing ~as rescheduled to begin on 

October 23, 1979. The parties were again advised of this date by my 

order dated September 21, 1979. A copy of this order was sent by certified mail to all the parties. The copy sent to Mr. Marshall was 

returned, stamped by the Postal Service "Moved, left no address." A 

copy of a subsequent order issued on October 5, and sent to 

Mr. Marshall by certified mail was also .returned by the Postal 

Servic·e stamped "Moved, left no address." 

On October 12, the Secretary filed with the undersigned a copy 

of a letter dated October 10, addressed to Mr. Marshall in which the 

Secretary outlines in detail his unsuccessful efforts to make contact 

with Mr. Marshall from September 6 until the date of the letter. 

!/ The record contains a certified mail return receipt signed by 

Mr. Marshall dated August 7, 1979, stamped "Clintwood, Virginia" 

.with the same date. 

1866 
Also, in that letter the Secretary advised Mr. Marshall that if he 

did not make contact with the Solicitor's Philadelphia Office by a 

certain date, a motion would be filed requesting that the proceeding 

be dismissed. · 

On October 19, 1979, the Secretary filed such a motion. Therein, 

the Secretary requests that the proceeding be dismissed without prejudice. As grounds for the proposed action, the motion states: 

a. Applicant's undersigned trial attorney has been 

attempting since September 6, 1979 on an almost daily 

basis, to contact the complainant in this case, 

Eugene Marshall. He has made in excess of 20 telephone 

calls to Mr. Marshall's home phone, which is not being 

answered. He has contacted District 28 of the United 

Mine Workers of America, Mr. Marshall's local post office, 

and miners at Respondent's McClure No. 2 mine. No one 

knows of Mr. Marshall's whereabouts. In addition, further 

investigation by MSHA has failed to disclose Mr. Marshall's 

whereabouts. 

b. Without the testimony of Mr. Marshall, Applicant 

can make no prima facie showing of discrimination. 

c. On October 10, 1979 Applicant's attorney mailed a 

letter to Mr. Marshall's home address informing him that 

his case would be dismissed unless he contacted the office 

of the undersigned attorneys. 

d. On October 12, 1979 the letter was returned to the 

office of the undersigned attorneys as undeliverable 

because Mr. Marshall had moved, yet had provided no forwarding address to his post office. [A copy of the envelope containing that letter was attached to the motion as 

Exhibit l.] 

e. As of October 17, 1979, Mr. Marshall has provided 

no forwarding address to his post office, and has informed 

no official of District 28 and, to Petitioner's knowledge, 

no employee of the McClure No. 2 Mine of his whereabouts. 

Thereafter, on October 29, 1979, Respondent filed a response to 

the Secretary's motion in which it simply requests that Mr. Marshall's 

complaint be dismissed with prejudice. Respondent does not advance 

any argument in support of its request. 

ORDER 

From a review of the record and filings in this proceeding, it 

is apparent that the fecretary has expended considerable effort in 

pursuing this action on Mr. Marshall's behalf. It is equally apparent that the Respondent h•s expended a considerable effort in 

1867 
preparing its defense to Mr. Marshall's claim. The record is clear 

that Mr. Marshall was on notice as to an October hearing date. 

Further, the Secretary has provided sufficient information from 

which a conclusion can be drawn that Mr. Marshall has acted in such 

a manner as to effectively negate the efforts of the Secretary to 

pursue this cause of action on his behalf. Under these circumstances, 

I conclude Mr. Marshall has had the opportunity to avail himself of 

the Commission's discrimination remedies under section 105(c)(2) and 

he has chosen not to cooperate with the Secret~ry in pursuing this 

105(c)(2) action. It would impose an unreasonable burden on the 

Respondent to dismiss this case without prejudice, thus allowing the 

Secretary to pursue this same claim on Mr. Marshall's behalf at a 

later date against Respondent. There should be, and the parties have 

a right to expect, some degree of. finality to these proceedings. 

Accordingly, under the specific facts of this.case, I hereby DISMISS 

this proceeding WITH PREJUDICE. 

Distribution: 

d~tR9itu/~ Franklin P. Michels 

Administrative Law Judge 

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

of Labor, 3535, Market Street, Room 14480, Gateway Bldg., 

Philadelphia, PA 19104 (Certified Mail) 

Gary W. Callahan, Esq., The Pittston Company Coal Group, 

Lebanon, VA 24266 (Certified Mail) 

Eugene Marshall, Route 4, Box 216, Clintwood, VA 24228 

(Certified Mail) 

1868 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

'015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

DAY MINES, INCORPORATED, 

Respondent 

Civil Penalty Proceeding 

Docket No. DENV 79-330-PM 

A.c~ No. 45-00365-05001 

Republic Unit Mine 

RULING ON MOTION 

AND 

ORDER OF--nlSMISSAL 

This is a civil penalty proceeding brought pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c~ § 820(a). On February 12, 1979, the Mine Safety and Health 

Administration (MSHA) filed a petition for the assessment of a civil 

penalty against Respondent alleging a violation of 30 CFR 57.5-50(b), 

which concerns employee exposure to excess noise. Thereafter, 

Respondent filed its answer contesting the alleged violation. In due 

course, a prehearing order was issued and the parties were given 

notice that the hearing for these matters was scheduled for the week 

of June 12, 1979. 1/ Both parties filed their responses to the prehearing order on May 21, 1979. Thereafter, on May 29, 1979, Petitioner filed its first motion to dism_iss this case stating " [ f]urther 

investigation has revealed that there is insufficient evidence to sus-

. tain a showing of a violation of the standard in question." 

On June 4, 1979, Petitioner filed a motion requesting permission 

to withdraw this motion to dismiss asserting therein that "further 

investigation has revealed that evidence. is available to. support the 

allegations in Citation No. 0034644, dated July 26, 1978." No statement in opposition or other response was filed by Respondent with 

respect to either motion. · 

· Thus, on June 29, 1979, well beyond the 10-day period for filing 

a statement in opposition, an order was issued granting Petitioner's 

motion to withdraw its earlier motion to dismiss. The parties were· 

1/ This scheduled hearing was later continued to another date. 

1869 
also advised that the case would proceed to hearing in late August 

as previously scheduled. Thereafter, an order was issued on July 23, 

1979, scheduling the hearing date for August 28, 1979, in Spokane, 

Washington. JJ 

On August 23, lg79, 5 days before the scheduled hearing date, 

Petitioner filed its second motion to dismiss this case. As grounds 

for the motion, counsel asserts: 

MSHA, through its undersigned attorneys, hereby 

states that additional review of the above-entitled 

case has indicated that there ·is insufficient evidence 

to sustain the validity of the citation issued on 

July 26, 1978. Accordingly, MSHA hereby moves to 

dismiss the petition for the assessment of civil penalty 

filed on February 12, 1979. 

Respondent filed no objection to the proposed dismissal. 

On September 5, 1979, Respondent filed a motion requesting: 

(1) an order for an offset against further penalties which may be 

asse6sed against it for alleged violations of the Act to the extent 

of costs and expenses incurred in preparing to defend this action, 

and, (2) an order prohibiting the Department of Labor from filing 

further charges involving noise violations "until it [the Department 

of Labor] can specify and. prove the feasibility of some engineering 

or administrative controls wh.ich would do as effective a job of· 

employee protection as present personal protection devices and at 

comparable cost." Respondent has supported its motion by a memorandum and an affidavit of Kenneth Schmick, Assistant Comptroller 

of Day Mines, Inc., concerning the expenditures which Respondent 

asserts it incurred in its defense against the citation which is 

the subject of this proceeding. These expenditures are broken down 

in the following way: 

Legal Cost Incurred 

w. c. Cohen Time 

Benefits 

T~ping, Xeroxing and Telephone Charges 

$2,443.94 

1,908.00 

.397 .47 

150.00 

$4,899.41 

The affidavit further asserts that $3,229.1:') of the above_ figure was 

incurred between June 1, 1979, and August 20, 1979. These dates 

approximately cover the time period between when Petitioner's two 

motions to dismiss were filed. 

2/ The record indicates that from May 17 through approximately 

August 17 the parties pursued discovery through requ~sts for admissions and interrogatories. 

1870 
On October 5, 1979, Petitioner filed a memorandum in opposition 

to Respondent's motion. Thereafter, Respondent made a further filing 

in response to Petitioner's memorandum. 

After considering the arguments and reviewing the legal precedents cited by both parties, I conclude that Respondent's motion 

should be denied. The present procedural posture of this case, along 

with numerous factual differences, removes this matter from the narrow 

sphere of cases in which the former Board of Mine Operations Appeals 

allowed or considered offsets under the 1969 Act. 3/ The main thrust 

of Respondent's argument is that facts exist in thTs case which support a conclusion that Petitioner cQntinued to prosecute under conditions which constitute bad faith. Although it is somewhat of a 

puzzle as to why Petitioner filed and then retracted its first motion 

to dismiss, there.is absolutely nothing on the record, as it presently 

exists, to lead me to believe that bad faith was involved. There is 

also no indication of wrongdoing or that this proceeding was deliberately prolonged. Because of factual differences, I do not believe 

that my decision in Climax Molybdenum Company (Applications for 

Review, DENV 79-102-M through DENV 79-105-M, August 14, 1979), is 

precedent for the requests Respondent has made. 4/ 

Under these circumstances, I hereby DENY Respondent's requests 

for an offset and for an order against the Department of Labor prohibiting it from filing further charges on noise violations except 

as it can prove some feasibility of engineering or administrative 

controls. 

ORDER 

It is hereby ORDERED that this proceeding be DISMISSED. 

d~f!~ · Franklin P. Michels 

Administrative Law Judge 

~) See, generally, North American Coal, 3. IBMA 93 (April 17,. ·1974); 

Zeigler Coal Company, 3 IBMA 366 (September 26,' 1974); North 

American Coal Corporation, 3 IBMA 515 (December 30, 1974); and 

Zeigler Coal Company, 5 IBMA 356 (DecemberJ.9, 1975). 

4/ This decision is currently before the C'ommission for review. 

Therein, I.recommended to the Commission that in the particular circumstances of that case some offset be granted against possible future 

penalties for violations. 

1871 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

'015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

•. # 

;\ '· \ 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. DENV 79-199-PM 

A.O. No. 10-00088-05002 

v. : 

Lucky Friday 

HECLA MINING COMPANY, 

·Respondent 

Appearances: 

Before: 

DECISION 

Marshall P. Salzman, Trial Attorney, Office of·the 

Solicitor, u.s. Department of Labor, San Francisco, 

California, for the petitioner; 

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

respondent. 

Judge Koutras 

Statement of the Pro.ceeding 

This is a civil penalty proceeding pursuant to section llO(a) 

of the Federal Mine Safety and Health Act of 1977, initiated by the · 

petitioner against the respondent on January 11, 1979, through· the 

filing of a petition for assessment Qf civil penalty, seeking a 

civil· penalty assessment for one alleged violation of the pr-ovisions 

of 30 CFR 50.10. Respondent filed an answer and notice of contest 

and· a hearing was held in Wallace, Idaho, on July 12, 1979 •. "The · 

parties submitted posthearing proposed findings, conclusions, ·and 

supporting briefs, and the arguments presented have been considered, 

by me in the course of this decision. 

Issues 

.. The principal issues presented in this proceeding are (l) Whether 

r.espo.ndent has violated the provisions of the Act and impleliie.n:ti~ff~"· 

regulations, as alleged in the proposal for assessment of ci-vil;•pen...;. 

alty. filed in this proceeding, and, if so, (2) the appropr.i:a:t-"e ciMi·l 

penalty should be assessed against the respondent for the al1'eged 

violation, based upon the criteria set forth in section llO(i) of 

the Act. Additional jurisdictional issues raised by the parties are 

.identified and disposed of in the course of this decision. 

1872 
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 -0f 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 

I. The Federal Mine Safety and Health Act of 1977, P.L. 95-164, 

30 u.s.,c. § 801 !:!. seq. 

2. Section llO(i) of the Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 29 CFR 2700.1 !:!. seq. 

Stipulations 

The parties stipulated that the citation was received by the 

respondent, that the respondent is a large mine operator, and that 

any civil penalty assessed in the matter will not impair respondent's 

ability to continue in business (Tr. 2-3). 

Discussion 

Citation No. 348002, July 6, 1978, 30 CFR 50.10, states as follows: 

A serious shaft accident occurred in the #2 shaft. A 

miner was critically injured June 22, 1978, and has been 

hospitalized in an intensive care unit. The accident was 

not reported to MSHA officials in the Bellevue, Washington 

Subdistrict Office, the Western District Office, or the 

24 hour answering service in Washington, DC. 

30 CFR 50.10, states as follows: 

IDilllediate Notification. 

If an accident occurs, an operator shall immediately 

contact the MSHA District or Subdistrict Office having 

jurisdiction over its mine. If an operator cannot contact 

the appropriate MSHA District or Subdistrict Office it 

shall immediately contact the MSHA Headquarters Office in 

Washington, D.C., by telephone, toll free at (202) 783-5582. 

The term "accident" is defined by 30 CFR 50.2(b)(1) through (12). 

The pertinent definition of the term here is section 50.2(h) (2) 

·which defines "accident" as: "An injury to an individual at a mine 

which has a reasonable potential to cause death." 

1873 
Petitioner's Testimony 

John T-. Langstaff, respondent's assistant personnel director, 

was called as an adverse witness by the petitioner. At the time 

the citation was issued, he was employed as Director of Safety and 

training. He is familiar with the accident which occurred on 

the afternoon of June 22, 1978, and first learned about it on the 

night of June 22, when it was reported to him by telephone by one 

of his safety men, Bert Fetter. Mr. Fetter advised him that 

Mr. Cliff Miller had been involved in an accident at the mine and 

had been taken to the East Shoshone Hospital in Silverton, some 

8 miles from the mine by a local a~bulance service• Mr. Fetter 

further advised him that Mr. Miller had sustained "a lot of facial 

marks and bruises about the face, and that his left arm was bruised 

badly", but that .Mr. Miller was conscious. Mr. Langstaff attempted 

to contact his supervisors to notify them about the accident, but 

they had already heard about the incident, but he did not know 

how they learned about it. That same evening, Mr. Langstaff called 

the hospital and spoke with a Doctor Gnaedinger, who informed him 

that Mr. Miller sustained bruised arms, cuts and bruises, and 

three fractured vertebrae, but he could not recall which vertebrae 

were fractured. The doctor advised that ''Cliff is a tough little 

guy and he is okay" (Tr. 17-21). 

Mr. Langstaff testified that 4 days later he learned that 

Mr. Miller had been moved from the Silverton Hospital to a hospital 

in Spokane some 80 miles away and that he was moved there because 

he had gotten worse the evening of June 22. He then called the 

hospital in Spokan~ to inquire about his condition, but since he was 

not a family member, the nurse with whom he spoke would release no 

information as to Mr. Miller's condition. He later spoke again with 

Mr. Fetter, and he subsequently learned about Mr. Miller's condition 

through the receipt of a doctor's report from Dr. Gnaedinger which he 

did not have with him at the hearing. In addition, he also received 

additional reports from the attending hospital doctors. Mr. Fetter 

advised him that Mr. Miller was in the intensive care unit and that 

there was a problem with internal bleeding or internal damage. At 

that time, Mr. Langstaff did not report the accident to MSHA. Thereafter, he kept track of Mr. Miller's condition through daily conversations with Mr. Fetter. He finally reported the accident to MSHA 

on Standard Form 7000-1, an accident reporting form, on June 29, 

1978. He did not report the accident when he first heard from 

Mr. Fetter that Mr. Miller was in intensive care because 5 days had 

elapsed from the time of the accident and he believed it was no 

longer immediate. At the immediate time of the accident, he did not 

believe there was a reasonable chance that death would result, and 

when he learned that the accident was serious, it was no longer 

immediate (Tr. 22-32). 

1874 
On cross-examination, Mr. Langstaff testified that during the 

week following the accident, he felt that the injuries sustained 

by Mr. Miller presented a reasonable potential for death, but this 

would have been at the end of the week when he reported the accident. He did not feel that way- earlier in the week, but only after 

Mr. Miller's condition got progressively worse. At the time he 

filed the report with MSHA, he was following his normal routine 

of waiting for doctor's reports since he likes to have all of those 

reports before sending in the MSHA report. Mr. Langstaff indicated 

that he has no medical training and believed he was entitled to 

rely on doctor's reports in these matters. He reiterated that he 

spoke with Dr. Gnaedinger on June 22, who informed him that the 

injuries were not serious at that time, ·and his attempts to· follow 

up on Mr. Miller's condition the following week were not successful 

because the hospital in Spokane would release no information 

{Tr. 32-34). 

In response to subsequent questions, Mr. Langstaff testified 

that he filed MSHA Form 7000-1 by mail, and that is his usual 

practice. He did not report the accident by telephone (Tr. 39). 

Someone from MSHA came to see him the week following the accident, 

but he could not recall whether that visit predated the mailing 

of the report. As a matter of course, he relies on the doctor's 

opinion to determine whether or not an accident has occurred 

(Tr. 40). 

Milbert Fetter, testified that in June 1978, he was employed 

by respondent as a safety man. He learned about the accident by a 

telephone call on June 22, while at home. He went directly to the 

hospital and spoke with Dr. Gnaedinger who advised him that after 

examining Mr. Miller, his left arm looked bad, but was not broken, 

and that his injuries were not serious. He then reported this to 

Mr. Langstaff, and the next day learn~d that Mr. Miller had been 

transferred to the hospital in Spokane, and he went there to visit 

him on Sunday where he spoke with some nurses who reported that 

he was "fine." The following Tuesday he visited the hospital 

again, and Mr. Miller's wife told him that Mr. Miller had taken 

a "turn for the worse." He called Mr. Langstaff the next day, on 

a Wednesday and informed him that Mr. Miller's condition was 

getting worse, but he did not know how serious he was (Tr. 40-44). 

On cross-examination, Mr. Fetter testified that the accident 

happened after he and Mr. Langstaff's normal duty hours and that 

is why he was at home. Part of his duties do not include notifying MSHA about accidents, and he took an interest in Mr. Miller's 

condition because he is his cousin. He was at the hospital when 

they brought Mr. Miller in and the doctor advised him that "Cliff's 

tough, he is young. The arm and the knot on his head and his 

back. There is a problem. He will come out of it okay." He 

observed Mr. Miller at the hospital and spoke with him, and Mr. Miller 

complained about a sore arm and back. Dr. Gnaedinger came back to 

1875 
see Mr. Miller two times the evening of June 22, and the doctor 

never advised him that Mr. Miller was in critical condition and 

did not indicate that he had taken a turn for the worse, nor did he 

express concern that there was a reasonable potential for death 

(Tr. 45-47). 

On redirect, Mr. Fetter testified that he first learned that 

Mr. Miller was in the hospital the Saturday following the accident, 

but did not learn why. He called Mr. Langstaff either the following 

Monday or Tuesday, and he did so because it is his duty to report 

on the condition of personnel (Tr. 48). Mr. Miller's injuries were 

not fatal (Tr. 49). . 

Jurisdictional Arguments Made Orally at the Hearing 

During the course of the hearing, respondent's counsel moved 

for dismissal of the case for lack of jurisdiction. In support 

of his motion, counsel pointed out that the reporting requirements 

of Part 50 became effective on January 1, 1978, 42 Fed. Reg. 65534, 

December 30, 1977. The accident in question occurred on June 22, 

1978, and the citation was issued on July 6, 1978. However, counsel 

argu~s that at the time of the passage of the 1977 Amendments to the 

1969 Coal Mine Health and Safety Act, section 50.10 was not a mandatory standard and therefore did not become a mandatory standard 

upon enactment of the 1977 Act. Since section 50.10 was not a 

mandatory standard in effect on November 9, 1977, the date of 

enactment of the 1977 Amendments, counsel argues that it was not 

an effective mandatory standard subject to MSHA enforcement at the 

time the citation was issued~ In support of this argument, counsel 

cited section 30l(b)(l) of the 1977 Act, 30 u.s.c. § 96l(b)(l) 

which states as follows: 

The mandatory standards relftting to mines, issued 

by the Secretary of the Interior under the Federal Metal 

and Nonmetallic Mine Safety Act and standards and 

regulations under this chapter which are in effect on 

November 9, 1977, shall remain in effect as mandatory 

health or safety standards applicable to metal and nonmetallic mines and to coal mines respectively under this 

chapter until such time as the Secretary of Labor shall 

issue new or revised mandatory health or safety standards 

applicable to metal and nonmetallic mines and new or 

revised mandatory health or safety standards applicable 

to coal mines. [Emphasis added.] 

Respondent's jurisdictional defense was not previously raised 

by the answer filed to the petition for assessment of civil penalty. 

When asked why it had not been previously raised, counsel asserted 

that respondent had retained new counsel and that he had raised it 

at the hearing since it was his understanding that a jurisdictional 

defense could be raised at any time and was not subject to any waiver 

1876 
(Tr. 11). In view of the fact that the jurisdictional argument was 

raised for the first time at the hearing, the motion was taken under 

advisement, and while petitioner's counsel complimented respondent's 

counsel on his diligence in advancing the argument, he requested 

that I not rule on the motion from the bench in order to give him 

an opportunity to research the question and to file a posthearing 

memorandum on the question (Tr. 11). This request was granted, and 

petitioner was afforded an opportunity to file any additional 

arguments on the question (Tr. 59). However, the parties were 

afforded an opportunity to make a record on the merits of the citation in the event that the motion to dismiss was ultimately denied. 

Respondent raised a second jurisdictional argument in defense 

of the petition. Counsel argues that a·section 104(a) citation can 

only be issued for an alleged violation of a mandatory health or 

safety standard,·and that a civil penalty assessment pursuant to 

section 110 can only be levied for a violation of a mandatory 

standard. Since section 50.10 was not a duly promulgated mandatory 

standard, respondent's counsel contends that respondent cannot be 

cited for such a violation, and cannot now be subjected to a civil 

penalty assessment for the asserted violation (Tr. 12-13). 

In response to respondent's second argument; petitioner 

asserted that a citation pursuant to section 104(a) may be issued 

not only for a violation of any mandatory standard, but also for 

any violation of any rule, order, or regulation promulgated pursuant 

to the Act, and that a civil penalty under section llO(a) may be 

assessed for any violation of any other provision of the Act. 

Therefore, if it can be.said that respondent violated section 104(a), 

then respondent may be assessed a civil penalty pursuant to section llO(a) for that violation (Tr. 12-13). 

Respondent's Written Posthearing Jurisdictional Arguments 

The Regulation Containing 30 CFR 50.10 Was Not in Effect on 

November 9, 1977, the Date of Enactment of the 1977 Act. 

Respondent argues that section 30l(b)(l) of the Act, 30 u.s.c. 

§ 96l(b)(l), provides that the mandatory standards issued by the 

Secretary of the Interior under the Metal and Nonmetallic Mine 

Safety Act and the standards and regulations under the 1969 Coal 

Mine Health and Safety Act which were in effect on November 9, 1977, 

the date of enactment of the 1977 law, remained in effect as mandatory 

standards under the 1977 Act until such time as the Secretary of 

Labor issues new or revised standards. However, since the effective 

date of section 50.10 was January 1, 1978, it was not in effect on 

November 9, 1977, and therefore was not retained as an effective stan--

dard under the 1977 Act. Additionally, respondent argues that section 

50.10 was promulgated by the Department of the Interior, and not the 

Labor Department as r~quired by 30 u.s.c. § 96l(b)(l). 

1877 
The Regulation is Not a Mandatory Health or Safety Standard, 

Therefore No Civil Penalty May be Imposed for a Violation. 

Respondent concedes that a citation pursuant to section 104(a) 

of the Act may be issued for violations of mandatory health or safety 

standards, rules, orders or regulations, but maintains that it may 

only be issued in the cases of a duly promulgated mandatory standard 

pursuant to the 1977 Act and only if it is so promulgated by the 

Secretary of Labor, not the Secretary of the Interior. Since section 50.10 was not a duly promulgated mandatory standard issued 

by the Secretary of Labor pursuant to his authority under the 1977 

Act, respondent maintains that any citation issued pursuant to section 104(a) is ~nvalid. 

With respect to the proposal for assessment of civil penalty, 

respondent maintains that under section 110 of the Act, 30 u.s.c. 

§ 820, which allows the imposition of civil penalties, .there can 

be no penalty for a violation of a regulation which is not a 

mandatory health or safety regulation or a part of the Act itself. 

Since section llO(a) only allows the imposition of a civil penalty 

for a violation of a mandatory health or safety regulation or a 

violation of the Act itself, a penalty may not be imposed for 

noncompliance with section 50.10 because ·it is not a mandatory 

safety standard. Further, respondent asserts that the petitioner 

cannot be heard to argue that the regulation in question was part 

of the Act because to do so would render the "mandatory health or 

safety standard" language in section llO(a) meaningless. Also, 

respondent points out that the regulation was not issued under the 

1977 Act, but under the Mining Enforcement and Safety Administration. 

Petitioner's Jurisdictional Arguments 

Petitioner concedes that the regulations found in Part 50, 

Title 30, Code of Federal Regulations~ became effective January 1, 

1978, and that they are not mandatory health and safety standards 

as defined in section 3(1) of the 1977 Act. Petitioner argues that 

section 3(1), retained from the Coal Act of 1969, defines a mandatory 

health and safety standard to mean either the interim standards of 

Title II and III or standards promulgated pursuant to Title I. 

Part 50 was promulgated pursuant to section 508 of Title V of the Coal 

Act, 30 u.s.c. § 957, authorizing the Secretary to issue regulations 

to ~arry out any provision of the Coal Act, and sections 4 and 13 of 

the Federal Metal and Nonmetallic Mine Safety Act, formerly 30 u.s.c. 

§ 723, 732, 42 F.R. 65536. Section 508 is the general rule-making 

authority to promulgate regulations. Sections 4 and 13 of the Metal 

Act contained implied authority to promulgate necessary implementing 

regulations. By contrast, mandatory standards were required to be 

promulgated under section 101 of Title 1 of the Coal Act and section 

VI of the Metal Act. Since the Federal Mine Safety and Health Act of 

1977 has the same definition of "mandatory health or safety standard" 

(section 3(1)), and the same rule-making authorities ~s the Coal Act, 

1878 
and since under the 1977 Act all existing regulations issued 

under the Coal and Metal Acts are valid, the Part 50 regulations 

are valid regulations and not mandatory standards. Further, 

petitioner points out that historically, Part 50 replaced old 

parts 58 (Metal Act) and 80 (Coal Act) of Title 30, Code of Federal 

Regulations ( supplem'ental information, 42 F .R. 65534), and that 

Pa.rts '58 and 80 were promulgated under the same rule-making 

authorities as Part 50 and were, accordingly, promulgated as 

regulations and not mandatory standards (see 37 F.R. 24151; 

35 F.R. 19999). 

Petitioner argues that respondent's reliance on the transfer. 

provisions of section 30l(b )( 1) is·. misplaced. In support of this 

argument, it is.argued that 30 u.s.c. § ·96l(b)(l) deals with 

standards, even though the word "regulations" is used at one point. 

Even there, however, petitioner points out that the context clearly 

implies safety and health standards and that this section of the 

Act was designed to refer to the transfer of standards. Petitioner·· 

believes that the controlling provision dealing with the transfer 

of regulations is section 30l(c)(2), which provides in pertinent 

part "All drders, decisions, determinations, rules, regulations * * * 

(A) which have been issued, made, granted or allowed to become 

effective in the exercise of functions which are transferred under 

this section * * * and (B) which are in effect at the time this 

section takes effect [March 9, 1978] shall continue in effect according to their terms until modified, terminated, set aside * * * by _the 

Secretary of Labor, the Federal Mine'Safety and Health Review Commission, or other authorized officials * * * "[Emphasis in original.] 

Thus, while petitioner views secti6n 30l(c)(2) as a broad "catch all" 

provision, it·maintains that it specifically enumerates regulations 

among the transferred matters which remain in effect and applicable 

as of March 9, 1978. And, since Part 50 are regulations and not 

standards as defined by section 3(1) of·the 1977 Act and its predecessor, section 30l(c)(2) and not (b~(l) is applicable, and by its 

very wording the regulation in question continued in effect and did 

not lia\Te' to be repromulgated by the Secretary of Labor. 

~ith respect to the impo~ition of a civil penalty for violation 

of a regulation rather than a mandatory standard, petitioner argues 

that section )04(a) provides for p~rialty assessments for violations 

of a provision of the Act and its implementing regulation which is 

not. a'. standard. Citing the language of section llO(a) which provides 

for assessment of civil penalties for violations of "any other 

provision of this Act," petitioner maintains that it is clear that 

civil penalties may be assessed for violations of any regulation, 

rule, or order as well as any mandatory health or safety standard. 

The implementation of a provision of the Act by a ·regulation involves 

an inextricable relationship, so that if a regulation is violated the 

implemented provision of the Act is also violated. Thus, the 

violation can be cited and the civil penalty assessed on that basis. 

1879 
Further, since section llO(b) refers to violations cited under 

section 104(a), an uncorrected cited violation of a regulation and 

a provision of the Act which are not mandatory standards is subject 

to section llO(b). 

Finally, petitioner points out that Part 50 implements 

sections 103(a), (j), (d) and (h) of the 1977 Act (formerly sections 103(a), 103(e), lll(a), and lll(b), respectively, of the Coal 

Act). Section 50.10 implements section 103(j) of the 1977 Act 

(formerly section 103(e) of the Coal Act), requiring an operator to 

notify MSHA in case of an accident. A violation of 30 CFR 50.10 

therefore constitutes a violation of section 103(j) of the Act. 

Respondent's Reply Brief 

In its reply brief, respondent submits that a clos~ reading of 

sections 30l(b)(l) and (c)(2) shows that what Congress intended was 

that all "mandatory" standards or regulations had to be in effect as 

of November 9, 1977, to remain effective under the Federal Mine 

Safety and Health Act of 1977 (1977 Act). Congress, in enacting 

30 u.s.c. § 96l(b)(l), recognized that under the 1977 Act penalties 

could only be assessed for violations of mandatory health or safety 

standards, or a violation of the Act itself. Recognizing this, it 

was declared that all "mandatory standards" and "standards and 

regulations under this chapter" in effect on November 9, 1977, would 

remain in effect ag-;andatory safety and health standards. Respondent asserts that had Congress intended the effect urged by petitioner, 

then it would have been unnecessary to use the language contained 

in 30 u.s.c. § 96l(b)(l), and to achieve the result petitioner 

desires, Congress would merely have stated that all mandatory health 

or safety standards in effect on November 9, 1977, shall remain in 

effect as mandatory health or safety standards. Fiom respondent's 

point of view, the effect of 30 U.S.C• § 96l(c)(2) is that all 

non-mandatory regulations which became effective in the exercise of 

functions which were transferred by the section.remain in effect. 

There is no mention of "mandatory" standards as exists under 30 u.s.c. 

§ 96l(b)(l). Also, 30 u.s.c. § 96l(c)(2) has no reference.to 

regulations "under this chapter." 

Respondent agrees with petitioner that 30 u.s.c. § 961(c)(2) 

is ·a "catch-all" provision. However, in looking at the context in 

which the word "regulations" is used in § 961(c)(2), respondent 

believes that it is referring to matters which were pending in 

individual cases before MESA during the interim period, and that 

the use of the words "orders, decisions, determinations, rules, 

regulations, permits, contracts, certificates, licenses, and 

privileges" does not indicate it is referring to substantive 

matters or mandatory standards or regulations for which penalties 

may be assessed. On the other hand, § 96l(b)(l) clearly indicates 

it is referring to mandatory standards and regulations for which 

penalties may be assessed under the 1977 Act. Respondent asserts 

1880 
that petitioner's argument that section 50.10 is mandatory and also 

transferred to MSHA under 30 u.s.c. § 96l(c)(2) is inconsistent 

because if it is mandatory, then 30 u.s.c. § 96l(b)(l) applies. 

If it is not mandatory, then 30 u.s.c. § 96l(c)(2) may apply, but 

there is no requirement of comp_liance with a regulation which is not 

mandatory. 

With regard to any penalty assessment pursuant to section 104(a), 

respondent emphasizes the fact that the citation in this case was 

issued for an alleged violation of regulation 30 CFR 50.10, and not 

statutory section 103(j), 30 u.s.c. § 813(j), and asserts that there 

could have been no citation issued for a violation of 30 u.s.c. 

§ 813(j), which merely requires notification of an accident with no 

time for such notification specified. The citation is for failure to 

notify immediately, which is only a requirement of the regulation 

and not a requirement of the Act. Moreover, 30 CFR 50.10 was not 

enacted pursuant to the Federal Mine Safety arid Health Act of 1977, 

but was enacted to implement the Federal Coal Mine Health and Safety 

Act of 1969 and the Federal Metal and Nonmetallic Mine Safety Act. 

Thus, it cannot be construed to be an implementation of specific 

provisions of the 1977 Act. Respondent argues further that the language found in section 109(a) of the 1969 Act with respect to the 

requirement that a civil penalty be assessed for a violation of a 

mandatory health or safety standard is virtually identical to the 

language contained in section llO(a) of the 1977 Act, the section 

under which petitioner is proceeding in this case. Here the injury 

to the miner was reported, which is all that is required by 30 U,S,C. 

§ 813(j). Petitioner seeks to assess a penalty for failure to report 

"immediately," which is not a requirement of the statute. Since the 

language of the 1977 Act is so identical to that of the 1969 Act, 

respondent maintains that a similar result must attach, that is, 

an operator may only be penalized for a violation of a mandatory 

health or safety standard. As stated earlier, the regulation in 

question here, is not a mandatory hea1th ot safety standard. 

With regard to petitioner's reliance on section llO(b), 

30 u.s.c. § 820(a), respondent argues that it merely underscores 

respondent's point with regard to section llO(a). Respondent emphasizes that it has been cited under section llO(a) and not llO(b), and 

the two sections contain different language in that section llO(b) 

states. that an operator who fails to correct a violation for which 

a citation "has been issued under Section 104(a)" is subject to penalties for each day the violation continues, while section llO(a) does 

not •tate that a penalty may be assessed for a 104(a) violation, but 

that a penalty may be imposed only for a violation of a mandatory 

health or safety standard or a violation of the Act itself. 

Findings and Conclusions Concerning the Jurisdictional Question 

The 1977 Act was enacted on November 9, 1977. Since section 50.10 was not promulgated as a regulation and did not become 

effective January 1, 1978, it is clear that on the date of enactment 

1881 
of the 1977 Act it was not a viable regulation promulgated pursuant 

to this. statute. Under the transfer provisions o{ section 30l(b)(l), 

all mandatory standards and regulations issued under the Metal and 

Nonmetallic Metal Act and the 1969 Coal Act, which were in effect on 

November 9, 1977, were to remain in effect until such time as the 

Secretary of Labor issues iew or revised standards. The transfer 

provisions of section 30llc)(2), which has been characterized 

as a "catch-all" provision by the parties, is in fact a savings 

provision which I believe was intended to cover all of the matters 

described therein during the interim period between enactment of the 

statute on November 9, 1977, and the effective date of the transfer 

of functions on March 9, 1978. While it is true that the statutory 

language in sect;ion 30l(c) (2), which si!Ilply states "regulations," 

is not as specific as the language relating to mandatory standards 

and regulations, as used in section 30l(b)(l), and gives rise to some 

statutory confusion as detailed in the skillful presentations and 

arguments made by counsel on both sides of the controversy, after 

careful consideration and analysis, I believe that petitioner has the 

better part of the jurisdictional argument and that its position is 

correct, and my reasons in this regard follow. 

Section 30l(c)(2) provides, inter alia, that 

"All regulations which have been issued, made, 

granted, or allowed to become effective in the exercise 

of functions which are transferred under this section 

by any department or agency, any functions of which are 

transferred by this section, and which are in effect at 

the time this section takes effect, shall continue in 

effect according to their terms until modified, terminated, 

superseded, etc., etc., by the Secretary of Labor * * *•" 

[Emphsis added.] 

I construe the use of the term regulation to include Part 50, 

Title 30, Code of Federal Regulations, and I conclude that they 

were validly promulgated by the Secretary of Interior in the 

exercise of his functions which were transferred to the Secretary 

of Labor as of March 9, 1978. The statutory accident reporting 

requirements which appeared in section 103(e) of the 1969 Coal 

Act, and section 13 of the Metal and Nonmetal Act, were the statutory requirements promulgated as mandatory regulations in Part 50, 

and· I conclude that they were in effect and applicable at the time 

the citation in question here was issued. Accordingly, I accept 

and adopt petitioner's jurisdictional arguments with respect to 

the applicability of section 50.10 as my findings and conclusions 

on this issue and reject those advanced by the respondent," including 

its motion to dismiss this case on jurisdictional grounds. 

Petitioner's Arguments on the Merits 

Petitioner asserts that there is no dispute that respondent's 

employee was injured at the mine on June 22, 1978, and that 

respondent failed to make the immediate notification required by 

1882 
section 50.10. Petitioner seeks a finding that there was a reportable 

"accident" within the meaning of section 50.10, and in support of 

its case relies on counsel's arguments made during the course of the 

hearing, where the issue was framed as follows (Tr. 50): 

THE COURT: The question in issue here is whether 

the Respondent Hecla Mining Company had knowledge of 

the extent of the injuries that Mr. Miller had, knowledge 

to the extent to conclude there was or was not a reasonable potential to cause death, imposing a duty on them to 

file a report? 

MR. SALZMAN: Yes• 

I believe the essence of petitioner's arguments and the theory 

of its case regarding the reporting requirements of section 50.10 

are set forth as follows during the colloquy appearing at pages 54-57 

of the transcript: 

THE COURT: Section 50.10, subpart (b) requires 

immediate notification to MSHA in the event--if I can 

translate accident to event--of an injury to an 

individual that has a reasonable potential to cause 

death. Once the incident occurs, the operator is 

required under this section to immediately, meaning 

pick up the phone--

MR. SALZMAN: That's correct. That was the purpose 

of my recalling Mr. Langstaff to the witness stand. 

There are two separate reporting requirements; one, 

for any kind of an injury as 50.20,,you fill out this 

form· and. send it to them, and they get it sooner or 

later. The second one we are dealing with today is the 

"immediate" pick up the phone so they can go out and 

investigate. 

THE COURT: Okay now, you have an incident 

mine. So, you have the immediate notification. 

that same incident again has to subsequently be 

1n writing within ten days. 

at a 

But 

reported 

Now, do you want to make some argument or any 

further observations? 

MR. SALZMAN: Just some brief observations. 

I think it's unfortunate that they have put. definitions on words which are contrary to the normal usage 

of the term, but they have, and that's what we are dealing with. 

1883 
But in that context I think given the restrictions 

~nd given the aims of the Act, I believe it should be 

interpreted in the broadest effect what.obviously the 

pμrpose of these reporting requirements is. 

I believe when you have an incident and people--no 

matter what the doctor may say, break a couple vertebrae, 

that is of some degree of seriousness. 

When you learn after that the person has been moved 

from one hospital to another a distance of 80 miles and 

that person the next day goes into an intensive care 

unit, I think at that time yoo hav~ the obligation to, 

that is immediately, contact MSHA. 

THE COURT: What if the fellow had a total recovery 

the next morning? Does that make a difference? 

MR. SALZMAN: After or before it was reported--to 

a reasonable potential to cause death, I believe that 

if someone--when this occurs, they have to go to the 

hospital, they are in an intensive care unit, I think 

that the operator should reasonably be required to 

assume--! think assumption of reporting given the goal 

of the statute--

THE COURT: Now, the goal of the statute is 

immediate notification so MSHA can go and investigate 

to determine what? 

MR. SALZMAN: To determine the cause of the accident, 

the condition which may or may not have been corrected. 

THE COURT: Preservation of evidence? 

MR. SALZMAN: Yes, and the prevention of another 

accident. 

THE COURT: A guy breaks a leg, and a month after 

something happens that makes it reportable; he takes 

a turn for the worse. 

For a whole month there is no requirement for 

notification to MSHA; so there is nothing MSHA could 

do in terms of investigating the cause to determine 

preventative measures, et cetera, until 30 days after 

the event, in which event the guy turns for the worse, 

and then MSHA conducts an investigation? 

* * * * * * 

1884 

* 
MR. SALZMAN: The answer to your question, second 

part of your question, even 30 days later, taking that 

hypothetical, they still have the opportunity to go 

back and investigate and look at the condition which 

may have caused this accident and do something to 

prevent--

THE COURT: In those 30 days all the evidence was 

destroyed, the mining keeps on going. 

MR. SALZMAN: May or may not. Obviously the period 

of time-- But 30 days is better than never. 

Respondent's Arguments on the Merits 

Aside from its jurisdictional arguments, respondent asserts 

that it should also prevail on the merits of the alleged violation. 

In support of its argument, respondent argues that the petitioner 

submitted no evidence to establish that the miner's injuries had a 

reasonable potential to cause death, and that the inspector who 

issued the citation did not even testify. Respondent maintains 

that it does not have employees with medical backgrounds and believes 

it i~ entitled to rely on the opinions of attending physicians as to 

whether an injury has a reasonable potential to cause death. In the 

case at hand, respondent argues that the attending physician stated 

this was not the case, and the mere fact that the miner was transferred to a Spokane, Washington, hospital was not "constructive" 

notice of injuries with a reasonable potential to cause death. 

Respondent asserts that the evidence showed that such transfers are 

routinely made for injuries which are not serious. Finally, respondent argues that the petitioner has the burden of proving that the 

injuries had a reasonable potential to cause death. Since this is a 

medical determination, and the petitioner offered no medical testimony, respondent maintains that a violation has not been established. 

Findings and Conclusions on the Merits 

The statutory requirement for reporting accidents is found 

in section 103(j) of the 1977 Act, formerly section 103(e) of 

the 1969 Act, and it states in pertinent part as follows: "In 

the event of an accident occurring in any coal or other mine, 

the operator shall notify the Secretary thereof and shall take 

appropriate measures to prevent the destruction of any evidence 

which would assist in investigating the cause or causes thereof," 

It is clear from the plain wording of the statutory language. 

that mine accidents are required to be reported to MSHA. The statute on its face places no time limitations as to when those reports 

are to be made, In this case, while the citation as issued does 

not specifically charge the respondent with failing to immediately 

notify MSHA, the narrative description does state that respondent 

1885 
failed to notify MSHA's district office or the 24-hour answering 

service in Washington, D.C., and it does cite a violation of 30 CFR 

50.10. Thus~ I believe it is clear that respondent in this case 

is charged with a violation of the regulatory provisions of 30 CFR 

50.10 for failure to immediately report the accident to MSHA by 

contacting the district or subdistrict office having jurisdiction 

over the mine or by telephoning MSHA's headquarters in Washington, 

D.C., at the toll-free telephone number listed in the regulation. 

The term "accident" is defined by section 50.2(h) (2) as "an injury 

to an individual at a mine which has a reasonable potential to 

cause death". 

The petitioner in this case has the burden of proof to estab-· 

lish that the accident which occurred on June 22, 1978, was a 

reportable accident under the cited regulation. The question of 

whether the accident in question was required to be reported 

pursuant to section 50.10 requires the petitioner to establish that 

the injuries sustained by the accident victim had a rea·sonable potential to cause death. Recognizing the "unfortunate" use of the definitional language found in section 50.2(h) (2), petitioner nevertheless argues that the reporting requirements of section 50.10 should 

be given the "broadest effect to meet the obvious purpose" of the 

reporting requirement (Tr. 55). Although the record establishes that 

the initial information given to the respondent with respect to the 

extent and seriousness of the injuries sustained by the accident victim at the time he was taken to a local hospital, the evening of 

June 22, by the attending physician only indicated that he suffered 

cuts and bruises about the arm and face and three fractured vertebrae 

but was "O.K.", petitioner maintains that when the victim was then 

moved to another hospital in Spokane, some 80 miles away, and placed 

in the intensive care unit, respondent was obligated at that time 

to immediately report the accident to MSHA on the theory that it was 

reasonable at that time to assume that the victim's injuries posed 

a reasonable potential for death, thereby meeting the regulatory 

definition of a reportable accident. In short, petitioner takes the 

position that anytime someone is placed in an intensive care unit 

it is reasonable to assume that he may die. On the facts presented 

here, while the victim apparently sustained serious injuries, they 

did not result in death and he recovered. 

The evidence adduced in this case reflects that the respondent 

was continually monitoring and receiving information concerning 

the accident victim's condition from the time he was taken to the 

first hospital and after he was transferred to the second. These 

reports were periodically made by the.respondent's safety director, 

who was also related to the accident victim, after visits to the 

hospital and conversations with the victim, doctors, and attending 

nurses. The initial conversations with the attending physician at 

the first hospital led the respondent to believe that the victim's 

inJuries were not serious and that he was "fine." However, the 

victim took a turn for the worse, and after being transferred to 

1886 
the second hospital, while the initial reports from the nurses 

indicated that he was "fine," the victim's condition had gotten 

progressively worse and there were "problems" with internal bleeding 

and internal damage. At no time during the victim's initial hospitalization did the d9ctor indicate that there was reason to believe 

that he would die, and Mr. Langstaff, the company official responsible 

for reporting accidents to MSHA, testified that during the week 

following the accident he had no medical basis for determining that 

the victim's injuries were such as to allow him to conclude that 

they could potentially lead to death. He indicated that he followed 

his usual practice of awaiting the receipt of official medical 

reports or doctor's opinions before deciding whether to report the 

accident. Sine~ 5 days or so had elapse~ from the date of the 

accident until he learned through conversations with his safety 

director that the victim's condition was actually worse than 

initially reiJorted, the "immediacy" of the reporting requirement 

had long passed and he saw no reason to file a telephone accident 

report at the precise moment the victim was placed in intensive 

care because at that time he had no official medical reports which 

would indicate that there was a reasonable expectation of death 

as a result of the injuries. Since he has no medical training, 

Mr. Langstaff took the position that he had to rely on the information being supplied to him by his safety director who kept almost 

daily contact with the hospital in an effort to obtain information 

concerning the victim's condition. Mr. Langstaff finally reported 

the accident on June 29, by executing a standard MSHA accident 

reporting form used for that purpose, and he apparently did so in 

compliance with the requirements of section 50.20, which requires 

that such forms be submitted within 10 days of an accident. 

Respondent's defense to the citation in this case rests on its 

belief that the petitioner presented no credible evidence to support 

the assertion that injuries sustained by the accident victim had a 

reasonable potential to cause death. "Since respondent employs no one 

with medical backgrounds, the argument is made that it is entitled 

to rely on the opinions of the attending physicians, as passed on 

to its safety director who made inquiries concerning the condition 

of the accident victim as to whether the injuries posed a reasonable 

potential for death. Since all of the information then available 

to the respondent indicated that they did not, then respondent 

maintains that at that point in time, the accident was not required 

to be immediately reported to MSHA. Since the question of whether 

any injuries sustained in an accident had a reasonable potential 

to cause death is necessarily a medical determination, and since 

petitioner offered no medical testimony to support its assertion 

that the accident was in fact of the type required by the regulatory 

definition of an "accident" to be reported immediately to MSHA, 

respondent asserts that petitioner has failed to establish a violation 

of section 50.10. Further, respondent maintains that the mere fact 

that the injured miner was transferred to an intensive care unit 

of the second hospital was not "constructive 11 notice of injuries 

with a reasonable potential to cause death. 

1887 
Ibeliev-e that the language of section 50.10 requiring the 

immediate reporting of an accident makes it clear that such accidents 

are to be reported as they occur. by either contacting MSHA's local 

district office or by telephone call to to the toll-free number 

listed therein. The types of reportable "accidents" required to be 

reported are enumerated by definition in sections 50.2(h)(l) through 

(12). The particular type of accident at issue here is covered 

by subsection (h)(2), and in my view the definitional language 

leaves much to the imagination since reasonable laymen may differ 

as to whether any injury sustained by a person in a mine accident 

was such as to require it to be reported. Petitioner's counsel 

candidly recognized the "unfortunate" definitional language, but 

I take the regulatory language as I £ind it, and the fact that 

MSHA finds the prospect of being forced to present medical evidence 

to support a case bottomed on this section of its reporting regulation to be cumbersome is irrelevant. MSHA has the burden of proof in 

this proceeding and it must establish that the accident in question 

was reportable within the framework of its own definitional standard. 

That is, MSHA must establish as a matter of fact by a preponderance 

of credible evidence that the injuries sustained by the accident 

victim in this case had a reasonable potential to cause death. Once 

that is established, it·must then prove that the accident was not 

reported immediately thereafter. 

On the evidence presented in this case, I reject MSHA's attempt 

to establish that the injuries sustained by the accident victim 

in this case were in fact such as to raise a reasonable potential 

for death either at the time of the accident when the victim was 

taken to a local hospital, or the next day when he was transferred 

to the second hospital, solely on the basis of the fact that he was 

placed in intensive care, and that on that day respondent was required 

to report the accident pursuant to section 50.10, by contacting the 

district office or making a telephone call to Washington, D.C. I find 

that respondent acted reasonably .in the circumstances, and that once 

it was informed later in the week that the accident victim's condition had worsened when it learned that he had internal injuries, the 

accident was duly reported by Mr. Langstaff by means of the filing of 

an MSHA report form used for such purposes. Although it can be 

argued that the respondent failed to immediately use the telephone 

or contact MSHA's district office when it finally became apparent, 

4 or 5 days after the accident, that the victim's condition was far 

more serious than initially believed, the thrust of the citation and 

petitioner's case is the assertion that no immediate notification was 

made either at the time of the accident or at the time the victim was 

placed in intensive care. In these circumstances, I find that MSHA 

has failed to establish that the accident in question was in fact a 

reportable accident within the meaning of section 50.10. Accordingly, 

the citation is VACATED and this case is DISMISSED • 

.. /.(~ .J.~outras .. £~ Administrative Law Judge 

1888 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE Of ADMINISTRATIVE LAW JUDGES 

"015 WILSON BOULEVARD 

ARLIN.GTON, VIRGIN.IA 22203 

REPUBLIC STEEL.CORPORATION, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION .(MSHA), 

Respondent 

UNITED MINE WORKERS OF AMERICA, 

Respondent 

Application for Review 

Docket No. PITT 78-459 

:· Order No. 236422 

September 5, 1978 

Banning Mine 

DECISION 

.Appearances: Bronius K. Taoras, Esq., Republic Steel Corporation, 

Uniontown, Pennsy~vania, for Applicant; 

Before: 

John H. O'Donnell, Esq., U.S. Department of Labor, 

Arlington, Virginia, for Respondent. 

Judge Forrest E. Stewart 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Republic Stee~ Corporation (Applicant) filed a timely application 

for review pursuant to section 105(d).of the Federal Mine Safety and 

Health Act of 1977 (hereinafter, the Act), 30 U .S.C. § 801 et ~·, 

requesting review of Order No. 236422, issued September 5, 1978. A 

hearing on the merits was conducted on April 19 and 20, 1979, in 

Pittsburgh, Pennsylvania. Applicant called two witnesses and introduced two exhibits. Respondent called three witnesses and introduced 

nine exhibits. The United Mine Workers of America failed to make an 

appearance. At the conclusion of the. hearing, the parties elected 

not to submit posthearing briefs. 

On August 18, 1978, inspector James Cirffrey conducted a regular 

inspection of the Banning Mine, 6 North Working Section. At that 

time, he observed what he believed to be a violation of 30 CFR 

75.1707. The inspector discussed the matter with his supervisor and 

thereafter, on August 22, 1978, he issued 104(a) Citation No. 236119. 

He described the condition or practice at issue as follows: 

1889 
The escapeway ventilated with intake air was not separated from the belt and trolley haulage entries of the mine 

for the entire length of the entries developed since March 30, 

·1970 to the beginning of the 6 North (009) working section. 

The Secretary or his authorized representative has not permitted such separation to be extended for a greater or 

lesser distance in the 6 North working section. Coal mined 

at the face by the continuous miner, innnediately dumps onto 

mine floor and loaded into #22 shuttle car by conventional 

loading machine was transported about 230 feet by #22 

shuttle car, transferred (piggy-back) from #22 shuttle 

car into #17 shuttle car and transported about 240 feet by 

No. 17 shuttle car, transferred (discharged) from #17 shuttle 

car into if18 shuttle car, then transported about 430 feet by 

#18 shuttle car and transferred (discharged) onto belt conveyor tail piece (about 900 feet total travel distance with 

2 intermediate loading (transfer) (discharge point.s). The 

escapeway entry ventilated with intake air, belt conveyor 

entry and trolley haulage entry were not separated by any 

ventilation control inby the belt tail piece or inby the end 

of energized trolley wire. An energized trolley feeder-wire 

(+l MCM, 600 volts) was extended about 600 feet from end of 

bare trolley wire & terminated about 230 feet from pillar 

being mined. Insulation was stripped from the feeder wire 

at 14 or more locations to provide nipping stations for DC 

electrically operated gathering pumps, shuttle cars, loading machines, continuous miners and other equipment. 

The inspector originally specified that the condition was to be 

abated by 9 a.m., on August 29, 1978, but thereafter extended the 

termination due date to 4 p.m., September 5, 1978. At that time, 

four of the five necessary stoppings had been constructed. Approximately 75 percent of the fifth stopping had been completed. Because 

of the operator's failure to correct the condition within the time 

set for abatement, the inspector issued 104(b) Order of Withdrawal 

No. 236422 on September 5, 1978. The inspector described the 

pertinent condition or practice as follows: 

Insufficient efforts were made by operator to assure 

that escapeway required to be ventilated with intake air 

was separated from belt and trolley haulage entries of the 

mine for entire length of such entrie$ developed since 

.March 30, 1970 to the beginning.of the 6 North (009) working section. About 40 concrete blocks are needed to be 

installed to complete permanent-type stoppings to provide 

separation to a point inby (ss 0+89.53), most inby surge 

(piggy-back) point where #17 shuttle car which hauled coal 

loaded by conventional loading machine dumped the cargo 

into #18 surge car which then.hauled the coal to the belt 

tail. 

1890 
The parties are in essential agreement as to the facts herein. 

The 6 North Section up to the 6 North belt tail was developed on a 

six-entry system. Entry No. 2 contained the trolley haulage.·· The 

conveyor belt was on.entry No. 3. The intake escapeway was located 

in entry No. 4. This escapeway was separated from the belt and 

trolley haulage entries up to the belt tailpiece. 

The operator was retreat mining on the 6 North Working Section. 

As noted by the inspector in Citation No. 236119, the coal was cut 

with a continuous miner, dumped onto the floor, and then transferred 

to a shuttle car. The coal was transferred to the belt by a "piggy.-

backing" procedure. The first shuttle car transported the coal a 

distance of 230 feet to a surge point where the coal was transferred 

to a second shuttle car. This car then transported the coal a distance of 240 feet to a second surge point and a third shuttle car. 

The third shuttle car then transported the coal 430 feet to the belt 

tailpiece. Applicant asserted that the working section began at the 

belt tailpiece. Respondent contended that the section began at the 

first surge point outby the face. 

Inspector Caffrey testified that the belt air was separated as 

well as could be reasonably expected from the working .section. The 

air movement within the entry could not be measured with an anemometer. The air which ventilated the face areas in the 6 North Working Section came predominantly from the trolley haulage entry. 

Approximately 25 percent of the air which ventilated the face came 

from the intake escapeway. The air from these two intake entries 

mixed and became conunon at the first crosscut to the left inby the 

belt tailpiece. The inspector issued Citation No. 236119 because 

of his concern that the intake escapeway did not extend in separated 

air up to the first surge point outby the working face. If a fire 

were to occur on the trolley haulageway ~ miners would be forced to 

travel a greater distance in air cont~minated with the by-products 

of that fire. 

Section 75.1707 1/ requires that the intake escapeway be separated from the belt and trolley haulage entries for the entire length 

of such entries to the beginning of the working section. 

1/ · 30 CFR 75.1707 reads as follows: 

- "In the case of all coal mines opened·-on or after March 30; 1970, 

and in the case of all new working sections opened on or after such 

date in mines opened prior to such date, the escapeway required by 

this section to be ventilated with intake air shall be separated from 

the belt and trolley haulage entries of the mine for the entire length 

of such entries to the beginning of each working section, except that 

the Secretary or his authorized representative may permit such separation to be extended for a greater or lesser distance so long as such 

extension does not pose a hazard to the miners." 

1891 
The term "working section" has been defined in 30 CFR 75.2(g){3) 

to mean "all areas of the coal mine from the loading point of the 

section to and including the working faces." The regulations, however, do not contain a definition of the term "loading point." Alex 

O'Rourke, an MSHA supervisory engineer, testified that the loading 

point has traditionally been considered to be the point at which 

shuttle cars dump coal into a conveyor or mine cars. "Loading point" 

is similarly defined in A Dictionary of Mining, Mineral, and Related 

Terms 2/ as that point where coal is loaded into cars or conveyors. 

Inspector Caffrey testified that industry usage of the term "car" 

included mine cars or wagons, but that he did not recall ever having 

heard the term applied to a shuttle car. Both of Applicant's witnesses also testified that a shuttle car.would not be considered a 

"car" within the meaning of this definition. On the .6 North Section, 

therefore, the belt tailpiece was the first point outby the face at 

which coal was loaded into cars or a conveyor~ If this definition 

were to be applied, the 6 North Working Section would extend from 

the tailpiece inby. 

Respondent asserted that the appropriate definition of "loading 

point" was "the place where coal is first dumped after being transported from the face area." Mr. O'Rourke testified that this had 

been accepted as policy at MSHA since 1972 or 1973. Both Mr. O'Rourke 

and Inspector Caffrey testified that MSHA had not placed this definition in writing--memo or otherwise--and that they did not know if 

it had been made available to operators. 

Coal is transported out of the Banning Mine by dumping it in the 

belt conveyor. Since trolley or truck haulage is not used for the 

conveyance of coal, the pertinent question is whether the term "load-:-

ing point" is defined as one of the places where coal is loaded on a 

shuttle car or the place where coal is loaded on the conveyor from the 

shuttle car. The first definition is·a relatively new concept used by 

the inspector which has not been published or even promulgated in writing to the inspector. The second definition is both the dictionary 

definition and the traditional definition. It is accepted as the 

definition to be used in determining the location of the loading 

point. It corresponds with the term's common usage in the industry 

and is accorded more weight than the unwritten, uncommunicated 

"policy" which the inspector attempted to apply. 

2/ The definition of "loading point" contained in the Bureau of Mine's 

A Dictionary of Mining, Mineral, and Related Terms, page 652,(1968), 

and introduced at the hearing as Applicant's Exhibit No. 2, is as 

follows: 

"a. The point where coal or ore is loaded into .cars or conveyors; 

where a conveyor discharges into m~ne cars; where a wagon o~ ferry is . 

loaded. See also transfer point. Nelson b. N. of Eng. Where coal 

is transferred from a mother gate or trunk belt conve~or into tubs. 

Trise." 

1892 
It is clear that the shuttle car is not the type of mine car or 

conveyor to which the definition refers in establishing the location 

of the loading point. A definition based on the place where a shuttle 

car might be loaded is too imprecise. The electrically permissible 

shuttle car might be'used any place in the mine, including the face. 

In the instant case, shuttle cars were loaded at the face and at two 

other places outby the face. The inspector selected the most inby of 

those surge points and attempted to define it as the loading point. 

The locations of these surge points were temporary and subject to 

frequent change. The location of each surge point would ordinarily 

depend upon the length of the trailing cable, the number of shuttle 

cars used, the progress in mining at the face, and the location of 'the 

belt tailpiece. · In addition, the size o'f the working sections would 

be appreciably reduced if it were limited to the area inby one of the 

surge points. This reduction could have a significant negative impact 

on the affect of other safety standards applicable with~n the working 

section and could possibly increase the overall hazard to the miners. 

Under the circumstances of the case, something more than unpublished 

"policy" should be required to change the traditional definition of 

cars or conveyors commonly used to determine the loading point. 

An examination of the mine map graphically illustrates that the 

belt tailpiece should be designated as the loading point. The shuttle 

car roadway does not follow No. 3 entry, in which the belt conveyor is 

located, beyond the belt tailpiece. The shuttle cars use a roadway 

perpendicular to the belt and to No. 3 entry. For all practical purposes, the haulage system in No. 3 entry stops at the belt tailpiece 

and does not intend inby beyond that point. The trolly haulageway in 

No. 2 entry extends inby only a short distance beyond the belt tailpiece which is located in No. 3 entry. The intake escapeway ran 

parallel to the belt and trolley haulage entries only to a point one 

crosscut inby the belt tailpiece. There it changed direction and ran 

parallel to the shuttle car roadway, that is, perpendicular to the 

belt. 

Section 75.1707 requires that the intake escapeway be separated 

from the belt and trolley haulage entries for the entire length of such 

entries to the beginning of the working section. It does not require 

that the intake escapeway be separated from an entirely different haulageway used by permissible shuttle cars. Both the belt entry and the 

trolley haulage entry were separated from .the intake escapeway outby 

the belt tailpiece. Since the belt tailpiece was the beginning of the 

working section, the condition cited in Order No. 236422 did not constitute a violation of 30 CFR 75.1707 as alleged. Order No. 236422 

was, therefore, improperly issued. 

1893 
'ORDER 

The application for review is GRANTED and Order No. 236422, 

issued on.September 5, 1978, is VACATED. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Bronius K. Taoras, Esq., Coal Mining Division, Republic Steel 

Corporation, Fayette National Bank Building, Uniontown, PA 

15401 (Certified Mail) 

John H. O'Donnell, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

·Joyce A. Hanula, Legal Assistant United Mine Workers of America, 

· 900 15th Street, NW., Washington, DC 20005 (Certified Mail) 

1894 
FEDERAL MINE SAFETY AND HEALTH REVIEW COi\1MISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGT,ON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

NORTH AMERICAN.COAL CORPORATION, 

Respondent 

Civil Penalty Proceedings 

Docket No. VINC 79-164-P 

A/O No. ·33-00939-03010 

Docket No. VINC 79-165-P 

A/O No. 33-00939~03011 

Powhatan No. 3 Mine 

DECISION 

Appearances: William B. Moran, Esq., Office of the Solicitor, 

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

Fred s. Souk, Esq., Crowell & Moring, Washington, 

D.C., for Respondent. 

Before: Judge Merlin 

These cases are p~titions for the assessment of civil penalties 

filed under section 110 of the Act by the Secretary of Labor, petitioner, against North American Coal Corporation, respondent. 

These cases were duly noticed for hearing and were heard as 

scheduled on November 6, 1979. At the hearing, pursuant to agreement of the parties and in accordance with the regulations, the subject docket numbers were consolidated for hearing and decision. 

Citation Nos. 285305, 285130, 285559, 280749, 280751, 280754, 281801, 

281803, 280757, 281804, 281806, 284116, 284117, 280759, 284119, 281807, 

280764, 284120, 284121, 280767, 281814, 281815, 281816 

Prior to the hearing, the Solicitor file~ a motion to approve 

settlements for the above-captioned 104(a) cit~tions. All the recommended settlements were for the originally assessed amounts in the 

total amount of $3,827. At a prehearing conference held on November 2, 

1979, I advised the Solicitor that his motion was inadequate and 

requested him to submit an amended motion at the hearing. The Solicitor subsequently presented an amended motion which set out a detailed 

explanation for each of the recommendeo settlements. After a careful 

1895 
.review of·· the Solicitor's motion, the recommended settlements for the 

originally assessed amounts for these citations were approved from the 

bench. 

Citation Nos. 280752, 280755, 281802, 280756, 281805, 284115, 280758, 

284118, 280760, 281808, 280763, 284112, 280766, 284123 

Each of these 104(a) citations alleges a violation of 30 CFR 

75.514. At the hearing, the Solicitor and the, operator introduced 

documentary exhibits and testimony with respect to these citations 

(Tr. 1-292). Upon conclusion of the t_estimony, counsel for both 

parties waived the filing of written briefs; proposed findings of 

fact, and conclusions of law. Instead, they agreed to present oral 

argument and receiv~ a decision from the bench. After considering 

the evidence and oral argument, a decision was rendered from the 

bench as follows (Tr. 292-312): 

This involves 14 citations for alleged violations of 

30 CFR 75.514. The parties have agreed to a set of joint 

stipulations admitted as Court Exhibit No. 1 which in 

setting forth all the undisputed facts in detail, recites 

a multiplicity of locations along the main track haulage 

of the subject mine where bonds were missing or loose, or 

where fish plates were missing or loose. 

30 CFR 75.514 requires, inter alia, that all electrical connections be electrically efficient. The Solicitor 

contends that this mandatory standard requires that every 

bond and fish plate be in perfect condition, i.e., that 

each and every one of them be bolted or joined where they 

are supposed to be. The operator's counsel argues on the 

other hand, that this mandatory standard does not apply 

to track haulage bonds and fish plates, and moreover, 

that even if it does, it applies to them not as individual components, but as part of a total system which must 

then be viewed in its entirety for electrical efficiency. 

After careful consideration of the parties' position 

I have concluded that the operator .is correct. I do so 

because after listening to the testimony from MSHA's own 

experts, I am convinced that MSHA has no~ properly faced 

the difficulties presented, and that the~e difficulties 

cannot be met by attempting to apply 75.514 which when 

applied as MSHA now is doing, does not solve the problem, 

but rather creates confusion and unfairness not only 

among operators but among MSHA's own personnel. 

A literal read1.ng of 75.514 could support an interpretation that each and every rail bon~ and fish plate 

is an electrical connection. However, as the operator 

1896 
has pointed out, the legislative history refers to electrical connections "in wiring." There is no reference 

in the legislative history or mandatory standard to 

track haulage or to. bonding although su~h references 

easily could have been made if this had been what 

Congress intended. Moreover, as the operator further 

points out, bonding and track haulage is dealt with 

separately in the metal and non-metal regulations. I 

recognize that the metal and non-metal regulations are 

not binding here, but by the same token I should not 

decide this case with blinders on. It is significant 

and not to be ignored that this matter is covered by a 

specific regulation in a companion situation. 

That 75.514 does not apply to this case is further 

made clear by the testimony of MSHA's own witnesses. 

This testimony pointed out that in the 1953 Code, bonding of tracks had been specifically provided for, but 

that this provision had been inadvertently left out of 

subsequent enactments. To be sure, MSHA now has bonding requirements in its inspector's manual, but it is 

hornbook law at this late date that these manuals are 

not binding on anyone outside MSHA. The former Board 

of Mine Operations Appeals so held in North American 

Coal Corporation, 3 IBMA 93 at 103-106, and in Kaiser 

Steel Corporation, 3 IBMA 489 at 498. When confronted 

with a situation where track bonding and related matters no longer were specifically covered by the statute 

or regulations, MSHA should have undertaken appropriate 

rulemaking to bring the situation under control in coal 

mines just as it did with respect to metal and non-metal 

mines. 

The solution does not lie in trying to apply 75.514. 

Quite the opposite is true. The impossibility and impracticability of applying 75.514 to this case is demonstrated 

by the subject citations. MSHA contends that 14 violations 

exist here. However, in no instance can MSHA determine the 

gravity or did it attempt to do so with respect to any of 

these violations. Nevertheless, the original assessed penalties for these violations ranged up to $170. In my view, 

$170 is a substantial penalty. Accordin~y, this type of 

approach by MSHA simply does not make sense. On the contrary, it indicates to me that the mandatory standard was 

not intended to, does not, and cannot work under these 

circumstances. 

A further problem exists with 

tions because 75.514 requires that 

tions be "electrically efficient." 

1897 

upholding these citaelectrical connecNowhere is the 
terin#"electrically efficient" defined. The Solicitor 

contends that every time a bond or fish plate is loose 

or broken it is not electrically efficient. However, 

the Solicitor's first electrical expert, an electrical 

inspector, testified that where a bond at a joint is 

loose or missing, the fish plate could be electrically 

efficient, and that conversely, where the fish plate 

is loose, the bond can be electrically eff~cient. 

Moreover, this electrical inspector testified that the 

return feeder cable here was the most efficient electrical conductor of all because of the size of its 

diameter. There is no allegation that 'there was anything wrong with the return feeder cable in this case. 

I accept this testimony from the first MSHA electrical 

expert on these points although I recognize that, as 

in some other respects, it is in conflict with testimony from MSHA's second expert. Assuming 75.514 would 

otherwise be applicable, I believe that the electrical 

connection referred to therein means the entire configuration at the joint including the rails, bonds, fish 

plates and return cable and that electrical efficiency 

cannot be determined by looking at single elements of 

the joint such as one bond or one fish plate. As the 

evidence adduced by MSHA itself makes clear, it makes 

no sense to look at these individual places because 

one by one they give no idea of any hazard from heating or arcing. Here it has been stipulated that there 

was no heating or.arcing. The testimony of MSHA's 

first expert is a sufficient basis in and of itself 

to decide that the individual joints consisting of 

bonds, rails, fish plates, and return cables were 

electrically efficient. 

In addition, I decide that the system as a whole 

should be looked at to determine electrical efficiency 

once again assuming the applicability of 75.514. I 

believe Judge Moore's decision in Knisley Coal Company 

(PITT 73-210-P), dated October 22, 1974, was correct. 

If as the Solicitor says, it is impossible for MSHA 

to test individual bonds and fish plates tor electrical 

ef~iciency, then MSHA can adopt new regulations which 

like the metal and non-metal regulations require a 

certain type of bonding at given intervals. MSHA is not 

powerless to deal with this situation. It merely wants 

to handle this matter as painlessly as possible for 

itself. 

1898 
Orie final point must be made. The testimony makes 

clear that MSHA itself does not enforce the interpretation of 75.514 it is asking me to accept in this case. 

MSHA's first expert, the electrical inspector, admitted 

that often he does not cite an individual broken bond as 

a violation. Obviously, he thinks the policy is unworkable. Plainly, from his testimony he is not alone among 

those in the field who think this way. Even more importantly, both MSHA's experts made clear that MSHA does 

not require that both rails be bonded on secondary track 

haulage roads. The reason for this is that the loads on 

secondary track haulage roads are· lighter than those on 

main track haulage roads. I recognize that the subject 

14 citations cover only the main track haulage roads. 

However, I cannot ignore the fact that if I adopted MSHA's 

position in this case, bonding on both rails on secondary 

track haulageways as well as main haulageways would be 

required although this is contrary to what MSHA actually 

does at the present time, and MSHA has never indicated 

that it will change its present policy regarding secondary 

track haulage roads. Once again, I should not and will 

not decide this case with blinders on. I can only conclude that MSHA itself does not really believe 75.514 

applies to track haulage bonds and fish plates, but is 

selectively applying this mandatory standard only where 

it wants to. The Act simply cannot be administered in 

this fashion. It is obviously illegal, patently unfair 

and makes no sense. 

To be sure, the problems regarding the electrical 

integrity and safety of track haulage systems must 

be faced. However, such problems a~e not met, and 

certainly are not solved by trying to persuade an 

administrative law judge to stretch a mandatory standard beyond its logical, sensible, historic and legal 

limits. 

The operator did not present much evidence. It 

did not have to. The utter disarray in MSHA's present 

enforcement policy in this area was manifested most 

clearly through the confusion and discom~iture of its 

own witnesses whose candor and sincerity-~nly served to 

heighten the unfortunate situation. Rule-making may be 

a long and arduous process, but I have neither the 

authority nor the inclination to substitute myself for 

it. 

In light of the foregoing, the subject citations 

are vacated, and no penalty is assessed. 

1899 
ORDER 

It is hereby ORDERED that as set forth herein, the dismissal of 

c~rtain citations from the bench be AFFIRMED and that the impo~ition _ -·

of penalties from the bench with respect to other citations, .~Ii·- is,_ '·. 

also set forth herein, be AFFIRMED. 

In accordance with the foregoing determinations, the operator is 

ORDERED to pay $3,827 within 30 days from the date of this decision. 

~~~~ Assistant Chief Administrative Law Judge 

Distribution: 

William B. Moran, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Fred s. Souk, Esq., Crowell & Moring, 1100 Connecticut Avenue, 

NW., Washington, DC 20036 (Certified Mail) 

Administrator, Coal Mine Safety and Health, U.S. Department of 

Labor 

Standard Distribution 

1900 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

KENNECOTT COPPER CORPORATION, 

Respondent 

DECISION 

Civil Penalty Proceeding 

Docket No. DENV 79-404-PM 

A/O No. 42-00176-05001 

Magna Concentrator 

Docket No. DENV 79-413-PM 

A/O No. 42-00712-05003 

Arthur Concentrator 

~ppearances: James Barkley, Esq., Office of the Solicitor, U.S. 

Department of Labor, Denver, Colorado, for Petitioner; 

F. Alan Fletcher, Esq., and James M. Elegante, Esq., 

Parsons, Behle & Latimer, Salt Lake City, Utah, for 

Respondent. 

Before: Judge Stewart 

The above-captioned civil penalty proceedings were brought pursuant to section llO(a) of the Federal Mine Safety and Health Act of 

1977 (hereinafter, the Act), 30 U.S.C. § 820(a). A hearing was held 

on these matters in Salt Lake City; Utah, on July 17, 1979. With 

regard to the violations alleged in Docket No. DENV 79-404-PM, Petitioner and Respondent each called two witnesses. At the conclusion 

of the hearing, a decision was rendered from the bench setting forth 

findings of fact and conclusions of law and assessing penalties: 

The Solicitor has indicated that there is no history 

of previous violations on the part of the operator, and I 

so find that there is no history of previous violations. 

The evidence has indicated· that the operator is a 

large corporation and that the mining operation and the 

concentrator operation are large. There is no evidence 

that the penalty requested will affect the operator's 

ability to continue in business. 

1901 
As· to citation No. 338206, the inspector alleges that 

housekeeping was needed at the head pulley and the drive 

motor of the incline belt. The evidence has amply shown 

that there were· pieces of conduit and pieces of wire in the 

area and that they could possibly constitute a tripping 

hazard. 

Both the Solicitor's witnesses and the operator's wit~ 

nesses have indicated that there was some tripping hazard. 

I find that the lighting was at least fair, and the conditions were visible. It was not likely that a person would 

trip but he would be more likely to trip in that area than 

other places. Therefore, a tripping hazard existed. 

Another reason that the hazard was somewhat unlikely 

to cause injury was the fact that this area was setdom 

used, that is, it was used only on occasion. 

I firrd that the condition, however, was obvious, that 

the operator knew or should have known of these conditions, 

and that it should have been corrected. The record establishes that the operator was negligent. 

I find that the operator demonstrated good faith in 

attempting to achieve rapid compliance after notification 

of the violation. Even though the tripping hazard is 

slight, I note that the penalty requested was only $40. 

The nature of the hazard was evidently considered in 

proposing the penalty for this violation. 

As to citation 338210, I find. that a violation did 

occur. Petitioner's inspector, $rank E. Vario, described 

the violative conditions as follows: In the electrical 

portion of the carpenter shop, the floor was saturated 

with oil and solvent and the solvent tank was uncovered. 

A cutting torch is sometimes used within about six feet. 

As to the gravity of this violation, I find that 

there was at least a slipping hazard, acknowledged by 

witnesses for both the Petitioner and the Respondent. 

It appears that the oil and the solvent did cause the 

rubber mat and the covering to be slippery. It is also 

possible that the uncovered solvent tank and the oil 

solvent on the floor could also be a fire hazard. However, I do not find sufficient evidence to show that a 

cutting torch was actually used within about six feet of 

the solvent tank. I understand the inspector to mean 

the six-foot distance to be from the solvent tank to the 

cutting torch. That is not clear, and even if it should 

be, as to the saturated oil and solvent on the floor, 

1902 
I. still find insufficient evidence to indicate that a 

cutting torch was actually used. If the torch was used 

in this area, the evidence indicates that perhaps there 

was a door which could be closed and that the area where 

the cutting occurred was outside the building. Nevertheless, there is a slight possibility of a fire hazard even 

though the use of a cutting torch has not definitely been 

established. 

As to the operator's negligence, I find that the condition was obvious and it should have been known to the 

operator, and the condition should have been corrected by 

the operator. The record establishes that the operator 

was negligent. 

I find that the operator demonstrated good faith in 

attempting to achieve rapid compliance after notification 

of a violation. There were no previous violations, the 

operator demonstrated good faith and the possibility of 

an injury as a result of these conditions was slight. 

I find that those conditions have been considered in 

arriving at a proposed penalty of $44. I therefore find 

that this small penalty in the amount of $44 is appropriate 

for the violation. 

The Respondent is therefore ordered to pay MSHA the sum 

of $84 within 30 days of the date of this citation. 

The bench decision is hereby affirmed. 

Counsel for Petitioner moved at the hearing to withdraw the 

petition for assessment of civil penalty with respect to Citation 

No. 338209 on the grounds that he lacked sufficient evidence of the 

alleged violation. The motion to withdraw Citation No. 338209 was 

granted by the administrative law judge and is affirmed at this time. 

At the c·onclusion of the hearing, the parties agreed to a settlement of the second proceeding herein, Docket No. DENV 79-413-PM. 

Counsel for Petitioner asserted the following: 

With respect to citations numbers 00336009 and 

00336010, the Respondent wishes to withdraw his Notice of 

Contest, and the parties have agreed that the penalties 

which were proposed are appropriate, although we do want 

to put evidence in the record on that. The penalty proposed for citat:!-o.n No. 00336009 is $56 and for 00336010, 

the penalty is $106. The Secretary of Labor hereby moves 

to withdraw the Petition for Assessment of Penalty for 

citation No. 00336012 and the penalty for that. 

1903 
With respect to the six statutory criteria underlying 

the proposed penalties for the two items remaining in question, the parties stipulate as follows: First of all, that 

the amount of penalties would not affect Respondent's 

ability to continue in business; secondly, as to the testimony of Mr. Pinder with respect to size will stand as to 

these two citations; thirdly, with respect to history, by 

the time these two citations were assessed, the Respondent 

had had a total of 20 assessed violations within the preceding 24 months and those arose out of seven inspection 

days. 

As to the negligence and the gravity involved in both 

of these citations, it was slight. Both of these citations 

were abated within the time set forth by the inspector, 

which would show the Respondent's good faith in complying. 

Based on those proposed criteria, we would then propose to Your Honor and the Commission that a penalty of $56 

be assessed for violation of 09 and a penalty of $106 be 

assessed for violation of 10; and, finally, that Your Honor 

grant the motion of the Secretary to withdraw the Petition 

and the underlying citation for assessment of penalty and 

vacate the citation for assessment of penalty and vacate 

the citation for the last item, the last two digits being 

12. 

Counsel for Petitioner asserted thereafter that Citation 

No. 336012 was withdrawn because of difficulties of proof. 

This settlement was approved by the administrative law judge at 

the hearing. The Respondent was ordered to pay the agreed-upon sum of 

$162 within 30 days of the date of the decision approving settlement. 

The decision approving settlement rendered at the hearing is 

hereby affirmed. 

ORDER 

It is ORDERED that the bench decision rendered in Docket No. 

DENV. 79-404-PM is hereby AFFIRMED. 

It is ORDERED that the granting of Petitioner's motion to 

withdraw Citation No. 338209 is hereby AFFIRMED. 

It is further ORDERED that the decision approving settlement in 

Docket No. DENV 79-413-PM is hereby AFFIRMED. 

1904 
If payment has not been made by Respondent as ordered at the 

hearing, it is hereby ORDERED that Respondent pay the sum of $246 

within 30 days of the date of this decision. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

James Barkley, Esq., Office of Solicitor, U.S. Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver 

CO 80294 (Certified Mail) 

James M. Elegante, Esq., and F. Alan Fletcher, Esq., Parsons, 

Behle & Latimer, 79 South State Street, P.O. Box 11898, 

Salt Lake City, UT 84147 (Certified Mail) 

1905 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5209 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, . . Civil Penalty Proceeding 

.MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

MADISON GRANITE COMPANY, 

Respondent 

. . 

Docket No. DENV 79-114-PM 

A.C. No. 02-01510-05001 

Crushed Granite Operation 

DECISION 

Appearances: 

Before: 

Malcolm R. Trifon, Esq., Office of the Solic~tor, U.S. 

Department of Labor, for Petitioner; 

W. T. Elsing, Esq., Phoenix, Arizona, for Respondent. 

Administrative Law Judge Michels 

This proceeding was brought pursuant to section llO(a) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a). The petition for 

·assessment of civil penalty was filed by MSHA on December 5, 1978, and 

a timely answer was filed thereafter by the Respondent. A hearing was held 

in Phoenix, Arizona, on September 11, 1979, at which both parties were 

represented by counsel. 

The charges concern seven citations. Evidence was received as to each 

each citation and a decision thereon was rendered from the bench. These 

decisions as they appear in the record, with certain necessary corrections 

or changes, are set forth below, seriatem. The Petitioner filed a motion 

for reconsideration of the decision in one such citation. That matter will 

be taken up under the citation involved. 

Citation No. 371248, April 12, 1978 

The following is the bench decision on this citation found at 

pages 31-j4 for the transcript: 

This decision relates to Citation Number 371248. [The] 

inspector issued a citation April 12, 1978, in which he 

charged as follows: "Guard tail pulley of stacker belt 

(reinstall guard removed for cleanup)." This condition or 

practice was charged to be a violation of 30 CFR 55.14-1. 

1906 
This particular mandatory standard reads as follows: "Gears; 

sprockets; chains; drive, head tail, and takeup pulleys; flywheels; couplings; and shafts; sawblades; fan inlets; and 

similar exposed moving machine parts which may be contacted 

by persons, and which may cause injury to persons shall be 

guarded". 

My first finding would be to the fact of the violation 

and based on the testimony I would have to find that there 

was a violation of the mandatory standard as charged. The 

inspector visited the site. He found that the guard was 

not on the particular belt pulley as required by law and, 

accordingly, there is a violation of 55.14-1 and I so find. 

I will add to that this observation: That even though -this 

particular condition was caused by the negligence of an 

employee, it is still under the law chargeable to the operator. The law as written places the full responsibility on 

the operator and these other factors are taken-into account 

only under the criteria that are considered in ·evaluating 

and deciding upon [an] appropriate penalty for the violation. So, while in. some cases it may seem rather harsh and 

perhaps technical, that is as I understand [it] the way the 

law is written, and I would really have no choice but to 

find a violation. I should also add to this and I think it 

was clear from the testimony, that it was not disputed the 

guard ·was in fact removed and not replaced. 

The criteria, some of these I will find for -- make 

the findings for this violation only and these findings 

will be applicable to the subsequent citations also, if 

atJ.Y are found to be violations. 

It was stipulated that there is no history of prior 

violations and I so find. It was stipulated that the operator has seven (7) employees who work thirteen thousand 

eight hundred and ninety-five (13,895) man hours per year. 

I have no other evidence on the size of the company and it 

seems to me that [this] represents a small operation and I 

so find. No evidence was presented as to the .operator's 

ability to continue in business. Based on an assessment 

of an appropriate penalty for this citation, I find that 

the penalty to be assessed will not affect the operator's 

ability to continue in business. 

The inspector testified that he had every reason to 

believe the violation was expeditiously corrected and I so 

find. I find that the gravity of this violation in the 

circumstances to be slight. The inspector testified that 

there is some possibility of an employee slipping into a 

1907 
pinch point in this belt pulley and being injured. Approximately three (3) employees might be affected. However, it 

was brought out and I think by both witnesses, that this 

possibility in all of the circumstances was quite remote. 

So, therefore, my finding is slightly serious. 

So far as negligence is concerned, just as a technical 

matter I would find some degree of negligence. It is, I 

think, a slight negligence because the operator has a very 

good record as indicated by the testimony of safety and it 

was also shown that this particular violation was caused 

wholly by an employee who was later discharged. Furthermore, since the~e was no foreman or other employee of the 

operator at the plant in this period to observe the lack of 

the guard, it does appear that the operator had no realopportunity to be aware of it except as a technical and 

legal concept of responsibility under the law. So therefore 

I would find only that slight degree of neglig.ence as the 

law would require here. 

The penalty assessed by the Office of Assessments in 

this case was sixty•($60.00) dollars and it seems to.me 

that in light of all the circumstances revealed at this 

hearing that [this] would be excessive •. As I indicated, the 

gravity is slight. There is little or no negligence and in 

light of the operator•'s good record of safety I look at it 

more as a - in this instanc.e and in these· circumstances as 

a technical legal violation, but as I previously indicated, 

it is necessary to -- not only to find that the operator 

is in violation but I have no choice but to assess some 

penalty. Accordingly, I will assess the 'penalty of ten 

($10.00) dollars for this citation. 

The berich decision on this citation is affirmed. 

Citation No. 371249, April 12, 1978 

'nle bench decision on this citation, found at pages 105-108 of 

the transcript follows: 

The inspector -- I'm now referring to Citation 371249 

and the inspector charged the condition or practice [as 

follows:] , "Establish a continuous ground. All motors, 

metal frames to be tied into it. Have electrician from 

registere~ contractor check your ground and write in log 

what its resistance is, and that you have an established 

ground". The mandatory standard applicable on November 30, 

1977, and therefore at the time this violation was cited 

as follows: It is 30 CFR 55.12-28. ·"Continuity and resistance of grounding systems shall be tested immediately 

1908 
after installation, repair, and modification; and annually 

thereafter. A record of the resistance measured during the 

most recent test shall be made available on a request by 

the Secretary or his duly authorized representative." 

Now I agree with Mr. Elsing that this regulation 

requires only two (2) general things; that is, the testing 

at certain specified times and a recording of those tests 

and their availability to the inspector. Applying that 

regulation to the facts here, in my view, the requirement 

that it be tested immediately after installation is not 

applicable because the operator was not subject to the law 

at the time of the installation which, based on the evidence and the reasonable inferences to be drawn therefrpm, 

was prior to March 9th, 1978. Also, there is no evidence 

that there is involved here either repair or modification, 

so therefore such times are not applicable here. The only 

phrase so far as I can see that's applicable i~ "and · 

annually thereafter" and there is a question as to its 

meaning. ·Counsel for MSHA contends it means that testing 

should have followed immediately after the law became 

effective. Counsel" for the operator, on the other hand, 

contends that it would mean one (1) year after the effective· date of the law and its applicability to this operator, which would be one (1) year from November 30, 1977, 

or November 30, 1978. 

I should interpose that there are other regulations 

which as I understand it would requ_ire proper grounding 

systems. We are here only talking about a requirement 

.which specifically and explicity requires testing and at 

certain times. I can't read into that any requirement 

that this testing take place immediately after either the 

effective date of the law or the date that it becomes 

applicable to this operator. This operator as I read this 

is required to make -- to test annually and the question 

is, from what reference point, considering the fact that 

this stand.ard was in e.ffect at the time it· became applicable to the operator. It seems to me that it would be 

logical to construe that as Mr. Elsing has argued, that 

it would be within one (1) year after its applicability 

or namely, by November 30th, 1978. 

My ruling here which I think you're already antLcLpating is with regard [to what] I consider the extreme gravity 

of the failure to test. I am absolutely sure from prior 

circumstances that this is vital for safe practice involving 

these electrical systems, to test and perhaps keep a record 

of it, but I don't think that issue is before me. 

1909 
The only issue before me is whether at the time charged the 

operator should have tested and recorded that test and my 

ruling is that since the law as made applicable to the operator did not require a testing at that particular-time, 

that there has been no violation of that standard and that 

is my finding * * *· 

Now I think this regulation does require testing immediately after installation where applicable and a year 

thereafter and if the date of installation is known,. then 

the testing would have to be within one (1) year or approximately, I suppose, a year thereafter * * * And the same 

applies for repair and modification in my view. If those 

were factors involved in the matter, as I would interpret 

it, the testing would have to be at that time and annually 

thereafter. 

In this instance, the problem has been there was no 

evidence as to the time of installation, which was the only 

time that was involved. There is no evidence as to whether 

the operator knows or does not know. I think that it would 

be a part of the burden of the MSHA to show what timespread 

it is applying here.and if it's based .on the installation, 

to show that, and so therefore my decision is based on the 

failure of proof in that regard. Accordingly, the Citation Number 371249 is vacated and the petition will be· · 

dismissed as to that citation. 

The above decision is affirmed. 

Citation No. 378006, May 5, 1978 

A.decision was rendered from the bench as to this citation, 

which will be found at pages 81-83 of the transcript. MSHA charged 

a violation of 30 CFR 55.15-2 in that the crusher operator ~as 

observed not wearing a hard hat while walking around the crusher 

area. I found in the bench decision that there was no violation 

based on the precedents of the Board of Mine Operations Appeals and 

also OSHA which hold the employer not liable in some circumstances 

for an employee's failure to wear protective clothing or other 

devices. 

On October 22, 1979, Petitioner filed a motion for reconsideration of the decision of this citation submitting that this case 

is distinguishable from the cases relied upon, decided by the 

Board. of Mine Operation Appeals and OSHA. 1/ Respondent answered 

asserting that the decision was correct and should be affirmed. 

1/ It does not appear that the rules of procedure prohibit reconsideration such as is sought here. While there is no specific provision 

on authority for reconsideration, the rules do provide that "the 

jurisdiction of the Judge terminates when his.decision has been issued 

1910 
Having reviewed the applicable cases and the Commission's recent 

interpretation thereof, it appears that my reliance on Board case precedent was misplaced. North American Coal Corporation, 3. IBMA 93 (1974), 

is the principal Board decision supporting dismissal, but it has been so 

qualified and limited that it no longer constitutes a valid precedent 

for the position taken in the decision above. Cf. Webster County Coal 

Corporation, 7 IBMA 264 (1977), and Rushton Mining Company, 8 IBMA 255 

(1978). 

Furthermore, the Commission held in United States Steel Corporation, 

Docket Nos. PITT 76-160-P and 76-162-P (September 17, 1979), that it is 

well established that under the Federal Coal Mine Health and Safety Act 

of 1969, an operator is liable for violations of mandatory health or 

safety standards without regard to fault (footnote omitted)._ In a 

_footnote the Commission observed: 

3/ U.S. Steel's argument relying on North American Coal 

Corp., 3 IBMA 93 (1974), is not persuasive. T~e rational 

of the Board's decision in North American has been limited 

to the language of the particular standard involved in that 

case, 30 CFR §75.1720. Webster County Coal Corp., supra. 

See also Ruston Mining Co., supra. The present case presentSiiO occasion to determine whether we agree with the 

Board's interpretation of 30 CFR §75.1720. 

Accordingly, I hereby amend my bench decision on this citation, 

by substituting therefor the following: 

The inspector listed the following condition or practice in his citation: "The crusher operator was observed 

not wearing his hard hat while walking around the crusher 

area." This was charged to be a violation of 30 CFR 55.15-2 

which reads: "All persons shall wear suitable hard hats 

when in or around a mine or plant where falling objects may 

create a hazard." 

The employee without a hard hat was working in an area 

in which as a matter of policy the operator required the 

wearing of hard hats (Tr. 74). The regulation, however, is 

phrased not in terms of hard hat areas but areas "where 

fn. 1 (continued) 

by the Executive Director" 29 CFR 2700.65(e). This has not yet happened. 

No problem arises here relating to review by the Commission, a matter 

which concerned the agency in Secretary of Labor v. Penn Allegh Coal 

Company, Inc., Docket No. PITT 78-97-P (January 3, 1979). This decision, 

as provided for in 2700.65(a), has not yet been reduced to writing or 

issued by the Executive Director. Furthermore, the parties have raised 

no issue on the authority of the Judge to reconsider his decision at 

this stage. 

191.l 
falling objects may create a hazard." The inspector observed 

the employee climbing down the shaker screen without a hard 

hat (Tr. 66-67). He testified that the employee had to check 

the belts underneath the shaker screen and that the employee 

was in a dangerous position part of the time. The inspector 

indicated his belief that the hazard was the material flowing 

through the conveyors and the belts (Tr. 69). There is no 

testimony from the inspector that he saw falling objects or 

even that the conditions indicated the possible presence of 

falling objects. 

The inspector stated that "if" a rock fell down, the 

employee could have gotten hurt when getting off the shaker 

screen. Mr. Madison, the plant owner, testified, however, 

that the employee does not go under the conveyor belts and 

that when coming down the ladder, he is 6 to 7 feet away from 

the conveyor belt. Mr. Madison also testified that the 

speed of the conveyor belt would allow rocks to fall only on 

the screen and that in no way could rocks fall on a man (Tr. 

73-74; R-3). This testimony was not disputed or challanged. 

Further, the inspector testified that the operator had 

operated for a long time with an excellent safety record 

(Tr. 18). 

MSHA has the burden of proof to show by a preponderance 

of the evidence, not ~nly that an employee was not wearing 

a suitable hard hat but that such employee was in or around 

a mine or plant where falling objects may create a hazard. 

MSHA has shown that no hard hat was worn, but it has not 

shown with a preponderance of the evidence that the employee 

was in an area where falling objects may create a hazard. 

I so find • !:_/ 

I do not suggest that the operator's policy of 

requiring hard hats in the screening area should be abandoned. It is a valuable precaution and possibly even a 

necessity for the protection and safety of employees. This 

matter is decided only on the ground of failure of proof; 

it is not a decision on the actual need for hard hats in 

the area concerned. 

I should also note that the circumstances in this 

instance were peculiar and will likely not be repeated. 

The operator has a policy to require everybody in the 

l:_f I recognize that the amended decision differs from my bench decision 

on the finding of whether the area was one "where falling objects may 

create a hazard." No specific finding was made on the point in the 

bench decision, and I accepted the showing that the area was a hard hat 

area as sufficient. A full review of the evidence now satisfies me that 

the finding on this question in the amended decision is the correct 

finding. 

1912 
crushing and screening area to wear hard hats (Tr. 74). Hard 

hats were available and the employee in question had one in 

his car (Tr. 69). This policy was verbally enforced by the 

superintendent or the working foreman. The employee involved 

had been warned to wear his hard hat. He had had headaches 

and was off work quite a bit. He claimed that the hard hat 

contributed to his headaches (Tr. 75). This employee had 

been given a job apparently in spite of his problems because 

he had a large family and was on relief (Tr. 71). The 

employee was discharged for his failure to comply with the 

operator's instructions (Tr. 75). 

I find no violation in Citation No. 378006 and it is hereby vacated 

and the petition dismissed as to this violation. 

I affirm my decision from the bench as amended. 

Citation Nos. 378007-378010, May 5, 1978 

A decision was rendered from the bench on these citations which 

will be found at pages 128-131, of the transcript as follows: 

Judge Michels: That then completes the evidence on 

these four (4) citations. So the decisions on the Citation Numbers 378007 through 378010 are as follows: -- this 

will be a consolidated resolution. The inspector charged 

for each of four (4) different conveyors essentially the 

same; namely, that the conveyor did not have a stop cord or 

a guard along the walkway. Three (3) of the citations 

charge that there was no guard along the walkway on either 

side of the conveyor. This condition is· charged to be a 

violation of 30 CFR 55.9-7. That regulation or mandatory 

standard requires as follows: "Unguarded conveyors with 

walkways shall be equipped with emergency stop devices or 

cords along their full length". 

The evidence on these citations which is essentially 

undisputed, is that the four (4) conveyors did not have a 

continuous ·stop cord; that is, a stop cord along the full 

length, nor were they guarded. The requirement clearly is 

that unguarded conveyors with the walkway shall be equipped 

with these emergency devices. Since the emergency devices 

were not in place I find that there was a violation in each 

.of the four (4) instances. I find a violation, in other 

words, of 30 CFR 55.9-7 for each of the citations in 

378007 through 378010. 

There are findings to be made on three (3) of the criteria, findings having already been made on the three (3) 

other criteria that are generally applicable. First, on 

the gravity or seriousness. There is a conflict to some 

1913 
extent in the testimony as to whether the conveyors are 

as safe now as they were before the installation of the 

guards. The guards were installed for purposes of abatement or to correct the alleged condition •. Based on the 

testimony of witness Herr and the picture [Respondent's 

Exhibit R 4], I suppr :e that one migh::. conclude that with 

that rail an accident could be more serious if somebody 

should put his hand under the roller. However, it seems to 

me that the rail would be instrumental, at least in1 preventing accidental instances of limbs being inserted under 

the roller. But in any event, the question of abatement 

or the correct means of guarding is not really before me. 

The real issue is whether there was a cord or not, a continuous cord, cut-off cord on an unguarded conveyor. Now 

if the conveyor is guarded then you don't need the cord and 

the abatement purpose of the guard was to replace the need 

for the cords. The operator is of course free to install 

the kind of guard, I believe, that it believes.will serve 

the purpose and prevent injury and if additional screening 

or additional guarding is necessary, that perhaps should 

be done. But as I understand it, the inspector was satisfied with the minimum type of railing· that was installed 

and accepted that and I have no reason at this time to go 

behind his judgment on accepting that as being adequate 

abatement. 

To get back to the hazard, I find from the evidence 

that there is a danger of miners working around the conveyors or perhaps walking, using the conveyors, of accidentally becoming entangled in them and becoming injured 

and, without the stop cord, having no means to stop the 

conveyor and reduce or eliminate the possible injury. 

On the question of negligence the mandatory standards 

place on operators the requirement that they know what the 

standards are and to comply with them. The lack of either 

a stop cord or the guarding in these circumstances was certainly readily observable and so therefore should have been 

known and I find some degree of negligence for the failure 

to install either the guard or the stop cord. Abatement, 

based on the evidence, was done rapidly and i~ good faith 

and I so find. 

The Assessment Officer has assessed a fine -- or proposed a fine of thirty-eight ($38.00) dollars for each of 

the four (4) violations. These proposals are not binding 

upon me, but I believe that in all the circumstances that 

would be an appropriate fine for the violation found. So 

in conclusion, therefore, a fine is assessed of thirtyeight ($38.00) dollars for each of the four (4) violations 

found in the Citations Numbers 378007 through 378010. 

1914 
I hereby affirm the above-decision in Citation Nos. 378007-

378010 except for the size of the assessments. After reading the 

transcript and reconsidering the matter, I believe that I assessed 

these citations too high since there was a low degree of negligence. 

It is true that for a clearly defined walkway, the absence of a guard 

or cord would be obvious and known or should be known. These, however, were not clearly defined walkways. They were merely the ground 

alongside the conveyors which miners used and walked along to service 

the equipment (Tr. 110-111, 115, 118). I agree that these are walkways within the meaning of that term as used in 30 CFR 55.9-7, but 

that fact may not be so clearly evident to an operator. Thus, it 

seems that a small degree of negligence is involved. Accordingly, I 

will reduce the assessments by one-half and reassess for each of 

these citations a penalty of $19. 

A summary of the dispositions in this case follows: 

Citation No. 

371248 

371249 

378006 

378007 

378008 

378009 

378010 

. IT IS ORDERED that 

within ·thirty (30) days 

Distribution: 

Action taken 

or 

Assessment 

$10 

vacated 

vacated 

19 

19 

19 

19 

$86 

Respondent pay the penalties totaling $86 

of the date of this decision. 

~~P.~ Franklin P. Michels 

Administrative Law Judge 

Malcolm R. Trifon, Esq., Office of the Solicitor, U.S. Department 

of Labor, 450 Golden Gate Avenue, 10404 Federal Building, 

San Francisco, CA94102 (Certified Mail) 

W. T. Els.ing, Esq., 34 West Monroe, Suite 202, Phoenix, AZ 

85003 (Certified Mail) 

1915 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KENTLAND-ELKHORN COAL 

CORPORATION Respondent 

Docket No. PIKE 79-44-P 

Assessment Control 

No. 15-02097-02020V 

Feds Creek No. 1 Mine 

DECISION 

Appearances: John H. O'Donnell, Esq., U.S. Department of Labor, for 

Petitioner; 

Before: 

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

·· ~spondent. 

Administrative Law Judge Steffey 

A hearing was held in the above-entitled proceeding on May 15, 1979, 

in Pikeville, Kentucky, under Section 105(d) of the Federal Mine Safety and 

Health Act of 1977 pursuant to a written notice of hearing dated April 12, 

1979. 

The proceeding involves a Petition for Assessment of Civil Penalty 

filed by MSHA on November 21, 1978, as amended on May 8, 1979, seeking 

assessment of civil penalties for alleged violations of 30 CFR 75.200 and 

30 CFR 77.506. When the hearing was convened on May 15, 1979, counsel for 

the parties stated that they had entered into a settlement agreement with 

respect to the alleged violation of Section 75.200, but that each party 

would present evidence with respect to the alleged violation of Section 

77. 506 (Tr. 3) • 

The Settlement Agreement 

Under the settlement reached with respect to the alleged violation 

of Section 75.200, respondent would pay a civil penalty of $8,000 instead of 

the penalty of $10,000 proposed by the Assessment Office (Tr. 4). 

It was stipulated that respondent is a subsidiary of The Pittston 

Company Coal Group, that the Feds Creek No. 1 Mine produces about 600 tons 

of coal daily and, at the time the order here under consideration was written, 

employed 10 miners on the surface and 145 underground. The Feds Creek Mine 

extracts coal from the Pond Creek seam which averages 60 inches in thickness 

(Tr. 4-5). Those facts support a finding that respondent is a large operator, 

is subject to the provisions of the Act, and that civil penalties in an upper 

range of magnitude are appropriate under the criterion of the size of respondent's business. In the absence of any financial evidence to the contrary, 

I find that payment of penalties will not cause respondent to discontinue 

in business. 1916 
MSHA v. Kentland-Elkhorn, Docket No. PIKE 79-44-P (Contd.) 

The settlement agreement specifically concerns a violation of Section 

75.200 alleged in Order No. 2 CC dated March 17, 1977, which stated that 

unsupported shale roof was present on the runaround on the Jackson Rowe 

Section beginning at the overcast and extending inby for a distance of 

43 feet. Two posts were the sole means of roof support (Exh. 2). 

The ·background circumstances leading up to the occurrence of the 

violation were that the track entry being used at the time Order No. 2 CC 

was written ran parallel to an old track entry which had been cut about 20 

years prior to 1977 •. Respondent had made a crosscut to connect the old and 

new track entries, but the crosscut had never been bolted. The inspector 

who wrote the order observed the mine foreman walking through the unsupported 

crosscut. The inspector also walked through the crosscut to take measurements, knowing that the crosscut was unsupported. The inspector explained 

that he had walked through the crosscut because its roof consisted of blue 

slate and that he felt the roof was perfectly safe even through it had never 

been bolted. The inspector believed that the operator's failure to support 

the roof, despite the inspector's having walked under it, was a serious and 

a very negligent violation because respondent's roof-control plan requires 

all roof to be supported and the insp~ctor claims. that respondent had had 

ample time within which to install supports (Tr. 5). 

Counsel for respondent defended the operator's failure to have installed 

supports by explaining that there was a drop in elevation between the two 

tracks and that the delay in supporting the roof was caused by the necessity 

of respondent's having to construct a ramp for the purpose of moving a roofbolting machine into the crosscut (Tr. 5-6). 

Respondent corrected the alleged violation by 11:00 a.m. of the day 

following issuance of Order No. 2 CC (Exh. 4). Therefore, I find that 

respondent demonstrated a normal good faith effort to achieve rapid compliance. 

The facts set forth above indicate that the violation was not serious 

enough to warrant imposition of a maximum penalty of $10,000. A large penalty 

is warranted on the basis of negligence because respondent succeeded in supporting the roof within a 24-hour period once the order was issued. Additionally, Exhibit 1 shows that respondent has violated Section 75.200 on 48 prior occasions. That is an unfavorable history of previous violations and requires 

that a relatively large penalty be imposed for the instant violation of 

Section 75.200. For the foregoing reasons, I find that a penalty of $8,000 

is reasonable and that the parties' settlement agreement with respect to the 

violation alleged in Order No. 2 CC dated March 17, 1977, should be approved 

as hereinafter ordered. 

The Contested Violation 

Order No. 1 VER (7-79) 4/27/77 § 77.506 (Exhibit 5) 

Findings. Section 77.506 requires that automatic circuit breakers or 

fuses of the correct type be used to protect all. electric equipment and 

circuits against short circuit and overloads. Respondent violated Section 

77.506 because a piece of heavy copper wire had been substituted for a fuse in 

1917 
MSHA v. Kentland-Elkhorn, Docket No. PIKE 79-44-P (Contd.) 

the nip which was used to obtain power from the trolley wire for the carrepair shop located on the surface of the mine. The violation was serious 

because the use in the nip of a piece of wire, instead of a proper fuse, 

destroyed short.circuit and overload protection on the power circuit which 

supplied electricity to the lights, electric heater, and electric welder in 

the shop where track haulage equipment was repaired (Tr. 11-12; 48). If a 

short circuit had occurred in the equipment used in the shop, the two men 

working there could have been exposed to shock or electrocution (Tr. 25). 

Heat generated by a short cfrcuit could also have caused electrical insulation 

to ignite and produce a fire (Tr. 31). Since the shop was. on the surface, 

a fire would have been less hazardous to the men working in the shop than 

exposure to electrical shock (Tr: 49). The gravity of the shock hazard 

was reduced by the fact that the resistors used for space heating were frame 

grounded and the frame ground would have had to have been burned in two by 

overheating before the resistors would have become a shock hazard (Tr. 47). 

The substitution of a wire for a fuse was an act of gross negligence in 

view of the fact that one of the men working in the shop had repeatedly 

tried to obtain fuses from the chief electrician and the supply shop without 

success. He had advised the supply personnel that he was substituting a 

wire for a fuse because of his inability to obtain a fuse at the shop (Tr. 89-

91; Exh. 8). 

Discussion and Conclusions. Respondent's chief electrician testified 

that he was present when the inspector found the wire in the nip during an 

inspection of the repair shop on Wednesday, April 27, 1977 (Tr. 62; 70). 

Consequently, respondent does not dispute that a violation of Section 77.506 

occurred. Respondent's defense was that the negligence associated with the 

violation was not great enough to warrant the inspector's issuance of an 

order of withdrawal under the unwarrantable failure provisions of Section 

104(c)(2) of the Federal Coal Mine Health and Safety Act of 1969. As the 

Conmiission held in MSHA v. Wolf Creek Collieries Co., Docket No. PIKE 78-70-P, 

issued March 26, 1979, 79-3-11, and in Pontiki Coal Corp. v. ~' Docket 

No. PIKE 78-402-P, issued October 25, 1978, 79-10-13, the validity of the 

order citing respondent for a violation of Section 77.506 is not an issue 

in a civil penalty proceeding arising under the 1969 Act, but it is necessary to evaluate respondent's defense in order to determine the degree of 

negligence which was associated with the violation of Section 77.506. 

Respondent's defense to MSHA's claim of gross negligence was exclusively 

based on the testimony of respondent's chief electrician who testified that 

he had held the position of respondent's chief electrician for only about 

1 month before the violation occurred. He stated that he had examined the 

circuit in the repair shop shortly after his being hired by respondent and 

that he had determined on the basis of his initial examination that the 

No. 1 cable being used to supply power in the shop. was undersized for its 

intended purpose. Therefore, on Saturday, April 23, he had replaced the No. 1 

cable in the shop with No. 4 cable. He said that he had found on Saturday 

that a wire was being used in the nip instead of a fuse and that he had removed the wire but had not inserted a fuse because no work was being done on 

Saturday and therefore no power was needed in the repair shop (Tr. 58; 64-

65). 

1918 
MSHA v. Kentland-Elkhorn, Docket No. PIKE 79-44-P (Contd.) 

The chief electrician said that he did not get to the repair shop until 

10:00 or 11:00 a.m. on the following Monday, April 25, 1977. By that time 

the two men who normally worked in the shop, Alson Thornbury and Fonso 

Hatfield, were already working. When the chief electrician examined the 

nip, he found that a wire had again been installed in the nip instead of a 

fuse. The chief electrician, at that time, replaced the wire with a fuse. 

The chief electrician said that he was, therefore, surprised when the inspector found a wire in the nip on the following Wednesday which was just 2 days 

after he had inserted a fuse in the nip (Tr. 70; 77-79). 

The inspector who wrote the order stated that if the electrician had 

explained the above-described steps which he had taken to insure that the 

power circuit in the shop was protected with adequate overload and short 

circuit protection, he would have issued a notice under Section 104(b) of 

the 1969 Act. Such a notice would have been considered to involve a lower 

degree of negligence than is usually associated with an unwarrantable failure 

order (Tr. 37-40). 

If no evidence controverting the testimony of the chief electrician 

had been introduced, the record would have supported a finding of a low degree of negligence. The inspector, however, expected that his order might 

become the subject of a hearing and therefore he took the unusual precaution 

of asking one of the shop workers, Mr. Thornbury, for a written statement of 

the facts surrounding the issuance by the inspector of the order here involved (Tr. 32; 93). That written statement was introduced as Exhibit 8 in 

this proceeding and it indicates that Mr. Thornbury admitted having substituted the piece of trolley wire for a fuse, but Mr. Thornbury said that he 

had used a wire because the fuses frequently blew and neither the chief 

electrician nor the supply house would provide him with an adequate number of 

fuses for the nip. 

Additionally, Mr. Thornbury was called as a witness and testified as 

follows: (1) He had been able to obtain only a couple of fuses from the 

chief electrician. They soon blew out because the use of the electric welder 

in the shop overloaded the circuit and blew out the 200-amp fuses which were 

the largest ones he could get (Tr. 90; 96). (2) Mr. Thornbury tried repeatedly to obtain fuses from the supply shop, but the supply shop personnel 

claimed they did not have any. In such circumstances, Mr. Thornbury said he 

was forced to substitute a wire for a fuse because he had a lot of repair 

work to do and had no other way to obtain electricity (Tr. 90-91). (3) Mt'. 

Thornbury worked in the shop for about l~ years and he said that they used 

"the same old wire 11 to supply power all the time he was there and that it 

was not replaced a short time before the inspector's order was written 

(Tr. 95-96). (4) Mr. Thornbury said a wire or a fuse was always in the nip 

when they started to work on Monday after each weekend and that he had never 

come to the shop on any Monday and found the nip inoperative because of a 

lack of either a wire or a fuse in the nip (Tr. 96). (5) Mr. Thornbury sa.id 

that he had never been told by the chief electrician to refrain from using a 

piece of trolley wire in the nip, but he said he had told the chief electrician and supply house that he was using a wire in the nip and that using a wire 

might cause trouble if it were to be discovered by an inspector (Tr. 90-91). 

1919 
MSHA v. Kentland-Elkhorn, DocKet No. PIKE 79-44-P (Contd.) 

It is obvious from the foregoing review of the conflicting testimony 

that a determination must be made as to whether Mr. Thornbury'a testimony 

should be considered as more or less credible than that of the chief electrician. I believe that the circumstances surrounding the two witnesses' 

conflicting testimony support a finding that Mr. Thornbury's testimony is more 

credible than that of the inspector. Mr. Thornbury submitted a written statement of the events associated with the inspector's issuance of the order here 

involved. Subsequently, Mr. Thornbury retired because of ill health and appeared at the hearing in response to a subpoena. His testimony at the hearing was entirely consistent with the written statement given to the inspector 

prior to the hearing. Mr. Thornbury had not been present in the hearing 

room when the chief electrician testified and had no reason to believe that 

the facts he was giving were different from those stated by the chief 

electrician. Moreover, the chief electrician stated that no reprimand or 

other disciplinary action was taken against Mr. Thornbury even though Mr. 

Thornbury had readily admitted that he had substituted the wire for a fuse 

in the nip. In such circumstances, there is no reason to believe that Mr. 

Thornbury would have testified adversely to respondent's position out of 

personal animosity toward respondent's management. 

For the reasons given above, I find that respondent's managemant was 

aware of the fact that the wire had been substituted for a fuse and had 

failed to do anything about it. 

Assessment of Penalty. It has already been found above that respondent 

is a large operator, that payment of penalties will not cause respondent to 

discontinue in business, and that respondent demonstrated a norma1 good 

faith effort to achieve rapid compliance. The violation was serious because 

it was accompanied by a potential shock hazard and a fire. The fire would 

have been on the surf ace where no one would have been exposed to a lethal 

amount of carbon monoxide or other noxious fumes. The inspector stated that 

he observed no defects in the wire supplying power to the resistors and 

welder. Additionally, the equipment in the shop was frame grounded so that 

the use of the wire in the fuse nip would have had to have been accompanied 

by a breakdown of the frame ground before anyone would have been shocked by 

coming in contact with the resistors or welder. 

The violation was the result of gross negligence because respondent had 

declined to obtain fuses as often as they were needed even though one of the 

shop repairmen had advised the chief electrician and the supply department 

that he was using a wire instead of a fuse because of their indifference 

to the fact that he needed fuses. No reason was given for respondent's 

failure to provide adequate circuits to carry the power required to operate 

both the resistors and the welder. In such circumstances, I find that respondent was grossly negligent in allowing the violation to occur. Consequently, a penalty of $4,000 will be assessed for this violation of Section 77. 506 • 

Exhibit 1 shows that respondent has violated Section 77.506 on three 

prior occasions in three different years. While that is not a significant 

previous history, it should not be ignored. Consequently, the penalty of 

$4,000 will be increased by $50 to $4,050 in view of respondent's history 

of previous violations. 

1920 
MSHA v. Kentland-Elkhorn, Docket No. PIKE 79-44-P (Contd.) 

WHEREFORE, it is ordered: 

(A) The motion for settlement made at the hearing is granted and 

the settlement agreement under which respondent has agreed to pay a penalty 

of $8,000 for the violation of Section 75.200 alleged in Order No. 2 CC (7-36) 

dated March 17, 1977, is approved. 

(B) Respondent shall, within 30 days from the date of this decision, 

pay civil penalties totaling $14,050 of which $8,000 will be attributed to 

the settlement agreement described in paragraph (A) above and the remaining 

sum of $4,050 will be allocated to the violation of Section 77.506 alleged 

in Order No. 1 VER (7-79) dated April 27, 1977. 

Richard ~c.ot~ C. Steffey~-r Administrative Law Judge 

Distribution: 

John H. O'Donnell, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Gary W. Callahan, Esq., Attorney for Kentland-Elkhorn Coal Corporation, 

Lebanon, VA 24266 (Certified Mail) 

1921 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. VINC 79-138-PM 

A.O. No. 11-01603-05002 

v. 

MM 116 Mine 

OZARK MAHONING COMPANY, 

Respondent Docket No. VINC 79-173-PM 

A.O. No. 11-01599-05001 

Barnett Mine 

DECISION 

Appearances: Miguel J. Carmona, Esq., and William Posternack, Esq., 

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

Chicago, Illinois, for Petitioner; 

M. L. Hahn and Victor Evans, Ozark Mahoning Company, 

Rosiclare, Illinois, for Respondent. 

Before: Judge Stewart 

FACTUAL AND PROCEDURAL BACKGROUND 

The above-captioned cases are civil penalty proceedings brought 

pursuant to section 110 of the Federal Mine Safety and Health Act of 

1977 (hereinafter, the Act), 30 U.S.C. § 820(a) (1978). The hearing 

in these matters was held on August 21, 1979, in Evansville, Indiana. 

Petitioner called two witnesses and introduced five exhibits. Respondent introduced nine exhibits. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The parties offered the following stipulations: 

The size of the operating company was 454,636 manhours per year. 

year. 

The size of the MM #6 Mine was 44,000 man-hours per 

year. 

The size of the Barnett Mine was 36,373 man-hours per 

1922 
Both mines are considered small. 

Respondent has a low number of past violations 

at both the MM #6 and the Barnett Mines. 

There is no indication on the record that the ability of the 

Respondent to remain in business would be adversely affected by any 

civil penalty ordered herein. 

Docket No. VINC 79-138-PM 

A single violation was alleged under this docket number. Citation No. 366255 was issued at the operator's MM #6 Mine by inspector 

Jack Lester on July 11, 1978. The inspector cited a violation of 

30 CFR 57.9-71 1/ and described the condition or practice at issue 

as follows: "Traffic rules including speed, signals and warning 

signs were not standardized and posted at the mine." The operator 

demonstrated a normal degree of good faith by correcting the condition within the time set by the inspector for abatement. 

Section 57.9-71 requires that traffic rules be posted. Petitioner established that the operator had not posted a traffic sign 

at a point where vehicles exited mine property onto a country road. 

The failure to post either a yield or stop sign was in violation of 

section 57.9-71. 

The operator was negligent in its failure to post a traffic sign. 

The absence of such a sign was visually obvious and should have been 

known to Respondent. 

It was probable that an accident would occur because of this violation. The inspector testified that the visibility of drivers exiting the mine and that of drivers on the country road was partially 

restricted by a pile of rock. As the inspector turned onto mine 

property, he met a coal haulage truck and a hazardous condition 

developed as it entered onto the country road. At least one haulage 

truck used the road each hour in exiting the mine property. 

Docket No. VINC 79-173-PM 

The four violations included under this docket number were 

alleged by inspector Jack Lester to have occurred at Respondent's 

Barnett Mine. In each instance, the inspector issued a section 

104(a) citation. 

1/ On the face of the citation, the inspector referred to 30 CFR 

57. 9-72 as the mandatory standard violated. He testified that he 

had done so inadvertently. The Office of Assessment's proposed 

assessment and the petition for assessment of civil penalty correctly 

noted that 30 CFR 57.9-71 was the standard allegedly violated. 

1923 
Citation No. 00366218 was issued on April 20, 1978. The 

inspector cited a violation of 30 CFR 57.12-82 and described the 

pertinent condition or practice as follows: "Electrical power lines 

were noted in contact with water lines at the pump station on 800 

level of the mine." The operator demonstrated a norm.al degree of 

good faith by correcting the condition within the time set by the 

inspector for abatement. 

Section 57 .12-82 requires thac power lines shall be well separated 

or insulated from waterlines. The inspector observed an energized 

480-volt power cable crossing over, and in contact with, a 4-inch 

aluminum water pipe. The outer jacket of the cable was comprised of 

neoprene and rubber insulation. This cable insulation did not fulfill 

the requirement that the power line be well separated or insulated 

from the waterline. The cable was in contact with the waterline and 

this condition was in violation of section 57.12-82. Any physical 

damage done to the insulation of the power cable could have caused 

energization of the waterline. Such physical damage could have been 

caused by a rock fall, the vibration of the pipelines, or a blow-out 

of the cable itself. 

The operator was not negligent in its failure to comply with section 57.12-82. The cable was in good condition. The inspector did 

not observe splices in it or breaks in the insulation and the line 

was equipped with a ground fault indicator system. The operator may 

have reasonably believed that the cable was sufficiently insulated to 

meet the requirements of the mandatory standard. The inspector concluded that the operator was negligent because this type of violation 

had occurred at the mine on prior occasions. The evidence of record, 

however, did not establish that the operator knew or should have known 

of this particular condition. 

It was probable that an accident would occur because of this condition. Any damage done to the cable could have energized the entire 

length of the waterline. If a person were to contact the energized 

pipeline, that person might suffer electrocution, severe burning, or 

shock. 

Citation No. 00366228 was issued on May 19, 1978. The inspector 

cited a violation of 30 CFR 57.12-82 and described the relevant condition or practice as follows: "Powerlines were in contact with air and 

water lines by 8-S-85 chute and 9-S-369 raise." The operator demonstrated a normal degree of good faith by correcting the condition 

within the time specified for abatement. 

This condition was in violation of section 57.12-82 as alleged. 

It was noted above that this standard requires powerlines to be well 

separated or insulated from waterlines and airlines. In this 

instance, an energized 110-volt powerline had been suspended from 

aluminum air and waterlines with uninsulated tie wire. The powerline was 12- or 14-gauge wire and was protect2d only by factory 

1924 
insulation. Because uninsulated tie wire had been used to suspend 

the powerline, it was not sufficiently separated or insulated from 

the lines to which it was attached. 

It was not established on the record that negligence existed on 

the part of the operator. The cable was in good condition. There 

were no splices or breaks in the insulation. The operator may have 

believed that the powerline was adequately insulated. The inspector 

had concluded that Respondent was negligent because violations of 

this sort had occurred at this mine on prior occasions. The evidence 

of record, however, did not establish that the operator knew or 

should have known of this particular condition. 

It was probable that this condition would result in an accident. 

Falling rock or a blow-out of the powerline could have caused energization of the air and waterlines. The cable was located in an active 

working area. The possibility also existed that the powerline might 

be damaged by heavy equipment or by rock thrown during blasting. 

Moreover, the section on which the cable was located was wet. If an 

accident were to occur, the injury expected to result would be electrocution, serious burns, or shock. 

Citation No. 00366229 was issued on May 19, 1978. The inspector 

cited a violation of 57.ll-5l(a) and described the relevant condition 

or practice as follows: "A saf_e means of access was not provided in 

the secondary escape route between 900 level and 800 level because of 

loose rock in the ladders and on the landings." The operator demonstrated a normal degree of good faith by correcting the condition 

within the time set by the inspector for abatement. 

The condition was in violation of section 57.ll-5l(a) as alleged. 

This mandatory standard requires that escape routes shall be inspected 

at regular intervals and .maintained in a safe, travelable condition. 

The ladder in question was situated in the secondary escapeway. The 

inspector found that rock had accumulated on some of the rungs of 

the escape ladder so as to make a safe handhold or foothold difficult 

to obtain. The accumulations of rock on the landings also presented 

a slipping or tripping hazard. Although he was unsure whether the 

rock had fallen from above or was forced through boards on the sides 

of the escapeway, the inspector noted that no provision had been 

made to prevent rock from falling from above. 

The operator was negligent in that it should have known of the 

condition and taken steps to abate it. The escapeway was not being 

inspected at regular intervals by supervisory personnel. If such 

inspections had taken place, the condition would have been observed. 

The inspector testified that the occurrence of 

which section 57.11-Sl(a)is directed was probable. 

violation was noted by the inspector, four men were 

1925 

the event against 

At the time the 

working on the 
900 level. Because the mine had a history of release of hydrogen 

sulfide gas, the.inspector thought that there might be a need to 

evacuate the miners through the secondary escapeway. If miners were 

forced to use the secondary escapeway, it was probable that an accident would occur. A fall could reasonably be expected to result i1 

injury ranging from bruises to fatalities. 

Citation No. 00366230 was also issued on May 19, 1978. The 

inspector cited a violation of 30 CFR 57.6-92 and described the relevant condition or practice as follows: "Explosives becoming deteriorated were in the day box on the 900 level . 11 The operator demonstrated 

a normal degree of good faith by destroying the explosives on the 

following day, within the time set by the inspector for abatement. 

The condition was in violation of section 57 .·6-92 as alleged. 

The standard requires that damaged or deteriorated explosives shall 

be destroyed in a safe manner. The inspector observed approximately 

12 sticks of explosives in a day box on a regularly-used haulageway. 

The sticks of explosives were becoming "very mushy" and beads of 

oil had formed on the outer surfaces. These explosives had become 

"damaged or deteriorated" within the meaning of the mandatory 

standard. 

The operator was negligent in that it should have known of the 

condition and taken steps to abate it. The condition of the explosives was visually obvious and they were situated in the day box. 

The day box is intended to hold only a single day's usage of explosives. It was the responsibility of supervisory presonnel to inspect 

the explosives contained in this box and make certain that they were 

used on a rotating basis. 

The explosives were a type with which the i.'nspector was not 

familiar. Despite the deterioration, they posed little danger. The 

inspector believed that the substance which appeared to be leaking 

from the explosives was nitroglycerine. In fact, this substance was 

a nonexplosive, liquid salt solution. It was improbable that this 

condition would lead to accident or injury. 

ASSESSMENTS 

In consideration of the findings of fact and conclusions of law 

in this decision, based on the stipulations and evidence of record, 

the following assessments are appropriate under the criteria of section llO(i) of the Act: 

Citation No. 

00366255 

00366218 

00366228 

00366229 

00366230 

1926 

Penalty 

$ 60 

50 

70 

80 

100 
ORDER 

The Respondent is ORDERED to pay the amount of $360 within 

30 days of the date of this decision. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Miguel J. Carmona, Esq., and William C. Pasternack; Esq., 

Office of the Solicitor, U.S. Department of Labor, 230 South 

Dearborn Street, Chicago, ILL 60604 (Certified Mail) 

M. L. Hahn, Safety and Industrial Relations Director, Ozark 

Mahoning Company, Rosiclare, ILL 62982 (Certified Mail) 

Victor Evans, Ozark Mahoning Company, Rosiclare, ILL 62982 

(Certified Mail) 

1927 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

·) C. ~ v - "".r 

i • 

Civil Penalty Proceeding 

Docket No. BARB 78-613-P 

A.c. No. 15-05120-02014V 

Ken No. 4 North Mine 

DECISION 

Appearances: 

Before: 

Gregory E. Conrad, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

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

Missouri, for Respondent. 

Judge Cook 

I. Procedural Background 

On August 9, 1978, a petition for assessment of civil penalty 

was filed by the Mine Safety and Health Administration (MSHA) against 

Peabody Coal Company (Peabody) pursuant to section llO(a) of the 

Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a) (1978) 

(1977 .Mine Act). The petition, as amended herein, alleged a violation 

of 30 CFR 75.1722(c). An answer was filed on September 7, 1978. 

Subsequent thereto, various notices of hearing were issued. The 

hearing was held. on January 11, 1979, in Evansville, Indiana. Representatives of both parties were present and participated. 

A schedule for the submission of posthearing briefs was agreed 

upon at the conclusion of the hearing, but difficulties experienced by 

counsel forced a revision thereof. 

MSHA and Peabody submitted their posthearing briefs on April 12, 

1979, and April 13, 1979, respectively. Neither party submitted a 

reply brief. 

II. Violation Charged 

Not~ce No. 7-0057 (1 TML), October 17, 1977, 30 CFR 75.1722(c). 

1928 
III. Evidence Contained in the Record 

A) Stipulations 

The stipulations entered into by the parties are set forth in 

the findings of fact, infra. 

B) Witnesses 

MSHA called as its witness MSHA inspector Thomas M. Lyle. 

Peabody called as its witness William C. Ford, a unit foreman at 

the Ken No. 4 North Mine. 

C) Exhibits 

1) MSHA introduced the following exhibits into evidence 1/: 

a) M-1 is a copy of Notice No. 7-0057 (1 TML), October 17, 1977, 

30 CFR 75.1722(c). 

b) M-2 is a computer printout compiled by the Office of Assessments listing violations at the Ken No. 4 North Mine for which Peabody 

had paid assessments between July 1, 1977, and October 17, 1977. 

c) M-3 is a termination of M-1. 

d) M-4 is a computer printout compiled by the Office of Assessments of the history of violations for which penalties have been 

paid beginning January 1, 1970, and ending June 30, 1977. 2/ 

e) M-5 is a page from the Inspector's Manual. 

f) M-6 is a diagram of the subject area of the Ken No. 4 North 

Mine. 

2) Peabody introduced the following exhibits into evidence: 

a) 0-1 is a piece of wire. 

b) 0-2 is a piece of expanded metal mesh. 

1/ Exhibit M-8 is a copy of an alert flier. It was offered, but not 

received, into evidence at the hearing, and is to be found in a separate envelope filed with the record. 

2/ Exhibit M-4 is filed, and has the same exhibit number, in the official file of the consolidated proceedings in Docket Nos. BARB 78-6, 

BARB 78-688-P and BARB 78-690-P; which cases also involve the Petitioner and Respondent herein. By agreement of the parties reference 

can be made to those three cases as relates to the content of such 

exhibit (Tr. 7-8). 

1929 
c) 0-3 contains copies of preshift and onshift examiners' reports 

for the No. 1 Unit at the Ken No. 4 North Mine. 

d) 0-4 is a "J" bolt. 

e) 0-5 is a photocopy of 0-7. 

f) 0-6 is a photocopy of 0-8. 

g) 0-7 is an uncorrected carbon copy of Notice No. 7-0057 (1 

h) 0-8 is an uncorrected carbon copy of the termination of 

0-7. 

3) MSHA and Peabody jointly introduced the following exhibits 

into evidence: 

a) Joint Exhibit No. 1 is a diagram of a tailpiece. 

b) Joint Exhibit No. 2 is a diagram of a head drive. 

4) The following exhibit is contained in the official file of 

the consolidated proceedings in Peabody Coal Company, Docket 

No. BARB 78-6, BARB 78-688-P and BARB 78-690-P: 

M-1, as marked in Docket Nos. BARB 78-6, BARB 78-688-P and 

BARB 78-690-P, is a controller information report compiled by the 

Office of Assessments containing information as to the size of both 

Peabody Coal Company and the Ken No. 4 North Mine. 3/ 

D) Order Receiving Exhibit in Evidence 

During the consolidated proceedings in Docket Nos. BARB 78-6, 

BARB 78-688-P and BARB 78-690-P, MSHA moved for the receipt in evidence of Exhibit M-4. Peabody objected (Docket Nos. BARB 78-6, 

TML). 

BARB 78-688-P and BARB 78-690-P at Tr. 17-28). It was agreed that a 

ruling would be withheld until after the parties had been afforded the 

opportunity to argue their respective positions in their posthearing 

briefs (Docket Nos. BARB 78-6, BARB 78-688-P and BARB 78-690-P at 

Tr. 17-28, 761). 

3/ The official exhibit is contained in the official file of the consolidated proceedings in Docket Nos. BARB 78-6, BARB 78-688-P and 

BARB 78-690-P. It was agreed by the parties that official notice 

could be taken of Exhibit M-1, as marked in those consolidated proceedings (Tr. 197-180). For convenient reference, a copy of such exhibit 

has been placed in a separate envelope and filed with the official file 

in the instant case. 

1930 
During the hearing in the instant case, it was provided that 

reference could be made to the three above-noted proceedings for any 

reference that either party wished to make to Exhibit M-4 (Tr. 7-9). !!_/ 

Thereafter, MSHA moved for approval of a settlement in Docket 

No. BARB 78-690-P, and for leave to withdraw the petition in Docket No. 

BARB 78-688-P. Peabody moved to withdraw its application for review 

in Docket No. BARB 78-6. These motions were granted in a decision 

dated July 26, 1979. Consequently, a ruling was not made as relates 

to Exhibit M-4's receipt in evidence. Accordingly, this ruling will 

be made herein. 

Effective July 1, 1977, Peabody Holding Company became the controller of Peabody Coal Company, replacing Kennecott Copper Corporation. 

Peabody objects to the Administrative Law Judge's consideration of a 

history of the violations of Peabody Coal Company while it was under 

the ownership of Kennecott Copper Corporation for purposes of assessing a civil penalty (Respondent's Posthearing Brief, p. 9). Peabody 

presented the testimony of Mr. Richard Romero, an operations administrative supervisor for Peabody Coal Company, to establish that significant and substantial management changes occurred subsequent to 

Kennecott Copper Corporation's divestiture of Peabody Coal Company 

(Docket Nos. BARB 78-6, BARB 78-688-P and BARB 78-690-P at Tr. 27, 

738-761). 

The testimony of Mr. Romero reveals that since the divestiture 

Peabody's management operations, with the exception of data processing, have been decentralized (Docket Nos. BARB 78-6, BARB 78-688-P 

and BARB 78-690-P at Tr. 739, 748-746). The purpose of this decentralization is to localize all decision-making, policy-making and financial authority, thus placing accountability within the corporation at 

the local level (Docket Nos. BARB 78-6, BARB 78-688-P and BARB 78-690-P 

at Tr. 746-750). However, responsibility for safety matters had not 

been completely decentralized as of the date of the hearing (Docket 

No. BARB 78-6, BARB 78-688-P and BARB 78-690-P at Tr. 755), although 

the individual in charge of safety at the Ken No. 4 North Mine had 

been changed (Docket Nos. BARB 78-6, BARB 78-688-P and BARB 78-690-P 

at Tr. 759). 

The above-noted testimony is insufficient to establish that 

substantive changes in company mine safety and health policy, as 

relates to the Ken No. 4 North Mine, have followed the divestiture. 

In effect, Peabody argues that the mere change of the controlling 

company is sufficient to bar consideration of the history of violations prior to July 1, 1977 (Docket Nos. BARB 78-6, BARB 78-688-P and 

4/ A copy of those portions of the transcript in Docket Nos. 

BARB 78-6, BARB 78-688-P and BARB 78-690-P material to the instant 

case has been placed in an envelope filed with the official file in 

the instant case. 

1931 
BARB 78-690~P at Tr. 26-27). I disagree. In spite of the divestiture, the fact remains that the entity known as Peabody Coal Company 

has been the operator of the Ken No. 4 North Mine at all times relevant 

to this proceeding, and the history of previous violations at that 

mine is material to the assessment of a civil penalty for the subject 

violation. Peabody's position, when carried to its logical extreme, 

would permit a controlling company with an onerous history of previous 

violations to escape the consequences of its conduct through a paper 

reorganization having no effect on substantive safety policies at its 

various mines. Accordingly, the enforcement scheme envisioned by the 

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

!!, ~· (1970) (1969 Coal Act) and the 1977 Mine Act is best promoted 

by evaluating history of previous violations on an operator byoperator, mine-by-mine basis. 

Accordingly, Peabody's objection is OVERRULED, and Exhibit 

No. M-4, contained in Docket Nos. BARB 78-6, BARB 78-688-P and 

BARB 78-690-P and incorporated herein, is hereby RECEIVED in evidence. 

IV. Issues 

Two basic issues are involved in the assessment of a civil penalty: (1) did a violation of the Act occur, and (2) what amount should 

be assessed as a penalty if a violation is found to have occurred? 

In determining the amount of civil penalty that should be assessed 

for a violation, the law requires that six factors be considered: 

(1) history of previous violations; (2) appropriateness of the penalty 

to the size of the operator's business; (3) whether the operator was 

negligent; (4) effect of the penalty on the operator's ability to continue in business; (5) gravity of the violation; and (6) the operator's 

good faith in attempting rapid abatement of the violation. 

V. Opinion and Findings of Fact 

A). Stipulations 

The parties filed the following stipulations on January 9, 1979, 

applicable to the above-captioned proceeding: 

1) Administrative Law Judge Cook has jurisdiction over the subject matter in this proceeding. 

2) Peabody Coal Company and the Ken No. 4 North Mine are subject 

to the provisions of the Federal Coal Mine Health and Safety Act of 

1969, as amended by the Federal Mine Safety and Health Act of 1977. 

3) The subject notice of violation was duly served on the 

operator. 

4) The assessment of any penalty in this proceeding will not 

affect the ability of the Respondent to continue in business. 

1932 
5) Peabody Coal Company is considered to be a large-sized operator for purposes of assessing any penalties in this proceeding. 

6) Inspector Thomas M. Lyle was a duly authorized representative 

of the Secretary at all times relevant to this proceeding. 

B). Motions 

After the last witness had testified, MSHA moved to amend its 

petition to conform with the proof. Peabody objected to the amendment and moved for dismissal of the proceeding. These motions were 

made after the undersigned Administrative Law Judge observed apparent 

discrepencies regarding the violation charged. Specifically, the 

Judge noted that Inspector Lyle had testified that the notice charged 

a violation of 30 CFR 75.1722(c), and that some of the documents 

attached to the petition made reference to 30 CFR 75.1722(b) (Tr. 180-

81). 

The notice of violation attached to the petition alleged a violation of 30 CFR 75.1722(c). 

The motions were taken under advisement (Tr. 183, 205-208). 

Peabody bases its motion to dismiss on the grounds that it was 

not demonstrated that the operator had been duly served with a notice 

alleging a violation of 30 CFR 1722(c) (Tr. 207). In a civil penalty 

proceeding, a notice is adequate, even though it does not specify a 

particular section of the Act or mandatory standard violated, if the 

alleged violat~on is described with sufficient specificity to permit 

abatement. At the stage where the operator is charged with a violation of law in a civil penalty proceeding it is entitled to adequate 

and timely notice of the section of the Act or mandatory standard 

involved so as to permit preparation of a timely and adequate defense, 

Old Ben Coal Company, 4 IBMA 198, 82 I.D. 264, 1974-1975 OSHD 

par. 19,723 (1975); Eastern Associated Coal Corporation, 1 IBMA 233, 

79 I.D. 723, 1971-1973 OSHD par. 15,388 (1972). 

The description of the condition or practice in the notice 

(Exh. M-1) can only be construed as alleging a violation of 30 CFR 

75.1722(c), The testimony with respect to Peabody's abatement efforts 

establishes that the notice described the alleged violation with sufficient specificity to permit abatement (Tr. 123, 131-132), The petition was clearly sufficient to permit preparation of a timely and 

adequate defen.se since the evidence adduced by Peabody related solely 

'to 30 CFR 75,1722(c) (Tr. 119-178), Furthermore, Peabody states in 

its posthearing brief that it will not assert that it was unaware of 

the section allegedly violated (Respondent's Posthearing Brief at 

page 6). 

The Commission's Interim Procedural Rules, 29 CFR 2700.1 et seq., 

in effect on the date of the hearing, do not specifically address~e 

1933 
amendment of petitions to conform with the proof. Rule 15(b) of the 

Federal Rules of Civil Procedure, although not specifically applicable 

to this proceeding, reflects the collective experience of the courts 

in addressing such motions, and, as such, provides some guidance in 

the instant case. 

Rule 15(b) states that issues not raised in the pleadings shall 

be treated in all respects as if they had been raised in the pleadings 

when such issues are tried by the express or implied consent of the 

parties. Under such circumstances, a party may move at any time, 

even after judgment, to amend the pleadings to conform with the proof. 

If an objection is raised to evidence at the trial on the ground that 

it is not within the scope of the pleadings, the court is empowered to 

pennit amendment of the pleadings when such action will subserve the 

presentation of the merits and "the objecting party fails to satisfy 

the court that the admission of such evidence would prejudice him in 

maintaining his action or defense upon the merits." The court is 

empowered to grant a continuance to enable the objecting party to meet 

such evidence. 

The fact that the evidence adduced by both parties relates solely 

to 30 CFR 1722(c) indicates that the issues raised in a civil penalty 

proceeding addressing that regulation were tried with the implied consent of both parties. Although Peabody did not object to the introduction of such evidence during the presentation of MSHA's case-in-chief 

within the meaning of Rule 15(b), it is significant to note that 

Peabody has not demonstrated that it would be prejudiced by the proposed amendment. In fact, it is highly doubtful that Peabody could do 

so in light of the above-noted statement that it will not assert that 

it was unaware of the section allegedly violated. 

Accordingly, Peabody's motion to dismiss is DENIED, and MSHA's 

motion to amend the petition to conform with the proof is GRANTED. 

IT IS THEREFORE ORDERED that the petition be, and hereby is, AMENDED 

to allege a violation of 30 CFR 75.1722(c) wherever 30 CFR 75.1722(b) 

is cited. 

C) Occurrence of Violation 

On October 17, 1977, MSHA inspector Thomas M. Lyle visited 

Peabody's Ken No. 4 North Mine to conduct a hazard analysis and accident prevention inspection (Tr. 16-17). He was accompanied on his 

inspection underground by Mr. William C. Ford, the foreman.on the 

No. 1 Unit (Tr. 18). At approximately 5:30 p.m., Inspector Lyle 

issued a notice pursuant to section 104(c)(l) of the Federal Coal Mine 

Health and Safety Act of 1969, citing Peabody for a violation of the 

1934 
mandatory safety standard embodied in 30 CFR 75.1722(c) 5/ (Exh M-1). 

The notice described the "condition or practice" ~s follows: 

Guards that had been installed on the main line belt 

tailpiece and the No. 1 Unit conveyor drive had not [sic] 

fastened or secured adequately to prevent persons from--

coming in contact with the moving belt and rollers. The 

guards were tied along side of the tailpiece and conveyor 

drive with small amounts of shooting wire or placed against 

bolt studs that were not fastened with screw type nuts. 

The operator or his agent knew or should of [sic] known 

this violation existed. Responsibility of Alton Fulton 

mine manager. 

(Exh M-1). 

At the time that the inspector observed the machinery, the belts 

were both in operation (Tr. 65). 

There were guards along both sides of the tailpiece (Tr. 32, 45-

46). There were two guards on one side, measuring approximately 5 or 

6 feet and 4 feet in length, respectively (Tr. 32, 34). These guards 

were approximately 2 feet in width (Tr. 35). There were guards along 

both sides of the conveyor drive. Three guards were present on one 

side of the conveyor drive. One measured 6 feet by 4 feet. The 

remaining two were each approximately 6 feet in length, but their 

widths were not given (Tr. 43-46). 

The inspector testified that the guards, made of expanded metal 

mesh (Tr. 31, 43), were substantial and adequate (Tr. 30, 32, 35, 

46). According to the inspector, bolt studs had been welded to ~he 

machinery for the purpose of hanging and securing the guards (Tr.47). 

In the inspector's opinion, compliance with 30 CFR 75.1722(c) required 

the use of nuts and bolts or 11 J 11 hooks as securing devices (Tr. 47). 

Since neither of these methods had been employed, the inspector concluded that Peabody was not in compliance with the regulation. 

It is unnecessary to determine whether the use of nuts and bolts 

or "J" hooks are the sole permissible means of complying with 30 CFR 

75 .1722(c). The scope of inquiry in the present case is considerably 

more limited. The question presented is whether the method employed 

5/ 30 CFR 75.1722 provides: 

"Mechanical equipment guards. (a) Gears; sprockets; chains; drive, 

head, tail, and takeup pulleys; flywheels; couplings, shafts; sawblades; fan inlets; and similar exposed moving machine parts which 

may be contacted by persons, and which may cause injury to persons 

shall be guarded. 

"(b) Guards at conveyor-drive, conveyor-head, and conveyor-tail 

pulleys shall extend a distance sufficient to prevent a person from 

1935 
by Peabody was adequate to secure the expanded metal mesh guards to 

the subject tailpiece and conveyor drive. The controlling inquiries 

in this regard are what type of wire was used and how was the wire 

used to secure the guards? 

The inspector testified that he picked up a piece of the wire 

and examined it while the men were securing the guards (Tr. 37). 

He was adamant in his opinion that shooting wire, and not the type of 

wire represented by Exhibit 0-1, had been used to secure them. 

Exhibit 0-1 is a sample of the general utility wire used for such purposes as securing guards and tying up water hoses (Tr. 79, 126). It 

is thicker than shooting wire (Tr. 37-38). Although Mr. Ford never 

testified affirmatively that general utility wire had been used to 

secure the guards in question, 6/ his testimony is of that general 

tenor. He stated that shooting-wire would never be used to secure 

the guards because "we are only issued two rolls a week. 11 Using it 

to secure the guards would require such a sizable portion of this wire 

that 11 you wouldn't have enough to use to shoot at the face" (Tr. 148) . 

By way of illustration, it would Tequire 60 to 70 feet of general 

utility wire to secure a tailpiece (Tr. 148). 

Several factors are present indicating that the inspector properly 

identified the type of wire used. First, his experience in shooting 

coal (Tr. 12-16, 37-38) indicates a familiarity with the type of materials used in such operations. This knowledge, coupled with the fact 

that he examined a piece of the wire while the men were securing the 

guards (Tr. 37), points to a correct identification. 

Secondly, the inspector testified that Mr. Ford had stated that 

he had observed the guards being wired on October 15, 1977, and that 

he had brought it to the attention of Mr. Alton Fulton, the mine 

manager. Mr. Fulton told Mr. Ford not to worry, and that he, 

Mr. Fulton, "would take the credit for setting it up or he'd take the 

blame if anything was wrong" (Tr. 63-64). This statement must be 

juxtaposed with the testimony of Mr. Ford, who indicated that the use 

of general utility wire for securing guards was a common practice at 

the mine dating back to 1972 or 1973 (Tr. 142-143, 161). He also 

testified that this method was adequate to hold the guards securely 

in place (Tr. 139). In light of these considerations, it would appear 

that the only logical reason for mentioning the subject to Mr. Fulton 

was to inform him of a deviation from the customary practice, e.g., 

to inform him that shooting wire was being used to secure the guards. 

fn. 5 (continued) 

reaching behind the guard and becoming caught between the belt and 

the pulley. 

"( c) Except when testing the machinery, guards shall be securely 

in place while machinery is being operated." 

·6/ Apparently, Inspector Lyle and Mr. Ford employed the term "shooting wire" to refer to two separate things. The inspector defined it 

as the blue and red, plastic-coated leg wire from a blasting cap 

1936 
Accordingly, the inspector's identification, bolstered by the 

inferences drawn from Mr. Ford's conversation with Mr. Fulton, results 

in a finding that the thinner shooting wire and not the thicker general 

utility wire, was used to secure the guards. 

As L~Lates to the placement of the wires, Mr. Ford indicated 

that the guards on the tailpiece were wired at 12 separate locations 

(Tr. 135-136). The guards were wired to the frame or the belt rope 

at 10 separate places, and at the two remaining locations the guards 

were wired to each other (Tr. 135-136; brown "X's" on Joint 

Exhibit No. 1). A belt rope is a one-half or five-eighths-inch steel 

cable on a tailpiece, and is located approximately 16 to 18 inches 

above the mine floor (Tr. 172-173). The top of the guard is approximately 12 inches above the rope (Tr. 173). A turntable keeps the 

belt rope pulled tight so that it has very little flexibility 

(Tr. 173-175). The guards on the conveyor drive were wired at six 

locations (Tr. 137-138; red lines on Joint Exh. No. 2). At four of 

these locations, the guards were wired to the frame. At the remaining two _locations, they were wired to each other <Tr. 137-138). Only 

a small amount of wire was used, three wraps at the most (Tr. 114-115). 

According to the inspector, a guard is "securely in place" within 

the meaning of 30 CFR 75.1722(c) when the method of attachment will 

prevent an individual from becoming entangled in the machinery. 

This would occur if the method of attachment is insufficient to prevent the guards from coming off when a person strikes them with his 

body (Tr. 39, 101, 115). The inspector testified as an expert that 

shooting wire would be inadequate to perform this function (Tr. 39). 

The testimony reveals that the inspector correctly identified the 

type of accidents that 30 CFR 75.1722(c) was designed to prevent. A 

guard that is not secured so as to prevent such injuries cannot be 

deemed "securely in place." It is unnecessary to decide whether 

general utility wire (Exh 0-1) meets these standards because the credible evidence in the record reveals that such wire was not used to 

secure the guards in question. The inquiry is limited to the conditions that existed on October 17, 1977. I am inclined to accept the 

inspector's expert opinion that the guards were not securely in place 

based upon his characterization of the physical properties of shooting 

wire and the number of wraps used, in conjunction with Mr. Ford's 

fn. 6 (continued) 

(Tr. 37-38), and indicated that they are often found lying on the mine 

floor after blasts have been set off. Miners often use these discarded wires for various purposes (Tr. 38). This definition coincides 

with Mr. Ford's definition of a "cap wire" (Tr. 130-131). Mr. Ford 

used the term "shooting wire" to refer to a yellow-plastic coated wire 

that comes on rolls (Tr. 130-131, 148), which apparently indicates 

that he was referring to a much longer wire. 

1937 
description of the placement of the wires. Of particular significance, 

is the following: The tailpiece guards were secured at seven of the 

12 separate locations by wiring the guards to the belt rope, a steel 

cable which, altough under tension, still retained a measure of flexibility. As relates to the conveyor drive, four of the six wire attachments were located at the top along the length of the guard, with none 

on either side along the width of the guard. It is highly conceivable 

that an individual falling against the guards would cause the cable 

to vibrate or the guard to bend (Tr. 69), breaking one or more of the 

wire attachments and threatening the integrity of the system. 

Accordingly, in light of the foregoing, it is found that a violation of 30 CFR 75.1722(c) has been established by a preponderance of 

the evidence. 

D) Gravity of the Violation 

The inspector classified the violation as very serious (Tr.71). 

The area was wet and slippery due to the dust-suppressing water sprays 

at the conveyor drive. Some of this water would reach the tailpiece 

area (Tr. 68). An individual could slip and dislodge the guards, 

and thereby become exposed to the moving parts of the machines (Tr. 29, 

42, 68-71). The anticipated injuries were described as severe, ranging 

from the loss of an arm to death (Tr. 70-115). The miners directly 

exposed to the hazard included belt cleaners, belt examiners and maintenance men working in the area (Tr. 115-116). 

Mr. Ford disagreed, stating that the conveyor drive and the tailpiece were sufficiently guarded to prevent entry (Tr. 140). 

In view of the fact that the guards were present and attached, 

although not as securely as the regulations require, it is found 

that the violation was moderately serious. 

E) Negligence 

The inspector opined that the condition had existed since at 

least October 15, 1977, based on his conversation with Mr. Ford 

(Tr. 65), wherein Mr. Ford stated that he had noticed the guards being 

wired on October 15, 1977 (Tr. 63). The inspector classified the violation as readily visible, and that it would be noticeable to a preshift or onshift examiner (Tr. 64). The area was subject to onshift 

belt examinations during production shifts (Tr. 64-65). The belts 

were running on the day in question (Tr. 65). 

Determining whether a method of attachment is adequate to secure 

guards in place is essentially an exercise in sound judgment. The 

regulation does not designate any identifiable methods as either 

acceptable or unacceptable. The record clearly reveals that Peabody 

demonstrated a good faith effort to secure its guards in place, even 

though the methods employed have been found inadequate in the instant 

1938 
proceeding. The fact that other inspectors could have determined 

that the use of wire was an appropriate method of securing the guards 

(Tr. 139), although not controlling in the instant case because the 

inferences drawn from the conversation between Mr. Ford and Mr. Fulton 

indicate that the use of shooting wire was a deviation from past practices, is not wholly without significance. While it is true that 

Inspector Lyle told Peabody on previous occasions that nuts and bolts 

or hooks must be used (Tr. 60-63), the fact that other inspectors could 

have permitted the use of wire indicates that Peabody's judgment could 

have been affected by a reasonable belief that MSHA would consider 

wire adequate under some circumstances. 

Accordingly, it is found that Peabody demonstrated a slight 

degree of ordinary negligence. 

F) Good Faith in Attempting Rapid Abatement 

The violation was abated by fastening the guards to the bolt 

studs with nuts (Tr. 67, 131). No additional studs were installed 

(Tr. 134). It required 15 to 20 minutes to abate the condition (Tr. 

139-140). The notice was terminated 1 hour after its issuance 

(Exhs. M-1, M-3). 

Accordingly, it is found that Peabody demonstrated good faith 

in attempting rapid abatement. 

G) History of Previous Violations 

30 CFR 

Standard 

All sections 

75.1722(c) 

Year~l 

10/18/75 - 10/17/76 

69 

0 

Year-2 

10/18/76 - 10/17/77 

85 

0 

(Note: All figures are approximations). 

Totals 

154 

0 

As relates to the Ken No. 4 North Mine, Peabody had paid assessments for approximately 154 violations of regulations in the 24 months 

preceding October 17, 1977. Approximately 69 of these paid assessments were· for violations cited between October 18, 1975, and 

October 17, 1976. Approximately 85 of these paid assessments were for 

violations cited between October 18, 1976, and October 17, 1977. 

There were no paid assessmsents for violations of 30 CFR 

75.1722(c) during the 24 months preceding October 17, 1977. 

H) Appropriateness to Penalty to Operator's Size 

Peabody produced approximately 47,650,569 tons of coal in 1978 

(Exh. M-1 filed in Docket Nos. BARB 78-6, BARB 78-688-P, BARB 78-690-P). 

The Ken No. 4 North Mine produced approximately 168,792 tons of coal 

1939 
in 1978 (Exh. M-1 filed in Docket Nos. BARB 78-6, BARB 78-688-P, 

BARB 78-690-P). Furthermore, the parties stipulated that Peabody 

Coal Company is considered to be a large-sized operator for purposes 

of penalty assessment. 

I) Effect on Operator's Ability to Continue in Business 

The parties stipulated that the assessment of any penalty in 

this proceeding will not affect the Respondent's ability to continue 

in business. Furthermore, the Interior Board of Mine Operations 

Appeals has held that evidence relating to whether a civil penalty 

will affect the operator's ability to remain in business is within the 

operator's control, resulting in a rebuttable presumption that the 

operator's ability to continue in business will not be affected by 

the assessment of a civil penalty. Hall Coal Company, 1 IBMA 175, I.D. 

668, 1971-1973 OSHD par. 15,380 (1972). Therefore, I find that penalties otherwise properly assessed in this proceeding will not impair 

the operator's ability to continue in business. 

VI. Conclusions of Law 

1. Peabody Coal Company and its Ken No. 4 North Mine have been 

subject to the provisions of the 1969 Coal Act and 1977 Mine Act at 

all times relevant to this proceeding. 

2. Under the Acts, this Administrative Law Judge has jurisdiction over the subject matter of, and the parties to, this proceeding. 

3. MSHA inspector Thomas M. Lyle was a duly authorized representative of the Secretary of Labor at all times relevant to the issuance of the notice which is the subject matter of this proceeding. 

4. The violation charged in Notice No. 7-0057 (1 TML), 

October 17, 1977, 30 CFR 75.1722(c), is found to have occurred as 

alleged. 

5. As set forth in Part V(B), supra, Respondent's motion to 

dismiss is DENIED, and MSHA's motion to amend the petition to conform 

with the proof is GRANTED •. 

6. All of the conclusions of law set forth in previous parts of 

this decision are reaffirmed and incorporated herein. 

VII. Proposed Findings of Fact and Conclusions of Law 

MSHA and Peabody submitted posthearing briefs. No reply briefs 

were submitted. Such briefs, insofar as they can be considered to 

have contained proposed findings and conclusions, have been considered 

fully, and except to the extent that such findings and conclusions 

have been expressly or impliedly affirmed in this decision, they are 

1940 
rejected on the ground that they are, in whole or in part, contrary 

to the facts and law or because they are immaterial to the decision 

in this case. 

VIII. Penalties Assessed 

Upon consideration of the entire record in this case and the 

foregoing findings of fact and conclusions of law, I find that assessment of a penalty is warranted as follows: 

of 

30 CFR 

Notice No. Date Standard Penalt~ 

7-0057 (1 TML) 10/17/77 75.1722(c) $275 

ORDER 

The Respondent is ORDERED to pay a civil penalty in the amount 

$275 within 30 days of the date of this decision. 

~"'"""'-"~ r:;::;-__ -:::, 

n F. Cook 

--~~~~....-Administrative Law Judge 

Distribution: 

Gregory E. Conrad, Esq., Mine Safety and Health Administration, 

Office of the Solicitor, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 

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

MO 63166 (Certified Mail) 

Administrator for Coal Mine Safety and Health, U.S. Department of 

Labor 

Standard Distribution· 

1941 
FEDERAL MINE SAFETY AND HEAL TH REVIEW, COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5205 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MABEN ENERGY CORPORATION, 

Applicant 

Contest of Citation 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. WEVA 79-123-R 

Citation No. 637722 

April 23, 1979 

Maben No. 4 Mine 

DECISION 

Appearances: James M. Brown, Esq., File, Payne, Scherer & Brown, Beckley, 

West Virginia, for Applicant; 

Edward H. Fitch, Office of the Solicitor, U.S. Department 

of Labor, Arlington, Virginia, for Respondent, Mine Safety 

and Health Administration (MSHA). 

Before: Judge Melick 

This case is before me upon the application of the Maben Energy 

Corporation (Maben) under section 105(d) of the Federal Mine Safety and 

Health Act of 1977 1/ to contest a citation issued by the Mine Safety and 

Health Administration (MSHA) under section 104(a) of the Act. A hearing 

was held on October 23, 1979, in Beckley, West Virginia, at which both 

parties, represented by counsel, presented evidence. 

The issue in this case is whether Maben is responsible for a violation of the Act by failing to conduct the inspections required by 30 CFR 

77.216-3(a) at an impoundment structure known as the Wyco Freshwater Dam 

located in Wyoming County, West Virginia. 30 CFR 77.216-3(a) provides 

as · fol lows : 

All water, sediment, or slurry impoundments which meet 

the requirements of section 77.216(a) [~/] shall be examined 

1/ 30 U.S.C. § 801 et seq. (1978), hereinafter referred to as "the Act." 

2/ 30 CFR 77.216(a)-Provides that certain plans be filed.for impounding 

structures that can: 

"* * * ( 1) Impound water, sediment, or slurry to an elevation of 

five feet or more above the upstream toe of the structure and can have 

a storage volume of 20 acre-feet or more; or (2) Impound water, sediment, 

or slurry to an elevation of 20 feet or more above the upstream toe of 

the structure; or (3) As determined by the District Manager, present a 

hazard to coal miners." 

1942 
by a qualified person designated by the person owning, operating or controlling the impounding structure at intervals 

not exceeding 7 days for appearances of structural weakness 

and other hazardous conditions. All instruments shall be 

monitored at intervals not exceeding 7 days by a qualified 

person designated by the person owning, operating, or controlling the impounding structure. 

The parties have stipulated that the impounding structure at issue in 

this case, the Wyco Freshwater Dam, meets the criteria in 30 CFR 77.216(a) 

and therefore comes within the inspection requirements set forth in 30 CFR 

77.216-3(a). Maben admits that it has not been making the inspections but 

contends that it does not own, operate or control the impounding structure 

and that therefore, it is not the person responsible for such inspections. 

MSHA concedes that Maben does not own the impounding structure but contends 

that it both operates and controls that structure and is thus nevertheless 

responsible for such inspections. In determining whether Maben was in violation of 30 CFR 77.216-3(a), I must, therefore, first determine whether 

Maben is a person "operating or controlling" the structure within the 

meaning of the cited regulation. 

The Wyco Freshwater Dam, constructed in the early 1970's by the 

Whitesville A & S Coal Company in connection with a strip-mining operation, 

consists of a cross-valley earth and rockfill structure approximately 

400 feet long, 20 feet high, 300 feet wide at the base and 40 feet wide 

at the crest. There is a 60-foot wide spillway discharge cut through rock 

at one end of the structure and a 24-inch diameter decant pipe extending 

through the structure. The impoundment upstream of the dam covers an 

area of about 2 acres and the drainage area upstream includes more than 

2,000 acres. Engineering tests have shown the dam to be stable and not 

to be a safety hazard. 

The dam and the pond it created were used by the Westmoreland Coal 

Company in its Maben No. 4 Mine--the mine now operated by Applicant--

beginning in the early 1970's as a source of water for its mining equipment, for firefighting and for its bathhouse. The Maben No. 4 Mine is 

a drift mine located on a nearby hill above and to the southwest of the 

dam. According to the evidence, Westmoreland has had and continues to 

have a leasehold interest over the entire property under discussion, 

including the actual coal seam being mined, the access roads, and the 

Wyco Dam and its impoundment pond. Westmoreland had previously accepted 

responsibility for the dam and in this regard a notice was issued to 

Westmoreland on October 22, 1974, by the Mining Enforcement and Safety 

Administration (MESA), MSHA's predecessor, for a violation of 30 CFR 

77 .216", alleging that the Wyco Dam was not of substantial construction. 

The notice was terminated on April 20, 1977, after Westmoreland enlarged 

the spillway around the dam. Apparently, revised design and maintenance 

plans submitted by Westmoreland under the provisions of 30 CFR 77.216-2(a) 

have never been approved by MESA (nor by its successor (MSHA), and 

Westmoreland's request in May 1976 to abandon the dam has apparently 

never been acted upon by either MESA or MSHA. 

1943 
On October 3, 1977, Westmoreland, contracted with Maben for Maben to 

"mine, remove, transport and deliver 11 coal from a tract of land (including 

Westmoreland' s Maben No. 4 Mine) near, but not including, the area of the 

Wyco Dam. In that contract, Westmoreland designated itself as owner of the 

mine property. Soon thereafter, Maben began its mining operations under the 

contract. On April 23, 1979, MSHA issued the citation at bar for Maben's 

failure to inspect the nearby.Wyco Dam at 7-day intervals. 

As I have already noted, whether Maben is responsible for the inspections required by 30 CFR 77.216-3(a) depends on whether it is found to be 

a person "operating or controlling" the dam. The words "operating" and 

"controlling11 as used in the context of the cited regulation are not 

defined in the regulations. In this context, however, the word "operate 11 

is defined in the American Heritage Dictionary of the English Language 

(1976), as "to run or control the functioning of." The word 11 control" in 

this context is defined therein as "the exercise of authority or dominating influence over; direct; regulate." I find that these definitionss 

appropriately reflect the meaning of the terms "operating" and "controllingil as used in the cited regulation. 

MSHA alleges primarily four reasons to support its contention that 

Maben was "controlling" and "operating" the impoundment: (1) Maben used 

an access road to its mine that lies partly over the impoundment structure, 

(2) Maben used water from the impoundment pond for an employee bathhouse, 

(3) Maben modified the spillway outlet by construction work on its access 

road; and (4) Maben maintains a gate at the entrance to the mine access 

road and to the main road to the impoundment area. 

There is no dispute that Maben has continued to travel the access 

road and both the MSHA inspector, Harold Owens, and an engineer testifying 

on behalf of Maben, Andrew Fox, located a portion of that road upon the 

impoundment structure. I cannot find from the evidence however that Maben 

was in fact dumping mine products on the structure as alleged by MSHA. 

Estimates by the MSHA inspector as to the approximate location of a coal 

stockpile appearing in a Government photograph, in the face of direct 

contradictions by Maben, were too uncertain to enable me to establish its 

precise location as alleged. The evidence is uncontradicted, however, 

that Maben did in fact raise the access road about 2-1/2,to 3 feet above 

the spillway floor at its outlet thereby modifying the spillway and 

potentially affecting the level of water behind the impoundment structure. 

Evidence that Maben maintains a gate at the entrance to the mine access 

road and to the main road to the impoundment area is also unchallenged. 

While these facts clearly show that Maben has used the impoundment 

structure and its pond in connection with its mining operations and that 

such use could very well affect the impoundment structure, I cannot equate 

that use with the degree of dominating influence required to constitute 

an "operating" or "controlling" of the structure. In support of its 

contention that Maben has been operating and controlling the Wyco Dam, 

MSHA cites Kessler Coal, Incorporated v. MESA, Docket No. HOPE 76-235 

1944 
(March 18, 1976), in which Judge Stewart found that Kessler owned and controlled a refuse pile created by a previous mine operator. In that case, 

however, a lease existed under which Kessler was specifically granted 

leasehold rights over mine property, including the property on which the 

refuse pile was located, thereby placing Kessler in a position of special 

ownership with controlling and operating rights over that refuse pile. 

In the instant case on the other hand, no such lease exists and in its 

contract with Westmoreland, Maben was given essentially only the right to 

extract coal in a defined area not including the Wyco Dam or its pond and 

was not granted any ownership interest in the land. Thus, Maben has been 

given no specific legal authority to operate or control the impoundment 

structure and as a factual matter has not exercised operating or controlling 

influence over the structure. 

MSHA also appears to argue that since Maben has used .other property 

outside of the contract area such as roads, office buildings and for the 

drilling of a well, that it actually has the right to control all property 

within the vicinity of the mine complex, including the impoundment structure 

at issue. The mere use of such property does not, however, give rise to a 

right to control it since the use may very well be trespassory. Moreover, 

even assuming that Maben had a right to control certain other property 

unconnected with the impoundment structure, it does not, of course, follow 

that such a right would, for that reason, attach also to that structure. 

While MSHA also suggests that the definition in the 1977 Act of the term 

"operator" should govern the definition of the term "operating" as used in 

the cited regulation, I find no basis for such a conclusion. The terms 

are separate and di.stinct and used in entirely different contexts. 

Under the circumstances, I conclude that Maben is not the person 

owning, operating or controlling the Wyco Dam and is not therefore 

responsible for the inspections required by 30 '~FR 77. 216-3(a). The 

citation that is the subject of this pr ceeding'is the\efore~vacated. 

G•r~•l• ~ k1v~\,Q'-- Distribution: ~ 

Administt Judge 

James M. Brown, Esq., File, Payne, S h~rer & Br~WI)., P.O. Drawer L, 

Beckley, WV 25801 (Certified Mail)\j J 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Harrison Combs, Esq., UMWA, 900-15th St., NW., Washington, DC 20005 

(Certified Mail) 

1945 * U. S. GOVERNMENT PRINTING OFFICE: 1979 ~l'-14'/13 0