\ .. 

Starting with this nonth' s Decisions, pages will be mmbered to 

facilitate an indexing system which the camd.ssion staff will 

develop. Decisions issued fran March 9, 1978 through March 31, 1979 

will be cited by date of issuance, and therefore should be kept in 

chronological order for easy reference. 

On April 1, 1979 the Ccmnission adopted a new docketing procedure 

for· our cases. In the caning nonths you will notice different 

prefixes arrl ·suffixes in our nu:nbering system. Following is an 

explanation.of the system: 
New System of Docketing cases as of April 1, 1979 

SUFFIX 

YORK area - Maine 

Venront 

New Hanpshire 

Massachusetts 

Connecticut 

Rhooe Island 

New York 

New Jersey 

Delaware 

Maryland 

PENN area - Pennsylvania 

WEVA area - West Virg:inia 

KENT area - Kentucky 

VA area - Virg:inia 

SE area - North Carolina 

South carolina 

Tennessee 

Georgia 

Florida 

Alabama 

Mississippi 

Puerto Rioo 

PREFIX 

Penalty - Coal 

Penlaty - ~tal 

Review - Coal 

Review - M3ta.l 

Discrimination 

Discrimination - M=tal 

Crnpansation 

Ccxrpensation - Matal 

CENl' area - North Dakota 

South Dakota 

Nebraska 

ICMa 

Missouri 

Kansas 

Arkansas 

Oklahana 

I.ouisiana 

Texas 

New Mexioo 

WFSI' area· - M:mtana 

l\Tyan:i11g 

Colorado 

Arizona 

Utah 

Idaho 

Washington 

Oregon 

Nevada 

califomia 

Alaska 

Hawaii 

LAKE area - Minnesota 

Wisconsin 

Illinois 

Indiana 

Ohio 

Michigan 

No SUf fix 

M after the rn.nnber 

R after the number 

RM after the nurrber 

D after the number 

DM after the number 

C after the nurcber 

CM after ~ number 
APRIL 1979 

The following cases were Directed for Review during the rronth of April~ 

Magma Copper Canpany v. Secretary of Labor and United Steelv.orkers 

of Anerica, DE.NV 78-533-M. 

Secretary of Labor (on behalf of David Pasula, William Kaloz, 

Ralph Pa.lnEr, Janes Colbert, Bryan Plμte, Lawrence carden) v. 

Consolidation Coal carpany, PI'IT 78-458, PI'IT 79-35, PI'IT 79-36. 

Secretary of Labor (on behalf of David Fasula) v. Consolidation 

Coal Ccrrpany, PI'IT 78-458. 

Secretary of Labor v. Davis Coal Ccrapany, HOPE 627-P, HOPE 78-672-P, 

HOPE 78-673-P, HOPE 78-674-P, HOPE 78-675-P, HOPE 78-676-P, HOPE 

78-687-P, HOPE 78-696-P, HOPE 79-112-P. 

Review was Denied in the following c.ases during the rronth of April: 

Burgess Mining and Construction Corporation v. Secretary of Labor 

BARB 78-541-573. 

Secretary of Labor v. C F & I Steel Corporation, DE.NV 77-79-P. 

Secretary of Labor v. Helvetia Coal carpany, Keystone Coal Mining 

Corporation, PI'IT 79-12-P, PI'IT 79-5-P. 

Secretary of Labor v. Clinchfield Coal Canpany, NORI' 78-417-P. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

JOHN MATALA, 

Applicant 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

April 5, 1979 

Docket No. MORG 76-53 

Appeal No. IBMA 76-96 

This case arises under the Federal Coal Mine Health and Safety Act 

of 1969 ("the 1969 Act"). 1/ The issue is whether the Commission should 

review a discrimination claim brought by John Matala, a miner employed 

by Consolidation Coal Company. 

Matala showed evidence of development of pneumoconiosis (black 

lung) and on March 1, 1975, he exercised his statutory right under the 

1969 Act to voluntarily transfer from his continuous mining machine 

operator's position to that of a general laborer's position in an area 

of the mine with a lower coal dust level. 2:./ Before his transfer, 

Matala had been earning $55.00 per day, the standard daily wage rate for 

a continuous mining machine operator. After his transfer, the Company 

continued to pay Matala $55.00 per day. On December 6, 1975, the 

National Bituminous Coal Wage Agreemeh~ of 1974 increased the standard 

daily wage rate for continuous mining machine operators to $57.20. 

Matala continued to be paid $55.00 per day, however. 

Matala then filed an application for review of alleged discrimination 

with the Secretary of the Interior under section 110(b)(2) of the 1969 

Act, claiming that the Company's failure to pay him the wages of a 

1/ 30 U.S.C. §801 et~· (1976)(amended 1977). This case presents no 

issue under the Federal Mine Safety and He~lth Act of 1977, 30 U.S.C.A. 

§801 et seq. (1978). 

J:../ Section 203(b)(2) and (3) of the 1969 Act provided, in part: 

(2) [A]ny miner who ••• shows evidence of the development of 

pneumoconiosis shall be afforded the option of transferring from 

his position to another position in any area of the mine, for such. 

period or periods as may be necessary to prevent further development of such disease, where the concentration of respirable dust in 

the mine atmosphere is not more than 1.0 milligrams of dust per 

cubic meter of air •••• 

(3) Any miner. so transferred shall receive compensation for such 

work at not less than the regular rate of pay received by him 

immediately prior to his transfer. 

79-4-2 

1 
continuous mining machine operator after December 6, 1975, violates 

section 203(b)(3) of the 1969 Act and results in discrimination against 

him in violation of section llO(b)(l)(B) of that Act. 3/ On May 5, 

1976, Administrative Law Judge Malcolm Littlefield, assigned to hear 

Matala's case, dismissed the application for review. Matala appealed to 

the Secretary of Interior's Board of Mine Operations Appeals. 4/ For 

the reasons set forth below, we conclude that we should not review 

claims under section llO(b) of the 1969 Act of alleged violations of 

section 203(b)(3) of the Act, and therefore we affirm the dismissal. 

The 1969 Act was amended in 1972 by the Black Lung Benefits Act, 30 

U.S.C. §901 et~· (1976). Section 428 of the Black Lung Benefits Act, 

30 U.S.C. §938, provides, in part: 

(a) No operator shall discharge or in any other way discriminate against any miner employed by him by reason of the fact 

that such miner is suffering from pneumoconiosis ••• 

(b) Any miner who believes that he has been discharged or 

otherwise discriminated against by any person in violation of 

subsection (a) of this section, or any representative of such 

miner may, within ninety days after such violation occurs, apply to 

the Secretary [of Labor] for a review of such alleged discharge or 

discrimination •••• [Emphasis added.] 

; 

11 Section llO(b)(l) and (2) of the 1969 Act provided, in relevant 

part: 

(1) No person shall discharge or in any other way discriminate 

against ••• any miner ••• by reason of the fact that such 

miner ••• (b) has filed, instituted, or caused to be filed 

or instituted any proceeding under this Act ••• 

(2) Any miner ••• who believes that he has been discharged or 

otherwise discriminated against by any person in violation of 

paragraph (1) of this subsection may, within thirty days after such 

yiolation occurs, apply to the Secretary [of Interior]for a review 

of such alleged discharge or discrimination •••. ·[Emphasis added.]. 

!!_/ The appeal is before this Commission for disposition under section 

301, Federal Mine Safety and Health Amendments Act of 1977, 30 U.S.C,A. 

§ 961 (1978), under which the Secretary of Interior's adjudicative 

functions under the 1969 Act were transferred to the Commission. 

2 
The Administrative Law Judge held that section 428 of the Black 

Lung Benefits Act was exclusively applicable to Matala's claim and he 

therefore dismissed the application for review. He ruled that the claim 

should have been filed with the Secretary of Labor under section 428, 

rather than with the Secretary of Interior under section llO(b) of the 

1969 Act. The judge relied primarily on the language of the Secretary 

of Interior's Board of Mine Operations Appeals decision in Higgins v. 

Old Ben Coal Corporation, 3 IBMA 237, 1973-1974 OSHD ~118, 228 (1974), 

appeal dismissed as untimely filed, No. 77-1363 (D.C. Cir. June 20, 

1977), that: 

[S]ince there is a specific statutory provision for review 

of discharge and/or discrimination of a miner based upon the fact 

that such miner suffers from pneumoconiosis, as here alleged, we 

need not speculate whether, in the absence of such provision, this 

Board could or should assume jurisdiction under some other provision of the Act, specifically section llO(b). We think it highly 

unlikely that Congress intended to confer jurisdiction upon both 

the Secretary of Labor and the Secretary of Interior pertaining to 

the same subject matter within the confines of the same Act. 

3 IBMA at 245. 

On appeal, Matala argues that because he exercised his transfer 

right under section 203(b)(2) of the 1969 Act, he instituted a proceeding under the 1969 Act and thus a failure to pay him at the wage rate of 

his old job classification is discrimination in violation of section 

llO(b) of the 1969 Act. 

We conclude, however, that Matala's allegation of discrimination 

should be resolved under the extensive provisions of section 428(b) of 

the Black Lung Benefits Act, which are enforced by the Secretary of 

Labor, not the Commission. Despite Matala's attempt to characterize 

this dispute as a section llO(b) discrimination claim, .his application 

raises issues of discrimination related exclusively to rights of miners 

afflicted with pneumoconiosis. Congress has provided a more specific 

remedy in the Black Lung Benefits Act for claims of discrimination based 

on pneumoconiosi$ and there is no need for this Connnission to apply the 

more general proyisions of section llO(b) of the 1969 Act in order to 

provide Matala with a remedy for any discriminatory practices which 

might be present in this case. 2../ 

5/ We do not reach the question of whether discrimination actually 

existed in this case and we reserve judgment on whether we would reach a 

different result if claims like these were not entertained under section 

428 of the Black Lung Benefits Act. See Higgins v. Old Be1:i Coal Company, 

No. 76-BLA-633 (Labor Dept. Office of ALJ's, March 21, 1977), aff'd, 584 

F.2d 1035 (D.C. Cir. 1978), pet. for cert. filed, 47 U.S.L.W. 3587 

(February 20, 1979) (No. 1288). We note in that regard that a claim 

based on these circumstances was in fact recently adjudicated by the 

Department of Labor under section 428 of the Black Lung Benefits Act. 

John Matala v. Consolidation Coal Company, No. 77-BLA-1415 (January 5, 

1978), appeal pen~ing. No. C780035W (N.D. w. Va.). 

3 
The judge's decision is affirmed. "4 

Jero!Jie R. Wal 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE- SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

i730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 April 11, 1979 

Docket Nos. IBMA 76-28 

MORG 76-21 

IBMA 77-39 

MORG 76X95-P 

REPUBLIC STEEL CORPORATION 

DECISION 

These cases present a common issue under the Fed~ral Coal Mine 

Health and Safety Act of 1969. 1/ The material facts in both cases are 

not disputed. Republic Steel concedes that the violations of the 1969 

Act giving rise to these enforcement proceedings occurred at a mine that 

it owned. The parties agree that the violations occurred during the 

course of work performed by independent contractors engaged by Republic. 

The Secretary concedes that no employees of Republic were endangered by 

the violative conditions. For the purposes of deciding these cases, it 

is also assumed that Republic could not have prevented the violations. 'J:../ 

Thus, the question of law at issue is clearly framed: Can Republic, as 

owner of the involved mine, be held responsible for violations of the 

1969 Act created by its independent contractors even though none of 

Republic's employees were exposed to the violative conditions and 

Republic could not have prevented the violations. For the reasons that 

follow, we answer this question in the affirmative. 

The question of a mine owner's responsibility for violations of the 

1969 Act created by independent contractors has been the subject of much 

litigation. An understanding of.the issues involved can best be reached 

by tracing the development of the law in this area. 

The 1969 Act provided that "[e]ach coal mine, the products of which 

enter commerce, or the operation~ or products of which affect commerce, 

and each operator of such mine, shall be subject to the provisions of 

this Act". 30 U.S.C. § 803 (emphasis added). The Act defined the term 

"operator" as- "any owner, lessee, or other person who operates, controls 

or supervises a coal mine". 30 U.S.C. § 802(d). The Act further provided for the issuance of notices, orders, and civil penalty assessments 

to operators who violated the Act's requirements. 

1/ 30 U.S.C. §801 et~· (1976) (amended 1977) ("the 1969 Act" or "the 

Act"). These cases present no issue under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §801 et~· (1978). 

J:../ The violations were abated after service to Republic of the notices 

and the order at issue. 

79-4-4 

5 
Early in the Act's enforcement, the Interior Department's Board.of 

Mine Operations Appeals held that, although an independent contractor 

and the coal company to whom the contractor provides services may both 

be "operators" under the Act, ]./ only the operator responsible for the 

violation and the safety and health of the endangered employees could be 

served with notices and orders and assessed penalties. Affinity Mining 

Co., 2 IBMA 57 (1973). The Board further stated, however, that an 

operator such as Af.finity 4/ could be assessed a civil penalty where it 

"materially abetted" the independent contractor's violations or "actually 

committed" such violations. 

In subsequent cases, the test stated in Affinity for determining a 

cpal mine owner's responsibility for violations of the Act created by 

its contractors was modified by the Board. In Peggs Run Coal Co., 

Inc., 5 IBMA 175 (1975), the Board expanded the bases for holding a coal 

mine owner responsible to situations where the owner's employees were 

endangered by the violation and the owner could have prevented the 

violation "with a minimum of diligence." 5 IBMA at 183. The rationale 

of Peggs Run was followed by the Board in West Freedom Mining Corp., 5 

IBMA 329 (1975), and Armco Steel Corp., 6 IBMA 64 (1976), in which 

notices issued to mine owners for violations arising from the work 

activities of their contractors were affirmed. 

The Board's application of its "endangerment/preventability" test 

for determining a coal mine owner's responsibility for violations created 

by independent contractors was brought to an end, however, through a 

chain of events set in motion by the Board's decision in Affinity Mining 

Co., supra. 

lf _In Laurel Shaft Construction Co., Inc., 1 IBMA 217 (1972), the Board 

held that an independent contractor can be an "operator" within the 

meaning of the 1969 Act. This conclusion was also reached by the Fourth 

Circuit in Bituminous Coal Operators' Association, Inc. v. Secretary of 

Interior, 547 F.2d 240 (1977), and the D.C. Circuit in Association of 

Bituminous Contractors, Inc. v. Andrus, 581 F.2d 853 (1978). The Commission has followed the holdings of the Board and the courts on this 

issue. Cowin and Co., Inc., Docket No. BARB 74-259, April 11, 1979. 

No argument is made in the present cases that the involved independent 

contractors were not "operators" within the meaning of the Act or that 

the violations did not occur in a "coal mine". 

!±.I The mine involved in Affinity was located on land leased by A_f~inity 

Mining Company from the Pocahontas Land Corporation. 2 IBMA at 63. 

6 
Following the decision in Affinity, the Association of Bituminous 

Contractors ("ABC") instituted a declaratory judgment proceeding seeking 

to establish that, contrary to the decision in Affinity, an independent 

contractor engaged by a coal mining company to perform construction work 

at a coal mine was not an "operator" within the meaning of the 1969 Act. 

ABC v._Morton, Secretary of Interior, No. 1058-74 (D.D.C., May 23, 

1975). In its order granting the relief sought, the district court 

stated: 

• • • [A] coal mine construction company is not an 

"operator" as defined in Section 3(d) of the Federal 

Coal Mine Health and Safety Act of 1969, 30 U.S.C. §802(d), 

where it is engaged in coal mine construction work on 

behalf of the owner, lessee or other person who operates, 

controls or supervises a coal mine; 

Nothing in the foregoing declaration shall affect 

or prejudice the right of the Secretary of the Interior 

to contend in a subsequent proceeding that, if a coal 

mine construction company fails to observe the interim 

mandatory health and safety standards of the [1969 Act] 

and the regulations of the Secretary of the Interior 

promulgated thereunder, the Secretary may institute 

proceedings to seek compliance therewith and assess 

appropriate penalties against the owner, lessee or 

other person who operates, controls or supervises said 

coal mine. 

On August 21, 1975, in response to the district court's order, then 

Acting Secretary of Interior Frizzell issued Secretarial Order No. 2977. 

This order directed the Interior Department's enforcement personnel to 

cite only coal mine operators for violations of the Act created by contractors performing work on behalf of the operators. The Board of Mine 

Operations Appeals held that Order 2977 was a department-wide policy 

directive, binding upon the Board and the administrative law judges as 

well as the enforcement personnel, and, therefore, that it was compelled 

to hold a coal mine owner responsible for its contractors' violations 

regardless of the particular circumstances surrounding the violations. 

E._g_., Rushton Mining Co., 5 IBMA 367 (1975). 

Based on this rationale; the Board affirmed the withdrawal order at 

issue in Docket No. MORG 76-21 ("Republic I"), 5 IBMA 306 (1975), and 

an administrative law judge assessed civil penalties for the violations 

in Docket No. MORG 76X95-P ("Republic II"). These decisions were then 

appealed to the Court of Appeals for the District of Columbia Circuit 

and to the Board, respectively. 2/ 

1_/ The appeal before the Board in Republic II was stayed by the Board 

pending the de~ision of the D.C. Circuit in Republic I. That appeal is 

now before the Commission pursuant to section 301 of the Federal Mine 

Safety and Health Amendments Act 0£ 1977, 30 U.S.C. § 961 (1978). 

7 
While the appeals in Republic I and Republic II were pending, the 

Court of Appeals for the Fourth Circuit issued its deci.sion in Bituminous 

Coal Operators' Association, Inc. v. Secretary of Interior, 547 F.2.d 240 

(1977). The Bituminous Coal Operators' Association (BCOA) had filed 

suit in district court following the issuance of Secretarial Order 2977. 

The BCOA sought a declaratory judgment that coal mine operators are not 

responsible for violations created by independent contractors and an 

injunction r~straining the Secretary from enforcing the policy announced 

in Order 2977. The district court held that construction contractors 

are not "operators" under the Act, but are "statutory agents" of the 

coal mining companies. The court further concluded, however, that the 

coal mining companies, as "operators", could be held responsible for 

violations created by their "agent" contractors. Accordingly, the court 

dismissed the complaints for declaratory and injunctive relief. BCOA v. 

Hathaway, 400 F.Supp. 371 (W.D. Va. 1975). 

On appeal the Fourth Circuit affirmed the ultimate judgment of the 

district court although it did not embrace all of that court's conclusions of law. The court of appeals held, contrary to the district court, 

that construction contractors can be "operators" under the 1969 Act and, 

therefore, that the Secretary properly could enforce the provisions of 

the Act against such contractors. The court further held that a coal 

mine owner or lessee also could be held responsible for a construction 

contractor's violations. BCOA v. Secretary, supra, 547 F.2d at 246~47. 

This latter conclusion was premised on two bases. First, the court 

noted that the Act defined the term "operator" to include an owner or 

lessee and tha.t the Act imposed responsibility for violations on the 

operator of a mine without exemption or exclusion. Therefore, the court 

concluded that the Act "impose[s] liability on the owner or lessee of a 

mine regardless of who violated the Act or created the danger requiring 

withdrawal." BCOA v. Secretary, -547 F.2d at 246. Second, the court 

agreed with the district court's conclusions that a construction contractor "may be considered the statutory agent of an owner or lessee of 

a coal mine", and that under the Act an owner or lessee may be held 

responsible for the violations of its agents. 547 F.2d at 247. 

On February 22, 1978, the D.C. Circuit issued its decisions in ABC 

v. Andrus, 581 F.2d 853 (1978), and Republic Steel Corp. v. Interior 

Board of Mine Operations Appeals, 581 F.2d 868 (1978). ABC v. Andrus 

was the appeal of the ~istrict court's order in ABC v. Morton, supra, 

declaring the 1969 Act unenforceable against contractors. On appeal, 

the D.C. Circuit reversed the district court's order and held that 

independent contractors that otherwise fell within the Act's coverage 

were "operators" against whom the Act could be enforced. 581 F.2d at 

862-63. 

8 
In Republic Steel, the D.C. Circuit reversed .the Board's decision 

in Republic I. The court observed that the sole basis for the Board's 

decision was its belief that it was bound by Secretarial Order 2977 to 

hold coal mine owners such as Republic responsible for violations of the 

Act created by their contractqrs. Since the district court's order that 

resulted in the issuance of Secretarial Order 2977 had been reversed in 

ABC v. Andrus, the court concluded that the Board's decision in Republic 

I "no longer had a foundation" and that a remand was necessary. 581 

F. 2d at 820. &._/ 

Against this background we turn to a discussion of our holding. 

We agree with the Fourth Circuit's conclusion in BCOA v. Secretary 

that as a matter of law under the 1969 Act an owner of·a coal mine can 

be held responsible for any violations of the Act committed by its 

contractors. Our conclusion is derived from the text of the statute 

itself. The Act defines "operator" as "any owner, lessee, or other 

person who operates, controls, or supervises a coal mine." II The Act 

provides for the issuance of orders and notices to the operator for 

innninent dangers and violations of mandatory standards; 8/ the assessment of civil penalties against the operator of a mine in which a 

violation occurs; 9/ and the compensation by the operator of miners 

idled by a withdrawal order. 10/ As the Fourth Circuit correctly 

observed, "[t]hese sections, when read with the definition of operator, 

impose liability on the owner • • • of a mine regardless of who violated 

the Act or created the danger requiring withdrawal." 547 F.2d at 246. 11/ 

Furthermore, we can find nothing in the Act or its legislative 

history that requires that an owner's responsibility for contractor 

violations be qualified by any consideration of the owner's ability to 

prevent the violations. Rather, .Congress determined that the question 

of an operator's fault was not to enter into the determination of 

&/ The D.C. Circuit's decision remanded Republic I to the.Board. The 

case is now before the Commission for disposition. See n. 5, supra. 

71 30 u.s.c. § 802(d). 

8/ 30 u.s.c. § 814. 

91 30 u.s.c. § 819. 

10/ 30 u.s.c. § 820. 

11/ In Republic Steel Corp., supra, the D.C. Circuit also endorsed this 

conclusion. 581 F.2d at 870 n. 5. 

9 
whether a violation of the Act had occurred. 12/ Valley Camp Coal Co, 

1 ·IBMA 196 (1972); Webster County Coal Corp., 7 IBMA 264 (1977). Thus, 

it is consistent with the Act's language and the intent of Congress to 

hold an owner responsible for its contractors' violations .without regard 

to the owner's ability to prevent the violations. Insofar as the 

decisions of 'the Board held to the contrary, we decline to follow them. 

12/ The House managers explained the conference report's provision 

requiring the assessment of a penalty on the operator of a coal mine in 

which a violation of the Act occurs as follows: 

Section 109. 

* * * * * * * 2. The Senate bill provided that, in determining the amount of 

the civil penalty only, the Secretary should consider, ainong other 

things, whether the operator was at fault. The House amendment 

did not contain this provision. Since the conference agreement 

provides liability for violation of the standards against the 

operator without regard to fault, the conference substitute also 

provides that the Secretary shall apply the more appropriate 

negligence test, in determining the amount of the penalty, recognizing that the operator has a high degree of care to insure the 

health.and safety of persons in the mine. 

H. Conf. Rep. No. 91-761, 9lst Cong., 1st Sess., at 71 (1969)(emphasis 

added), reprinted in Senate Subcommittee on Labor, Committee on Labor 

and Public Welfare, 94th Cong., 1st Sess., Legislative History of the 

Federal Coal Mine Health and Safety Act of 1969, Part I, at 1515 (1975) • 

. The 1969 Act's imposition of liability without regard to an operator's fault should be compared with the Occupational Safety and Health 

Act of 1970, 29 U.S.C. §651 et~· In the OSHAct Congress declared 

that its purpose and policy was "to assure so far as possible" safe and 

healthful working conditions to America's workforce. 29 U.S.C. §65l(b) 

(emphasis added). Some courts have interpreted the emphasized phrase as 

an indication of Congressional intent not to hold employers responsible 

for violations of the OSHAct that they could not have prevented. See, 

~·.&·, Horne Plumbing & Heating Co. v. OSHRC, 528 F. 2d 564 (5th Cir-.-

1976); National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D. C. 

Cir. 1973). 

10 

-:-: 
We also can find no support for the assertion that the Act permits 

an owner to avoid responsibility for a contractor's violations simply 

because the only miners endangered by the violative conditions at its 

mine are employees of the contractor. The Act seeks to protect the 

safety and health of all individuals working in a coal mine. 30 U.S.C. 

§§ 80l(a) and 802(g). In order to achieve this goal, the Act places a 

duty on each operator to comply with its provisions. 30 U.S.C. § 803. 

The purpose of the .Act is not served by interpreting these provisions to 

allow an operator to limit the benefit of the protection it affords to 

its own employees. Employer-employee is not the test. The duty of an 

operator, whether owner or contractor, extends to all miners. Again, to 

the extent the decisions of the Board held to the contrary, we decline 

to follow them. 

It bears emphasis that the miners of an independent contractor are 

invited upon the property of the mine owner to perform work promoting 

the interests of the owner. A mine owner cannot be allowed to exonerate 

itself from its statutory responsibility for the safety and health of 

miners merely by establishing a private contractual relationship in 

which miners are not its employees and the ability to control the safety 

of its workplace is restricted. 

We need not decide in this case the scope of Commission review, if 

any, over the Secretary's choice in proceeding against the owner, the 

independent contractor, or both, 13/ for a contractor's violation. At 

the time that the involved notices and orders were issued to Republic, 

the District Court's order in ABC v. Morton, supra, declaring independent contractors not liable under the Act, was still outstanding. 

Therefore, the Secretary had the choice of either proceeding against the 

owner or entirely abdicating enforcement of the Act for contractor 

violations. In view of this fact, no matter what test is applied, the 

Secretary's choice to proceed against Republic was entirely proper. 

13/ We are not suggesting that the Act requires that.an owner must be 

proceeded against whenever a contractor violates the Act. Nor are we 

suggesting that the fact that,an owner may be proceeded against in any 

way lessens the duty of the contractor to comply with the Act's requirements. Even where an enforcement action is undertaken against an owner, 

the contractor may also be proceeded against in a separate or consolidated 

proceeding. 

11 
In view of Republic's concession that the violations alleged 

occurred at a mine that it owned, we conclude that Republic violated the 

Act. Accordingly, the decision of the administrative law judge vacating 

the withdrawal order in Republic I is reversed and the decision of the 

administrative law judge in Republic II civil penalties is 

affirmed as to result. 

Backley, Commissioner, dissenting: 

The majority opinion combines two cases in ol ing Republic Steel 

Corporation, Docket Nos. IBMA 76-28 and IBMA 77 3 , referred to herein 

as "Republic I" and "Republic II," respectively~ This, I believe, is 

unfortunate as it ignores the fact that Republic. I is before us on 

remand from the United States Court of Appeals for the District of 

Columbia Circuit with the issue to be decided clearly stated. Republic II 

was stayed by our predecessor, the Interior Board of Mine Operations 

Appeals (Board), for review pending the outcome of Republic I. 

By combining the two cases, the majority disregards the individual 

factual situations presented by these cases. Furthermore, the issue is 

stated in the majority opinion as if the sole issue to be decided is one 

of statutory construction, which is not accurate. As a result,_the 

majority concludes that Republic, as owner of the mine where the alleged 

violations occurred, can be held liable for the violations. "created by 

its independent contractors." This general proposition of statutory 

construction does in fact have support from two recent court decisions. 1/ 

The majority then concludes, without any discussion of the factual 

situation surrounding the occurrence of the violations or finding of 

fact relevant thereto, that Republic should be held liable for the 

violations of its independent contractor. Accordingly, it must follow 

that Republic, absent a finding cf any causal connection between its 

actions and the violations, is being held liable under a strict liability 

theory. I cannot agree with this latter conclusion and, therefore, must 

dissent from today's decision. 

1/ Association of Bituminous Contractors Inc., (ABC) v. Andrus, 

581 F.2d 853 (D.C. Cir. 1978); Bituminous Coal Operators 

Association, Inc. (BCOA) v. Secretary, 547 F.2d 240 (4th Cir. 1977). 

12 
In order to put this matter in proper perspective, we must first look 

at the facts that gave rise to Republic I and under what circumstances 

that case is now before us. 

As indicated above, Republic I was remanded from the Circuit Court 

which vacated the decision of the Board. 2/ · The Board had, in turn, 

reversed the decision of the Administrative Law Judge (ALJ) who had held 

that the owner-operator (Republic) was not the proper party to cite in 

a withdrawal order for the acts of an independent contractor (Roberts 

and Schaefer Construction Company) who violates the health or safety 

provisions of the Federal Coal Mine Health and Safety Act of 1969. ]/ 

The Board did not, as the ALJ did, analyze the facts of the case, 

but held as a matter of departmental policy that the owner or lessee of 

a coal mine is the sole party to be held absolutely liable for violations 

of the mandatory standards caused by a coal mine construction contractor 

regardless of the circumstances. The Board stated that it was compelled 

to so hold as a result of Secretarial Order 2977, issued as a policy 

directive by the Acting Secretary of Interior cin August 21, 1975, and 

made retroactively effective to May 24, 1975. The Secretarial Order 

stated that it was being issued to comply with the declaratory judgment 

order issued by the U.S. District Court for the District of Columbia on 

May 23, 1975, in Association of Bituminous Contractors, Inc. v. Morton, 

(C.A. No. 1058-74, unreported) (hereafter cited as ABC v. Morton). In 

that case the district court held that coal mine construction contractors 

were not "operators" within the meaning of 30 U.S.C. §802, and therefore 

were not liable for failure to abide by the mandatory health and safety 

standards. On February 22, 1978, that decision was reversed by the Court 

of Appeals on the basis of an erroneous statutory interpretation of the 

term "operator" by the district court. 4/ On the same day of its reversal 

of ABC v. Morton, the Court of Appeals remanded the instant case involving 

essentially the same issue. 2/ 

In remanding this case, the Court noted that the Board's decision 

"was not, in fact, based on an interpretation of law. It was based, 

pure and simple, on the Association of Bituminous Contractors decision." 

581 F.2d at 870. The Court then vacated the decision and remanded, as 

2/ Section 106(a) of the Act, 30 U.S.C. §816(a) (1970), provided 

that 11Any order or decision" issued by the Secretary shall be 

subject to review in an appropriate court of appeals. 

3/ 30 U.S.C. §801 et seq., hereafter "The Act". 

4/ Association of Bituminous Contractors, Inc. v. Andrus, 

581 F.2d 853 (1978). 

2/ Republic Steel Corporation v. Interior Board of Mine 

Operations Appeals, 581 F.2d 868 (1978). 

13 
noted above, with the following language: 

"The Board may then determine what enforcement action it 

will follow; whether to proceed, as in the past, only 

against construction contractors, and therefore dismiss 

the present action against Republic or to proceed 

against Republic on the basis of the Board's own interpretation of how best to effectuate the purposes of the 

Act." [Emphasis added.] 

Thus, the Court of Appeals has left to us the determination as to 

which of the options available in determining liability will most 

effectively assure the health and safety of the miner. The policy 

considerations enunciated by the majority fail to convince me that by 

holding Republic strictly liable under the facts of this case, the 

purposes of the Act would be most efficiently promoted. 

The undisputed circumstances of this case are as follows: Republic's 

Kitt No. 1 Mine was undergoing construction on August 4, 1975, when a 

federal inspector issued a notice of violation under section 104(b) 6/ 

of the Act. The notice cited Republic, as operator of the Kitt mine~ 

the the following alleged violation of 30.C.F.R. §71.101: J.../ 

The Roberts and Schaefer Construction Company, doing construction 

work on the operator's property has not collected respirable 

dust samples on their employee [sic] as required. 

The construction company was employed by Republic to construct ,a 

coal preparation plant at the Kitt Mine and its ·work activity did not 

involve any underground operation at the mine site. Abatement of the 

violation was required to be completed by August 11, 1975. On 

August 13, 1975, the inspector returned to the mine site and finding 

that "little or no effort was being made· to abate the violation," issued 

an Order of Withdrawal to Republic pursuant to section 104(b) of the 

Act. The withdrawal order prohibited Republic from allowing Roberts and 

Schaefer to perform the work it had contracted to do. Following Republic's 

abatement of the violation on the same day, the withdrawal order was 

terminated. 

6/ 

J...l 

30 u.s.c. 814(b) (1970). 

The pertinent part of section 71.101 reads: 

"(a) Each operator of an underground coal mine and 

each operator of a surface coal mine shall take, as 

prescribed in this subpart, accurate samples of the 

amount of respirable dust in the atmosphere to which 

each miner employed in a surface installation or a 

surface worksite is exposed." 

14 
A timely application for review of the propriety of the withdrawal 

order was filed by Republic. §_/ Filed concurrently was a motion for 

summary decision with a supporting affidavit. In response, the government filed a motion and memorandum in opposition to the motion for 

summary decision together with a cross motion for summary disposition. 

The government's motion recited the allegations made by Republic and 

"agree(d) that there is no genuine issue of fact raised in this proceeding ••• " The motion then cited Secretarial Order 2977, referred to 

above, as the basis for citing Republic. 

Thus, based on the above documents, the record established the 

following: 

(1) Roberts and Schaefer was employed by Republic 

as an independent contractor to construct a 

coal preparation plant at its mine; 

(2) Roberts and Schaefer had exclusive control 

and responsibility over its employees 

engaged in that: construction activity; 

(3) The alleged violation in question related solely 

to the failure to take samples of the respirable 

dust to which the employees of Roberts and 

Schaefer were exposed; 

(4) No employees of Republic were subject to any 

danger because of the alleged violations; and 

(5) The notice and order were issued to Republic 

instead of the independent contractor so as 

to comply with the departmental policy 

expressed in Secretarial Order 2977, which, 

in turn was based upon the district court's 

misinterpretation of the statute. ! 

In concluding that Republic is absolutely liable for the violation 

charged, the majority relies in part upon the observation of the Fourth 

Circuit in BCOA v. Secretary J_/ that the provisions o~ the Act "impose 

liability on the owner ••. of a mine regardless of who violated the Act 

or created the danger requiring withdrawal." However, when this quoted 

§._/ Attached to the application were two memoranda from the 

Assistant Administrator, Coal Mine Health and Safety to 

a.11 District Managers instructing inspectors to issue 

all notices and orders to owner-operators and not to 

construction companies or independent contractors, and 

to vacate those notices and orders issued to independent 

contractors prior to June 3, 1975, and reissue them to 

the owner-operator involved. Such action was taken to 

adhere to the District Court decision in ABC v. Morton. 

J_/ Supra, SL; 7 F. 2d at 246. 

15 
portion of the sentence is read within the context of the entire paragraph 

the court seemed to be holding that the referenced provisions of the Act 

authorized the Secretary to impose strict liability on the owner of the 

mine. 

To realize the true impact of that holding it must be remembered 

that the court was ref erring to the Secretary of Interior and the 

departmental structure utilized for the enforcement of the Act at the 

time of the court's decision. The court had earlier noted at page 242 

that "[w]ithdrawal orders may be reviewed by the Secretary through the 

Board of Mine Operations Appeals." 10/ 

The majority opinion further notes that the District of Columbia 

Circuit also endorsed this "same conclusion" of the Fourth Circuit in 

its remand of the instant case and cites footnote 5 of the Republic 

decision. That footnote, in its entirety, states as follows.: 

"Hence we do not disagree with the Fourth Circuit's 

logic iri BCOA, that the Act leaves the agency free 

to assess either coal mine owners or contractors." 

The majority apparently reads this footnote as support from the 

District of Columbia .Circuit for the proposition that the statute mandates 

that the owner-operator be liable for any violations of the Act committed 

by its contractors on mine property should the enforcement body, not the 

reviewing authority, so determine. When the remand opinion is read as a 

whole, however, it is clear that the Distri~t of Columbia Circuit did 

not adopt this theory in Republic. If it had, it would have simply 

affirmed on the grounds that the Secretary was well within his statutory 

right to proceed against Republic. 

On the contrary, however, the Court of Appeals remanded the present 

case with the options for the administrative reviewing authority clearly 

stated. Our determination regarding proper allocation of liability was 

to be based upon the policy considerations enunciated by the court. 

For the majority to now refer to the language quoted above from the 

opinions in ABC v. Andrus and BCOA v. Secretary for authority supporting 

a policy determination to impose strict liability on owner-oper~tors 

indicates a significantly different.reading of those cases then my own. 11/ 

Thus, I believe it would be helpful to summarize precisely my view 

as to what the Circuit Courts have held regarding the issues before us. 

The District of Columbia Circuit held in ABC v. Andrus that it'was not 

contrary to the statutory language of the Act for the Board of Mine 

10/ The Secretary had delegated his review authority under the 

Federal ~oal Mine Health and Safety Act to the Interior 

Board of Mine Operations Appeals, 43 C.F.R. §4.500 (1976). 

11/ The majority appea~s to place great emphasis on the fact 

that the statute does not "qual:f.fy" the owner-operators' 

liability by his inability to prevent a violation. Yet 

in ABC v. Andrus, the D.C. Circuit specifically referred 

to control and supervision in assessing liability. For 

further discussion of this principle see pages 13 and 14 

infra. 

16 

1_-;_ 
Operations App_eals to hold independent construction companies liable as 

"operators" for failure to comply with the mandatory safety and health 

standards of the Act. 

The Fourth Circuit held in BCOA v. Secretary that it was not contrary 

to the statutory language of the Act for the Board of Mine Operations 

Appeals to impose liability on a coal mine construction company that 

violates the Act. The Court in BCOA v. Secretary further held that it 

was not contrary to the statutory language of the Act for the Secretary 

(i.e., Board of Mine Operations Appeals) to impose liability on the 

owner for any violation committed by the construction company on mine 

property, regardless of the circumstances. However, the Court emphasized 

the narrowness of its holding by stating that the "opinion presents no 

occasion, however, for determining the proper allocation of liability in 

view of the myriad factual situations that may arise.'' Review by the 

Court pursuant to Section 106(a) of the Act as to the proper allocation 

of liability based on a specific factual situation was inappropriate 

because no administrative record had been developed. 12/ 

The Bituminous Coal Operator's Association (BCOA) and the Association 

of Bituminous Contractors (ABC) had both filed requests for declaratory 

relief in the respective district courts. Those courts had been requested 

to construe the Act as to the permissible limits of the term "operator." 

The decisions of the circuit courts do not purport to state which party 

should be held liable in a specific factual situation; rather, they 

provide guidance as to which party can be held liable as an "operator" 

consistent with the proper statutory construction. In line with these 

decisions, I therefore conclude that either the owner or.the independent 

contra~tor may be held liable as operators under the Act. 

In light of the above discussion, I now turn to my own determination 

of how best to allocate legal responsibility for violations and safety 

hazar.ds as between the mine owner and the independent contractor working 

on mine property. I am convinced that the Act's purpose of assuring the 

health and safety of miners can best be accomplished by placing the 

responsibility for their health and safety on the person most able to 

prevent violations or hazards and to correct them quickly should they 

occur. In most situations that person would be the p~rty who controls 

or supervises the work activity in that portion of the mine where the 

violation or hazard occurred. 

In ABC v. Andrus, the appellate court noted, with approval, that 

decisions of the Board 13/ "stress the importance of placing direct 

liability on the independent construction company as the party most able 

to take precautionary measures." 14/ Noting that the Board had "forcefully rejected" the conclusion that mine owners should be absolutely 

12/ The court's discussion of this point is found at 547 F.2d 243. 

13/ Affinity Mining Company,· 2 IBMA 57, 80 Interior Dec. at 229 (1973); 

Wilson v. Laurel Shaft Construction Co., 1 IBMA 217, 79 Interior 

Dec. 701 (1973). 

14/ 581 F.2d at 862. 

17 
liable, the court went on to state: 

"It is not a stretching of the statute to hold 

that companies who profess to be as independent 

of coal mine owners as these construction 

companies purport to be, do control and supervise 

the construction work they have contracted to 

perform over the area where they are working. 

If a coal mine owner contracts with an independent 

construction company for certain work within a 

certain area involved in the mining operation, 

the supervision that such a company exercises over 

that separate project clearly brings it within the 

statute. Otherwise, the owner would be constantly 

interfering in the work of the construction company 

in order to minimize his own liability for damages. 

The Act does not require such an inefficient method 

of insuring compliance with mandatory safety 

regulations." 581 F.2d at 862-63 (emphasis added 

in last two sentences). 

Although the majority opinion suggests otherwise (page 7), there 

is no evidence that mine own.ers, either in this case or any other case, 

establish contractual relationships with independent construction contractors so as to "exonerate" themselves from the contractors' violations. 

Rather, in the normal situation an owner of a coal mine contracts with a 

construction company to perform services that are beyond his area of. 

expertise. In this regard, the Fourth Circuit, in BCOA v. Secretary, was 

well aware of the role of the independent construction contractor when 

it stated: 

Mining companies frequently employ independent, 

general contractors for both surface and subsurface construction work. These construction 

companies build coal preparation plants, tipples, 

conveyor equipment, storage silos, bath houses, 

office building, power lines, roads, drag lines, 

and shovels. They also construct underground 

facilities, such as shafts, slopes, and tunnels. 

Their work may be done before or after the mine 

is in operation. The construction companies, 

however, do not process the coal that they 

remove. (547 F.2d 243) 

Although it is true that the independent contractor is invited upon 

the property of the mine owner to perform work promoting the interests 

of the owner, as noted by the majority, this fact should not be the sole 

basis of liability as suggested. The test as to liability should be 

based on a party's ability to assure safety. 

18 
Under the majority decision, Republic's lack of control over the 

independent contractor's actions and resulting inability to prevent the 

latter's indiscretions has no bearing on liability. Failure to consider 

these elements I find more than somewhat prejudicial to Republic. 

Accordingly, the question now arises as to whether the facts in 

this case can support a finding of liability on the part of Republic 

under the test I would adopt. 

There is no dispute that.the contractor was in complete control of 

its employees who were engaged in the construction activity. There is 

no evidence to even suggest that Republic had control. Roberts and 

Schaefer failed to take respirable dust samples of its employees, not 

Republic's. In fact, no Republic employee was in danger as a result of 

Roberts and Schaefer's failure to comply with the law. Upon consideration 

of the evidence of record, the only party that could have prevented the 

violation and thus effectuated the purposes of the Act was Roberts and 

Schaefer. 

Given the factual situation presented in this case, I can not find 

Republic in violation of the Act and accordingly would affirm the 

Administrative Law Judge in Republic I. 

In light of the above discussion, and the fact the Judge did not 

consider the factual situation in Republic II but relied on a misinterpretation of statute, I would remand for hearing on the merits • 

..... 

19 
FEDERAL· MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY .OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSH, 

v. 

COWIN AND COMPANY, INC., 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 April.11, 1979 

Docket No. BARB 74-259 

IBMA 75-57 

DECISION 

This case is before the Commission on remand from the U.S. Court of 

Appeals for the District of Columbia Circuit. United Mine Workers of 

America v. Kleppe, No. 76-1980 (D.C. Cir., May 26, 1978). l/ The 

issue before the· Commission is whether Cowin and Company, Inc. (Cowin) 

properly was issued a withdrawal order pursuant to section 104(a) of the 

Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et 

seq. (1976) (amended 1977) [the "1969 Act"]. '!:_/ For the reasons that 

follow, we affirm the decision of the administrative law judge upholding 

t.he withdrawal order and dismissing Cowin's application for review. 

Cowin, a construction contractor, contracted with U.S. Pipe and 

Foundry Company to construct new shafts at a coal mine owned by U.S. 

Pipe. On November 3, 1973, when Cowin was engaged in the concrete 

lining of one of the shafts, its worksite was inspected and a section 

104(a) order was issued. The order stated that violations of the standards at 30 CFR §§ 77.1903(c), 77.1905(b), 77.1906(c), 77.1907(a) and 

(b), 77.1908(b), and 77.1908-1 existed, and described the violative conditions as follows: 

1/ The court remanded this case to the Secretary of Interior. It is 

before the Commission for disposition pursuant to 30 U.S.C. § 961 (19.78), 

l:../ Section 104(a) of the 1969 Act provides: 

If, upon any inspection of a coal mine, an authorized representative 9f 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. 

79-4-5 

20 
The Ingersoll-Rand utility air hoist was being used to transport men and was not equipped with an accurate depth indicator. A 

qualified hoistman was not operating the hoist and a second person 

qualified to stop the hoist was not in attendance. No record was 

maintained to i.ndicate that the hoist had been inspected prior to 

hoisting of men. The hoist rope was not equipped with an adequate 

number of rope clamps and the bucket was not provided with two 

bridle chains, a wooden pole was being used for a bucket guide and 

a crescent wrench was used to operate the air valves. 

Cowin filed an application for .review of the withdrawal order and ahearing was held. On April 3, 1975, the administrative law judge issued 

his decision affirming the withdrawal order, finding that an imminent 

danger existed at the time of the issuance of the order. On appeal, the 

Interior Department's Board of Mine Operations Appeals reversed the 

judge's decision and vacated the withdrawal order. Cowin and Co., 

Inc., 6 IBMA 351 (1976). The Board based its decision solely on its 

holding in Republic Steel Corp., 5 IBMA 306 (1975), rev'd, Republic 

Steel Corp. v. Interior Board of Mine Operations Appeals, 581 F.2d 868 

(D.C. Cir. 1978), in which the Board held that, in accordance with 

Secretarial Order No. 2977, "the owner or lessee of a coal mine is the 

sole party to be held absolutely liable for violations committed by a 

coal mine construction contractor regardless of the circumstances." 5 

IBMA at 310 (emphasis added)·. 2./ 

The United Mine Workers of America petitioned the Court of Appeals 

for the District of Columbia Circuit to review the Board's decision. On 

May 26,. 1978, the court of appeals granted the UMWA's motion to summarily vacate the Board's decision and remanded for further proceedings 

not inconsistent with the court's decisions in Association of Bituminous 

Contractors, Inc. v. Andrus, 581 F.2d 853 (D.C. Cir. 1978), and Republic 

Steel Corp. v. IBMOA, supra. 

We conclude that Cowin was an "operator" !!../ of a "coal mine" 2_/ 

under the 1969 Act for the reasons stated in Association of Bituminous 

1./ For a discussion of the background and history of Secretarial Order 

2977, see our decision in Republic Steel Corp., Nos. MORG 76-21 and 

MORG 76X90-P, issued this date. 

4/ Sec~ion 3(d) of the 1969 Act provides: 

- •{O]perator" means any owner, lessee, or other person who operates, 

controls, or supervises a coal mine. 

2_/ section 3(h) of th~ 1969 Act provides: 11 [C]oal mine" means an area of land and all structures, facilities, 

machinery, tools, equipment, shafts, slopes, tunnels, excavations 

and other property, real or personal, placed upon, under, or above 

the surface of such land by any person, used in, or to be used in, 

or resulting from, the work of extracting in such area bituminous 

coal, lignite, or anthracite from its natural deposits in the earth 

by any means or methods, and the work of preparing the coal so 

extracted, and includes custom coal preparation facilities. 

21 
Contractors v. Andrus, supra, 581 F.2d at 861-862,. and Bituminous Coal 

Operators' Association, Inc. v. Secretary of Interior, 547 F.2d 240, 

244-246 (4th Cir. 1977). We further conclude that the withdrawal order 

at issue in this case was properly issued to Cowin. Cowin does not argue 

that its failure to comply with the cited standards did not constitute 

an imminent danger. Rather, Cowin argues that its failure to comply 

with the standards should be excused because an "emergency" condition 

existed. Even if it is assumed that an "emergency" warrants the vacation 

of an otherwise properly issued imminent danger withdrawal order, there 

is no support in the record for the assertion in Cowin's brief on appeal 

that an emergency existed. In fact, the only evidence relevant to this· 

issue is testimony by the inspector that he was not aware of the existence 

of any emergency. E_/ 

Accordingly, the is AFFIRMED. ]_/ 

E_/ Cowin also argues in its brief on appeal that the Part 1977 standards 

cited in the withdrawal order are inapplicable. Cowin did not raise 

this argument before the judge. We do not address this argument raised 

for the first time on appeal. Clinchfield Coal Co., 6 IBMA 319 (1976). 

Cf. section 113(d)(2)(A)(iii) of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq. (1978). 

7/ Cowin has not raised any question on appeal concerning the assignment of the burden of proof in this proceeding. Therefore, we do not 

reach the judge's discussion of this issue. But see Old Ben Coal Corp. 

v. IBMOA, 523 F.2d 25, 39-40 (7th Cir. 1975) (on petition for rehearing). 

[Concurring opinion attached] 

22 
Backley, Commissioner, concurring in result: 

While concurring with the result reached in this case, I would hold 

Cowin liable as the proper party to be charged on somewhat different 

grounds. 

This case was remanded for further proceedings not inconsistent 

with the court's decision in Association of Bituminous Contractors, Inc. 

v. Andrus, 581 F.2d 853 (D.C. Cir. 1978), hereafter referred to as ABC), 

and Republic Steel Corp. v. IBMOA, 581 F.2d 868 (D.C. Cir. 1978), ~­

(hereafter referred to as Republic). I fully agree with the conclusionthat Cowin was an "operator" of a coal mine under the Federal Coal Mine 

Health and Safety Act of 1969. 1/ That conclusion is clearly consistent 

with the court's decision in ABC-which construed the term "operator" to 

include independent construction companies. 2/ It is less clear to me 

how my colleagues arrive at the conclusion that Cowin, rather than the 

owner of the coal mine, is the proper party to whom the order of 

withdrawal should have been issued, particularly in light of the majority 

opinion in Republic Steel Corp., Nos. MORG 76-21 and MORG 76X90-P, issued 

this date. 

The court's remand instructions in this case were that our decision 

was to be guided not only by the court's decision in ABC but also Republic. 

As noted in my dissenting opinion in Republic Steel Corp., I read the 

court's decision in Republic for the proposition that this Commission 

was asked by the court to. make a policy determination as to which of 

the options available in allocating liability would most effectively 

assure the safety and health of the miner. I can find no discussion 

of this point in my colleagues' opinion in this case. 

It is noted that, following remand, the parties were requested to 

state their positions regarding the action that should be taken by this 

Commission. The Secretary took the following position: In a situation 

involving a violation or hazard created by an independent contractor the 

Secretary "has the option to cite either the independent contractor or 

the coal mine operator [owner], and having made its election in this case, 

the decision of the Administrative Law Judge should stand." ]_/ 

When the decisions issued today in Republic and Cowin are read 

together, one conclusion is inescapable: the majority has deferred in 

both cases to the discretion of the Secretary regarding the election of 

1/ 30 U.S.C. §801 et~' (1976) (hereafter "the Act" or the 1969 Act.") 

2/ Although the 1969 Act did not explicitly_ include independent contractors 

as "operators", the Federal Mine Safety and Health Amendments Act of 1977 

[Pub. L. 95-164] modified the definition of "operator" to include "any 

independent contractor performing services or construction at such mine." 

30 u.s.c. §802(d) (1978). 

]_/ Conference before the Chief Administrative Law Judge Broderick, 

August 22, 1978, (TR. 8). 

23 
which party to proceed against, i.e., the owner or the independent 

contractor. 

For me, the question of which party is the responsible operator is 

a factual determination to be made on a case-by-case basis. As noted 

in my dissent in Republic, supra, I am convinced that the.responsibility 

for the health and safety of the miners should be placed on the party 

most able to prevent violations or hazards and to correct them quickly 

should they occur. This test is especially valuable in circumstances, 

such as present in this case, where the inspector at the mine site 

determines there is an imminent danger to the miners. I am in complete 

agreement with the following statement of the Board of Mine Operations 

Appeals when this case was before them: 

The citing of an operator who may be far removed 

from the danger site may result in procedural and 

administrative delay never contemplated by the 

authors of the Act and permit a sufficient time 

lag for the feared disaster to become a realtiy. 

6 IBMA 351 at 365 

In the facts of this case, Cowin was cited for the imminent danger 

complained of even though it had been hired by U. S. Pipe and Foundry 

Company to construct three shafts at a coal mine owned by U. S. Pipe. 

The situation is similar to that in Republic in many aspects. In both 

cases, an independent construction contractor, employed by the owner of 

a mine, was working on mine property. In both cases control and supervision 

of the work activity in that portion of the mine where the violation or 

hazard occurred rested with the independent contractor. The contractor 

in both cases was also in the best position to remedy the situation. 

I find little difference in the two cases as far as the proper 

disposition of liability is concerned. Thus, I would conclude that 

Cowin is the proper operator to be charged in the subject order of 

withdrawal. 

Accordingly, I would affirm the Administrative Law Judge's decision 

for the reasons stated. 

24 
FEDERAL· MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, 

On behalf of 

DAVID FASULA, 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 11, 1979 

Docket Nos. PITT 78-458 

CONSOLIDATION COAL COMPANY 

ORDER 

The administrative law judge's decision in this case was issued on 

March 5, 1979. On March 29, 1979, the judge issued an order purporting 

to stay the effective date of his decision pending his ruling on a 

motion for reconsideration. We granted a petition for discretionary 

review in this case on April 11, 1979. 

Neither the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§801 et~· (1978), };/nor the Commission's Interim Rules of Procedure, 

29 CFR §2700.1 et ~·;, ]:_/ provide for a motion for reconsideration or a 

stay of the effective date of a judge's decision once the decision is 

issued. Cf. Penn Allegh Coal Co., Inc., Docket No. PITT 78-97-P (direction 

for review and order, January 3, 1979). Accordingly, the March 29, 

1979, order of stay is vacated. ~ 

--~-·---,--,-Q--'-'~~=· =-- Jero e R. Waldie, Chairman 

~oner # r: ~p'4-trJ1.; A. E. Lawson, Commissioner 

~\~\Ufilt ~~OAbllM ')QOJ.9.. . Marian Pearlman Nease, Commissioner 

1/ See section 113(d) of the 1977 Act. 

2/ See Interim Rules of Procedure 54 and .55, 29 CFR §§2700.54 and 55. 

79-4-9 

25 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

April 23, 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND·HEALTH 

ADMINISTRATION (MSHA), 

v. 

HELVETIA COAL COMPANY, 

KEYSTONE COAL MINING CORPORATION. 

. : Docket Nos: 

PITT 79-12-P 

PITT 79-5-P 

ORDER 

On April 19, 1979, Helvetia Coal Company and Keystone Coal Company 

jointly filed a motion to strike certain materials and references to 

them from the Secretary of Labor's petition for discretionary review. 

Helvetia and Keystone moved that the Commission strike an affidavit of 

Donald K. Walker, Chief of the Health and Safety Analysis Center of 

the Mine Safety and Health Administration, and a letter from Robert B. 

Lagather, Assistant Secretary for Mine Safety and Health, to the 

President of the Bituminous Coal Operators' Association, Inc. These 

·evidentiary materials were submitted as part of the Secretary's 

petition, but were not a part of the record before the administrative 

law judge. Helvetia and Keystone assert that consideration of this 

extra-record evidentiary material would contravene section 113(d)(2)(C) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §823(d)(2) 

(C). That section states in part: 

For the purpose of review by the Commission under 

paragraph (A) or (B) of this subsection, the 

record shall include: (i) all matters constituting 

the record upon which the decision of the administrative law judge was based; (ii) the rulings upon 

proposed findings and conclusions; (iii) the 

decision of the administrative law judge; (iv) the 

petition or petitions for discretionary review, 

responses thereto; and the Commission's order for 

review; and (v) briefs filed on review. No other 

material shall be considered by the Commission upon 

review. [Emphasis added.] 

26 

79-4-14 
We agree that the evidentiary material attached to the petition 

may not be considered by the Commission, and we accordingly strike it 

and references to it from the Sec ary's petition. 

f 

27 
FEDERAL. MIN£ SAFETY At~D E--H:'.ll.lTH Rt.:VIE\AJ COMMISSION 

OFFICE OF ADMCN;STRATtVE '-A\1-J JUOGF.S 

4015 WrLSOi'J BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 3, 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATlON (MSHA), 

Petitioner 

v. 

PEABODY CO/,L COMPANY, 

Respondent 

·civil Penalty Proceeding 

Docket No. BARB 78-653-P 

A.O. No. 15-05046-02031V 

Alston No. 3 Mine 

DECISION 

AppearaIIces: John H. O'Donnell, Trial Atton1ey, Office of the 

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

Virginia, for the petitioner; 

Thomas F. Linn, Esquire, St. Louis, Mlssouri, for 

the respondent. 

Be fore: Judge Koutras 

This is a civil penalty proceeding pursuant to section llO(.~) of 

the Federal Mine Safoty and Health Act of 1977, initiated by the peti·-

ti0ner against the respondent on August 24, 1978, through the filing 

of a petition for assessment of civil penalty, seeking a civil pP.nalty 

assessment for three _alleged violations of the previsions of mandatory 

safety standards 30 CFR 75.400, 75.316, and 75.402, set forth in three 

orders issued by Federal coal mine inspecto1·s in April ancl May, 1977. 

Respondent filed an answer and notice of contest on September 7, 1978, 

denying the allegations and requesting a hearing. A hearing was held 

in Evansville, Indiana, on December 12 and 13, 1978, and the parties 

submitted posthearing proposed findings~ conclusions, and briefs, and 

the arguments set forth therein have been considered by me in the 

course of this decision. 

Issues 

The principal issues presented in this proceeding are (1) whether 

respondent has violated th:::: provisions of the Act and implementing 

regulations, as alleged in the petition for assessment of civil pen·-

alty filed in this proceeding, and, if so, (2) the appropriate civil 

28 
penalty that should be assessed against the respondent for the alleged 

violations, based upon the criteria set forth in section llO( i) of the 

Act. Additional issues raised by the parties are identified and disposed of in the course of this decision. 

In determining the amount of a civil penalty assessment, section 

110( i) of the Act requires consideration of the following criteria: 

(1) the operator's history of. previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, 

(3) whether the operator was negligent, (4) the effect on the operator's ability to continue in business, (5) the gravity of the 

violation, and (6) the demonstrated good faith of the operator in 

attempting to achieve rapid compliance after notification of the 

violation. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. 

§ 801 !.£~··now the Federal Hine Safety and Health Act of 1977. 

2. Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Interim Commission Rules, 29 CFR 2700.1 !,!. seq_., 43 Fed, ~eg. 

10320-10327, March 10, 1978. 

Stipulations 

The parties stipulated to the following: 

1. The jursidiction of the petitioner and the presiding Judge 

(Tr. 10) • 

2. Any civil penalty assessed by me in this matter will not 

adversely affect the respondent's ability to remain in business (Tr. 

10). 

3. Respondent is a large coal mine operator, and the mine in 

question, in April 1977, was a large mine producing 5,800 tons of 

marketable coal daily, employing 422 persons underground and 28 persons on the surface while operating 9 conventional units (Tr. 10, 14). 

4. MSHA coal mine inspector Arthur L. Ridley was a duly autho-

. rized representative of the Secretary when he inspected the mine. 

on April 4, 1977, and is a qualified coal mine inspector (Tr. 11). 

Discussion 

The petition for assessment of civil penalties in this docket 

seeks assessment for three alleged violations, namely: 

29 
104(c)(2) Order No. 7-0145, 1 ALR, April 4, 1977, 30 CFR 75.400. 

104(c)(2) Order No. 7-0215, 1 DLW, May 24, 1977, 30 CFR 75.316 • 

.104(c)(2) Order No. 7-0233, 1 TML, May 20, 1977, 30 CFR 75.402. 

On motion.by the petitioner, filed October 11, 1978, and granted 

by me on October 13, 1978, Violation No. 7-0233, May 20, 1977, 30 CFR 

75.402, was withdrawn. On motion by the petitioner, Violation No. 

7-0215, May 24, 1977, 30 CFR 75.316, was settled by the parties, and 

pursuant to Commission Rule 29 CFR 2700.27(d), the settlement was 

approved by me after affording the.parties an opportunity to present 

arguments on the record in support of the settlement, and a discussion 

in this regard follows at the conclusion of this decision. 

Section 104(c)(2) Order No. 7-0145, 1 ALR, issued on April 4, 

1977, by Federal coal mine inspector Arthur L. Ridley, charging a violation of 30 CFR 75.400, states as follows: 

Loose coal and coal dust ranging in depths from 

4 inches to 30 inches in depth had been permitted to accumulate in the headings and throughout the last open crosscut of 7 rooms along the return air side of the 5th east 

panel entries off the 1st north main entries beginning at 

a point approximately 1225 feet inby the #6 entry of the 

last main north parallel ~ntries and in an inby direction 

for approximately 350 feet. There was an estimated 20 tons 

of loose coal and coal dust. Dust samples 1, 2 & 3 were 

taken. Responsibility of Steve Mccloskey and Richard Berry 

section foremen. 

Section 30 CFR 75.400 provides as follows: 11Coal dust, i.ncluding. 

float coal dust deposited on rock-dusted surfaces, loose coal, and 

other combustible materials, shall be cleaned up and not be permitted 

to accumulate in active workings, or on electric equipment therein. 11 

Testimony and Evidence Adduced by the Petitioner 

MSHA inspector Arthur L. Ridley testified that he was familiar 

with the subject mine which is located in Ohio County, Kentucky, near 

Centertown. It is a relatively large mine and employs 422 people underground and 28 on the surface, and at the time the violation issued, it 

was operating with nine conventional units. On April 8, 1977, the 

daily production was 5,800 tons. A conventional mining system is used 

in mining coal, and he gave a description of the mining procedure 

followed at the mine. He confirmed that he issued section 104(c)(2) 

Order of Withdrawal No. 1 ALR, citing 30 CFR 75.400 (Exh. P-1) and 

served it on Mr. Charles Short, the assistant mine foreman (Tr. 9-

17). 

30 
Inspector Ridley testified he was at the mine to make a spot 

inspection, and while walking through the return area on the unit in 

question, he was looking about and saw a considerable darkness which 

caused him to investigate further. Upon further investigation, he 

found considerable accumulations of loose coal and coal dust that had 

been left in the headings of the rooms. He saw coal ranging from '• 

to 30 inches deep. He also saw spotty sections of coal in the second 

open crosscut along about room Nos. 2, 3 and 4, arid which was subsequently cleaned up. The areas involved were active workings. With 

regard to the width of the accumulations, there were places where it 

was rib to rib and there were places where it was not. He stayed 

from 4:30 a.m. (the time that he verbally issued· the order of withdrawal) to 9 p.m. to make a determination as to how much coal was 

accumulated, and he estimated that he wrote the order on the surface 

no later than 5 p.m. The accumulation consisted of loose coal and 

coal dust, and he took samples with a sieve, a brush, and a scoop 

across the floor and in a depth of approximately 1 inch deep and 

sifted them (Tr. 18-27). Inspector Ridley identified Exhibit P-3 as 

the laboratory analysis of the samples he took to support his order, 

and he described the places where he took the samples and the method 

used in sampling, and he indicated that the samples were taken from 

the accumulations described by him in the order (Tr. 28-40), 

Inspector Ridley testified that it was his opinion, based on 

advancement of the working faces, that the coal which hf!.d accumulated 

beyond the last room that had been worked out and the amount of time 

tl:.'.1t it would have taken to produce the advancement, the accumula-· 

tions came from normal production and had been in the mine in this 

condition for approxi~ately 16 production shifts, i.e., 8 working 

days. He indicated that he had previously worked as-an industrial 

engineer and explained how he computed the duration of the accumulations. He stated that he spoke with Mr. Short about the accumulations and Mr. Short stated that they had only existed for 1 or 

2 days (Tr. 40-53), 

Inspector Ridley believed that the accumulations could have been 

cleaned up in about 4-1/2 hours using the equipment available, namely, 

scoops and shovels. The accumulations were dry ~nd he identified the 

mine cleanup program (Exh. P-11). He indicated that he believed the 

operator violated paragraph (A) of the cleanup plan which requires 

clean~p of the. face of working places, At the time coal was being 

produced, the area was, in fact, the face of a working place. Failure to clean up was a violation of th(~ cleanup plan which requires 

that the ribs and bottom be cleaned as the face advances. In his 

opinion, the cleanup program was not followed at the mine, and he 

found coal as much as 30 feet deep in different locations across the 

350 feet. It was obvious that there had bean no seriou~ attempt by 

the loader to clean the rib floor (Tr. 53-60). 

The nearest ignition point would have been on the working section. 

The area had~previously been bolted, and unless there is evidence of 

31 
an adverse roof condition, it is possible to go back after an area has 

been roof-bolted. Weekly checks are conducted in return room ~ntries 

(in the return side of the mine where the air is returning from the 

unit), in order to test for hazardous conditions. Checks are conducted of methane, velocities. of air, and volume of air, in order to 

determine that the air is traveling with the proper push and velocity 

and any other condition that might exist in the mine. Although he 

has previously detected methane in the mine, none has been detected 

in the panel of the working faces in question. The working face was 

approximately 400 to 450 feet from the area nearest to where the 

accumulation began. Assuming the coal accumulations were the result 

of normal mining, there would be a time when the coal would be nearer 

the working face, since that was exactly where mining was being done 

and equipment was being operated. Certain men are required to travel 

in this area at least weekly, namely, a certified mine foreman 

examiner, and other employees may be in the area for b=ief periods 

of time, picking up materials (Tr. 60-63). 

Inspector Ridley considered the condition which he obse1·ved on 

April 4, 1977, to be serious, since in the event an ignition should 

occur in the panel, with the accumulation of dust and so forth, it 

would propagate an explosion and would increase the hazard involved, 

depending on where it occurred. He believes that explosives a~e commonly kept at the mine in the return entries, and that traveling at 

its nor~al course of velocity, return nir will not reach the face 

where ti1e men are presently working. Permanent stoppings separate 

it from the fresh air and it goes into the return. In his opinion, 

the operator should have known of the condition since it is the general policy to maintain ventilation across the last faces, and an 

attempt had been m<Jde to open 11p the crosscut for ventilation and 

the section foreman should have been aware of the conditions (Tr. 

63-66). 

Mr. Ridley observed no rock dust in the area of the accumulations, and Foreman McCloskey offered no explanation as to the accumulations (Tr. 67). He abated the citation on April 4, and he 

believed the operator made every reasonable effort to remove the 

accumulations as soon as possible. He observed part of the abatement, and three men were used to clean up. The accumulations were 

removed from the mine and the area was rock-dusted (Tr. 68-73). 

On cross-examination, Mr. Ridley testified that he took samples 

to within 30 to 50 feet of the face. He described the sampling 

process, and inc1.icated that he did not take a band or parameter 

sample, but rather, took floor samples. The areas he cited had previously been rock-dusted to within 40 feet of the face. However, 

production had ceased in those areas for some 8 days and the areas 

where he found the accumulations were about 450 to 500 feet from the 

active faces. He described where he traveled on the day of the citation, indicated that he saw no equipment, no men, no power set-ups or 

32 
equipment running, and stated that he believed 

the area on a weekly basis rather than daily. 

preshifted daily, and while it had been worked 

consider it to be abandoned (Tr. 73-84). 

men would pass through 

The area was not being 

out, he did not 

Mr. Ridley stated that although it is common to have some sloughing of ribs and top coal, in this instance, only a minor amount of the 

accumulations resulted from such an occurrence. A working section consists of that ~rea inby the tailpiece of the belt to the working face. 

The subject worked-out rooms were not located within that area, that 

is, they were not between the loading place and the active f~ce and 

therefore, this was not a working section. He did examine the weekly 

examination book for hazardous conditions, but it did not indicate the 

existence of accumulations (Tr. 84-88). 

On the day that he issued the order, the miners who wanted to 

reach the active working faces, did not have to go thr0ugh the area 

cited in the order. Due to the fact that the battery-operated scoop 

had to pick up a load and then travel about 500 feet in order to dump 

it, the long traveling distance was part of the reason that it took 

4-112 hours to clean up the. area. Since there was no one in the area 

of the worked-out rooms at the time he inspected it, and he had seen 

no evidence of people being in that area, there was no one to withdraw 

from that immediate area. The nearest ignition point, which was the 

explosive storage area, was approximately 250 to 300 feet away or 

approximately 175 feet back from the working face in the room neck of 

No. 6 entry, which is a return entry. The ultimate ignition point, 

therefore, would be approximately 325 feet away from the accumulations. There would be occasions when it would be unwise to go into 

an aband6ned area or an unworked area. It is a reasonable assumption 

that the longer a particular area remains worked out and is not maintained for travel, the more the chance increases that there would be 

a danger there (Tr. 90-95). Although there may have been rock dust 

in the area, it was insufficient for him to detect it with his naked 

eye (Tr. 97). 

On redirect examination, Mr. Ridley testified that under the 

definitio;;-which appears in 30 CFR 75.2(h), the area where he saw the 

accumulations would not meet the definition of an abandoned area 

because the particular area is required to be examined at least once 

weekly, is regularly traveled, and is required to be ventilated (Tr. 

97-99). 

On recross-examination, he testified that the area in which the 

alleged accumulations were found was ventilated, but he did not take 

an anemometer reading or a smoke tube reading, nor did he pick up any 

dust and drop it to watch the air move the dust. Despite the fact 

that he did not perform such tests, he still maintained that the air 

33 
was moving through the area and that there were no obstructions to 

prevent ventilation •. No report of the accumulations had been made. 

If the area had been examined, then the.accumulations should h~ve 

been noted in the books. However, he has no reason to believe that 

someone may have intentionally disregarded the accumulations (Tr. 

101). 

In response to bench questions, he indicated that he believed 

the area had been ventilated because on the day that the violation 

issued, he had with him his flame safety lamp, which indicated that 

there was a sufficient amount of oxygen and/or ventilation and that 

the area was therefore safe to travel or work in. It is his opinion, 

if an area is traveled at least once a week, then it is an area 

regularly traveled for purposes of the standard (Tr. 103-105). However, he conceded that a flame safety lamp does not show air movement, and he did not know for a fact whether or not the last open 

crosscut in the worked-out rooms was walked or inspected .(Tr. 106). 

Responden~' s Testimony an_~ Evidence 

Steve HcCloskey~spondent 's~ift managei::_, testified that he 

was aware of the order issued by Inspector Ridley on April 4, 1977, 

and he indicated that on that day, he was approached by Charles Short, 

assistant mine foreman, and was told that a witl1drawal order had been 

issued due to an accumulation of coal on the bottom and around t11e 

ribs of ·the No. 5 unit and that he should withdraw his equipment from 

the faces of his regular unit and take every available man that he 

had and go to the area and commence procedures for correcting th('.; 

prcblem. He then went to this area with his men, who totaled approximately 11, including the mechanic. From the last open crosscut to 

Where the COal had been found, T·!aS approximately 500 tO 60Q feet. 

Prior to the issuance of the order, no work had been done in that 

area ou tl1at day, and when he arrived on the unit, he saw no evidence of any recent activity in the area. It took approximately 

1-1/2 hour's running time with the scoop to move the coal out, and 

the scoop was used rather than the loader, due to the fact of the 

distance from the area (Tr. 110-114). 

Mr. McCloskcy identified Exhibit R--2 as copies of the preshift 

reports covering the period March 17 to April 4, 1977, and he indicated that the area in question was not preshifted at anytime during 

this period of time, and as an explanation he stated that there were 

no men working in that area and to the best of his knowledge, no one· 

would have any reason to go in the area and work or perform any duties 

of any kind; There is no law that he is aware of that requires an 

inspection of that particular area be conducted on a daily basis 

(Tr. 115-123). He also otated that the preshift reports do not show 

the presence of any accumulations, although it is normal and customary 

for preshift mine examiners to note the accumulations of hazardous 

materials on their preshift reports. In his estimation, 5 to 7 tons 

34 
of coal had to be loaded out of the area. The area had been cleaned, 

prior to his arrival, and he believed that some of the loose coal or 

loose material could have been the result of undercutting by a cutter 

operator or could have resulted from weakened coal falling off the 

ribs onto the floor. It is also possible that some top coal could 

have broken loose and consequently fallen to the bottom, and there 

also could have been places where the coal ribs had taken weight and 

some of them had popped off to the mine floor (Tr. 124). 

Mr. Mcclaskey testified that abandoned workings need not be 

inspected, and he identified Exhibit R-3 as weekly examination reports 

of hazardous conditions of methane for the weeks of March 19, 26, 31, 

and April 2, all of which indicated no hazardous conditions for the 

areas in question. He indicated that an active working is one where 

men are required to work or travel daily (Tr. 125-127). 

On cross-examination, Mr. McClaskey testified that the area cited 

by Mr. Ridley had n~ta-;-yet been sealed, but that the No. 6 panel is 

presently sealed. He identified the ventilation plan provision 

(Exhibit P-6) which provides for the prompt sealing of all abandoned 

areas. He believed an "abandoned area" was one where regular work, 

such as extracting coal, is being ·performed. The area where the accumulations were found is not his responsibility, and Mr. Short is 

responsible for that area. He indicated that he was call~d into the 

area by Mr. Short to correct the problem of loose coal and coal dust. 

He managed the removal of the material. It is possible that a smnll 

amount of the accumulaticn could have resulted from normal mining 

operations. He has seen som~ rashing or sloughing (i.e., m~terial 

th:Jt wenthers and coa1 falls off in large lumps from--the ribs) in the 

unit that he was working on, up in the headings as well as in the 

return rooms. The lumps of coil that he observed on April 4, 1977, 

ranged in size from fist-size to about half the size of a basketball 

(Tr. 127-147). 

On redirect ex.amin?..tion, Mr. McClaskey stated that he did not 

believe the law required abandoned areas to be examined, and he 

described the cleanup pro~ess. He stated that he' did not observe 

the area b~fore the order was issued or before Mr. Ridley ariived 

on the scene, but once there, he did not see any accum11lations as 

deep as 30 inches as testified to by Mr. Ridley. In his view, an 

area was an "active working" only if someone was required to go 

there and perform regular duties on a daily basis (Tr. 148-157) • 

.!_~ect_<2.~i_dley was called in rebuttal, and testified that he 

had the mine ventilation plan with him when he cited the violation, 

and he discussed the areas ~iere he found the accum11lations. He 

testified th:1t while he noticed the beginnines of floM coal accumulations, they had not yet developed into a violation, but he asked 

Mr. Short to include that condition in the rock dusting which was 

done to abate the· citation (Tr. 184-187). 

35 
In response to further questions by respondent's counsel, 

Mr. Ridley stated that he saw no activity in the area, and he observed 

no evidence that weekly examinations had been conducted, that is, he 

saw no times, dates, or examiner's initials posted in th~ area at that 

time, but knows that they were being made thereafter in accordance 

with iection 75.305 (Tr. 187-191). 

Findings and Conclusions 

Fact of Violation--30 CFR 75.400 

Section 30 CFR 75 .400 provides that: "Coal .dust, including float 

coal dust deposted on rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to accumulate in active workings, or on electric equipment therein." 

The term "active workings" is defined by 30 CFR 7::.2(g)(Lf) as: 1 '[A]ny place in a coal mine where miners are normally required to work 

or travel." 

Aside from the question of the presence of the c.ited accumula--

tions, a threshold question to be decided is whether the area cited 

by the inspector can be considered to be an "active working" within 

the meaning of the cited safety standard. 

Respondent's Arguments 

In its posthearing brief, respondent ~rgues that the mine area 

cited in the order iu question was not an ".s.ctive· workinf', 11 wit.bin 

the meaning of section 75.400, or as that term is defined in 30 CFR 

75.2(g)(Lf) ("ar,y place in a coal mine where miners are normally 

required to work or travel"). In support of this argument, respondent cites the testimony of Ini:ipector Ridley on cross-examinati0n 

indicating that the area was not an active working, thus contradicting his prior statement that he believed it was based on the fact 

that the area was required to be preshifted once every 8 hours. 

Respondent points out that the area had not been examined ·pursuant to 

section 75.303 since March 17, 1977, the last time a preshift examination was made in the cited area, and asserts that on April 4, 1977, 

the area cited was inactive or abandoned in the sense that all work 

had been completed in the area and there were no plans to· return there 

to continue further work. In support of this conclusion, respondent 

cites the testimony of the inspector that he saw no one in the area; 

observed no power setups or equipment, that the area had been "worked 

out," that respoadent was not required to i.nspect the area during 

preshift examination, and that he did not consider the area to be a 

working section. Finally, respondent argues that the area cited was 

in a set of rooms about 250 feet from the return air course which was 

parallel to the last open crossuct in which the alleged accumulations· 

were located, that from the return air course inby to the active 

36 
workings was at least an addit.ional 200 feet,. and the weekly examination for hazardous conditions made at the time the order was cited 

did not include the area in question. In view of the foregoing, 

respondent concludes that the area cited was not one in which men 

were normally required to travel at the time the order was issued. 

Petitioner's Arguments 

Petitioner argues that respondent's interpretation of the term 

"active workings" as an area where miners are required to work or 

travel daily is erroneous, that the word "normally" as used in section 75,2(g)(4) is not ambiguous, and that the test must be whether 

any miner must normally anytime work or travel in the area an<l, if 

so, the area is an active working. 

Regarding respondent's attempt to categorzie the area in question as an abandoned area, petitioner points out that the area had 

not been sealed in accordance with the existing ventilstion plan 

requiring all abandoned areas to be sealed promptly. Since the 

area was unsealed at the time of the inspection, petitioner argues 

that it could not be deemed, under the ventilation plan, to be an 

abandoned area, and respondent's definition of an abandoned area as 

one where no regular duties such as extracting coal are any longer 

performed, is not a ~alid definition. Further, petitioner cites the 

legislatL1e history of the 1969 Act \?here Congress expressed a con-

. cern for abandoned.mine areas. 

Petitioner agre~s with the inspector's conclusion tl1at the area 

cited wan not a working section as defined by section 75.2(g)(3), but 

points out that Old Den Coal Coinpany, 4 IBNA 198, 215 (1975), requires 

loose coal to be kept free of active workings and did not re.gritc section 304(a) of the 1969 Act (75.400), so far as to allow acc~mulations 

in all parts of a mine but the working section. Further, while it is 

true that the area in question did not require preshift or onshift 

examinations, it was required to be examined weekly under section 

75.305. Consequently, petitioner asserts that the inspector was 

correct in finding that the area was an active working. 

After full and careful consideration of the arguments presented, 

I conclude that petitioner's arguments in support of its position 

that the cited area in question was, in fact, an "active working" 

within the scope of the meaning of section 75.400 is correct, and its 

arguments are adopted as my findings and conclusions on this issue, 

and respondent's arguments to the contrary are rejected. The fact 

that the area cited had not been preshifted persuant to section 

75.303, that work had been completed there, and respondent did not 

plan to return to the area to continue further work, is not particularly relevant. Further~ the fact that the inspector may have contradicted himself when characterizing the area is of no particular 

significance since the question of whether the area was, in fact, an 

37 
active working must necessarily be based on all of the evidence and 

facts adduced. Here, it is clear that the area had not been sealed 

and abandoned pursuant to respondent's own ventilation plan. 

Further, the area cited required weekly examinations pursuant. to 

section 75.305. Consequently, it was an area where miners would 

normally be expected to work or travel when conducting such examinations. Further, as pointed out by petitioner, the legislative history cited reflects that Congress expressed a special interest in 

insuring that abandoned areas are maintained free of hazardous conditions. While it is true that the facts presented here <lo not support 

a finding that the area cited was, in fact, abandoned, it cannot be 

said that Congress ever envisioned a lesser concern for a mine area 

which is clearly an active working. Congress expressed that concern 

by enacting section 304(a), the statutory provision requiring that 

active workings be kept free of accumulations of combustible 

materials. 

In Kaiser Steel Corporation, 3 IBMA !~89 ( 1974), MSHA established 

that since an operator was required to inspect an air return twice a 

day, that return was, in fact, an "active working" subject to the 

requirements of section 75.400. The former Board of Mine Operations 

Appeals reversed the judge's finding that MSHA h2d not proven the 

return air course was an "active working" within the definition of 

30 CFR 72.2(g)(4). Likewise, in Mid-Continent Coal and Coke Company, 

1 IB:MA 250 (1972), the Board found tl;&t an entry was- an '

1

active \Wrk·-

ing'' and therefore subject to the requirements of section 75.400, 

since miners were required to go into the entry for the purpose of 

inspecting a hi~1-voltagc cable, and as to.the micer that conducted 

this inspection, the Board held that the accumulations of coRl dust 

in that entry presented a potential hazard to him and that the entry 

in that case was a place of normal work and travel. 

In Old Ben Coal Company, 8 IBMA 98, 84 I.D. 459, 1977-1978 OSHD 

pat. 22,087 (1977), motio~for reconsideration denied, 8 IBHA 196, 

1977-1978 OSHD par. 22,328 (1977), it was held that the presence of 

a deposit or accumulation of coal dust or other combustible materials 

in active workings of a mine is not, by itself, a violation. 

In that case, the Board held that MSHA must be able to prove: 

(1) that an accumulation of combustible material 

existed in the active workings, or on electrical equipment 

in active workings of a coal mine; 

(2) that the coal mine operator was aware, or, by 

the exercise of due diligence and concern for the safety of 

the miners; should have been aware of the existence of such 

accumulation; and 

38 
(3) that the operator failed to clean up such accu~ 

mulation, or failed to undertake to clean it up, within a 

reasonable time after discovery, or, within a reasonable 

time after discovery should have been made. 

8 IBMA at 114-115. 

As to the issue of "reasonable time," the Board stated: 

As mentioned in our discussion of the responsibilities 

imposed upon the coal mine operators, what constitutes a 

"reasonable time" must be determined on a case-by-case evaluation of the urgency in terms of likelihood of the accumulation to contribute to a mine fire or to propagate an 

explosion. This evaluation may well depend upon such factors as the mass, extent, combustibility, and volatility 

of the accumulation as well as its proximity to an ignition 

source. 

8 IBMA at 115. 

The Board further stated: 

With respect to the small, but inevitable aggregations 

of combustible materials that accompany the ordinary, routine 

or normal mining operation, it is our ~iew that the maintenance of a regular cleanup program, which would incorpo·rate 

from one cleanup after two or three production shifts to 

several cleanups per production shifts, depending upon the 

volume of production involved, might well satisfy the . 

requirements of the standa::.·d. On the other hand, where an 

operator encounters roof falls, or other out-of-the-ordinary 

spills, we believe the operator is obliged to clean up the 

combustibles promptly upon discovery. Prompt cleanup 

response to the unusual occurrences of excessive accumulations of combustibles in a coal mine may well be one of the 

m<rst crucial of all the obligations imposed by the Act upon 

a coal mine operator to protect the safety of the miners. 

Based on the preponderance of the credible evidence adduced in 

this proceeding, I conclude and find that petitioner has established 

a violation of·section 75.400 as charged by the inspector in his 

order, and that its evidence in support of the violation more than 

adequately meets the tests set down in the Old Ben case. Aside 

from a dispute as to the actual weight of the total accumulations 

eventually cleaned up and removed from the mine once the order 

issued, I cannot conclude that the respondent has rebutted the 

inspector's findings concerning the presence of the cited accumulations. The inspector's order describes the extent and location of 

the accumulations, and I find his testimony in support of his order 

39 
to be credible. The inspector testified that the loose coal came 

from prior normal opera-tions, and from the distance which the mining 

cycle and face area had been advanced, he estimated that it had 

existed for approximately 8 working days, or 16 working shifts. 

Although one of respondent's witnesses suggested that the accumulations ~ay have resulted from weakened ribs falling to the floor after 

the area had been worked out, he candidly admitted.that it was just 

as likely that so:ne of the accumulations could have resulted from 

normal mirting operations. Further, mine man~gement advised the 

inspector that the accumulations had existed for 1 or 2 days, and 

the shift manager was informed that the accumulations were present 

and should be cleaned up on the very day of the inspection. In the 

circumstances, I conclude and find that petitioner has established 

that loose coal and coal dust existed as described in the order and 

that respodnent failed to clean them up within a reasonable time 

after thei should have been discovered. 

During the course of the hea~ing, respondent's counsel took issue 

with the laboratory analyses report concerning the incombustible content of the samples collected by the inspector to support his order. 

The report was received over counsel's objections, and that ruling is 

hereby reaffirmed. The testimony of the inspector reflects that he 

followed the proper procedure in taking his samples, and respondent 

has failed to rebut that testimony or the information resulting from 

the laboratory analyses. I find that the action taken by the inspector 

regarding the sampling supports the conditions cited. See Co-op 

Mining_ Comp~, 3 IEMA 5.33 ( 1974); Coal Processing Corpo;;atic;n:-

2 IBMA 336 (1973); Consolidation Coal Corporation, 4 IBMA 255 (1975). 

Size of Business and Effect of Penalty Assessment on the Respondent's 

Ability to Remain in Business 

The parties have stipulated that the respondent is a large coal 

mine operator and that any civil penalty assessed by me in this matter 

will not adversely affect its ability to remain in business, and I 

adopt these stipulations as my findings in this· regard. 

Negligence 

I find that the evidence adduced supports a finding that the 

respondent failed to exercise reasonable care to prevent the accumulations of coal and coal dust in the areas cited by the inspector, and 

that this failure on respondent's part constitutes ordinary negligence. 

The inspector's testimony regarding the duration of the existence of 

the accumulations is credible, respondent's own witness admitted that 

they existed for at least 2 days, and it is clear to me that they 

should have been discovered and cleaned up earlier. 

40 
Gravity 

The evidence adduced reflects that the accumulations in question 

were approximately 400 feet from the working face wher:e mining was 

taking place, a.nd the belts were 350 feet away. The nearest ignition 

source was a storage area for explosives located in the room neck of 

the No. 6 entry some 200 to 250 feet away. The cited area was being 

ventilated, and since the inspector saw no tracks there, ~ have to 

assume that no equipment was operated in the area. Although petitioner's brief, at pages 5 and 6, make reference to the presence of 

"float coal dust," the citation as issued makes no such reference, 

the inspector did not believe the presence of "float coal dust" was 

a violation, and he indicated that he used a 20-mesh screen t6 take 

his samples. Since float coal dust, as defined by section 75 .400-l(b); 

is dust that can pass through a 200-mesh screen, I cannot conclude 

that the evidence supports any finding that float coal was present, 

The inspector found the accumulations some 200 feet ·from the 

return air course in whch he was walking. However, he indicated that 

he saw no one in the area, there were no power setups or e~uipment 

present, and he considered the area to have been "worked out" and 

not a "working section." Thus, it would appear that. the area, by 

definition of "working section" as found in section 75 .2(g)(3), was 

outby the loading point and working faces where normal mining activities took place, and there is no evidence that any mining activity 

was taking place in the cited area. 

Based on the foregoing facts and circumstances which prevailed 

at the time the citation issued, I cannot conclude that the conditions cited were grave or posed a serious threat to the safety of 

miners, noiwithstanding the inspector's belief that the violation 

was serious because the accumulation could propagate an ignition or 

explosion. I find that the evidence presented simply cannot support 

that conclusion. Any potential ignition sources were far removed 

from the accumulations, and petitioner obviously concurs in this 

evaluation of the totality of the situation since at page 14 it 

argues that the actual hazard an~ concern was the explosives stored 

some 200 to 250 feet away. Lacking any ready ignition sources, I 

fail to understand how the explosives, standing alone, posed any 

real threat. Further, there is no evidence that the storage of the 

explosives was not in compliance with any other standards or procedures, nor is there any evidence that the explosives were subjected 

to any hazardous conditions. In the circumstances, the inspector's 

finding that the violation was serious is rejected, and I conclude 

that it was not. 

History of Prior Violations 

Petitioner introduced a computer printout of the prior history 

of violations pertaining to the Alston No. 2 Mine (Exh. P-10). That 

41 
'· 

history reflects a total of 712 paid violations for that mine during 

the period January 1, 1970, to April 4, 1977. During that same 

period of time, the printout reflects 71 violations of the provisions 

of section 75.400. No evidence was produced with respect to respondent 1 s overall prior history of violations, and my findings on this 

issue are therefore limited to the prior history of the mine in question as reflette~ in the printout. Based on the overall history ~f 

the mine encompassing a 7-year period for which an average of some 

100 citations yearly were assessed and paid, and taking into account 

the size of the mine, I cannot conclude that the history of prior 

violations is significantly large. However, with respect to respondent's prior track record concerning citations for section 75.400, I 

find that it is not good, and that it appears that coal and coal dust 

accumulation violations at the mine have been consistently occurring. 

It seems clear that in enacting the civil penalty provisions of section 

109 of the 1969 Act, now section llO(i) of the 1977 Acl, Congress 

intended that a penalty assessed pursuant to section 109 of the Act 

should be calculated to deter similar future violations and to induce 

compliance. Robert G. Lawson Coal Company, 1 IBMA ll5, 117, 79 I.D. 

657, 1971-1973 OSHD par. 15,374 (1972), F·urther, it has also been 

· held that repeated violations justify a higher penalty than theretofore assessed as a method of deterring future violations of the same 

standard. Old Ben Coal Company, 4 IBMA 198, 82 I.D. 264, 1974-1975 

OSHD par. 19,723 (1975). Accordingly, I have taken this into account 

in the civil penalty assessment made by me in this matter. 

With regard to the matter concerning the corporate cha_nges which 

took place concerning Kennecott Copper's sale of stock to the Peabody 

Holding Company, and the effect of that transaction on the respondent' g prior.history of violati0ns, petitioner points out that the 

arguments advanced by respondent in this regard are inappropriate in 

this proceeding because the violation took place on April 4, 1977, 

prior to the stock transfer of July 1, 1977. In this regard, I take 

note of the fact that this issue waG raised by the respondent in a 

recent proceeding, MSHA v. Peabo~~oa l Company 1 BARB 78·-60!)-P, 

decided by me on March 26, 1979. In that case, I rejected the defense 

advanced by the respondent, and to the extent that it is reasserted in 

this proceeding, it is likewise rejected, and my findings and conclusions previously made on that issue are herein incorporated by 

reference. 

Penalty Assessment 

Petitioner asserts that a civil penalty in the amount of $5,000 

is reasonable for the violation. Taking into account the prior 

history of section 75.400 violations at the mine, the size of the 

respondent, and the fact that the cited accumulations existed over a 

long period of time without being cleaned up, petitioner's recommendation does not appear to be totally excessive. However, considering 

my gravity findings, and the fact that the conditions were cleaned 

42 
up promptly once the order issued, I believe that a civil penalty of 

$4,000 is warranted, and that this should pro~pt mine management to 

give more attention to the requirements of section 75.400. 

Proposed Settlement 

With regard to section 104(c)(2) Order of Withdrawal No. 1 DLW 

(7-215), May 24, 1977, citing 30 CFR 75.316, th~ parties proposed a· 

settlement in the amount of $2,500. Petitioner's Assessment Office 

recommended a civil penalty of $5,000 for this violation. Arguments 

in support of the proposed assessment were presented on the record 

and petitioner argued that while the viol2tion was serious, the 

Assessment Office's finding that "a shift of the roof or ribs could 

occur and cause a roof fall which in the return air would not be 

separated from the belt entry in such a manner as to seriou~ly 

jeopardize the health and safety of the workmen in the section" is 

"nonsense" since the ventilation plan permits the brattice curtain to 

be hung on a very light wood frame and if the roof fell on such a 

fra~e, it would smash the frame just as much as if the frame were 

hung on the unauthorized two bo.:ir<ls which were, in fact, used by the 

operator when the inspector observed it. After consulting with the 

inspector who issued the order, and who was present in the he&rin.g 

room and agreed that the Assessment Office was mistaken as to the 

facts when it proposed its assessment, petitioner's counsel asserted 

that the ventilation was not affected by the improperly hung curtain. 

Under the ci.rcumstances, this fact, coupled with the mistaken e~aluation of the gravity presented by the conditions cited) and the fact 

that the condition WdS abated the same day the order issued, counsal 

asserted that petitioner considers $2,500 to be an appropriate civil 

penalty for the. violation and respondent stipulated that payment in 

that amount would be made (Tr. 4-8). 

In view of the foregoing, I find and conclude that the proposed 

settle111ent should be approved, and pursuant to Commi8sion rule 29 CFR 

2700.27(d), it is ordered that the settlement reached by the parties 

be approved. 

ORDER 

In view of the aforesaid findings and concl~sions made in this 

proceeding, including the approval of the proposed settlement proposed 

by the parties, IT IS ORDERED: 

1. Respondent shall pay a civil penalty in the amount of $4,000 

for a violation of section 75.400, as set forth in Citation No. 

7-0145, April 4, 1977, payment to be made within thirty (30) days of 

the date of this decision. 

43 
2. Respondent shall pay a civil penalty in the amount of $2,500 

for a violation of section 75.316, as set forth in Citation No. 7-0125, 

May 24, 1977, within thirty (30) days of the date of this decision. 

; ,//' ) . _7 

~>:~;;---:~4 · t2 {i-::~-.,~ -Z-r.?·-··-<I 

Ge·orge R.· (Koutras · 

Administrative Law Judge 

Distribution: 

John H. O'Donnell, Trial Attorney, Mine Safety and Health Administration, U.S. Department of Labor, 4015 Wilson Boulevard, 

Arlington, VA 22203 

Thomas F. Linn, Esquire, Peabody Coal Company, 301 North Memorial 

Drive, St. Louis, MO 63102 (Certified Mail) 

Standard Distribution 

44 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRJ\TIVE LAW JUDGES 

4015 WllSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 3, 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSP...A), 

Petitioner 

Docket No. HOPE 78-722-P 

A.O. No. 46-01398-02020F 

v. 

Shannon Branch UG Mine 

ALLIED CHEMICAL CORP., 

Respondent 

Appearancef'~ 

Before: 

DECISIDN 

William Moran, Trinl Attorney, U.S. Department of 

Labor, Ailingtofr, Virginia, for the petifio~er; 

Lee F. Feinberg and William T. Brotherton III, 

Esquires, Charleston, West Virginia, for the 

respondent. 

Judge Koutras 

Statement of the Prcceedi~~ 

This proceeding concern~ a petition for assessment of civil penalty filed by the petitioner against the respondent on August 28, 1973. 

pursuant to section llO(a) of the Federal Mine Safety and Health Act · 

of 1977, 30 U.S.C. § 820(a), charging the respondent with one alleged 

mine safety violation issued pursuant to the 1969 Federal Coal Mine 

Health and Safety Act. Respondent filed a timely answer in the proceeding, asserted several f~ctual and legsl defenses, and a hearing 

was held in Charleston, West Virginia, on January 17, 1979. The 

parties filed proposed findings and conclusions, and the arguments 

contained therein have been considered by me in the course of this 

decision. 

Issues 

The principal issues presented in.this proceeding are (1) whether 

respondent has violated the provisions of the Act and implementing 

regulations as alleged in the petition for assessment of civil penalty filed in this proceeding, end, if so, (2) the appropriate civil 

penalty that should be assessed against the respondent for the alleged 

violation, based upon the criteria set forth in section llO(i) of the 

Act. Additional issues raised by the parties are identified and dispos~d of in the course of this decision. 

45 
In determining the amount of a civil penalty assessment, section 

llO(i) of the Act requires consideration of the following criteria: 

(1) the operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, 

(3) whether the operator was negligent, (4) the effect on the operator's ability to continue in business, (5) the gravity of the violation, and (6) the demonstrated good faith of the operator in 

attempting to achieve rapid compliance after notification of.the 

violation. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Coal Mine Health and Safety Act of 1969, 

30 U.S.C. § 801 et seq., now the Federal Mine Safety and Health Act 

of 1977, P.L. 95=l6~effective March 9; 1978. 

2. Sections 109(a)(l) and (a)(3) of the 1969 Act, 30 U.S.C. 

§§ 819(a)(l) and (a)(3), now section llO(i) of the 1977 Act. 

Discussion 

During the evening shift of Septemher 8, 1977, Thomas M. Williams, 

motorman on the No. 20 locomotive, and Larry Gibson, the brakeman, 

were orerating the locomotive while hauling 28 trips of loaded r:iine 

cars underground in the mine in question. During the course of their 

travel, the locomotive trolley harp assembly which supplies power to 

the loc~motive became disengaged and as a result of that loss of power, 

Mr. Williams was unable to stop or otherwise control the locomotive 

and it subsequently derailed. Mr. Gibson jumped from the moving locomotive before it was derailed and was killed when he apparently struck 

one of the ribs at the point ~1ere he jumped. Mr. Williams stayed with 

the locomotive for approximately 1,000 feet further from the point 

where Mr. Gibson had jumped, and after being unable to stop the locomotive, he too jumped into a wide entry prior to the derailment and 

sustained injuries. 

The alleged violation and applicable mandatory safety standard 

in issue in this proceeding are as follows: 

Section 104(a) Order Nos. 1 HS and 1 GLS, dated September 9, 

1977, cites a violation of 30 CFR 75.1404, and states as follows: 

The pneumatic braking system on the No. 20 locomotive 

being used for coal haulage purposes was not sufficient to 

control a trip of 28 loaded mine cars which were involved 

in a run-a-way trip. The brake shoes were not properly · 

aligned with the trucks and could not apply uniform frictional pressure on the braking surface. The linkage for 

the manual brake was disconnected completely. 75.1404. 

46 
The orders were terminated on September 16, 1977, after abatement of 

the conditions cited, and the notice of termination states: "The 

required conditions to be corrected on No. 20 locomotive were 

corrected." 

Testimony and Evidence Adduced by Petitioner 

MSHA inspector Jmaes E. Kaylor testified that he has had experience in visually inspecting track haulage equipment, including locomotives, as part of his duties, and that he has an understanding as 

to how the locomotive braking systems operate. He can tell when a 

braking system is functioning properly and when it is not, can identify the parts of a braking ·system, and can determine \vhether a braking system is properly aligned and adjusted. He went to the mine on 

September 8, 1977, upon instructions from his supervisor to conduct 

a fatal accident investigation. He described what took place during 

the course of his investigation, including what he found at the scene 

of the locomotive derailment and the point where the accident victim, 

Brakeman Gibso~ jumped from the locomotive and was killed (Tr. 4-16). 

Mr. Kaylor testified that at the time of the accident, the locomotive was pulling 27 mine cars, each of which weighs 4 tons, with a 

load having a capacity of 15 tons each. Company policy at the time 

limited the trips to 25 mine cars. The locomotive derailed onto a 

derail track, but did not overturn. It simply left the rails and slid 

on the rails and sustained. no visible dam&ge. The day after the accident, the respondent was allowed to remove the locomotive and cars 

from the mine, but while it was still underground, he had an opportunity to visually examine the locomotive braking system and his 

visual examination revealed that the brake shoes were but of line 

with the wheel trucks and the flange on the brake shoe was wearing on 

the wheel flange. MSHA inspectors Gerald Smith and Junior Sizeno1·e 

also observed the locomotive, conducted a more extensive examination, 

and they concurred in his evaluation that the brake shoes were not 

properly aligned. In his opinion, the derailment of the locomotive 

did not cause the braking system to become misaligned and unadjusted. 

The flange was worn practically off one end of some of the brake 

shoes. He saw no visual evidence of any brake skidding at the scene 

of the accident, and this indicated that the brakes or wheels were 

not frozen or applied. Three wheel skids used as an additional 

braking device to slow the locomotive down were found at the scene 

and they were apparently dislodged from their normal position under 

the wheels in the process of derailment (Tr. 16-25). 

Mr. Kaylor identified Exhibit P-10 as 8 locomotive inspection 

report dated June 18, 1977, concerning the No. 20 locomotive, and he 

indicated that it was obtained by MSHA Electrical Inspector Sizemore 

during his review of company records which are required to be maintained, and that Mr. Sizemore advised him that he could find no other 

reports or files covering the period June 18, 1977, to the date of 

47 
the accident. Mr. Kaylor did not know whether the No. 20 locomotive 

was inspected during this period of time. Section 75.512 of the mandatory safety standards requires that reports be maintained of weekly 

inspections of electrical equipment (Tr. 25-37, 44). 

Mr. Kaylor testified that during his investigation, he examined 

the trolley wire, could see no lubrication applied, and he also discovered the trolley pole harp assembly near the top of 18 Hill going 

down the hill at the 2 Right parallel where the track enters a side 

track. The trolley harp connects with the trolley wire and serves 

as a means of supplying power to the locomotive. The dislocation of 

the harp assembly from the trolley pole results in a loss of power, 

and this in turn results in a loss of the braking systems becarise 

the air compressor shuts off and the only air remaining is that left 

in the air tanks (Tr. 12-13, 38-39). 

Upon observation of the locomotive controls at the scene of the 

accident, Inspector Kaylor observed the power tram controller in the 

wide-open position, the sand lever open, and the pneumatic brake le~er 

open, and with these controls open, air pressure will be lost, but the 

sander would provide additional traction anJ increased braking ability. 

In addition, the brake lever was engaged (Tr. 39-43), 

On cross-examination, Mr. Kaylor testified as to his training 

and experie11ce i~ conducting mine inspections and accident investigations, and ~1ile he has had no formal training regardin~ the actual 

working of brake shoes, he has observed numerous brake shoes on lor.omotives and has gained his knowledge through experience. He explaine~ 

and detailed his understanding of how a locomotive brake operates, 

He also described a brake shoe flange, and indicated that the fl~nge 

on the brake shoe in question was practically completely worn off the 

shoes which he observed. He observed all eieht br<!ke shoes on- the 

locomotive underground and six of them had worn flanges and two 

appeared to be in good shape. The worn flanges resulted in the braking surface of the shoe not being applied to the full surface of the 

wheel. When he looked down inside the locomotive, the brake shoes 

were backed off the wheel due to the loss of air pressure and he could 

observe where the flanges were worn, but he could not tell how much of 

the brake shoe surface was on the wheels when the brakes were applied. 

Some part of the flanges on each of the six shoes was worn away, but 

he conducted no tests to determine how much of these brake shoe surfaces would touch the wheel and his examination was visual. However, 

he .believed that if only part of the brake shoe is touching the wheel, 

then that brake shoe, which was designed for the locomotive, would 

not be doing the job that it was designed to do (Tr. 45-59). 

Mr. Kaylor stated that the distances and grades described in his 

accident report were obtained by scaling from a mine map, but he could 

not recall whether he did the scaling. The locomotive was still. 

upright after it derailed, had no external damage, and he concluded 

48 
that Mr. Gibson possibly could have suffered a bruise or two had he 

ridden the locomotive and not jumped, He also indicated that as a 

general rule, it is far safer to ride the motor rather than to jump. 

His investigatiort revealed that the trolley pole harp probably caught 

in a junction point where two wires came together. The harp was in 

good condition, and he did not issue a violation for it not being 

lubricated. He was not sure whether any other inspector did, and 

indicated that-if it is not in his report, then no violation was 

issued. The 4~000-foot distance mentioned in the report was derived 

from the mine map and the overall 5-percent grade for that distance 

was supplied by the respondent. ·He also testified as to the position 

of the controls as he found them, and described the dydamic and pneumatic braking systems in terms of efficiency and how they are applied 

and used. lle agreed that section 75.512 does not require that a locomotive be inspected during a vacation period or a strike and it is not 

a violation to leave it uninspected during that time (Tr. 60-78). 

On redirect, Mr. Kaylor testified that a misaligne~ brake shoe 

is hot as efficient as an aligned one, that the manufacturer has certain requirements as to how to install brake shoes, and that alignment is important to braking efficiency. Based on his experience, 

he believed that with the brake shoes misaligned as they were~ the 

braking effect is not what it would be if ttey were properly aligned. 

The brake shoe flange is designed to hold the wheel or shoe in line 

and is not designed for braking or stopping the locomotive. The size 

of any trip is not governed by any regulation, but is fixed by company 

policy with safety in mind and after considering the size of the 

trams, motors> and the graders involved. Although only three skids 

were found, it is just as likely that four were used. He was not 

sure whether trolley wire lubrication is ·required by regulation and 

believed that ~uch lubrication with a graphite base tends to keep the 

trolley harp in contact with the trolley wire (Tr. 80-a - 80-e). 

In response to bench questions, Hr. Kaylor stated that being out 

of line, the brake shoes were not wearing the way they were designed 

to wear. Normally, the flange of the shoe is supposed to ride over 

the wheel flange, but in this case, it was riding on top of it. The 

condition was not a normal wear and tear situation (Tr. 80-85). He 

did not know how much surface of the worn brake shoes touched the 

wheels, and the flanges were worn in parts and the entire flanges 

were not worn (Tr. 80-84). 

MSHA electrical inspector Gerald F. Smith testified as to his 

mining experience and training, and he assisted in the accident investigation conducted at the mine on September 9, 1977. He is familiar 

with braking systems and how they operate, he can identify a properly 

working system from one which is not properly working, and he knows 

how to test such systems to determine whether they are properly working. Upon visual observation of the locomotive at the scene of the 

accident underground, with the guards removed, he determined that the 

49 
brake shoes were not aligned with the trucks of the locomotive. He 

is familiar w~th the No. 20 locomotive braking system and indicated 

that it has a dynamic or electric brake which acts as a speed reducer 

similar to down-shifting an automobile. The locomotive had a dual 

braking system, namely, the dynamic brake and the pneumatic, or air 

brakes. He described the pneumatic braking operation, and also indicated that the locomotive also had a manual or mechanical brake, but 

it was disconnected and it is u~ed as a parking brake (Tr. 84-89). 

Mr. Smith identified Exhibit P-11 as a sketch representing a 

properly and improperly aligned brake shoe, but the sketch is not 

intended to depict what the actual brake shoes which he observed 

looked like. From his observations concerning the wear on the. flange, 

he assumed that it was making contact with the wheel surface, but no 

pictures or actual sketches were made and the wheels were not dismantled. The basis for his determination that the brakes were improperly 

aligned was the fact that there was excessive wear on the flange and 

this led him to conclude that the brakes were misaligned (Tr. 90-95). 

Mr. Smith stated that the manual brake installed on the locomotive was required to be maintained as a matter of MSHA policy and 

guidelines, and once installed, it had to be maintained operative. 

The locomotive had a dual braking system which complied with section 

75.1404 (Tr. 98-99). After the locomotive was removed to the surface 

and brought to the main shop, it was tested again. He observed the 

locomotive again from a.pit which allowed him to view it from the 

bottom. He observed that two straps which serve to tie or hold the 

brake ring in position, were broken, two were bent, and two were 

missing. Power was put on the locomotive and the pneumatic braking 

system was inoperative in that the brake shoes did not set. When 

this occurred, company o"fficials immediately began to find out why 

the system was not working (Tr. 103-105), 

Mr. Smith stated that in issuing the section 104(a) order, he 

did not consider the number of car trips involved, or the gnide of 

travel when he made the judgment that the brakes were inadequate or 

that the faulty brake system would not stop the locomotives. He 

simply considered the condition of the equipment and assuming he 

walked into a mine and found the same locomotive with the same brake 

condition, he would again conclude that they would not stop the locomotive. If the brake shoes did not apply uniformly to the locomotive 

wheels when pressure was applied, then he would conclude that it did 

not have adequate brakes. He assumed the flanges of the brake shoes 

were coming in contact with the wheels due to the wearing of the 

flanges and the flanges are not designed to be used as braking surfaces (Tr. 109-113). 

Mr. Smith stated that no tests were conducted on any of the 

locomotive wheels to determine how much of the braking surface was 

present or whether the flange presented a problem (Tr. 114). He 

50 
issued the 104(a) order because he believed the locomotive braking 

system was inadequate to control the locomotive. It is adequate 

only if properly maintained as designed (Tr. 118). Mr. Smith stated 

that when the locomotive was tested .outside the mine, the pneumatic 

brakes were set, power was put on the locomotive, the locomotive was 

put in forward motion, but ~1en the brakes were applied, they did not 

stop the locomotive (Tr. 119-121). 

On cross-examination, Mr. Smith stated that mine management made 

no response when the brakes failed to hold during the test and he 

could not recall Mr. Halsey telling him that the brake shoes would 

not touch the wheels because the locomotive had been dragged through 

mud, and he knew nothing about how it was brought to the surface. 

Mr. Halsey asked to put the power on so that he could show that the 

brakes would hold. Mr. Halsey also set the brake and then put the 

locomotive in motion again and the brakes failed to hold again. The 

tests were conducted on a Saturday, September 10, and when he returned 

on Monday, the brake shoes were taken off the locomotive (Tr. 121-125). 

Mr, Smith testified that he did not physically attempt to determine whether the misaligned brake shoes were touching on the loc:omoti ve wheels and he made his determination by visual observation. 

No one ever engaged the brakes in order to observe whether the shoes 

were contacting the wheels. On two of the six brake shoes, the 

flanges were severely worn, and the remaining four were out of adjustment to the point where the flanges were making contact instead of the 

surface of the shoe. The mechanical parking brake has nothirig to <lo 

with the dual braking system, and he had no quarrel with the dynamic 

brakes. The violation centcis on the fact that the pneumatic brake 

shoes at some times apparently would not have contacted the wheels. 

He did not know whether the bent and missing straps came off in the 

wreck. Based on the flange conditions, he believed that the brake 

shoes did not touch the wheels on six of the eight wheels (Tr. 129-

140). 

On redirect, Mr, Smith reiterated that there were eight locomotive wheels, and eight brake shoes, six of which were not properly 

aligned and showed wear. Two of the eight shoes· appeared to have 

been properly aligned, He did not watch the shoes actually being 

applied to the wheels and he confirmed his opinion that the shoes 

were not capable of stopping the locomotive and were not properly 

aligned by the two tests conducted on the surface by Mr. Halsey (Tr. 

142-144). 

Inspector Kaylor was recalled by MSHA and testified as to the 

orders he issued in this case, and he identified the report of investigation he compiled. He believed the violation was serious, and 

that the respondent should have been aware of the brake conditions 

through the weekly examinations and reports. The brakes can be 

readily inspected visua1ly to determine whether they are misaligned. 

The condition cited was abated in good faith (Tr. 154-162). · 

51 
Mr. Smith stated that the fact that no additional inspecti6n 

reports were found does not indicate that the brakes were not · 

inspected for alignment (Tr. 166). 

Testimony and Evidence Adduc~d by Respondent 

Bud~y E. ~aines, general superintendent of the Shannon Branch 

Mine, testified that he was aware of the accident in question and he 

described the route taken by the locomotive in question on the day 

of the accident, the loads of coal it was pulling, and Locomotive 

Operator Williams' activities that day based on the accident investigation report. He also described the general terrain and the track 

grades over the area traveled by the locomotive, and described the 

area from a mine map (Exh. R-1). ·He testified that from the 2 North 

parallel area, where the locomotive harp was lost, to the point of 

the derailment, the average travel grade is 1 percent descending 

downhill, but the area also has uphill grades and steeper grades (Tr. 

203-216). 

Mr. Raines testified that mine policy', established in 1972, 

fixed the limit that a locomotive could transport to 25 mine cars of 

coal. Prior to that time, there was competition among the motormen 

who often pulled more than 25, and as many as 30, and 25 was fixed 

as the limit after consultation with the uriion committeemen and 

motormen who decided that 25 was r1 "comfortable limit, 11 ·and the 

rotary dump track can only handle 19 cars, with room enough to 

store the remaining six cars on a side track entry. He has observed 

locomotives traveling underground and normal speed traveling downhill would be about 10 miles per hour and any speed over 10 would be 

fast. The speed in the 21 left area would average 5 to 7 miles per 

hour (Tr, 216-220). 

Mr. Raines testified that the company was concerned about whether 

the 25-car load limit had been exceeded on the day in question. He 

participated in the company accident investigation and did not know 

what happened to the brake shoes in question. The map previously 

referred to, was prepared for the purpose of conducting some tests 

related to the accident. According to his calculations, the distance 

from where the har·p came off to the point of the derailment where 

the locomotive came to a stop, is 4,230 feet, and the distance from 

the top of 18 left hill to whe+e the locomotive stopped, is 7 ,030 feet 

(Tr. 220-228). 

Safety was one of the factors consi,dered. in limiting the loads to 

25 mine cars. There is no company policy concerning proper locomotive 

speed, speed limits are not posted in the mine, and a locomotive does 

not have a sp.eedometer. Locoraoti ve destinations and movements are 

controlled by the dispatcher, and he does not control speed, but does 

control various locomotive checkpoints (Tr. 228-230). 

52 
On cross-examination, Mr. Raines testified that state law 

requires that a locomotive travel no faster than track conditions permit and actual speed is left to the judgment. and experience of the 

motormen. The locomotive was pulling 27 mine cars at the time of the 

accident (Tr. 232). 

On redirect, Mr. Raines stated that the statement attributed to 

Mr. Waters to the effect that Locomotive Operator Williams could handle 

27 trips is found in MSHA's accident report, but did not mention that 

Mr. Waters told everyone that he believed that his order to limit it 

to 25 trips was obeyed. The speed of a locomotive depends on a number 

of factors, including the number of trips, sand, brakes, slope, skids, 

and the weight of the motor, and the number of cars pulled is not the 

sole factor in determining stopping distance or speed. Locomotive 

speed limits are not regulated by statute or safety regulations and 

he knows of no mines which post such speed limits (Tr. 234-235). 

In response to bench questions, Mr. Raines stated that no one 

calculated the speed of the locomotive at the time of the accident 

(Tr. 236). 

William E. Funsch is employed by the General Electric Cpmpany, 

the manufacturer of Locomotive No. 20, the locomotive involved in the 

accident. He is a graduate of the University of Oklahoma, has 

28 years' experience in pneumatics, and has designed and tested industrial and mining locomotive braking systems. He is familiar with the 

No. 20 locomotive braking system snd it has four independent braking 

systems, namely, a dynamic brake, a straight service air brake) a 

truck (wheel) emergency brake, and a parking brake. The parking brake 

is also referred to as a mechanical brake. The auxiliary biaking 

system is a completely independent system installed as an additional 

feature to cover a weak link in the system, namely, an air hose that 

goes between the main locomotive frame and the trucks which swivel. 

The hose is subject to abrasions, ~nd should it break or become 

severed, the emergency system is designed to automatically supply air 

to the four brake cylinders (Tr. 240-242). 

Mr. Funsch testified that the No. 20 locomotive has eight wheels, 

each with a brake shoe, and four braking systems. He calculated the 

stopping distance of the locomotive, and based on (1) a 1-degree 

slope, (2) speed of 15 miles per hour, which he considers excessively 

fast, (3) the weight of the locomotive, (4) the weight of 27 loaded 

mine cars, and (5) a factor of sliding friction caused by the use of. 

wheel skids, he calculated that it would take 57.7 seconds, or roughly 

1 minute, for the train to stop over a distance of 589.3 feet. Assuming suffi~ient air pressure is in the braking systems, Mr. Funsch 

testified that the No. 20 locomotive, with 27 loaded cars, could have 

stopped w:i. thin the 4, 230 feet, .which is the distance from wher~ the 

harp came off to th~ point of derailment~ without any difficulty, and 

that distance was seven or eight times the distance required to bring 

the train to a stop (Tr. 244-246). 

53 
Mr. Funsch stated that the pneumatic brake system operates by 

supplying air from two main reservoirs, through a brake valve, to 

four brake cylinders which exert force on the brake shoe, pushing it 

against the wheel, thereby generating friction, which retards the 

rotation of the wheel, thus slowing the train down (Tr. 247). 

On cross-examination, Mr. Funsch testified that he sells locomotives to various coal mine operators, including the respondent. 

He has never seen the No. 20 locomotive, did not examine it after 

the accident, and has not seen the brake shoes or examined the braking system in question. His testimony is based on the plans and 

construction of the locomotive, including his underground mine 

experience, but he did not know whether the brake shoes in question 

were misaligned, The auxililary truck emergency braking system was 

designed as an integral part of the locomotive as a standard feature 

(Tr. 248-250). 

Mr. Funsch stated that operating instructions come with the sale 

of a locomotive, including the operation 6f the braking system, and 

he explained the use of the emergency system. Assuming the brake 

shoes were improperly aligned or adjusted, this would affect the 

motion. However, a loose brake shoe hanger will wobble, but will 

seek the flange on the wheel and will center on the wheel and gross 

misalignment does not occur. The purpose of the wheel flange is to 

keep the shoe in line and to create more brake shoe area on the 

wheel. Using only the flange for the braking of the wheel creates 

a dangerous situation (T~. 250-256). 

Mr. Funsch stated that wetness, mud, or oil would have a great 

effect on the friction factor as applied to the brake surfaces and 

that an increase in the grade of travel would increase the distance 

required to stop the train. This stopping distance calculation did 

not take into account human error or panic in the operation of the 

locomotive. He was not paid to a~pear as a witness and his testimony 

is voluntary. However, he testified that his company has not sold a 

locomotive to the respondent since 1957, and he is not in the marketing of his company's business (Tr. 258-262). 

On r~direct, Mr, Funsch stated that the emergency truck brake 

is not used in the normal stopping of the pneumatic air brake system. 

The locomotive in question bas a dual braking system within the meaning of section 75.1404, namely, the dynamic brake and the pneumatic 

brake, Referring to Exhibit P-11, Mr, Funsch stated that the small 

line on the diagram in the center of the wheel indicates that the 

brake shoe flange: is riding on the \·1heel flange and is an unstable 

condition and will eventually wear down the brake shoe flange (Tr. 

263-268). 

Thomas M. Williams has been employed by respondent for 13 years 

and has 37 yPars' underground experience in the mining industry. He 

54 
was employed as a motorman on September 8, 1977, and had been employed, 

in that capacity for 20 years. He was the operator of the No. 20 

locomotive on the day of the accident, and Mr. Larry Gibson was 

assigned as the brakeman. Mr. Williams described his movements during the shift when the accident occurred. He performed a routine 

inspection of the locomotive, including checking the skids, trip 

light, fire extinguishers, and all the safety devices. After speaking with the dispatcher, he moved the locomotive and checked his sand 

supply and the brakes and they were in satisfactory condition (Tr, 

272-277). 

Mr, Williams testified that his job entails nulling loaded mine 

cars and picking up empties and he goes where the dispatcher tells 

him to. He described his route of travel on the day of the accident, 

and indicated that earlier in the shift, he had traveled to the area 

below 2 North parallel with 22 empty mine cars and had no difficulty 

stopping on Hill 18 and his electric brake and air braJr.e were \,,orking satisfactorily. He picked up 11 loaded mine cars at 6 North and 

proceeded to 27 where he picked up 16 loads after dropping off the 

11 car loads and his brakes were operating. He stopped the cars by 

means of sand and his air brake, He then recoupled the 11 car loads 

to the 16 which he had picked up and then proceeded to the 21 left 

junction where he stopped his load by means of sand or air brnkes with 

no difficulty. While .awaiting further instructions from the dispatcher, Mr. Gibson was setting four skids, Mr. Williams saw him set 

two next to the motor car and left with the other t1rn. He assumed he 

set the other two, but could not see him due to the length of the 

cars. Upon receiving clearance from the dispatcher, he moved fron 

the 2i left junction and proceeded on his trip. He passed the 18 Hill 

with no difficulty, using both electric and air brakes. As he started 

over the 18 Hill, he lost his trolley pole but put it back on the 

trolley wire and the trip was under control, and he ~sed electric and 

air brakes and sand to control the trip clown the 11-percent 100-·foot 

grade past the 18 Hill (Tr. 277-288). 

Mr. Williams lost his trolley pole again in the 2 North parallel. 

section. The pole knocked his mine cap off his head. He then discovered that the pole harp was missing and he began using every available device to keep the motor under control, including sand and the 

dynamic and air brake, but could not control the trip. Due to the 

loss of the harp, he ;Lost his air pressure and no additional pressure 

was building up. The only available air pressure was that which 

remained· when the harp was lost and his pressure gauge indicated zero, 

Mr, Gibson jumped from the locomotive and he (Williams) jumped after 

locating a wide area in an entry (Tr. 288-293). 

Mr, Williams testified that he had on previous occasions transported 27 or more car loads down the No. 18 Hill, and has hauled as 

many as 29 or 30 car loads with engines smaller than the No, 20 locomotive, and he had no trouble controlling those trips, and the accident in question is the first one he has experienced in his 37 years 

55 
of m1n1ng. The No. 20 locomotive is inspected every Thursday on the 

third shift, and he had authority to take it to the motor barn "if he 

detected anything wrong while operating it (Tr. 293-295). 

Mr. Williams testified that he took 27 trips on the day in question because he felt he could handle that many car loads. When he 

discovered the loss of air pressure, he did everything possible to 

slow down, but prior to the loss of air pressure, he was controlling 

the trip satisfactorily by using sand, and his electric and air 

brakes, and his trip was under control at all times prior to the losing of his harp and air pressure (Tr. 295-298). 

On cross-examination, Mr. Williams testified ~hat he considered 

himself to be a well-experienced motorman. He checked the brakes of 

the No. 20 locomotive and visually observed th~t the brakes were 

touching the wheels. He could not check the flanges because that 

requires the loco1notive to be parked over a pit. It ir possible for 

the brakes to malfunction sometime during a shift, even though a 

~isual inspection indicates they are in working order. He has had no 

previous accidents involving the operation of locomotives prior to the 

accident in question. He had traveled to the motor barn in a westerly 

direction earlier in the evening) but could not recall whether he had 

any mine cars. He went to the barn to obtain a slide and normally 

would not take along a loaded trip of cars. He could not recall his 

speed at that time, but had the trip under control by using his air 

brakes (Tr. 299-307). 

Mr. Williams believed that some 7 minutes transpired from the 

time he left 21 Left to the point where he jumped from the locomotive, 

and at least 5 minutes transpired from the point where he lost his 

trolley harp to the point where he jumped. Prior to his losing the 

harp, there was adequate ait pressure when the trolley wire was in 

contact with the overhead wire (Tr. 308-311). He had 60 pounds of 

air pressure when he lost the harp (Tr. 313). 

In response to questions from the bench, Mr. Williams testified 

that most of the grade starting at 2 North is downhill with some rise 

and fall. If a car were dropped at one end of the horizontal travelway from 4 South in a westerly direction toward 2 North, it would 

travel the entire ~istance to the other end by force of gravity. 

When his trip derailed, he was told 18 mine cars left the tracks. He 

never went back to view the scene and has not operated a locomotive 

since the accident. While he was not disciplined by the respondent, 

he was taken off the job as a motorman, but is still employed in 

another capacity (Tr. 313-318). 

On redirect, Mr. Williams indicated that 50 pounds of air pressure is required to operate the locomotive. The motorman who operated the No. 20 locomotive prior to his shift did not indicate that 

he was experiencing any difficulties rir that he was having trotible 

with the brake shoes (Tr. 318-320). 

56 
Steve Halsey, employed as an underground·maintenance supervisor, 

was employed in that capacity at the time of the accident, and his 

job entailed servicing and inspecting locomotives, including work 

on locomotive brake systems. He knows how brake systems work and 

has worked on the No. 20 locomotive (Tr. 332-333). He stated that 

the emergency or auxiliary brake is a different braking system from 

the air brake system, and the parking or mechanical brake is the 

fourth. The dual braking system is the pneumatic and dynamic brakes 

which are designed to stop the locomotive under normal conditions. 

He has ridden the locomotive underground and the normal speed is 

8 to 10 miles per hour while carrying loads. The load limit is 

presently 15 cars, but at the time of the accident, it was 25. He 

has ridden the No. 20 locomotive when it pulled as many as 33 car 

loads and he experienced no trouble in controlling it. He identified 

the locomot1ve inspection report (Exh. P-10) and indicated there were 

additional "time sheets," but he could find no other reports covering 

the period June 18 to the day of the accident. He stated th~t during 

this period, the mine worked approximately 15 days due to a strike 

and vacation period. During this time, the No. 20 locomotive was in 

the motor barn for maintenance on several occasions. A new harp was 

put on 2 days prior to the accident (Tr. 333-343). 

Mr. Halsey described the procedure used to remove the locomotive 

for testing from the mine to the shop area after th~ accident. No 

power was put on the locomotive and it was either pushed, pulled, or 

dragged to the shop. The locomotive was inspected by several people, 

including MSHA inspectors, and upon instructions, he took the brake 

shoes off and laid them beside each wheel truck. He looked at the 

brake shoes and did not believe they were "that far out of adjustment," and he was convinced they would work. After applying the 

power to the locomotive, the brakes did not hold. A second test was 

mad~ and the brakes still would not hold. After Inspectors Smith and 

Sizemore left the shop, he went to the pit to check the wheels and 

brake shoes again. After power was applied, he noticed a gap caused 

by compressed mud between the wheels and brake shoes on all eight 

wheels. The shoes would have contacted the wheels, had it not been 

for the mud. The mud evidently came f~om the shop area while the 

locomotive was being transported. The normal gap between shoe and 

and wheel is one-half to five-eighths of an inch and the shoe will 

move an inch or an inch and a half. Two of the brake shoes in question were in perfect condition, two had problems with the flanges~ 

one had a portion of the flange broken off and it was decided that 

this was an old break which did not result from the accident. The 

other shoes had no problems with the flanges and exhibited only 

normal wear. One of the two shoes which concerned MSHA had a groove 

cut into the tread area causing it to rock on the wheel and ride out 

of alignment, and the other one had a portion of the flange missing. 

Mr. Halsey conceded that these two brake shoes were misaligned (Tr. 

343-359). 

57 
Mr. Halsey testified he inspected all of the brake shoes in 

question, and in his opinion, the two misaligned shoes were making 

contact with the wheels, as were the other four (Tr. 359-362). 

On cross-examination, Mr. Halsey testified as to his education 

and training courses concerning braking systems. He has mine foreman's papers and believed he is well-qualified to speak on locomotives 

and locomotive braking systems. The auxiliary braking system will 

activate if there is a break in the main line or hose, if the system 

bleeds off over a period of time, or if the brake lever is pushed all 

the way over. The locomotive would adequately stop a trip of 25 or 

30 and he remembered this from riding it 3 or 4 years ago. At that 

time, however, he did not check the brakes and could not say whether 

that braking system was the same as the one involved in the accident. 

The locomotive was taken out of the mine on the tracks and he was not 

present when it was taken out and did not know what the conditions 

were. He initiated the two tests in the shop because he was confident 

the brakes would work, but was surprised when they did not. He did 

not protest to the MSHA inspectors after the tests failed because 

they were leaving the shop and did not do so later, although he ctid 

te·ll them that "something was wrong." He estimated the l·-1/2-inch 

shoe distance from the wheel through visual observations. In his 

view, the brake shoes and flanges were not excessively worn. He 

replaced all of the brake shoes (Tr. 365-376). 

On redirect, Mr. Halsey testified the brakes were working on the 

night of the accident. ·After the locomotive was brought out of the 

mine, it was pushed and·dragged over the timber yard area which was 

muddy (Tr. 382). 

In response to bench qi1estions, Mr. Halsey stated that when he 

discovered the mud on the wheels, he did not inform the inspectors 

of that fact, and after cleaning out the mud, he made no attempt to 

test the locomotive again (Tr. 383). 

Tom Akers, employed as an electrical engineer by the respondent, testified that after the accident, he was assigned the task of 

attempting to determine the speeds at which locomotives travel in the 

mine under particular conditions and that MSHA recommended that this 

be done. A 15-load limit was decided on as a temporary limit until 

his study could be made. His study determined that a speed of 8 to 

9 miles an hour down the No. 18 Hill was considered by the locomotive operators to be a normal rate, and 15 miles per hour was considered excessive. Mr. Akers described the procedures used to 

conduct his tests, and they included tests to determine stopping 

and braking distances, and loaded mine cars'were used after weighing 

them on scales. His tests were conducted before Mr. Funsch made his 

calculations, but the results of both were close. 

58 
On cross-examination, Mr. Akers testified.that he was not sure 

whether the No. 20 locomotive was used in the tests and that the 

braking systems were working adequately (Tr. 387-394). 

Mr. Kaylor was recalled by the court and testified that the conclusion reached in his report of investigation that the locomotive in 

question was traveling at an excessive speed was based on interviews 

and statements made by several motormen listed in the report who indicated that normally, a locomotive, with four skids and a comparable 

number of loaded cars, would level off at stop if it were cut loose 

with the power off after it reached Hill 18 at the point where the 

grade levels off and dips. The persons giving the statements assumed 

that the locomotive was traveling at an excessive speed in order for 

the motor to travel by itself after it lost its air brakes. During 

his investigation at the accident scene, three skids were found, but 

the other one could have been inside the rail under the wrecked cars 

where it could not be seen. He also indicated that Mr. Williams 

could have left the throttle in the wide-open position, while moving 

it back and forth in his attempts to bring the locomotive under control, and that Mr. Williams' explanations as to the positions of the 

controls possibly explain why they were found in those positions as 

explained in his report (Tr. 394-400). 

Findings and Conclusions 

Respondent is charged with a violation of 30 CFR 75.1404, a 

statutory standard found in section 314(e) of the Act, and which 

reads as follows: 

Each locomotive and haulage car used in an underground coal mine shall be equipped with automatic brakes, 

where space permits. Where space does not permit automatic brakes, locomotives and haulage cars shall be 

subject to speed reduction gear, or othet iimilar devices 

approved by the Secretary, vhich are designed to stop the 

locomotives and haulage cars with the proper margin of 

safety. 

30 CFR 75.1404-1 braking system, provides: 

A locomotive equipped with a dual braking system 

will be deemed to satisfy the requirements of 75.1404 

for a train comprised of such locomotive and haulage 

cars, provided the locomotive is operated within the 

limits of its design capabilities and at speeds consistent with the condition of the haulage road. A trailing 

locomotive or equivalent devices" should be used on trains 

that are operated on ascending grades. 

59 
The condition cited as a violation by the inspector, and which 

he believed constituted a violation of section 75.1404, reads as 

follows: 

The pneumatic braking system on the No. 20 locomotive 

being used for coal haulage purpose was not sufficient to 

control a trip of 28 loaded mine cars which were involved 

in a run-a-way trip. The brake shoes were not properly 

aligned with the trucks and could not apply uniform 

frictional pressure on the braking surface. The linkage 

for the manual brake was disconnected completed 75.1404. 

Petitioner's Arguments 

Petitioner takes the position that the provisions of 75.1404-1 

pertaining to "design capabilities and speeds consistent with the condition of the haulage road" are not at issue here, and that the key 

issue in this case, in terms of construction of the standard, is the 

meaning of the phrase which appears in the first part of 75.1404-1. 

In support of this proposition, petitioner asserts that the requirement that "a locomotive equipped with a dual braking system will be 

deemed to satisfy the requirements of section 75.1404,'' necessarily 

requires that the dual braking system be working, operative, and in 

good order and repair, and suggests that respondent's position that 

the dual braking system need only be in existence on the locomative 

and that its ability to function as a braking system is irrelevant 

and should be rejected. Citing what it believes to be the applicable 

case law in support of the proposition that remedial legislation such 

as the Act in question here should be construed liberally, petitioner 

argues that a construction of section 75.1404 to the effect that a 

locomotive equipped with a dual braking system need not work, operate, or be capable of stopping the locomotive, runs contrary to the 

remedial nature of the statute and the general rules of statutory and 

regulatory construction. 

Petitioner cites the case of Sewell Coal Company, HOPE 78-529-P, 

decided by Judge Merlin on November 15, 1978, and states that Judge 

Merlin found a violation of section 75,1404 based upon that portion 

of the standard relating to design capabilities an~ haulage road 

conditions, and that the braking system, per se, was not the focus of 

his decision. However, petitioner maintains that one can infer that 

an operative, working brake system w~s considered by Judge Merlin to 

be a necessary requirement since he found 11 that the air brake system 

did work. 11 Further, since Judge Merlin found that the language of 

section 75.1404-1, dealing with design capabilities and haulage road 

is a separate requirement of the regulation, petitioner maintains 

that it need not show that a locomotive's operation was outside of 

its design capabilities or that the condition of the haulage road was 

inconsistent with speeds of the locomotive because those are not the 

only grounds for demonstrating a violation of section 75.1404. 

60 
Petitioner maintains that the lack of a dual braking system as well 

as the lack of a braking system which is working, operative, and in 

good repair constitute other grounds for a violation of this regulation. With respect to the use of the term"equipped," petitioner 

asserts that the term should be construed to mean not only outfitted, 

but also maintained in a working, effective and operative condition, 

and cited a decision by Judge Michels in Pittsburgh Coal Comoany, 

PITT 76-123-P, decided October 7, 1976, concerning the standard for 

automatic couplers. 

Turning to the facts and evidence adduced in this proceeding, 

petitioner argues that visual examination of the locomotive brake 

shoes underground at the point of the derailment indicated that the 

brake shoes were out of alignment with the wheels (or trucks) :)f the 

locomotive and that the flanges were worn. In the opinion of Inspector Kaylor, the derailment did not cause the misalignment of the 

brake shoes, and out of the eight shoes, six were not in good shape 

and had worn flanges. No evidence of brake skidding was found at the 

scene of the accident, and when the locomotive was removed to the 

surface and tested on two separate occasions, the locomotive brakes 

failed to work when the motor was put in motion. Coi1ceding that the 

loss of electricity upon which the dual braking system depends, was 

a factor in the accident, petitioner nonetheless maintains that this 

fact does not support an inference that the pneumatic braking system 

would not have failed at some point in time, irrespective of electrical 

power, and that at some point in time the extent of wear or misalignment will result in brake system failure. This problem has been 

recognized by section 75,512 requiring a weekly recorded examination 

of electrical equipment, including a locomotive, and petitioner 

asserts that no evidence was offered to dispute the fact that no 

examination report was made between June 18, 1977, and the fatality 

date of September 8, 1977. In summary, petitioner takes the position 

that the locomotive did not have a braking system that would do the 

job at the time the fatality occurred. 

Respondent's Arguments 

Respondent contends that the condition cited in the order, namely 

misaligned brakes shoes, is not a violation of section 75.1404, since 

that section is confined to violations relating to a failure to equip 

a locomotive with a dual braking system, Respondent maintains that 

section 75.1404, and its subpart, 75.1404-1, is a design-oriented 

safety standard rather than a maintenance requirement standard. 

Citing the plain meaning of the statutory language and the legislative history of the standard in question, respondent argues that 

they require that the locomotive must have automatic brakes or, 

alternatively, must have·a dual brakir..g system designed to stop the 

locomotive with the proper margin of safety; they do not mandate 

maintenance thereof. 

61 
In support of its arguments, respondent points to the fact that 

petitioner's own witnesses admitted that the locomotive had a dual 

braking system and that respondent's expert witness Funsch testified 

that such dual braking system was more than sufficient to stop the 

locomotive, with 27 loads being pulled, on 18 Left Hill under the 

conditions existing on September 8, 1977, and at a speed far in 

excess of that which Motorman Williams testified was his speed prior 

to losing the harp assembly. Witness Funsch testified that the locomotive and its braking system were so capably designed and operated 

that, had the pneumatic braking system not accidentally been depleted 

of all of its air supply, the locomotive could have been stopped in 

approximately one-eighth of the distance between the site where the 

harp assembly was lost and the derail location at 2 South. 

With regard to the Sewell Coal decision, respondent asserts that 

its position is consistent with Judge Merlin's holding in that case 

even if it requires that a locomotive must be operated within the 

limits of its design capabilities and operated at speeds consistent 

with the condition of the haulage road. In Sewell, respondent points 

out that the undisputed facts revealed that a decedent/motorman was 

operating a tandem locomotive pushing a loaded rock duster weighing 

5 tons up a steep gradey and ~ten the loeomotive failed to make the 

grade, it slid back down the hill at which time the decedent was 

thrown out of the locomotive and killed. It was admitted that automatic brakes were not present, so Judge Merlin turned to the alternative section, 75.1404-1, requiring that the locomotive have a dual 

braking system and he interpreted such alternative to also require 

that the locomotive be operated within the limits of its design 

capabilities and at speeds consistent with the condition of the 

haulage road. Judge Merlin ruled that the locomotive _did n~ have 

a dual braking system, that the locomotive could not handle the 

5-ton load placed upon it (the locomotive was not being operat~d 

within the limits of its design capabilities) and that the locomotive 

did not have enough power to achieve sufficient speed to travel along 

the grades it was sent on (the locomotive was not operated at speeds 

consistent with the condition of the haulage road). · 

Turning to the facts presented in the instant case, respondent 

argues that as in Sewell, automatic brakes were not present on the 

No. 20 locomotive, and one must look to section 75.1404-1 to determine whether the locomotive satisfied the alternative of a dual braking system. As pointed out earlier, respondent maintains that the 

locomotive did, in fact, have a dual braking system, that its expert 

witness unequivocally testified that the locomotive was being operated 

within the limits of its design capabilities 0n the day in question, 

and that the only person with knowledge of the speed being traveled 

down 18 Hill, motorman Tom Williams, testified that his trip was 

"under control," traveling down 18 Hill, by utilizing sand, dynamic 

and pneumatic braking, until such time as the trolley pole bounced 

along the roof, accidentally losing the harp assembly and, simultaneously, electric power which would have activated the compressor 

62 
which supplied air to the pneumatic and dynamic braking system. 

Although Mr. Williams continued to use air to pneumatically and 

dynamically brake and to release sand onto the tracks, when the 

air cylinders were completely depleted all "control" was lost and 

the derail became inevitable. Therefore, according to the only 

witness who knows, speed was not a factor in the accident. In 

addition, Inspector Kaylor testified that his investigation 

revealed that the trip was under control until ti-le harp assembly 

was pulled off the trolley pole. 

Respondent submits that it has satisfactorily rebutted petitioner's assertion that the dual braking systems were not maintained 

operable, and that petitioner presented no evidence as to whether the 

locomotive in question was operated within the limits of its design 

capabilities. Regarding the disconnection of the linkage for the 

manqal brake as a condition supporting the alleged violation of 

75.1404, respondent asserts that this fact has no relevance to the 

alleged violation since it is established that a dual braking system 

existed ~n the locomotive and the manual brake is not part of that 

system, Respondent views ·the inspectors' testimony regarding their 

inspection of the misaligned shoes as suspect because the inspection 

was a visual inspection by inspectors who were not trained in the 

operation of braking systems and who themselves conceded that the 

visual examination was not conducted with the brake shoes applied to 

the wheel surface to determine if the brake shoes were indeed failing 

to make contact, 

Regarding the surface tests relied on by the petitioner in 

support of its argument that the pneumatic brakes were incapable of 

performing adequately, respondent argues that this resulted from th~ 

fact that compressed mud had accumulated on the brake shoe s1:rfaces 

as a result of the locomotive being dragged to the surface, and the 

mud prevented the shoes from making contact with the wheels, Further, 

aside from the surface tests, respondent cites the testimony of the 

locomotive operator that on the day of the accident he stopped the 

locomotive with the same 27 loads using only sand and the pneurnntic 

brake, and that he experienced no difficulties during his shift in 

braking the locomotive or controlling the trip until after he lost 

power and his air pressure was depleted. Respondent also cites the 

testimony of its expert that were it not for the loss of power the 

locomotive would have been stopped, and that the locomotive end its 

braking system were cabably designed and operated within their design 

limits. 

In sununary, petitioner's position is that the respondent failed 

to properly maintain the pneumatic brakinB system of the No. 20 locomotive because it allowed certain brake shoes to become misaligned 

w.ith the locom_otive wheels (trucks), thereby rendering the dual 

braking syste~ inoperative. Respondent's position. is that petitioner 

failed to establish by a preponderance of the evidence that the 

63 
misaligned brake shoes had an effect on the braking capacity of the 

locomotive in question, and assuming that it did, no violation on 

section 75.1404 ensued because that standard is not directed to the 

maintenance of a braking system but only to its proper design. With 

respect to petitioner's further argument that the pneumatic braking 

system was inoperative because the emergency truck brake was deficient, respondent asserts that such argument is irrelevant.because 

the e~ergency truck brake is not part of the dual braking system 

required by section 75.1404. 

Petitioner seems to take the position that even if the locomotive had not lost its power, the brakes would not have worked anyway 

since they were misaligned and ha.d worn flanges. However, based on 

the testimony and evidence produced by the petitioner, I cannot make 

that conclusion. I believe it is clear from the weight of the evidence adduced in this proceeding that the failure of the locomotive 

brakes to function was due to the unexpected loss of power caused by 

the loss of the trolley harp assembly, which in fact resulted in the 

unanticipated loss of braking air pressure due to the loss of electrical power. I am also impressed with the fact that the locomotive 

operator did all that was humanly possibly to bring the locomotive 

under control, that he stayed with the locomotive for a distance of 

some 1,000 feet after the brakeman jumped and was killed in his 

futile attempts to slow it dmvn, and that he finally jumped from the 

locomotive after failing to stop or slow it down and after finding 

a safe place in a wide entry in which to jump. 

Although the investigative report prepared by Inspector Kaylor 

mentions the fact that the trip limit policy was disregarded, the 

report makes no reference as to whether the locomotive in question 

was being operated within the limits of its design capabilities. As 

a matter of fact, MSHA produced absolutely no evidence concerning the 

design or specifications for the braking systems on the locomotive 

in question, and the inspectors conducted no tests to determine 

whether the worn brake shoes in question were making contact with 

the wheel surfaces, or whether the worn brake shoe flanges were, in 

fact, being used to brake the wheels. Although the brake shoes were 

removed from the locomotive wheels after it was removed from the 

mine, the shoes were not further tested and were apparently discarded. Further, once the locomotive was placed back on the tracks 

underground to facilitate its removal from the mine, no physical 

tests were conducted at the scene to d.etermine whether the braking 

systems were operative. The inspectors simply visually observed 

the brake shoes, noted that six out of the eight were worn and 

appeared to be misaligned, and came to the conclusion that the 

brakes ~ere inadequate. As a matter of fact, Inspe~tor Smith 

stated that at the time he issued his section 104(a) order, he did 

not consider the number of trips being pulled or the grade of 

travel, and he simply considered the condition of the brakes as 

he observed them in coming to the conclusion that they would not 

64 
stop the locomotive. However, in support of this conclusion, he 

relied ori the fact that brake shoes which are not applied uniformly 

to a locomotive wheel surface are inadequate. Yet, no o·ne bothered 

to test the brake shoes to determine how much braking surface was 

present and no one visually observed the shoes coming in conta~t 

with the wheels during any of the surface tests. Although Inspector 

Smith asserted that he relied on the two tests suggested by the 

respondent in the surface shop to support his conclusion that the 

brakes were inadequate, those tests are somewhat suspect since they 

were conducted after the locomotive had been r.emoved from the mine 

and subjected to possible dragging through mud, thereby subjecting 

the locomotive wheels and brake shoes to conditions which were not 

present at the time of the accident. Significantly, those surface 

after-the-fact tests are not even mentioned in the accident investigation report compiled by Mr. Kaylor. 

It is clear from the evidence presented that once the harp 

assembly was disconnected from the trolley wire, the brake systems 

would not function because of the loss of air pressure and electric 

power. MSHA's accident report concluded that the primary factor 

causing the accident was the disengagement of the locomotive trolley 

pole from the trolley wire and the subsequent loss of the trolley 

harp assembly which led to the premature loss of the pneumatic and 

dynamic braking systems. Further, MSHA inspector Kaylor conceded that 

·if the locomotive harp assembly had not been lost, it is very possible 

that the accident would not have occurred. As for the other fectors 

"possibly contributing to the accident" as stated in Mr. Kaylor's 

accident report, I believe it is clear they are not so critical. The 

lack of an operative mechanical brake is irrelevant since it has been 

established that the locomotive· had a dual braking sytem installed 

and the mechanical brake is simply an emergency parking br&ke that is 

not normally used to stop the locomotive under operating conditions. 

Mr. Kaylor's assertion of excessive speed is totally unsupported by 

any credible evidence, and the fact that the 25-car limit was exceeded 

is irrelevant since respondent's evidence supports a finding that the 

locomotive was capable of handling loads in excess of that limit and 

petitiorier has not proved otherwise. 

In the final analysis of the evidence presented by the petitioner 

in support of the alleged violation, it seems clear that the thrust of 

its case is bottomed on the surface "tests" conducted in the shop 

once the locomotive was removed from the mine several days after the 

accident. In my opinion, those so-called tests are far from conclusive. .In the first place, it is clear to me that the locomotive was 

not in the same condition that it was underground at the time of the 

accident. It had been placed back on the tracks underground, pulled 

fr.om the mine, and then pushed or.dra&ged for some distance over the 

surface and into the mine shop. Thus, it had been subjected to some 

abuse, and from the evidence presented by the respondent, it had been 

dragged through mud and the brake shoe surfaces had been covered with 

6.'l 
mud at the time the locomotive had been tested. Respondent's expert 

testif~ed that such mud and foreign matter on the shoes would cause 

the brakes not to hold when power was applied and petitioner has not 

rebutted this fact. Further, the locomotive operator testified that 

when he tested the brakes underground while the locomotive was in 

motion, he experienced no difficulties in stopping the locomotive,· 

and, as a matter of .fact, his unrebuted testimony is that he experienced no difficulties in stopping the locomotive with the trips he 

was hauling during the shift in which the accident occurred. His 

difficulties began when he lost his power, thereby incapacitating 

all of the locomotive brake systems. 

The condition cited by the inspector on the face of the citation 

alleges that due to the misalignment, the brake shoes were unable to 

apply uniform frictional pressure on the braking surfaces. In my 

view, the inspector simply cannot support that statement. He indicated he had no formal training in the operation of brake shoes, and 

testified that when he visually examined the locomotive underground, 

he could not tell how much of the brake shoe surfaces were in contact 

with the wheels when the brakes were applied, and no tests were ever 

made to determine whether or not the brake shoe surfaces could, in 

fact,. contact the wheel surfaces when the brakes were applied. It 

would seem to me that since two of the six brake shoes were in good 

condition, and the flanges were only partly worn, the question pf 

braking efficiency of the brake shoes would n~cessarily depend on 

actual physical testing rather than speculation based on visual 

observations. 

It seems to me that in a case of this kind, MSHA should have 

taken the initiative at the outset and subjected the locomotive to 

underground testing while it was on the tracks, at a time and place 

closer to the event, and under actual working conditions. Here, the 

inspectors merely made a visual observation of the brake shoes, which 

di.cl not include any observations as to whether the shoes were, in fact, 

contacting the braking surface of the wheels, and from those cursory 

observations they speculated that the brakes would not hold. Neither 

MSHA nor the respondent retained custody of the brake shoes, no photographs were made, and even though the brake shoes were at one time 

apparently removed from the locomotive once it was taken to the surface shop, no one subjected the six shoes to further testing to determine the effect of the misalignment or worn flanges on the actual braking capabilities of those shoes. In view of the fact that two of the 

shoes were found to be in good condition, and in light of the testimony presented by both parties concerning the physical and mechanical 

interrelationships between the braking shoes, braking surfaces, and 

the wheel surfaces with respect to braking capacities and effectiveness, it would seem that such further tests are critical. 

With regard to Judge Merlin's decision in the Sewell case, it 

seems clear to me that the factual setting which prevailed in that 

66 
case can be distinguished from the facts presented in the instant 

proceeding. Judge Merlin's finding of a violat1on in the Sewell case 

turned on the manner in which the tandem locomotives were operated at 

the time of the fatality. It is clear from his bench decision that· 

he was impressed with the fact that the tracks were in terrible condition~ the sanders were inoperative, the grades were too steep for 

the locomotive, the adverse experiences with motormen on prior occasions indicating that the tandem locomotive in question could not 

handle the loads placed on it, and the fact that the mine operator 

was aware of these prior difficulties. Here, there.is no evidence 

that the track conditions were other than in good condition, the 

grades over which the locomotive traveled were not shown to be such 

as which prevented the locomotive and trips from operating in other 

than normal condition, the sanders were operating, the normal procedures for the use of additional braking ''skids" were followed, and 

there is no indication that the locomotive operator experienced any 

difficulties in negotiating the grades traveled on the very day of 

the accident with the trips in question or that he expn·ienced any 

difficulty in braking and controlling the locomotive with the trips 

which it was hauling. 

After full and careful review of the able arguments presented 

by both parties in support of their respective positions in this 

matter, and on the basis of the preponderance of the credible evidence adduced, I conclude and find that the respondent has the better 

part of the argument and its proposed findings and conclusions both 

as to the interpretation and application of the cited safety standard 

in issue) including the alleged violation, are accepted by me as 

correct and petitioner's proposed findings and conclusions to the 

contrary are rejected. Accordingly, I conclude and find that petitioner has not established by a preponderance of the evidence that 

the six brake shoes which were misaligned in fact adversely affected 

the braking capacity of the No. 2 locomotive in question on the day 

of the accident. I further find and conclude that petitioner has 

failed to establish by eny credible evidence that the locomotive 

in question was not being operated within the limiis of its design 

capabi 1i ties. 

ORDER 

In view of my findings and conclusions made with respect to 

Citation No. 7-0102, September 9, 1977, citing a violation of 30 CFR 

75.1404, the petition for assessment of civil penalty, insofar as it 

67 
seeks a civil penalty assessment for that alleged violation is 

DISMISSED. 

Distribution:. 

William B. Moran,·Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Lee F. Feinberg, Esq., William T. Brotherton, III, Esq., Spilman, 

Thomas, Battle & Klostermeyer, 1101 Kanawha Banking & Trust 

Bldg., Charleston, WV 25301 (Certified Mail) 

Standard Distribution 

68 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

RONNIE R. ROSS, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

APR 3 1979 

Applicant 

Application for Review of 

Acts of Discrimination 

Docket No. VINC 78-38 

MONTEREY COAL COMPANY, 

McNALLY-PITTSBURG CORPORATION, 

LOOKING G.LASS CONSTRUCTION CO. , 

Respondents 

and 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Intervenor 

Appearances: 

Before: 

DECISION 

Mary Lou Jordan, Esq., for the Applicant; 

Timothy M. Biddle, Esq., for Monterey Coal Company; 

William H. Howe, Esq., and Donald L. Rosenthal, 

Esq., for McNally-Pittsburg; 

James E. Heimann, for Looking Glass Construction 

Company; 

Thomas P. Piliero, Esq., for the United States 

Department of Labor, Mine Safety and Health 

Administration. 

Administrative Law Judge Michels 

This case involves an application for review of alleged acts of 

discrimination brought by the Applicant against the Respondents, 

Monter~y Coal Company (Monterey), McNally-Pittsburg Corporation 

(McNally), and Looking Glass Construction Company (Looking Glass), 

pursuant to section llO(b) of the Federal Coal Mine Health and 

Safety Act of 1969 (the Act).:!./ 

1/ This Act has been superseded by the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 801 ~.!.!S· 

69 
Pursuant to an order of this court, MSHA conducted an investigation of the alleged acts and on May 5, 1978, filed its report. At 

the same time, MSHA filed a motion to intervene in this proceeding 

which was granted. 

Mr. Boss alleges that two separate acts of discrimination 

occurred, one on November 8, 1977, and the other on November 30, 1977, 

in connection with his making safety complaints and conducting safety 

inspections. The November 8th incident concerns an allegation that 

Mr. James Heimann of Looking Glass Construction Company threatened 

Mr. Ross when Mr. Heimann assertedly told him, in connection with an 

inspection of his machines, that if he got shut down he would hang 

Mr. Ross from a water tower. The other ·incident involves a letter 

given by McNally-Pittsburg Construction Company, Mr. Ross' employer, 

to Mr. Ross on November 30, 1977, advising him that if he did not 

confine his safety activity to the McNally operations he would be 

suspended and subjected to discharge. 

Applicant Ross requests the following relief, including, but not 

limited to, a clear declaration that the alleged 11 abuse, harrassment, 

intimidation and threats perpetrated and/or condoned by Respondents 11 

constitute discrimination prescribed by section llO(b) of the Act; 

an order that the Commission's decision be posted at the Respondents' 

worksites; a cease and desist order prohibiting Respondents from 

engaging in further discriminatory conduct; an order that any unfavorable reports in Applicant's personnel files that exist as a result of 

his safety activities be removed; and payment of all costs and 

expenses, including attorneys' fees, incurred by Applicant in connection with the institution and prosecution of the instant case. 

A hearing was held in St. Louis, Missouri, on November 7, 1978, 

at \hich all parties were present. All the parties, except Looking 

Glass Construction Company, were represented by counsel. Looking 

Glass was represented by Mr. James Heimann, the company's president. 

The parties were given the opportunity to file posthearing briefs andproposed findings of fact and conclusions; such briefs were filed. 

by Applicant Ross and Responde~ts Monterey and McNally-Pittsburg. 

General factual background .. 

Monterey in 1974 began development of an underground coal mine 

near Albers, Illinois, called Monterey No. 2 (Monterey Exh. 2). At 

the times relevant to Mr. Ross' application, the underground portion 

of the mine development was completed and Monterey was mining coal 

(Tr. 284)·. Construction of surface facilities and related activities 

were underway by several contractors including McNally and Looking 

Glass (Tr. 264-265, 308, 315). 

In order to work at the mine site, the employees of each contractor were required to be members of Local 2015 of the United Mine 

70 
Workers of America (UMWA) (Tr. 13, 76). The relationship between 

the construction employers and their employees was governed by the 

National Coal Mine Construction Agreement, effective December 23, 

1974 (the 1974 Agreement), between the Association of Bituminous 

Contractors· (an industry wide bargaining unit) and the UMWA (Mc Nally 

Exh. 1, Tr. 20). This agreement reads in pertinent part: "The Health 

and Safety Committee niay inspect any portion of the project site at 

which employees of the Employer are employed. * * *11 (Art. IV, 

section (c)2 of the 1974 Agreement). 

Mr. Ross was employed by McNally at the Monterey project from 

May 1975 through the project's termination in August 1978 (Tr. 151). 

He was hired as a carpenter and he bid for and was awarded the 

position of l~ad millwright shortly prior to his layoff (Tr. 151). 

Under the 1974 Agreement, the employees of each contractor at 

the project were entitled to form a health and safety committee. 

Each committee was authorized to inspect any portion of the project 

site· where the employees of that contractor worked (the 1974 

Agreement, Article IV, section (c) (Tr. 73-74, 85)). In October and 

November of 1977, a number of the contractors at the project had a 

connnittee made up of an employee or employees. Some of the small 

contractors, however, appear not to have had committees (Tr. 89-91). 

Such a committee was formed at the Monterey project by McNally 

employees. While in the employment of McNally, Mr. Ross held the 

position of project health and safety committeeman (Tr. 151). After 

becoming committeeman, Mr. Ross took courses at the local junior 

college and state schools to increase his knowledge of state and 

Federal safety and health requirements. He was also selected by the 

local to attend the various training programs offered by MSHA and the 

State Department of Mines. Because of his background and training and 

his activities as a committeeman, Mr. Ross tended to be the person 

to whom employees came when they had a safety problem (Tr. 32-33, 55, 

92, 151-156, 169-170L Mr. Ross was also selected by McNally to give 

employees safety training (Tr. 186). 

The practice of the union local was to appoint at the Monterey 

No. 2 Mine a chairman of all project health and safety committees. 

Prior to Mr. Ross' appointment, the position was held by the president of the local (Tr. 86-87, 109-110). Mr. Ross, although not 

president, was appointed by the executive board of the local union 

sometime in the spring of 1977 as chairman of the safety committee 

(Tr. 87, 120). Ibis appointment was hand carried to the superintendent of McNally and a carbon copy sent to Monterey (Tr. 120-122, 

Applicant's Exh. 2). '!he position of chairman, while sanctioned by 

the local union by-laws, is not provided for in the 1974 Agreement 

(Tr. 86, Applicant's Exh. 2). 

Under the 1974 Agreement, safety committees made regular safety 

inspection tours and at the McNally project the committee did this 

71 
monthly (Tr. 181). While some of the witnesses suggested that 

McNally connnitteemen covered virtually the entire project, other 

evidence indicates that their tours were basically restricted to the 

McNally site (Tr. 41, 48, 50-52). Mr. Ross testified that he was 

authorized to inspect the whole mine site where McNally employees 

were working, but he claimed generally that he also inspected outside 

that area (Tr. 201-202) •. 

Mc Nally committeemen, including Mr-. Ross, did not inspect underground, the administration building, the shafts and other areas of the 

mine project (Tr. 41, 50). However, they did observe and report on 

alleged safety conditions at non-McNally sites. Examples were citations against Zeni, McKinney, Williams for oxygen and acetylene bottle 

violations and Christian County Contractors for fire extinguisher and 

backup alarm violations (Tr. 49, 52). 'Ihese conditions appear to have 

been observed in connection with a McNally site inspection, although 

not necessarily on the McNally site. As part of their duties, committeemen accompanied Federal inspectors on their inspection of the 

job site and usually stayed with them during the entire inspection 

tour (Tr. 30, 154). 

Mr. Ross and his committee made an inspection tour on November 4, 

1977, and found certain conditions which they believed to be violations and prepared a request under 103(g) of the Act. 2/ It was 

Mr. Ross' practice, at least toward the end of his employment, to 

write up requests for inspection under 103(g). 'Ihe request written 

as a result -0f the inspection tour on November 4, 1977, was given to 

Inspectors Tisdale and Plaub on November 8. It lists,among others, 

alleged yiolations by Looking Glass Construction Company (Tr. 165). 

In conducting their inspection on November 8, the inspectors 

were accompanied by Mr. Ross, Mr. Terry Cannon, a McNally employee 

and also a member of the McNally safety committee, as well as the 

management representatives from McNally and Monterey (Tr. 149-150, 

164, 207). It was at the time of the inspection on November 8, that 

Mr. Heimann made his angry outburst about hanging Mr. Ross from the 

water tower, one of the charges in this proceeding. 

!7 Section 103(g) reads as follows: 

"Whenever a representative of the miners has reasonable grounds 

to believe that a violation of a mandatory health or safety standard 

exists, or an imminent danger exists, such representative shall have 

a right to obtain an innnediate inspection by giving notice to the 

Secretary or his authorized representative of such violation or 

danger * * *". 

72 
The alleged threat of November 8, 1977, which is charged against 

Looking Glass and Monterey 

The first charge for consideration in this proceeding is that 

Mr. James Heimann, owner and president of Looking Glass, threatened 

Mr. Ronnie ·R. Ross, the Applicant, and that this threat was a discriminatory action in violation of section llO(b) of the Act. On 

November 8, 1977, the Applicant, while on an.inspection tour in the 

company of Federal inspectors and others, was allegedly verbally 

abused and threatened by Mr. Heimann when the latter told him that if 

he (Mr. Heimann) got shut down, he would hang Mr. Ross from the water 

tower. 1he charge in this connection is against Looking Glass, a 

contracting company owned by Mr. Heimann, and Monterey, the owner of 

Monterey No. 2 Mine. Monterey is charged on the basis of the principle of "vicarious liability11 as well as on the basis ·of asserted 

control at the mine site. 

A. Discussion of the specific facts relevant·to·this charge 

On November 8, 1977,.MSHA Inspectors Tisdale and Plaub conducted 

an inspection of Monterey No. 2 Mine. Safety committeemen of Local 

No. 2015 regularly accompanied MSHA inspectors on their inspections 

of the mine, and on this occasion, Mr. ·Ross, as well as Mr. Terry 

Cannon, another connnitteeman, was on the tour. At the peginning or 

during the inspe~tion tour, Mr~ Ross presented the inspectors with a 

103(g) request. The request cited, among others, a number of alleged 

violations or safety conditions involving the equipment of Looking 

Glass (Tr. 142, 162, 165, Applicant's Exh. No. 3). 

The inspection party included not only the inspectors and committeemen Ross and Cannon, but Leonard Lewis, a McNally supervisor, 

and John Lanzerotte, a Monterey safety official (Tr. 18, 149-150, 

207, 235). It toured several parts of the mine before arriving at 

the Looking Glass area. 

When the inspecting group came to this area, Mr .. " Heimann. 

was not at the site. He was at home eating lunch and he returned to 

the site after receiving a telephone call from one of his employees 

who notified him of the inspection (Tr. 268, 272). Mr. Heimann thus 

arrived at the site aware that several perso11s were inspecting his 

equipment. His testimony indicates that he did not become angry 

because of the telephone call and that prior to his arrival ·at the 

work site he did not foresee any problem (Tr. 272-273). A few days 

before November 8, Mr. Heimann had discussed safety aspects of all 

his equipment at the site with the· same inspectors and, as the 

result of these conversations, he believed his equipment complied 

with the applicable safety standards (Tr. 256-257, 267). 

When Mr. Heimann arrived at the site, he saw that a particular 

tractor was being inspected for possible violations (Tr. 273). At 

73 
this point, he became angry. He first made a statement to the effect 

that he could easily quit his Monterey contracting work and go back to 

farming. Next, he used language to the effect that if he were closed 

down, he would hang the person responsible from a nearby water tower 

(Tr. 143, 166, 274). Witnesses testified that the statement was made 

in such a way that it was clearly directed toward Mr. Ross. Also, 

Mr. Heimann testified that although he did not use Mr. Ross' name, he 

felt that the latter knew who he mean·t (Tr. 274). Mr. Heimann had 

not had any significant contact with Mr. Ross previously and knew 

about him by reputation. The indications are that Mr. Heimann was 

angry because of a history of difficult'ies in carrying out his work 

at the site--difficulties which, rightly or wrongly, he attributed to 

the union. He testified that destructive and increasingly violent 

actions had been taken against his property on the site and near his 

home (Tr. 265). The presence of Mr. Ross on the inspection tour, was 

apparently an embodiment cf his troubles. His own explanation for 

his outburst is contained in the following ~xchange: \ 

Q. Do you recall any particular statement or anything 

at all that caused you to get angry enough to say something 

to the effect about hanging somebody from the water tower? 

A. It was the fact that the very tractor that had been 

·declared unsafe had been declared safe just several days 

before by Mr. Plaub and Mr. Tisdale, and I was almost convinced that Mr. Ross had pressured them into going back and 

reexamining it. 

(Tr. 273). 

After making his angry statement, Mr. Heimann walked away from 

the site and returned home (Tr. 143, 274-275). He testified that a 

little later he went back to the site to talk with Inspectors Plaub 

and Tisdale, but they were no longer present. The record does not 

contain evidence of any further interaction between Mr. Ross and 

Mr. Heimann immediately following this confrontation. There is testimony about a later meeting between the two men at which time 

Mr. Heimann asserts they agreed to get along better in the future 

(Tr. 198). Nothing further came of the incident. There is no evidence that Mr. Heimann was in any way thereafter abusive to Mr •. Ross. 

'!be angry outburst of Mr. Heimann on its face appears to be a 

threat to do bodily harm to Mr. Ross. However, under the circumstances and in light of the actual statement made it seems relatively 

obvious that this was not a threat which Mr. Heimann either intended 

to carry out or had the capability of executing. There is no evidence of Mr. Heimann having a past history of physical violence at 

the site or of mistreating employees. In fact, the record shows 

generally to the contrary (Tr. 77-78, l04-105). Mr~ Heimann had 

never before threatened anyone else with hanging them from the water 

74 
tower or with injury. He characteriz~d his threat as "more a figure 

of speech" and explained clearly that he did not intend to hang 

anyone (Tr. 278). 

There is little indication that Mr. Ross felt actually threatened. He testified that the ·statement made him feel sick to his 

stomach, but that could have been because of the stress caused by the. 

confrontation. It strains credulity to suggest that anyone would 

believe Mr. Heimann intended to carry out the act of hanging. It was 

an outburst of pent-up anger; not an actual threat. There is no evidence that the incident had any impact on Mr. Ross' subsequent activities. As will be shown under the second charge, after this incident 

Mr. Ross continued his inspection tours as he had done before. 

Thus, I find that the statement made on November 8 by Mr. Heiman~ 

about hanging someone from the water tower was a statement made to 

Mr. Ross. I further find that while this angry outburst was verbally 

abusive, it was not an actual threat on Mr. Ross' life. 

B. Consideration of the law and the sufficiency of the evidence to 

prove the charge 

The Applicant contends, as mentioned above, that Mr. Heimann's 

statement constitutes discriminatory action under section 110 of the 

Act and that both Looking Glass, which is owned by Mr. Heimann, and 

Monterey, the owner of the mine,. are liable. 

The part of the section charged and that pertinent to this 

action reads as follows: 

No person shall discharge or in any other way discriminate against or cause to be discharged or discrimin.sted. against any miner or any authorized representative 

of miners by reason of the fact that such miner or representative (A) has notified the Secretary or his authorized representative of any alleged violation or danger 

* * *· 

The Applicant argues that (a) in notifying the inspectors about 

the Looking Glass equipment, Mr. Ross brought .himself under the protection of section 110; and (b) that he is entitled to protection, 

not only from his own employer, McNally, but·also from other employers 

on the project site, including Looking Glass. He contends that "[t]o 

hold otherwise would completely thwart the purpose of the Act, since 

retaliation from contractors other than one's employer can, nevertheless, result in a chilling effect on the exercise of a miner's 

right to notify the Secretary" (Applicant's Brief, p. 16). 

Looking Glass filed no posthearing brief. Respondent Monterey, 

however, addressed itself to the subject in its brief. It contends 

75 
the alleged threat did not amount to discrimination under the Act, 

and,. among other things, argues that although section llO(b) prohibits "persons"--as opposed to employers--fi:om discriminating 

against miners, it is r·easonable to assume that by the use of the 

·term "discrimination" Congress intended some connection between the 

person alleged to have committed an act of discrimination and the 

miner's employer". According to Monterey, such connection couid be 

one of conspiracy, encouragement, ratification, remuneration, or 

promise, but it; would have to be something to connect the empioyer. 

It avers that never has liability been put on someone such as 

Mr. Heimann, who is neither the employer, nor an agent or fellow 

employee, but one who bears no relation to the employer at all 

(Monterey Brief, pp. 9-10). · 

The language of the Act and the few references in the legislative history to the provision appear to suggest that its coverage 

is limited to an employment connection of some kind. The principal 

specific reference is to a discharge and this presupposes an employment status. The relief provided in section llO(b), although not 

limited, specifies only rehiring or reinstatement which again presupposes prior employment. The Senate Conference Report, in its 

section-by-section analysis in a brief reference to section llO(b), 

states that the subsection provides procedures for obtaining reinstatement and back pay for miners discharged by operators and other 

remedies for miners discriminated against (Legislative History of the 

Act, House Committee on Education and Labor, March 1970, p. 1122). 

Again, the only specific remedies referred to are reinstatement and 

·back pay which are employment connected. While other remedies are 

mentioned, there is lacking any indication that the reference is to 

actions having no connection with employment. 

The U.S. Court of Appeals for the District of Columbia has 

interpreted the section in two leading decisions: Munsey v. Morton, 

507 F.2d 1202 (D.C. Cir. 1974), and Phfllips v. Interior Board of 

Mine Operations Appeals, 500 F.2d 772 (D.C. Cir. 1974). Therein, the 

court delineated the elements necessary for relief under section 110, 

which will be discussed, infra, in more detail as they relate to this. 

proceeding. It is apparent, however, that· these cases concern 

actions taken by an employer against employees or former employees. 

Even though the court indicates that a liberal construction of the 

statute is warranted, there is no hint of an application of this · 

provision beyond the employment context. 

It is worth noting that the new law, the Federal Mine Safety 

and Health Act of 1977, expanded the rights of miners under this provision, but even so, there is no indication in the law or the legislative history that the reach of the provision was extended beyond 

the employment context. Administrative Law.Judge Broderick in 

interpreting the comparable provision in the new Act held that the 

Secretary and other administrative officials are not proper parties, 

76 
ruling to the effect that the rights granted by section lOS(c) arise 

from an employment relationship. Neil Humphreys, et al. v. R. C. 

Samples, et al., MORG 78-370 (October 26, 1978). This is not the 

definitive word on the meaning of section lOS(c) in the new Act, but 

it illustrates a point of view favoring such a construction. If the 

new Act is confined to employment relationships in discrimination 

cases, there is considerably more reason to hold that the 1969 Act is 

similarly ,limited. ]../ 

In light of the considerations mentioned above, I hold that the 

phrase in the Act "No person shall * * * in any other way discriminate against or cause to be * * * discriminated against * * *" means 

that protection is granted only in connection with employment. The 

"person" so discriminating need not necessarily be the employer, but, 

if not, he must be one who in some way, such as by conspj.racy, aiding 

or abetting or otherwise, affects the employment status of the 

reporting miner. · 

There was no direct employment connection with respect to either 

party named in this charge. Mr. Ross was not employed, presently or 

in the past, by either Looking Glass or Monterey. The remaining question is whether the alleged act of discrimination in any other way 

affected his employment status or pay. No discriminatory action was 

proposed to the employer, McNally, by either party nor was any 

discriminatory action taken by McNally aft~r the incident. 

So far as Looking Glass is concerned, the incident began and 

ended with the angry outburst. Since Looking Glass did not employ 

Mr. Ross, its action did not directly affect his employment or pay. 

The record shows that McNally wrote a disciplinary letter on 

November 30, 1977, to Mr. Ross, the second charge considered herein, 

which action was at lea~t in part caused .by the November 8 incident. 

However, Looking Glass did not request that this letter be written, 

nor did it request any other action against Mr. Ross. As found below, 

the letter was not a retaliatory action against Mr. Ross and was not 

a discriminatory act by McNally. To an extent, Looking Glass was a 

cause of the action taken by McNally in that it was involved in one 

of the acts which McNally considered before writing the letter, but 

1./ In a decision in Ronnie R. Ross v. Maurice S. Childers, et al., 

VINC 78-158 (October 28, 1977), Judge Luoma held the 1969 Act is 

limited in that the Secretary and other enforcement officials are 

not proper parties to be charged for acts of discrimination. In 

that case, Mr. Ross had filed an application for review of acts of 

discrimination charging: (1) MESA and the Secretary of Labor with 

failing to properly administer the 1969 Act, and (2) Inspector Marcell 

· Chamner with having "verbally abused, harassed, intimidated, and 

threatened Applicant Ross." The appeal from Judge Luoma's decision 

was withdrawn by Mr. Ross and the proceeding was terminated by the 

Federal Mine Safety and Health Review Connnission on October 25, 1978. 

77 
since it did not cause a retaliatory or discriminatory act, there 

is no liability under the section. 

Monterey, like Looking Glass, was not the employer of Mr. Ross 

and none of its actions directly affected the employment or pay of 

Mr. Ross. Indirectly, Monterey was the cause of the disciplinary 

letter from McNally to Mr. Ross dated November 30, 1977, referred to 

above. While Monterey had requested that Mr. Ross be stopped from· 

making inspection tours outside the McNally project area, there is no 

evidence that it caused McNally1 s specific actions against Mr. Ross. 

(See discussion of this subject in next section of the· decision). 

Since the letter was not retaliatory or discriminatory, Monterey, 

·although it indirectly caused the action, is not liable under the 

Act. 

Accordingly, I find that the actions of Looking Glass and of 

Monterey resulting from the incident of November 8 are not in violation of section llO(b) of the Act. 

The allegation against McNally and Monterey involving the letter 

The second charge concerns a letter which was delivered to the 

Applicant by McNally on November 30, 1977, signed by McNally project 

superintendent Robert W. Stearman. 1he Applicant contends that this 

letter which threatened him with discharge was a discriminatory act 

in violation of section llO(b) (l)(A) of ·the Act. 4/ Tne en'tire text 

of the letter is as follows: 

This is to advise you that your duties as Project 

Union Health and Safety Committeeman are limited 

exclusively to McNally Operations at the Monterey Coal 

Mine 11 2. 

In the event of your violating the above, you will 

be suspended-Subjected to discharge. 

McNally, the contractor for whom Mr. Ross worked, and Monterey 

Coal Company, the owner of the mine, are named as Respondents in this 

charge. As with the threat, Monterey is charged on the basis of .the 

principle of ''vicarious liability" as well as on the basis of asserted 

control at the mine site. 

A. Discussion of the specific facts relevant to this charge 

A few weeks after the November 8 inspection, at which time 

Mr. Heimann made his angry outburst about hanging Mr. Ross from 

the water tower, Mr. Ross received the disciplinary letter from 

4/ See relevant provisions of the Act quoted above. 

78 
Mr. Stearman which is here in issue. In this letter, as quoted 

above, he was told that unless he limited his duties as committeeman 

to the McNally site, he would be suspended, subject to discharge. No 

such letter was sent to Mr. Cannon, who was also a committeeman and 

who had been at the scene at the time of the Heimann outburst. 

It does not appear, however, that the letter was prepared solely 

because of the November 8 incident. Mr. Charles Bradley, vice 

president of construction for McNally, testified it had come to his 

attention that Mr. Ross was inspecting areas other than where McNally 

employees were working, and that he learned of this when he received 

a call from Monterey. 1he information as to Mr. Ross' inspections in 

other areas was first received the latter part of October 1977, and 

it had to do with Monterey's underground mine. Other notices of his 

activity continued to come in and ''the letter was written because the 

inspection of other areas had continued after that" such as the Looking Glass area (Tr. 225). Prior to October 1977, Mr. Bradley had not 

received any similar complaints either at Monterey No. 2 Mine or other 

projects in which McNally was working. 

Mr. Bradley testified that upon receiving the notice from 

Monterey he told the company that he "would take care of it" and he 

thereupon called Mr. Stearman. 1he latter was told to limit the 

committee's activities to the McNally scope of work. Mr. Bradley 

also instructed Mr. Stearman to write and deliver to Mr. Ross the 

letter (Tr. 216, 224-225). Mr. Bradley testified that the letter 

was written as a result of the Looking Glass incident and other 

reports of Mr, Ross' activities outside the McNally site (Tr. 226). 

He also had knowledge that Mr. Ross was filing 103(g) requests. 

ML. Stearmen was given instructions to write the letter on November 8, 

but it was not delivered until the 30th of November (Tr. 231). Information the same as that in the letter were also given orally to 

Mr • Ross ( Tr • 184, 192) • 

Mr. Ross, during the course of his employment with McNally, had 

frequent occasions to report what he believed to be violations or 

unsafe conditions. He claimed that McNally was slow to correct the 

conditions reported and that he reached the point where upon finding 

a safety problem he· would write up a 103(g) request for inspection 

(Tr. 167, 182, 188-189, 187). Michael Hill, a McNally employee, 

also testified that McNally was slow to correct reported safety 

infractions (Tr. 40). 

Mr. Ross upon reporting asserted safety violations was frequently 

given the task of correcting the conditions (Tr. 155, 36-38, 95). He 

believed he was required to do such clean up jobs more than other 

safety committeemen. He was assigned at different times to clean up 

the tipple and the wash house and at another time to repair handrails 

(Tr. 155). He was also assigned to pick up scraps after citing an 

area as being full of debris (Tr. 36). Mr. Ross upon insisting that 

79 
a portal man, that is, a man who works at the top of the portal, was 

needed, was given the job of portal man. This was a class C or B 

position and Mr. Ross at the time was a class A millwright. His pay, 

however, was not reduced (Tr. 37, 38, 95, 185). Mr. Ross and his. 

coworkers testified to their belief that he was harrassed by McNally 

(Tr. 37, 60, ·95, 155). 

There is evidence that it was a regular practice of McNally to 

assign the person reporting unsafe conditions to correct those conditions if they were qualified to do so. Mr. Lewis, McNally's control 

supervisor, testified that he would assign the first individual handy 

if danger was imminent and that he had assigned Terry Cannon, a 

safety connnitteeman, to clean up cited conditions. If Mr. Cannon 

reported the violation, he was usually asked to correct it (Tr. 241). 

Mr. Lewis followed a practice of assigning the_ individual best suited 

to handle the situation (Tr~ 252-253). 

After Mr. Ross was instructed orally and by letter to restrict 

his safety inspections to the McNally site, he continued to inspect 

both the McNally site and other areas as he had done before (Tr. 191). 

He. was not discharged, reprimanded or penalized for failing to comply 

with the instruction set forth in the letter of November 30. 

B. Discussion of the law and the sufficiency of the proof 

·Insofar as the November 30 letter is concerned, the charge is 

that the document which threatened the applicant with discharge was 

a discriminatory action in violation of section llO(b)(l)(A) of the 

Act. This provision, to again quote it for convenience, reads as 

follows: 

No person sh.all discharge or any other way discriminate against or cause to be discharged or discriminated 

against any miner or any authorized representative of 

miners by reason of the fact that such miner or representative (A) has notified the Secretary or his authorized 

representative of any alleged violation or danger***· 

The Applicant must show in this instance three elements to sustain a charge of a violation of the Act: (a) The reporting of an 

alleged violation or danger in the mine to the Secretary, (b) that 

the reporting miner was discriminated against and ( c) that the 

reporting was the precipitating cause of the discrimination, that is, 

that the discrimination was in retaliation for the reported alleged 

violations or danger. Munsey v. Morton, supra; Phillips v. Interior 

Board of Mine Operations Appeals, $Upra. 

The f1rst element is established without question. Mr. Ross had 

on a number of occasions and 'in particular on the occasion of the 

Looking Glass incident, reported asserted violations by requesting 

80 
103(g) inspections and this reporting was known to the McNally 

management. 

In regard to the second element of proof, i.e., an act of discrimination, the evidence shows that a disciplinary letter was given 

to Mr. Ross and that it was not given to other committeemen in 

approximately similar circumstances. No ietter was given to 

Mr. Terry Cannon, who was with the group on the day of the Looking 

Glass incident. I have ruled in 'a prior case that a disciplinary 

letter may be a discrimination within the meaning of the phrase ''in 

a1;1y other way discriminated'' in the Act. Local ·union 1110; ·UMWA; 

et al., v. Consolidation Coal Company, Docket No. MORG 76X138 

(May 26, 1977). In that case, I found that such a letter in an 

employee's personnel file might affect further pay, ad,rancement or 

even employment. In that respect, it is or may be a punitive act. 

Mr. Ross in this instance was singled out to receive the letter 

and was thus discriminated against within the meaning of the Act. 

The third and final element of proof is whether this discrimination was motivated by or in retaliation for the reporting of an 

alleged danger or violation. The letter, as the parties generally 

agree, was directed to Mr. Ross' safety inspections outside of the 

McNally area of operations. The letter does not limit inspections 

otherwise. It is not directed at the fact that Mr. Ross, as a committeeman, was looking for and reporting conditions which he believed 

.to be a danger or a violation. It was directed solely at his activity 

of inspecting for safety violations off the McNally site, which was 

perceived by McNally management to be unauthorized. 

McNally had good reason to believe, and there is no evidence to 

the contrary, that the 1974 Contract was the governing instrument in 

its relationship with its employees. The contract provided that 

Mr. Ross or other com.mitteemen might inspect at any portion of the 

project site on which McNally employees were employed. This document 

might fairly be interpreted as limiting a committeeman to inspections 

on the McNally site and, at least in the usual circumstances, that 

requirement does not appear to be unreasonable. Even without a 

contractual provision, an employer 'Would be reluctant to have his 

employees inspect and report on violations of other employers. The 

employer would lose some control over activities of its employees and 

its relationship with other employers could be adversely affected. 

There is not the slightest question that Mr. Ross regularly made 

off-site inspections. He readily concedes this in his testimony and 

such activity was confirmed by other wi·tnesses. Mr. Ross, even 

be-fore he was appointed the chairman of the committee, accompanied 

Mr. Ba thens to ;'Mr. Heimann' s job site across the road11 (Tr. 156). 

The 103(g) request which was written up and handed to the inspectors 

on November 8, included a listing of alleged deficiencies in the 

Looking Glass Construction Company equipment which was not located on 

the McNally site.· 
lhe testimony of Mr. Bradley and other evidence demonstrates that 

the letter of November 30, was written and given to Mr. Ross solely 

because of the reports of Mr. Ross' safety inspections outside of the 

McNally site and in particular his off-site inspection of the Looking 

Glass equipment. There is no evidence to show that the letter is in 

any way a pretext to hide an unlawful motive. The motive was to prevent Mr. Ross from inspecting off the McNally site, not to punish him 

for reporting asserted dangers or violations. 

The issue thus narrows to whether Mr. Ross was disciplined for 

unauthorized activity. In this sense the matter is not unlike that 

dealt with by the undersigned in Local Union 1110, UMWA et al., v. the 

Consolidation Coal Company, supra, in wh~ch I found~t"t:he-disci-~ 

plinary letters were not issued in retaliation for reporting alleged 

dangers or violations; they were issued because the committeemen had 

infringed upon an area reserved to management. I am satisfied that my 

findings and conclusions should be the same in the circumstances of 

this proceeding. Accordingly, I find that the letter presented on 

November 30, 1977, to Mr. Ross was to prevent him from engaging in 

activity reasonably perceived by management to be unauthorized and it 

was not in retaliation for safety reporting to the Secretary. 2_/ 

The evidence shows that Mr. Ross, when he reported assertedly 

unsafe conditions, was given the task of correcting these conditions. 

As a result, he frequently found himself doing jobs like cleaning up 

washroom facilities. On one occasion, he was assigned as a top man on 

the portal after reporting a need therefore, although he was overquali_fied for the position. There is no charge here that these assignments were a violation of section 110. 1he record also shows that 

such assignments were normal and that the miner who reported the violation, where he was capable of doing so, was usually told to correct 

it. Other committeemen were assigned to correct unsafe conditions 

which they reported. lhere is no showing the reporting by Mr. Ross 

which led to his work details was connected with or that it influenced 

the writing of the letter of November 30. 2./ 

5/ niis decision should not be construed as affirming a' policy of 

limiting safety committee inspections to the employer's area. Since 

in developing a mine contractors frequently work in close conjun~tion 

with one another and affect employees of one another, there may be 

instances in which inspections off the immediate site of the employer 

are justified. That is not a specific question before me, however, 

and possibly is a subject which should be considered in negotiations 

between employees and their employe·rs. 

6/ While not an issue before me, the policy of assigning the miner to 

clean up or correct the conditions he has reported, particularly where 

dirty work is involved, is one that is far from satisfactory. It 

could well have a chilling effect on the reporting of unsafe and 

unhealthy conditions. lhough apparently permitted under the labor 

agreement, it seems to me·the practice should be· curtailed or ·eliminated where~er possible. · 

82 
In summary, I find that the letter of November 30 to Mr. Ross was 

discriminatory, but it was not in retaliation for the reporting by 

Mr. Ross of alleged safety violations; rather it was motivated by the 

desire to limit Mr. Ross' off-site activity. In this connection, I 

note that the letter was subsequently removed from Mr. Ross' file 

(Tr. 185). Further, it appears that other e ffocts of Mc Nally' s action 

are mooted since the McNally contract at the Monterey site has been 

completed and Mr. Ross is no longer in the employ of McNally. 

Inasmuch as I have found above that the Act was not violated by 

McNally, the contractor, in giving the letter of November 30, 1977, 

to Mr. Ross, it follows that the owner, Monterey Coal Company, is 

also not in violation of that section of the Act. 

CONCLUSIONS 

1. Monterey Coal Company, McNally-Pittsburg Corporation, and 

Looking Glass Construction Company are subject to the Federal Coal 

Mine Health and Safety Act of 1969. 

2. 'lli.e Administrative Law Judge has jurisdiction over this 

proceeding. 

3. 'lli.e application for review of acts of discrimination and the 

relief requested by Applicant should be denied for the reasoris stated 

in the findings above. 

ORDER 

IT IS ORDERED that the application for review of acts of discrimination is DENIED and th~~I~S~ 

Frankl.in P. Michels 

Administrative Law Judge 

Distribution: 

Mary Lu Jordan, Esq., United Mine Wot::kers of America, 

900 15th Street, NW., Washington, DC 2ooos·ccertified Mail) 

Timothy M. Biddle, Esq., Jones, Day, Reavis & Pogue, 1100 

Connecticut Avenue, NW., Washington, DC 20036 (Certified Mail) 

William H. Howe, Esq., and Donald L. Rosenthal, Esq., Loomis, 

Owen, Fellman & Coleman, 2020 K. Street, NW., Washington, 

DC 20006 (Certified Mail) 

Mr. James E. Heimann, President,Looking Glass Construction Co., 

Germantown, IL 62245 (Certified Mail) 

Thomas .P. Piliero, Esq., MSHA Trials Branch, Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., 

Arlington, VA 22203 

83 
FEDERAL MINE SAFETY AND HEALTH REVIE\V COfiUVHSSION 

OFFICE OF ADMINl5Tr~Al'IVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

APR 3 

KERR COAL COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTR 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KERR COAL COMPANY, 

· Res pond·E!n t 

1979 

Application for Review 

Docket No. DENV 78-507 

Order No. 389989; June 6, 1978 

Civil Penalty Proceeding 

Docke.t No. DENV 79-285-P 

A.C. No. 05-02660-03004 

Marr Preparation Plant 

DECISION 

Appearances: Warren L. ·Tomlinson, Esq., and Deborah Friedman, 

Esq~, Holland & Hart, Denver, Colorado, for 

Kerr Coal Company; 

Edward H. Fitch·, Esq., Office of the Solicitor, 

Department of Labor, for MSHA. 

Before: Administrative Law Judge Michels 

' Docket No. DENV 78-507 in the above-capt;ioned proceedings 

involves an application for review of Withdrawal Order No. 389989 and 

the underlying Citation No. 389938 issued. at Applicant's Marr Preparation Plant for an alleged violation of s~ction 109(a) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 819(a). The pertinent 

part of that section of the Act requires (:hat a [a] t each coal or other 

mine there shall be maintained an office \·1ith a conspicu.ous sign 

designating it as the office of such mine." 

Citation No. 389988 was issued on June 5,-1978, by MSHA inspector Harvey Padgett, who alleged that there _was no sign designating the 

office at Applicant's preparation plant. On June 6, 1978, Inspector 

84 
Padgett issued Order No. 389989 pursuant to section 104(b) of the 

Act, alleging Applicant's failure to abate the cited condition. The 

cited condition was abated on June 6, 1978, following issuance of the 

withdrawal order. . 

Pursuant to section 105(d) of the Act, A~plicant filed its 

application for review of the withdrawal order and underlying citation with the Federal Mine Safety and Health Review qommission. 

A hearing was held on January 17, 1979, in Denver, Colorado, at 

which both parties were represented by counsel. Applicant's counsel 

filed a posthearing brief on February 21, 1979. 

On January 30, 1979, after the hearing discussed above, but before 

a decision had been issued, MSHA filed a petition for the assessment 

of a civil penalty in Docket No. DENV 79-285-P based on the violation 

alleged in Citation No. 389988, the. same citation involved in DENV 

78-507. In answer thereto, Kerr Coal Company filed a motion requesting that the civil penalty·case be stayed until a decision was issued 

in DENV 78-507. 

Thereafter, on March 2'2, 1979, MSHA filed a motion to withdraw 

the petition for assessment of a civil penalty in DENV 79-285-P. As 

grounds for this motion, MSH/\. counsel asserted: (a) the same violation was the subject of Applicatiort for Review Docket No. DENV 78-507; 

(b) Citation No. 389988 was issued in error; (c) both Citation No. 

389988 and Withdrawal Order No. 389989 had been vacated. 

On March 26, 1979, Kerr Coal Company filed a motion to withdraw 

its application for review in DENV 78-507 in which it advised that on 

March 13, 1979, MSHA inspector Stephen Pryor issued Citation No. 

389988-1, in which he vacated both Citation No. 389988 and Order No. 

389989, stating "[a] review of citation No. 389988 dated 5 June 1978 

determines the citation was issued in error, also .subsequent action 

of a 104 B order No. 389989 is cancelled.'' A copy of Citation No. 

389988-1 was attached to this motion. 

Under. the circmnstances outlined above, I hereby find that good 

cause has been shown for granting both mot ions. Accordingly, 

In Docket No. DENV 78-507, it is ORDERED that Applicant's motion 

to withdraw its application for review is hereb;• GRANTED. That proceeding is hereby DISMISSED. 

85 
In Docket No. DENV 79-285-P, it is ORDERED that Petitioner's 

motion to withdraw its petition for the assessment of a' civil penalty is GRANTED. That proceeding is hereby DISMISSED with prejudice. 

~ ;17.--· /T) \);iu_lLi~·· C/ --~&-t/v£1._.,,,t:_.L--V1 (/.// 

Franklin P. Michels 

Administrative Law Judge 

Distribution: 

Warren L. Tomlinson and Deborah Friedman, Esqs., Holland & Hart, 

730-17th St., 500 Equitable Bldg., Denver, CO 80201 (Certified 

Mail) 

Edward H. Fitch IV, Esq., and Eddie Jenkins, Esq., MSHA Trials 

Branch, Office of the Solicitor, U.S". Department of Labor, 

4015 tvilson Blvd., Arlington, VA 22203 

86 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 4, 1979 

CLIMAX MOLYBDENUM COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Application for Review 

Docket No. DE~\/ '?q-300-M 

Citation No. 3il857 

January 5, 1979 

Climax Mill & Crushers 

Safety Line· 

ORDER GRANTING MOTION TO DISMISS 

On January 31, 1979, applicant filed an application for review 

of Citation No. 331857, issued January 5, 1979, pursuant to 

Section 104(d)(l) of the Federal Mine Safety and Health Act of 

1977. Respondent MSHA, on February 26, 1979, filed a motion to 

dismiss on the ground that the citation has been abated and that 

applicant is not entitled to review of an abated citation. In 

support of its motion, respondent cites the case of United Mine 

Workers of America v. Andrus, 581 F.2d 888 (D.C. Cir. 1978), and 

the decisions of numerous Commission Judges dismissing review 

petitions in circumstances identical to those in this case. 

On March 7, 1979, applicant filed a response to MSHA's 

motion to dismiss and characterized the citation as a "citation 

and order" involving alleged imminent danger. Applicant asserted 

that it has a right to a review of both the imminent danger portion 

of the order and the abated citation. Subsequently, as a result of 

an Order issued by me on March 19, 1979, requiring the parties to 

clarify their own erroneous characterizations of the citation sought 

to be reivewed, it was discovered that no "imminent danger" is 

involved in these proceedings and that the issue presented is the 

reviewability of an abated citation. 

After due consideration of the arguments presented by the 

parties, I conclude that respondent's position is correct, and I 

believe it is clear that applicant is not entitled to review an 

abated citation at this time, absent an assertion that the time 

fixed to abate was unreasonable, and in support of this .I refer the 

parties to previous rulings on. this issue by various Commission 

Judges in the cases of Helvetia Coal Company, PITT 78-322 (August 23, 

1978); Monterey Coal Co., VINC 78-372 (June 19, 1978); Peter White 

Coal Mining Corp., HOPE 78-371 (June 16, 1978); Itmann Coal Co., 

HOPE 78-356 (May 26, 1978). 

87 
In view of the foregoing, respondent's motion to dismiss 

is granted without prejudice to applicant's right to contest 

the citation in any future civil penalty assessment proceeding · 

which may be filed by MSHA pursuant to Section llO(a) of the 

Act. Applicant's opposition to the motion, including its 

.supporting arguments, are rejected. 

~ /a~fge/A:. ~ri1.~ Koutras tf /_~~ · 

Administrative Law Judge 

Distribution: 

James H. Barkley and Jerry R. Atencio, Esqs., U.S. Department of 

Labor, Office of the Solicitor, 1585 Federal Building, 1961 

Stout Street, Denver, CO 80202 (Certified Mail) 

Charles W. Newcom, Esq., Dawson, Nagel, Sherman & Howard, 2900 

First of Denver Plaza, 633 17th Street, Denver, CO 80202 

(Certified Mail) 

W. Michael Hackett and James F. Engelking, Esqs., Climax 

Molybdenum Company, 13949 West Colfax Ave., Golden, CO 80401 

(Certified Mail) 

David A. Jones, Jr., President, Oil, Chemical and Atomic Workers 

International Union, Local No. 2-24410, P.O. Box 949, Leadville, 

co 80461 

Edwin Matheson, Chairman, International Brotherhood of Electrical 

Workers, Local Union No. 1823, P.O. Box 102, Minturn, CO 

81645 

88 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDG°ES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 4,.1979 

ENERGY FUELS CORPORATION, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Application for Review 

and 

Civil Penalty Proceedings 

Docket Nos. DENV 78-421 

DENV 79-69-P 

(A/O No. 05-00303-03003) 

Nos. 1 and 2 Strip Mines 

DECISION 

Appearances: Eugene McGuire, Attorney, Holland and Hart, Denver, 

Colorado, for Applicant; 

Robert A. Cohen, Trial Attorney, Office of the 

Solicitor,· Department of Labor, for Respondent. 

Before: Judge Littlefield 

Introduction 

This is a combined application for review and proceeding for 

assessment of civil penalty which is governed by sections 105(d) and · 

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

§ 801 ~seq. Section 105(d) provides in relevant part: 

(d) If, within 30 days of receipt thereof, an operator of a coal or other mine notifies the Secretary that 

he intends to contest the issuance or modification of an 

order issued under section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a) or (b) of this section, or the reasonableness 

of the length of abatement time fixed in a citation or 

modification thereof issued under section 104, or any miner 

or representative of miners notifies the Secretary of an 

intention to contest the issuance, modification, or termination of any order issued under section 104, or the reasonableness of the length of time set for abatement by a 

citation or modification thereof issued under section 104, 

. the Secretary shall immediately advise the Commission of 

89 
such notification, and the Commission shall afford an opportunity for a hearing (in accordance with section 554 of 

title 5, United States Code, but without regard to subsection (a)(3) of such section), and thereafter sh~ll issue 

an order, based on findings of fact, affirming, modifying, 

or vacating the Secretary's citation, order, or proposed 

penalty, or directing other appropriate relief. 

Section llO(a) provides: 

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

violates any other provision. of this Act, shall be assessed 

a civil penalty by the Secretary which penalty shall not be 

more than $10,000 for each such violation. Each occurrence 

of a violation of a mandatory health or safety standard may 

constitute a separate offense. 

Alleged Violation 

On May 11, 1978, Applicant, Energy Fuels Corporation (EFC), filed 

for review of Order No. 389944 dated April 18, 1978. On November 20, 

1978, the Mine Safety and Health Administration (HSHA), through its 

attorney, filed a petition for assessment of a civil penalty charging 

one violation of the Act. 

Tribunal 

A hearing was held on the above-consolidated matters in Denver, 

·Colorado, on February 27, 1979. Both MSHA and EFC were represented 

by counsel (Tr. 2). 

Motion 

After a conference referred to, infra, EFC moved to withdraw its 

application for review (Tr. 4). The motion was GRANTED (Tr. 4-5). 

Evidence 

The Judge held a prehearing conference before bringing the hearing to order and heard preliminary discussions bearing on the issues 

on the part of counsel for both parties (see, supra). \ 

The Judge, after hearing alf evidence, studying the record, 

reviewing the exhibits, giving sympathetic regard to mitigating 

circumstances, and fully considering the criteria shown in section 

llO(i) of the Act, made findings of fact, conclusions of law and 

issued an ORDER on the record, rendering his decision from the 

bench. One violation was found as originally charged. 

90 
Findings of Fact and Conclusions of Law 

- The findings of fact, conclusions of law, and ORDER made on the 

record from the bench are hereby incorporated her~in by reference and 

are AFFIRMED (Tr. 24-26). . 

Civil Penalty Assessed 

Order No. Date Standard 30 CFR Penalty 

00389944 4/18/78 77.404(a) $900 

Disposition 

The Judge was notified by letter from the Office of the- Solicitor, 

U.S. Department of Labor, that the Respondent had submitted payment of 

$900, as ordered for the one violation found by the Judge in hi_s BENCH 

decision. WHEREFORE the above-captioned is CLOSED. 

Distribution: 

/fl~ r. ;fact.1..d M~{~olm P. Littlefield~--­ Administrative Law Judge 

Eugene McGuire, Attorney, Holland and Hart, 730 Seventeenth St., 

Denver, CO 80201 (Certified Mail) 

Robert A. Cohen, Trial Attorney, Office of the Solicitor, 

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

22203 

Harrison Combs, Attorney, United Mine Workers of America, 

900 15th St., NW., Washington, DC 20005 (Certified Mail) 

91 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 5, 1979 

SECRETARY OF LABO.R, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

AMHERST COAL COMPANY, 

Respondent 

Docket Nos. 

HOPE 78-315-P 

HOPE 78-559-P 

HOPE 78-560-P 

HOPE 78-561-P 

Assessment Control Nos~ 

46-01364-02004V 

46-01364-02012V 

46-01364-02013V 

46-01'364-02014V 

Amherst No. 4-H UG Mine 

HOPE 78-316-P 

HOPE 78-317-P 

Amherst No~ 5 Mine 

HOPE 78-415-P 

46-02848-02004-V 

46-02848-02005V 

46-1369-02010V 

MacGregor Preparation Plant 

HOPE 78-562-P 

HOPE 78-.563-P 

!+6-01370-02022V 

46-01370-02023\7 

MacGregor No. 7 UG Mine 

HOPE 78-564-P . . 46-04624-02007V 

MacGregor No. 9 Mine 

TIOPE 78"'."565-P 

HOPE 78-566-P 

Paragon Mine 

46-0136 7-020~"'.SV 

46-01367-02026V 

DECISION 

Appearances: Edward H. Fitch IV, Esq~, Office of the Solicitor, 

~epartment of Labor, for Petitioner; 

Edward I¥ Eiland, Esq., Logan, West Virginia, for 

Respondent. 

Before: Administrative Law Judge Steffey 

Pursuant to written notice dated August 15, 1978, as amended 

October 13, 1978, a hearing in the above-entitled proceeding was held 

on October 17, 18, and 19, 1978, and December 8, 1978, in Charleston, 

·west Virginia, under section 105(d) of the Federal Mine Safety and 

Health Act of 1977. 

92 
MSHA's Petitions for Assessment of Civil Penalty were filed on 

April 18, 1978, in Docket Nos. HOPE 78-315-P through HOPE 78-317-P 

and each of those Petitions seeks assessment of a civil penalty for 

one alleged violation of the mandatory health and safety standards. 

·The Petition in Docket No. HOPE 78-415-P was filed on May 19, ·1978, 

and seeks assessment of a civil penalty for one alleged violation. 

The remaining eight Petitions in Docket ·Nos. HOPE 78-559-P through 

HOPE 78-566-P were all filed on June 27, 1978, and seek assessment 

of a civil penalty for one alleged violation with the exception of 

the Petitions in Docket Nos~ HOPE 78-562-P and HOPE 78-565-P which 

seek assessment of civil penalties for four and three violations, 

respectively. 

Issues 

The issues raised by the 12 Petitions for Assessment of Civil 

Penalty are whether 17 violations of the mandatory health and safety 

standards occurred and, if so, what monetary penalties should be 

assessed. 

At the conclusion of the hearing on December 8, 1978, counsel 

for both petitioner and respondent stated that they would waive the 

opportunity for filing posthearing briefs (Tr. 628)~ 

General Considerations 

Section llO(i) of the Act provides that civil penalties shall be 

assessed after giving consideration to six criteria. Four of those 

six factors may usually be given a general evaluation, while the 

remaining two, namely, the gravity of the violation and whether the 

operator was negligent, should be considered specifically in reviewing the evidence introduced with respect to each violation. Th_e criteria which may be given a general review will be. evaluated first~ 

History of previous violation~ 

Counsel for MSHA introduced as Exhibit G-2, a 130-page computer 

printout listing alleged violations for which respondent has previously paid civil penalties. Exhibit G-2 is arranged so that pre-. 

vious violations are listed under the specific mine where the alleged 

violations occurred. The 12 Petitions for Assessment. of Civil Penalty pertain to five different mines and to one preparation plant. 

Additionally, although the 12 Petitions allege a total of 17 different violations of the mandatory health and safety standards, 11 of 

the alleged violations relate to repetitious violations of the same 

standard. The result is that the 17 alleged violations pertain to 

10 different sections of-the regulations. Of the 10 different sections, respondent has violated all but sections 75.1103-4 and 

77.205 on at least one prior occasion. 

93 
I have consistently applied the criterion of history of previous 

violations by increasing a penalty otherwise assessable for a given 

violation under the other five criteria when there was evidence in 

the record to show that respondent had violated the same section of 

the regulations on a prior occasion~ Therefore, when penalties are 

hereinafter assessed, I shall give specific consideration to the criterion of history of previous violations each time that a penalty is 

assessed and the penalty otherwise assessable will be increased to the 

extent that respondent's history of previous violations warrants an 

increase~ 

Appropriateness of penalty to size of operator's business 

Exhibit G-1 was submitted by counsel for HSHA. That exhibit 

lists the mines which are under the control of respondent and the 

annual tonnage attributable to those mines. Counsel for respondent 

stated that the data shown in Exhibit G-1 were somewhat inaccurate 

and Exhibit G-1 was received in evidence subject to respondent's 

right to submit proposed corrections to that exhibit (Tr .. 616). 

Those corrections were submitted on. December 13, 1978, and counsel 

for MSHA has filed no objections to the corrections submitted by 

respondent. Therefore, I am accepting the proposed changes submitted by respondent as the correct tonnages produced by respondent 

for the years 1976 and 1977. 

Respondent's administrative superintendent testified as to the 

daily production figures for nine of the 11 mines listed on Exhibit 

G-1, but one of those mines (Lundale No. 1) is no longer owned by 

respondent (Tr. 602). The remaining eight mines produced a total 

of 6,659 tons per day in 1977~ 1/ The total annual production for 

all mines under respondent's control amounted to 1,638,312 tons in 

1976 and 1,369,532 tons in 1977. Respondent has approximately 

990 employees of whom 860 are union miners and 130 are management 

personnel (Tr. 603). 

On the basis of the foregoing information, I find that respondent ·is a large operator and that any civil penalties which may hereinafter be assessed should be in an upper range of magnitude to the 

extent that they are determined by the criterion of the s.ize of 

respondent's business~ 

l./ Daily production for 1977 was not given with respect to the No. 5, 

Lundale No. 2, and MacGregor No. 8 Mines. Therefore, the daily pro-· 

duction for those three mines is for 1976. The record does not show 

whether the daily production for the Lundale No. 3A Mine was for 1976 

or 1977 (Tr. 603). 

94 
Effect of penalties on operator's ability to continue in business 

Counsel for respondent: did not present any evidence at the hear-

. ing with. respect to respondent's financial condition. In Buffalo 

Mining Co., 2 IBMA 226 (1973), and in Associated Drilling, Inc., 

3 IBMA 164 (1974), the former Board of Mine Operations Appeals held 

that when a respondent fails to present any evidence concerning its 

financial condition, a judge may presume that payment of penalties 

would not cause respondent to discontinue in business. In the 

absence of any specific evidence to the contrary, I find that payment of penalties in the amounts hereinafter assessed will not cause 

respondent to discontinue in business. 

Good faith effort to achieve rapid compliance 

With respect to 12 of the 17 violations alleged in this proceeding, counsel for MSHA either stipulated to the operator's good faith 

effort to achieve rapid compliance or the inspectors testified that 

there·was good faith compliance (Tr. 56; 83; 126; 161; 189; 263; 349; 

375; 382; 517; and 617). As to the remaining five alleged violations, 

I find that the orders or notices of termination show that respondent 

made a good faith effort to achieve rapid compliance after receiving 

notification that the alleged violations existed (Exhs. G-13; G-20; 

G-41; G-43; and G-46). Therefore, when violations are hereinafter 

found to have occurred so that penalties have to be assesse.d~ respondent will be given full credit for having demonstrated a good faith 

effort to achieve rapid compliance. 

Consideration of Remainin~ Factors 

As iridicate<l above, t~o of the six criteria set forth in section 

llO(i) of the 1977 Act, that is, gravity of the violations and whether 

the operator was negligent, must be specifically'considered in reviewing the evidence presented by MSHA and respondent with respect to ecch 

violation~ When violations are hereinafter found to have occurred, 

findings as to grav~ty and negligence will be made and penalties will 

be assessed accordingly. 

Docket No. HOPE 78-315-P (4-H UG Mine) 

Notice No. 1 DTN (6-39) 11/30/76 § 75.400 (E~1ibit G-3) 

Findings~ Section 75.400 requi~es that coal dust, including 

float coal dust deposited on rock-dusted surfaces, loose coal: and 

other combustibles be cleaned up and not be permitted to accumulate 

in active workings or on electric equipment. Respondent violated 

section 75~400 because loose coal, coal dust, and float coal dust 

had accumulated up to 14 inches deep along the 4 road conveyor belt 

entry beginning at the surface of the mine and extending inby for a 

95 
distance of 1,700 feet to the No,. 63 road conveyor drive. Additionally,_ loose coal had been allowed to accumulate as high as a person's 

hips in piles of from 3 to 5 tons at approximately five locations 

where conveyor belt tailpieces had existed prior to movement of the 

belt conveyors to keep up with the advancement of the face areas 

(Exh .. G-3; Tr .. 37-42; 59-60),. The ac.cumulations were moderately 

serious because there were some places where coal accumulations had 

risen high enough to push the belt up off the bottom rollers so as 

to cause the belt to drag in the loose coal. The friction resulting 

from the belt dragging in coal might have produced enough heat to 

have caused a fire along the beltline. Although electric wires supplied power to the belt drives, the inspector saw no riactive" ignition sources which made him think that there was any likelihood that 

an immediate fire would occur (Tr. 44-48). Respondent was negligent 

for allowing the accumulations to form along the 4 road conveyor belt 

because the superintendent of the 4-H Mine knew that the accumulations existed, but he said that he could not get the miners' to shovel 

in that uncomfortably cold portion of the mine. The inspector said 

that the 4 road conveyor belt was so close to the outside of the mine 

that the coal which fell from the belt was frozen each day as it accumulated (Tr. 37; 41-46). Respondent was grossly negligent for failing 

to clean up the hip-deep accumulations which had been left each time 

the belt tailpiece was advanced to a new position into the mine (Tr. 

36; 42),. 

Discussion. In the findings given above, I have indicated that 

the inspector's testimony was sufficiently detailed to support findings that coa.l accumulations existed along.the 4 road conveyor belt 

and at the sites where belts had been advanced .. ·Additionally, the 

inspector's notice of violation (Exhibit G-3) alleged that accumulations existed along the 63, 73, 73B, and 73C road conveyor belts 

for distances of 600, 1,900, 2,800; and 500 feet, respectively. The 

inspector, however, had no specific recollection as to the nature of 

the alleged accumulations except for those which have been found to 

have existed along the 4 road conveyor belt (Tr,. 41). Although the 

inspector said that he would not have cited the accumulations along 

the other conveyo~ belt~ if they had not existed (Tr~ 58)~ the forme~· 

Board of Mine Operations Appeals held in Bishop Coal Co~, 4 IBMA 52 

(1975), that an inspe~tor's statement to the effect that he had no 

doubt but that he had observed coal accumulations is not probative 

enough as to depth of the accumulations or the extent of ·the accumulations' combustibility to support a finding that the accumulations had occurred,. Likewise, the Board held in Armco Steel Corp., 

2 IBMA 359 (1973), that an inspector's statement that it was his 

unvarying practice to issue notices of violation when coal accumulations qre deeper than 1-1/2 inches, was not eviden~~ showing the 

actual depth of the accumulations cited and did not permit anyone to 

make a finding as to the existence of the accumulations or the seriousness of such accumulations. For the foregoing reasons, the evidence does not permit me to find that coal accumulations were proven 

to have existed along the 63, 73, 73B, and 73C road conveyor belts* 

96 
The inspector's testimony as to the accumulations along .the 

4 road conveyor belt and at the sites where the belt had been 

advanced was sufficiently detailed to prove that the accumulations 

existed under the former Board's holding in Old Ben Coal Co., 8 IBMA 

·gs (1977), because the evidence shows that those accumulations had 

existed long enough for the loose coal· and coal dust beneath the 

conveyor belt to freeze over a period of days as layer after layer 

of loose coal fell from the belt. The mine superintendent was aware 

of the accumulations and stated that it was difficult to get the 

loose coal cleaned up because the miners were unwilling to work in 

the cold long enough to clean up the loose coal accumulations. 

Nevertheless, after the inspector's notice was issued, the superintendent was able to get all of the frozen coal removed from the 

4 road conveyor belt entry. Therefore, the evidence shows that the 

loose coal accumulations had existed long enough to support a finding that the operator was aware of the accumulations and was permitting them to occur (1'r. 37-39; 46; 67). The evidence also 

supports a finding that the piles of loose coal which existed where 

tailpieces had been advanced had been left there over a long period 

of time. Cons~quently, the operator was aware of those accumulations and was permitting them to occur (Tr. 42-43; 59-60). 

Conclusions. The inspector's testimony fails to show that the 

coal accumuf~i:-i~ns constituted a serious hazard. The accumulations 

were not continuous from the surface of the mine to the tailpiece. 

Of the 1,700 feet of ·coal accumulations along the 4 road belt conveyor, about 1,200 feet were in a frozen condition whi~h would have 

reduced their combustibility (Tr. 32), The inspector saw no active 

electrical ignition sources and did not seem to think that the 

places where the belt was "scooting in coal" were sources of friction which were hazardous (Tr. 44; 48-49). 

On the other hand, there was a high degree of negligence in the 

operator's permitting the coal to accumulate ald~g the 4 road conveyor belt and there was an even higher degree of negligence in 

respondent's failure to clean up around the tailpieces before the 

belts w,ere advanced. Such isolated piles of coal did not create 

particularly hazardous accumulations from the standpoint of propagation of any fire or explosion that might have occurred, but the 

piles were left on each side of the belt as it was advanced and did 

create a linge~ing obstruction and potential hazard in the vicinity 

of the belt conveyors (Tr. 42). Considering that respondent is a 

large operator, that there was good faith compliance, that payment 

of pe~alties will not cause respondent to discontinue in business, 

that the violation was moderately·serious, and that there was a 

high degree of negligence, a.penalty of $500 will be assessed for 

this violation of section 75~400. 

Exhibit G-2 indicates that 14 prior violations of section 75.400 

occurred at respondent's No. 4-H Mine from 1970 through May of 1976. 

97 
No violations occurred in either-1973 or 1974 and no more than two 

violations of section 75.400 occurred in any year except for 1972 

when six violations occurred. Respondent should increase its 

efforts to have additional years in which no violations of section 

75.400 occur. Nevertheless, respondent's apparent efforts to reduce 

the number of violations of section 75 .. 400 at its No. 4-H Mine warrants only a small increase in the penalty otherwise as~essab1e under 

the other five criteria. Therefore, the penalty of $500 will be 

increased by $50 to $550 because of respondent's relatively favorable 

history of previous violations. 

Docket No .. HOPE 78-561-P (4-H UG Mine) 

Order No .. 1 JCH (7-8) 5/13/77 § 75.4.00 (Exhibit G-12) 

Findings.. Section 75.400 requires that coal dust, including 

float coal dust deposited on rock-dusted surfaces, loose coal, and 

other combustibles be cleaned up and not be permitted to accumulate 

in active workings or on electric equipment. Respondent violated 

section 75.400 because float coal dust was permitted to accumulate 

over previously rock-dusted areas along the No. 73-B belt conveyor 

entry and connecting crosscuts to a depth of from 0 to 1/8 of an 

inch beginning at the tail roller and extending outby to the conveyor belt drive for a distance of 2,800 feet. The majority of the 

float coal dust was on the mine floor on the nontraveled side of the 

belt conveyor and in the connecting entries where permanent stoppings 

had been rionstructed on each side of the b~lt entry (Tr~ 113). The 

violation was only moderately serious because in some places the 

float coal dust was thin enough to have prevented the propagation of . 

an explosion and if the entire entry had been as effectively rock 

dusted as. it was in such places, the inspector would not have ~ited 

the operator for a violation of section 75.400. Respondent was 

extremely negligent for allowing the float coal dust to accumulate 

because the mine superintendent knew that the condition existed but 

had delayed having the float coal dust cleaned up and an ~dditional 

layer of rock dust applied (Tr. 106). Power control wires were 

located at the belt head. While such wires constituted a possible 

ignition hazard, the inspector saw no specific ignition points 

because all the wires appeared to be in good condition (Tr. 104; 

111) .. 

Conclusions. The evidence supports a finding that respondent 

was aware of the float coal dust accumulations describ~d in the 

inspectorrs order (Exh. G-12), but failed to have the float coal 

dust cleaned up before it was observed by the inspector. Therefore, 

the violation was proved within the holding of the Board in the Old 

Ben case, supra. In assessing a penalty, it must be borne in mind 

that the violation was only moderately serious because there were no 

known ignition sources and because the accumulations were not so continuous as to have propagated an explosion throughout the 2,800-foot 

98 
expanse of the belt conveyor entryw There was a high degree of 

negligence in that the mine superintendent was aware of the black 

condition developing in the 73~B belt conveyor entry, but failed to 

take action to ameliorate that condition until the inspector wrote 

Order No. 1 JCH. This accumulation, however, was more serious than 

the previous violation of section 75.400 because none of the accumulations in this instance were wet and frozen as was the case in 

the prior violation, and this violation involved an accumulation 

which extended for a distance of 2,800 feet as compared with the 

expanse of 1,700 feet involved in the prior violation. Therefore, 

a penalty of $800 will be assessed for this violation of section 

75.400. 

Respondent's history of previous violations now includes the 

preceding violation of section 75.400 which occurred ·on November 30, 

1976. That violation increased the number of violations of section 

75.400 which occurred in 1976 to three violations.. The data in 

Exhibit G-2 thus show th.at respondent's trend in violating section 

75.400 has deteriorated from no violations in 1973 and 1974, to two 

violations in 1975 and three violations in 1976. The penalty of $800 

assessed for this violation should, therefore, be increased by $150 to 

$950 in order to impress on respondent the importance of augmenting 

its efforts to reduce the number of violations of section 75¥400 which 

are occurring at the 4-H Mine. 

Docket No-. HOPE 78-560 (4-H UG Mine) 

Order No. 1 DPC (7-35) 8/4/77 § 75.200 (Exhibit G-44) 

Findings. Section 75.200 requires each operator of a coal mine 

to submit a roof-control plan suitable to the roof conditions and 

mining sy.stem of each coal mine. Respondent's roof-control plan 

provided that in the rehabilitation of roof-fall areasJ respondent 

would install temporary supports as cleanup and roof-bolting operations advance~. Additionally, the roof-control plan specified that 

no operator of a machine would advance the controls of the machine 

beyond permanent roof support~ Respondent violated both of the 

aforementioned provisions of its roof-control plan by having cleaned 

up a roof fall without having installed temporary supports and by 

having advanced the controls of a loading machine beyond permanent 

supports for a distance of from 3 to 7 feet (Tr. 425-430)~ The violation was very serious because rocks were still hanging in the cavity 

left by a fall of rock measuring approximately 6 feet in thicknessw 

The violation was serious also because respondent's No. 4-H Mine has 

a generally poor roof condition (Tr. 431~432). 

Respondent was extremely negligent in allowing the violation to 

occur because a strike was in progress at the time the violation was 

cited and five section foremen had done the cleaning up of the rock 

fall without using temporary supports. Additionally, the mine foreman was present in the vicinity at the time the inspector observed 

99 
a s~ction foreman removing a bolting machine from the fall area. The 

section foreman agreed that he had just finished installing foui roof 

bolts in the fall area. At the time the ro6f bolts were installed, 

the inspector could find no timbers of a length which could have been 

used as temporary supports at the time the roof bolts were installed 

(Tr. 434). The inspector observed three headers about 20 feet in 

length lying along the rib in the fall area, but the height o~ the 

mine in the fall area was 11 feet and the 20-foot headers could not 

have been used as temporary supports (Tr. 428-429)~ 

Discusoion. The superintendent of the 4-H Mine testified on 

behalf of respondent with respect to Order No. 1 DPC. The superintendent introduced as Exhibit C a one-page drawing of the 207 Road 

Unit cited in Order No. 1 DPC (Tr. 470). The superintendent's 

description of the roof fall area is largely at variance with the 

inspector's description of the same area. Whereas the.superintendent 

stated that the roof fall extended for a distance of about 100 feet, 

the inspector said that the roof fall extended for only 35 feet. 

Whereas the superintendent said that at least 45 feet of the roof 

fall area had been permanently bolted in accordance with the roofcontrol plan "as far as he could remember" (Tr. 474; 478), the 

inspector said that the entire roof fall area contained only four 

roof bolts which had been installed just a few minutes before the 

inspector observed the violation (Tr. Li-45; 451) ~ Whereas the superintendent testified that the inspector made his mea,suremcnts by 

standing in the belt entry where the roof fall had occurre:d, the 

inspector stated that he had never at any time entered the roof 

fall area and had made all his measurements by standing in a crosscut which opened into the belt entry where the roof fall had occurred 

(Tr. 449; 494). Whereas the superintendent said that the inspector 

had taken. two measurements extending in an outby direction, the 

inspector stated that he stood in a crosscut and took one measurement of 20 feet to his left toward the face and took another measurement of 16 feet to his right away from the face (Tr,. 427; 4'1-0; 

442; 471; 486). 

Although a comparison of the superintendent's testimony with the 

inspector's testimony shows many variances, the superintendent did not 

really dispute the essential points made by the inspector~ The superintendent did not contest the fact that a large part of the roof fall 

area was still unsupported and he did not claim that the inspector had 

made any mistakes in measuring the distance between the lctst permanent 

roof support and the fallen materials which still had to be cleaned 

l\P (Tr. 478; 487-488). The superintendent did not contest the fact 

that the distance from the controls on the loading machine to the end 

of the machine was 13 feet (Tr. 474). Since the superintendent did 

not doubt that there was a distance of from 20 to 16 feet from the 

last permanent support to the remaining materials which had to be 

cleaned up, there is nothing in the record to rebut the inspector's 

claim that the operator of the loading machine would have had to 

100 
have gone from 3 to 7 feet beyond permanent support in order .to have 

cleaned in an area measuring from 16 to 20 feet with a loader which 

measured only 13 feet from the controls to the front of the machine 

(Tr .. 426) •. 

The superintendent did not see but one temporary support in the 

entire area where the roof fall was being cleaned up (Tr~ 483). It is 

certain that one temporary support could not have brought respondent's 

section foremen into compliance with the roof-control plan becaus~ 

there is no way that one temporary support could be considered as 

adequate for roof bolting in an uns11pported area which measured from 

13 to 20 feet in length and was 20 feet wide (Exhs. G-49 and C)~ 

Conclusions. The foregoing discussion shows tha.t there was a 

high degree of negligence involved in respondent's violation of its 

roof-control plan. Bec[?use of a strike at the 4-:'H Mine, five of 

respondent's section foremen had done the cleaning up of the roof 

materials left in the belt entry by the roof fall. At the time the 

inspector's order was written, the mine foreman was near the site of 

the roof fall and would have had to have known, or if he had exercised due diligence, the mine foreman should have known. that the 

section foremen were exposing themselves to possible injury or death 

by working beyond the last permanent support and by failing to erect 

temporary supports before installing roof bolts. The negligence was 

especially great because the six men who were ignoring the safety 

provisions of the roof-control plan were all trained in principles 

of proper roof control and were obligated to know the provisions of 

respondent's roof-control plan. In such circumstances, a penalty of 

$4,000 is warranted. Far too many miners continue to be killed and 

injured by roof falls to permit violations of the roof-control plan 

to be taken lightly. 

Exhibit G-2 shows that 33 prior violations of section 75.200 

have occurred at Respondent's 4-H Mine~ Twelve of those violations 

occurred in 1971. Four violations of sec~ion 75~200 occurred at 

the 4-H Mine in 1976. Two had occurred in 1977. prior to the one in 

August here under consideration. Since reduction in the number of 

roof-control violations is essential for promotion of safety, I 

believe that respondent should augment its efforts to reduce the 

number of violations of section 75.200 which have occurred at the 

4-H Mine~ Therefore, the penalty of $4,000 will be increased by 

$400 to $4,400 because of respondent's unfavorable history of previous violations. 

Docket No. HOPE 78-559-P (4-H UG Mine) 

Notice No. 1 JCH (7-7) 5/13/77 § 75~1103-4 (Exhibit G-10) 

Findings. Section 7551103-4 requires that automatic fire 

sensors be able to provide identification of a fire within each belt 

101 
flight. Respondent violated section 75~1103-4 beca~se the automatic 

fire sensor system for the 4-H Mine was disconnected at the master 

control box. When the sensor system was reconnected, it was inoperative and would not identify any of the seven 2/ belt flights which 

were being operated at the 4-H Mine. The violation was moderately 

serious because miners were stationed at each belt head to give warnings if a fire should occur and firefighting materials and equip~ent 

existed along the belt conveyors. Nevertheless, a sensoring system 

which is working properly will identify the location of a fire and 

improve the probability of early extinguishment of a fire if one 

occurs. Respondent was grossly negligent for disconnecting the 

sensors and for failing to obtain expert assistance for repair of 

the system until it became the subject of a notice of violation (Tr. 

73-77; 91; 94; 97). 

Discussion. The inspector was very critical of respondent's 

management for-allowing the fire sensoring system to be disconnected 

because there was an indicator on the monitoring system near the mine 

office which showed when the system was inoperative.. Therefore, the 

inspector said that management either knew the syctem was not working 

or should have known about it (Tr, 74-75). Re~pondent's chief electrician testifiec! that when the system was first installed> it operated on only one main line. At a later time, a branch line was 

installed. The system worked for a short time after the branch line 

was installed, but then began to show only 7 ,500 .ohms at the box on 

the outside of the mine, whereas a reading of.15,000 ohms was needed 

to make the system work p1·operly. The chief electrician had been trying to get the system to operate for about 4 days befo~c the notice 

of violetion was issued. He estimated that he had sp~ut about a 

fourth of his time during those 4 <lays working on the sensors. After 

the notice was issued, the chief electrician asked respondent's electrical engineC'r for advice and the electrical. engineer explained to 

him that he would have to set the end-line resistors at 30,000 ohms 

in order to obtain a reading of 15,000 ohms on the outside of the 

mine. The increase to 30,000 ohms was required because of the addition of the branch line to the system (Tr. 91-96). 

Th·e c.hief electrician had not asked for assistance from respondent's el~ctrical engineer until after the notice of violation was 

2/ Respondent's chief electrician testified that the 4-H Mine operates seven belt flights (Tr. 92), whereas the inspector's notice and 

testimony refer to nine belt flights. The inspector had gone to 

examine the fire sensors on the basis of a complaint filed by the 

UMWA. Since this was the first and only visit the inspector made to 

the 4-H Mine, I find that the chief electrician's testimony as to the 

number of belt flights in the 4-H Mine is more likely to be correct 

than the count of an inspector who had made only one trip to the 4-H 

Mine. 

102 
issued. The chief electrician said that he did not think that any 

special precautions needed to be taken while the sensors were inoperative because there was a man stationed at each belt head and because 

there was firefighting equipment along the beltlines such as water 

deluge systems and a waterline with outlets for attaching fire hoses 

at 300-foot intervals (Tr. 93-94; 97-98)~ 

Conclusions. If the miners are given early warning of the existence of a fire, they are likely to be able to put it out before anyone is injured. Even though respondent did have men stationed at 

each belt head, there was a distance of from 500 to 2,800 feet between 

the belt heads (Exh. G-3). Therefore, it would be possible for a fire 

to start on a belt flight at a point which would be beyond the range 

of the vision of the miners who were stationed at the belt heads. 

Because of the firefighting aids which existed along ·the belt, the 

violation was only moderately serious, but there was a high degree of 

negligence in the chief electrician's failure to seek the assistance 

of respondent's electrical engineer until after the notice of violation was issued. Ali that was required to make the sensors work was 

to readjust the end-line resistors. Therefore, in assessing a penalty, I am primarily trying to translate into monetary terms an amount 

which wiil be sufficient to cause respondent to impress on its supervisors the need to make an early effort to correct safety violations 

as soon as they can possibly he corrected by reliance upon all the 

technical assistance which is available to the supervisors charged 

with compliance with the safety standards~ For the foregoing reason, 

I believe 'that ~·penalty of $1,000 should be assessed for this violation of section 75 .. 1103-4. 

Exhibit G-2 does not show that there has been a previous violation of section 75.1103-4 at respondent's 4-H Mine .. Consequently, 

there is no history of previous violations to be considered in this 

instance .. 

Docket No. HOPE 78-316-P (No. 5 Mine) 

Order No. 1 RAN (6-77) 11/30/76 § 75.302-1 (Exhibit G-30) 

Findings. Section 75.302-1 requires that the line brattice be 

installed at a distance of no more than 10 feet from the area of 

deepest penetration when coal is being cut, mined, or loaded, Respondent violated section 75.302-1 because coal was being cut, mined, or 

loaded in the Nos. 1, 2, and 3 rooms in the 34 Road Section while the 

brattice curtains were 30, 35, and 30 feet, respectively, from th1.: 

working faces. The violation was serious because the curtain~ have 

to be clos~ to the working face in order to assure that respirable 

dust and noxious fumes will be carried away from the miners who are 

working at the faces. Respondent was grossly negligent because the 

preshift examiner had reported the line brattices' excessive disstances from the faces, but the section foreman had started production of coal on the day shift without moving the brattice curtains to 

103 
their proper location which would have been within 10 feet of the 

working faces (Tr~ 378-385). 

Conclusions. Respondent presented no evidence showing any mitigating circumstances in connection with this violation of section 

75.302-1. The inspector stated that the men would have had to work 

for more than one shift without moving the curtains for the curtains 

to be from 30 to 35 feet from the working faces. While the inspector 

stated that no methane has ever been detected in respondent's No. 5 

Mine, the inspector noted that the No. 5 Mine is abov·e other mines 

in ~1ich methane has_been detected and he said that it was possible 

tha~ methane could seep up to the No. 5 Mine from the mines beneath 

it. Therefore, he was unwilling to eliminate the possibility that 

the line curtains would need to be within 10 feet of the faces in 

order to protect the men from a possible hazardous con~entration of 

methane (Tr. 381). The section foreman was especially negligent in 

failing to have corrected the placement of the line brattices when 

it is considered that the preshift examiner had reported the improper 

placement of the curtains when he made his preshift report (Tr~ 382)., 

In view of the fact that the violation was serious and that there 

was a high degree of negligence, a penalty of $2,000 will be assessed 

for this violation of section 75.302-1. 

Exhibit G-2 shows that six violations of section 75.302-1 have 

occurred in respondent's No. 5 Hine since 1973~ There has been one 

violation of section 75.302-1 in each year except for 1974 when 

three violations occurred. Some consideration should be given to 

the criterion of history of previous violations in assessing penalties as I believe that respondent should be able to mine coal 

without violating section 75.302-1 at all. Therefore, the renalty 

of $2,000 will be increased by $25 to $2,025 because of respondent's 

history of previous violations. 

Docket No. HOPE 78-317-P (No, 5 Mine) 

Notice No. 1 RAN (6-76) 11/30/76 § 75.402 (Exhibit G-28) 

Findings •. Section 75.402 requires that all underground areas of 

a coal mine be rock dusted to within 40 feet of all working faces 

unless such areas are too wet or too high in incombustible content 

to propagate an explosion or unless such areas are inaccessible or 

unsafe to enter or the Secretary has ruled that a given mine is to 

be excepted from the need to apply rock dust¥ Additionally, section 

75.402 requires that rock dust be applied in all crosscuts which are 

less than 40 feet from the working face~ 

Respondent violated section 75.402 because no rock dust had been 

applied in the Nos. 1, 2 and 6 rooms in the 34 Road Section for distances of 50, 60, and 50 feet, respectively, from the working faces 

and no rock dust had been applied in the crosscut between Nos. 1 and 

104 
2 entries or the crosscut between Nos~ 2 and 3 entries.. Since the 

inspectorst distances of 50, 60~ arid 50 feet included the 40-foot 

distances in entries which did not have to be rock dusted, the violation really pertained to distances of, 10, 20, and 10 feet, respectively, in the Nos .. 1, 2 and 6 rooms, but the inspector testified 

that each cros~cut was 70 feet in length so the unrock-dusted area 

consisted of 140 feet of -crosscuts and 45 feet of entries.. The violation was serious because no rock dust at all had been applied in 

the entries and crosscuts cited in the inspector's notice and production was in progress so that a mine fire or an explosion could 

have occurred~ Respondent was grossly negligent in continuing to 

produce coal without applying rock dusi in the crosscuts or within 

40 feet of the working faces~ The inspector testified that none of 

the exceptions in section 75.402 for rock dusting were applicable, 

that is, the areas were not so wet or incombustible that rock dusting was unnecessary, the areas were not inaccessible or unsafe to 

enter, and the Secretary had not excepted the No. 5 Mine from the 

rock-dusting requirements of section 75.402 (Tr. 372-376; 385),. 

Conclusions. The only excuse offered by the section foreman for 

his failure to rock dust was that he had ordered rock dust, but it 

had not been sent into the mine yet (Tr~ 373). Despite.the claim 

that rock dust could not be obtained, the viol~tion was corrected 

within 1 hour and 10 minutes after the inspector issued Notice No. 1 

RAN (Exh. G-29). It would appear that this was a case in which the 

section foreman simply concluded that production was more important 

than complying with the safety standards~ ~he inspector testified 

that the working place looked black every~1ere and that he did not 

think the place should have been allowed to get in such a dangerous 

condition (Tr~ 37.6) ~ Since the violation was both serious and there 

was a high degree of negligence, a penalty of $2,000 will be assessed 

for this violation of section 75.402. 

E4hibit G-2 shows that one violation of section 75.402 occurred 

in respondent's N6. 5 Mine in 1974. No prior violations of section 

75~402 have occurred since 1974~ In such circumstances, I find that 

the penalty in this instance should not be increased at all under the 

criterion of history.-0f previous violations. 

·oocket No. HOPE 78-:415-P (MacGregor Preparation Plant) 

Notice No. 1 NK (7-5) 4/7/77 § 77.205(a) (Exhibit G-26) 

Findings. Section 77,.205(a) requires that respondent provide and 

maintain a -safe means of access to all working places., The inspector 

alleged in Notice No. 1 NK that respondent had erected work platforms 

on the outside of two coal-drying cyclones and that respondent had 

violated section 77.205{a) by failing to provide a safe means of 

access to the work platforms because "the employees.were required to 

walk the structure beams which were only approximately 10 iaches wide 

105 
and open to all sides and located approximately 30 feet above the 

lower floor" (Exh. G-26)~ No men were working on the outsi4e of the 

cyclones when the inspector made his examination. The inspector did 

not see any men walk on the beams to gain access to the work platforms 

and the inspector did not talk to any men who had walked on the beams 

(Tr- 262-263). . 

Although the inspector made his examination of the cyclones 

because of a complaint received from the UMWA, the complaint stated 

that "the work area on the flash dryers had an old wooden walkway 

with no· guard rails. The men are being requested to work in this 

very dangerous area" (Exh- G-24), The inspector also wrote Order 

N~~ 1 NK citing respondent for failure to provide a safe working 

platform. That order is not a part of the violations alleged by. 

MSHA in any of the 12 Petitions for Assessment of Civil Penalty 

wb.ich are involved in this proceeding. Therefore, when the 

inspector wrote Notice No. 1 NK which is here involved, he was 

citing respondent for a violation which was not a part of the 

UMWA's written complaint. The evidence presented by respondent 

shows that respondent had erected a ladder between the cyclones. 

The means of access provided by respondent was for workers to 

climb the ladder to the top of the cyclones- After stepping onto 

the top of the cyclones"from the ladder which was equipped with 

backguards, the workers lowered themselves onto the work platforms 

by using safety ropes and belts (Tr. 273; 108)~ 

The inspector wrote Notice No.. 1 NK on the incorrect assumption 

that the only means of access to the work platforms was by walking 

on the steel beams (Tr. 255-259). The inspector had not heard of 

the ladder and safety ropes used for gaining access to the platforms 

until respondent presented its evidence at the hearing. The inspector did not thereafter offer any rebuttal testimony to show whether or 

not he believed that the use of the ladder and safety ropes was an 

unsafe means of gaining access to the work platforms~ It is true 

that counsel for MSHA diligently tried to show on cross-examination 

that it was unsafe to use the ladder and safety ropes to gain access 

to the platforms, but there is no evidence in the record to show that 

if the.inspector had actually known the means of access provided by 

respondent that he would have cited the use of the ladder and safety 

ropes as a violation of section 77.205(a)~ Moreover, even if the· 

inspector had testified at the hearing that use of the ladder and 

ropes was a violation of section 77,.205(a), that would have been an 

entirely different violation of section 77~205(a) from the violation 

~ited in the inspector's noticew 

The difficulty in finding a violation of section 77 .. 205(a) on 

the basis of the evidence is that MSHA has alleged that walking on 

steel beams to gain access to the work platforms was a violation of 

section 77,.205(a), but that was not-the means of access provided by 

respondent and the cross-examination conducted by MSHA's counsel did 

106 
not result in any admissions by either of respondent's witnesses 

that use of the ladder and safety ropes was an unsafe means of gaining access to the work platforms (Tr. 284; 293; 297; 311-319). Therefore, the evidence simply will not support a finding that a violation 

of section 77.205(a) occurred. 

Discussion. Respondent's foreman at the MacGregor Cleaning Plant 

testified that there were two coal-drying cyclones at the plant. The 

foreman said that about once a y~~r it was necessary to weld steel 

patches on the outside of the cyclones and that work platforms had 

been constru~ted on the out~ide of the cyclone~ so that welders could 

stand on the platforms for the purpose of welding. the patches onto the 

sides of the cyclones. The foreman said that respondent had constructed 

a ladder between the two cyclones and that respondent intended for the 

employees who worked on the platforms to gain access to them by going· 

up the ladder to the top of the cyclones and letting the1nselves down 

to the platforms by use of safety ropes and belts (Tr. 270-273)w 

The foreman stated that respondent had received complaints from 

the men about the safety of the work platforms and that before the 

notice of violation here involved was written, respondent had contracted with the Daniels Company of Bluefield, West Virginia,. to 

have additional walkways and stairways constructed to improve the 

safety of the men who had to work on the cyclones (Tr. 274-278)w 

The foreman said that he was not aware that employees were walking 

on the steel beams in order to gain access to the work platforms~ 

The foreman stated that the miners' primary complaint was failure of 

respondent to have handrails on the work platforms (Tr, 274-291+). 

A tipple mechanic testified that he had worked for the construction company which originally built the preparation plant for respondent in 1951 (Tr. 271; 307)~ Thereafter, he began to work for 

respondent and .he has been a tipple mechanic at the plant for about 

20 years (Tr. 306). The tipple mechanic stated that he generally 

gained access to the work platforms by climbing the ladder between 

the cyclones and letting himself down with safety ropes from the top 

of the cyclones. While the tipple mechanic said that he had walked 

the steel beams to gain access to the work platforms, he said that he 

was not required to use the beams for that purpose and that he used 

the ladder between the cyclones most of the time (Tr. 305-309; 321). 

Conclusions. I have considered finding that respondent violated 

section 77.205(a) by ruling that respondent was obligated to know how 

its workers were at times gaining access to the work platforms, but 

the inspector stated that work on the cyclones was done on the maintenance shift which is worked from midnight to 8 a~m. (Tr. 262r¥ The 

plant foreman worked on the day shift and would have had no way of 

knowing that any of the workers were gaining access to the platforms 

at times by walk~ng on the steel beams instead of using the ladder 

and safety ropes provided by respondent as a safe means of access to 

107 
the work platforms. I have also considered holding that respondent 

was obligated to warn the men that they were not supposed to walk on 

the steel beams to get to the platforms and that respondent should 

have ~arned its employees that it would take disciplinary action 

against any worker who did walk on the beams~ The difficulty with 

making s~ch rulings is that there is not a scintilla of evidence in 

the record to show thpt respondent's management had ever heard from 

any source that the workers were walking on the steel beams. The 

plant foreman stated that no workers at union safety meetings or at 

any other time had ever complained to him about having to walk on 

the steel beams~ He said the safety complaints related to the way 

the work platforms were constructed and that there was no mention at 

any time about the fact that the men lacked a safe means of gaining 

access to the work platforms (Tr. 286; 291-292; 294; 299). 

The evidence shows that after the notice and order discussed 

above·were issued, respondent installed an elaborate system of stairways and platforms around the cyclones (Tr~ 266). Although the tipple mechanic stated that he did not feel unsafe in working on the 

tipple before the new facilities weie installed, he would agree that 

he feels safer now than he did before the new facilities were constructed and that the ease of making repairs has been enhanced by 

the new permanent work platforms (Tr. 319).. Respondent has paid 

civil penalties for other violations cited by the inspector in connection with the repair of the cyclones. Those penaltie~ were paid 

in connection with the unsafe conditions which were the subject of 

UMWA 1 s written complaint (Tr. 323-328) .• Consequently, I beiieve 

that the purposes of the Act in bringing about safe working conditions at the cyclones have already been fully served. In any event, 

the evidence adduced in this proceeding does not support a finding 

that respondent violated section 77.205(a). Therefore, MSHA'.s 

Petition for Assessment of Civil Penalty filed in Docket No. HOPE 

78-415-P will hereinafter be dismissed~ 

Docket No. HOPE 78-562-P (MacGregor No~ 7 UG Mine) 

Order No. 1 SWG (7-88) 11/4/77 § 75.400 (Exhibit G-50) 

Foreword. After the parties had presented evidence in this proceeding for 3 days, it became necessary to continue the hearing to 

December 8, 1978, because of the unavailability of one of MSHA's witnesses. When the hearing was reconvened on December 8, some of the 

witnesses were again unavailable because heavy rains which fell on 

the day and evening preceding December 8 had flooded some of the 

roads and made it impossible for some of the witnesses to attend the 

hearing. Therefore, counsel for MSHA and respondent agreed that they 

would submit the issues with respect to two of the violations alleged 

in Docket No. HOPE 78-562-P on the basis of a stipulation of the facts 

(Tr. 605; 610-611). . .. 

108 
Findings. Section 75.400 requires that coal dust, including 

float coal dust deposited on rock-dusted surfaces, loose coal, and 

other combustibles be cleaned up and not be permitted to accumulate 

in active workings or on electric equipment. Respondent violated 

section 75.400 because loose coal and coal dust in depths of from 2 

to 10 inche~~ had been permitted to accuml,llate under or along the 

Nos. 20, 314, and 344 belt conveyor flights. Additionally, float 

coal dust had accumulated under and along the Nos. 20, 314, and 

344 belt conveybrs and into the adjscent ~rosscuts to the left and 

right of the belt conveyors. The accumulations were continuous for 

the entire distance of the belt flights whose total length was 

2, 220 feet. The accumulations ranged from 6 to 8. feet in width. 

There is no evidence to show t11at any ignition sources were present, 

but the continuous nature of the accumulations in conju~ction with 

the continuoun coating of float coal dust warrants a finding that 

the violation was serious. Respondent was grossly negligent for 

permitting s~ch a large expanse of combustible materials to accumulate (Tr. 617-618; Exh. G-50). · 

Conclusjons. Althovgh there is no testimony to show that the 

violation\.;a~J:;roven under the strict standa.rds of proof enunciated 

by the forrner Board of Hine Operations Appeals in Old Ben Coal Co., 

8 IBM.A 98 (1977), I believe that the exhibits and stip~lations support a finding that the accumulations had existed for a sufficient 

period of time that respondent, by e~ercise of due diligence, should 

have discovered the accumulations before th~y were cited by the 

inspector in Order No. 1 SWG. That conclusion is supported by the 

exhibits. Order No. 1 SWG was written on a Friday at 2:23 p.m. 

Assuming that ~o cleanup work was ~one on either Saturday or Sunday 

at the mine, 3 working days in the following w~ek were required to 

clean up the accumulalions and apply an ample coating of rock dust 

in the areas cited in the inspector's order (Exhs. G-50 and G-51)~ 

I conclude that accumulations which required 3 days for cleanup 

wollld have had to have occumulated over a time period during which 

respondent should have been aware of them so as to have tsk~n 

action to clean them up before they were cited by the inspector~ 

Counsel for respondent stated that the accumulations described in 

the inspector's order were not a condition which was condoned or 

approved of by respondent's management (Tr. 612). 

Considering that the instant violation of section 75.400 was 

serious and involved a high degree of negligence> a penalty of 

$2,000 will be assessed for this violation. 

Exhibit G-2 shows that 58 prior violations of section 75.400 have 

occurred at respondent's No. 7 Mine. The number of violations -ranged 

from two to five per year from 1970 to 1975. In 1976 there were 

29 violations and in 1977 there were eight violations of section 

75.400 prior to the one here under consideration. The evidence shows 

109 
that respondent made a commendable reduction in the number of violations between 1976 and 1977, but I consider that occurrence of eight 

violations in 1977 is still an unwarranted number of violations of 

section 75.400. Therefore, the penalty of $2,000 will be increased 

by $500 to $2,500 because of respondent's unfavorable history of previous violations at its No. 7 Mine. 

Docket No. HOPE 78-562-P (MacGregor No. 7 UG Mine) 

Order No._ 1 SWG J7-102) 11/9/77 § 75 . .514 (Exhibit G-54) 

Foreword. The facts concerning Order No. 1 SWG dated November 9, 

1977, were stipulated by counsel for MSHA and respondent for the s·ame 

reasons stated above under my discussion of Order No. 1 SWG dated 

November 4, 1977. 

Finding_§!_· Section 75. 514 provides that all electrical connections or splices in conductors shall be mechanically and electrically 

efficient and that suitable. com1ectors shl~.11 be used. The section 

also requires that electrical connections or splices in insulated 

wires be re.insuJ.ated at least to the smne degree of protection as 

the remainder of the wire. Respondent violated section 75.514 

because of the existence of the facts hereinafter given. 

The end of the trailing cable of a three-fourths horsepower pump 

had been stripped. of all insulation to expose both conductors for a 

distance of about l in.ch and the ground conductor had been cut out 

of the cable. Each of the bare conductors had been wound about a 

separate nail. TLe end of the puinp' s trailing cable with the nails 

attached to the bare conduct.ors, as described above, wc..s found by 

the inspector at a point along a traili;:ig cable to a Joy 21 shuttle 

car. The.re were two boles in the shuttle car's cable which w:.:"!re far 

enough from each other to match the distance betv?een the two nails 

in the pump's trailing cable. The existence of the bare conductors 

and nails in proximity to the holes in the shuttle car's trailing 

cab le supports a finding, and I so find, tlrnt the nails had been 

driven into the shuttle car's cable for the purpose of obtain:i.ng 

elec tdci ty to power the pump (Tr. 618·-620; 625-628; Exhs. G-51-1 

and G-58). 

Such a crude connection. was not mechanically or electrically 

efficient; suitd~le connectors were not used; and no attempt at reinsulation of either trailing cable had been made. The violation was 

very serious because the bare conductors would have exposed to 

electrocution any person who might have touched the bare conductors 

and nails while they were being used to power the pump. There was 

also a strong likelihood that sparks could come from the bare conductors so as to cause a fire or explosion. The nail holes left in 

the shuttle car's trailing cable would have continued to be an electrocution hazard if they had not been discovered by the inspector so 

that the holes in the cable could be reinsulated to the same degree 

of protection as the remainder of the trailing cable. 

110 
Conclusions. Since the violation was very serious and there was 

an extremely high degree of negligence, a penalty of $6,000 will be 

assessed for this violation of section 75.514. Exhibit G~2 shows 

that. 10 prior violations of section 75.514 have occurred at respondent's No. ! Mine. The largest number of violations of section 

75.514 occurred in 1976 when five were cited by inspectors. It is 

encouraging to note that only one violation of section 75.514 had 

occurred in 1977 prior to the instant violation, but there is no 

reason for violations of section 75.514 to occur if respondent's 

electric.ians are properly trained and supervised. Therefore, the 

penalty of $6,000 will be increased by $50 to $6,050 under the cri-

·terion of history of previous violations. 

Docket No. HOPE 78-562-P (MacGregor No. 7 UG Hine) 

Order No. 1 RJW (7-103) ll./11/77 § 75.518 (Exhibit G-40) 

Findings. Section 75.518 requires the use of automatic circuitbreaking devices or fuses to protect all electric equipment against 

short circuit and overloads. Respondt~nt violated section 75.518 

because two 60-amp fuses in the switch box for a pump motor had been 

blown and wire had been used to bridge over the fuses so that the 

pump would continue to run~ Bridging over the fuses eliminated 

short circuit and overload protection for the pump. The violation 

was moderately serious because, at the time the violation occurred, 

a malfunction in respondent's ventilating system had caused intake 

air to come out of the 1'line instead of going into the section of th£ 

mine here involved. Therefore, if the pump motor had become overheated from lack of short circuit and overload protection, any smoke 

from the pump motor would have been carried out of the mine instead 

of going into the mine so as to endane;er auy miners who might have 

been working inby the pump. Respondent was grossly negligent for 

deliberately destroying the pump motor's short circuit and overload 

protection (Tr~ 544-549; 555; 575-579). 

Discussion. Respondent's second-shift maintenance foreman testified that the pump was receiving power through a nip attached to a 

trolley wire.. The maintenance foreman said that there was a fuse in 

the nip and that the fuse in the nip would have continued to provide 

the pump motor with short circuit and overload protection (Tr. 563-

564) ¥ The inspector presented rebuttal testimony in which ·he stated 

that when he wrote his order citing the bridging over of the two 

fuses in the switch box, he specifically noted that there was no fuse 

in the nip. The inspector said that when the maintenance foreman 

replaced the fuses at the switch box, he also replaced the nip with 

one which had a fuse in it (Tr. 585). I am accepting the inspector's 

version that there was no fuse in the nip because respondent's-maintenance foreman stated that there was a fuse in the nip the last time 

he inspected it, but that he did not inspect the nip on the day the 

inspector's order was written (Tr. 566). Therefore, I have found 

111 
abqve that the bridging over of the fuses in the switch box had the 

effect of destroying short circuit and overload protection for ·the 

pump because I find that no fuse existed in the nip attached to the 

trolley wire. 

Another discrepancy between the inspector's testimony and that 

of the maintenance foreman is that the foreman claimed that the motor 

on the pump was a 10-horsepower motor instead of a 5-horsepower motor 

as reported by the inspector (Tr. 560; 585). I find that it is 

unnecessary to determine which witness was right about the s.ize of 

the pump motor since the inspector said that either a 10-horsepower 

or a 5·-horsepower motor would have had adequate protection if 60-amp 

fuses had been used (Tr. 586). The inspector agreed that the mine 

superintendent's testimony about the fact that intake air was 

actually coming out of the section instead of going in could be 

correct (Tr. 584). For that reason, I have found above that the 

violation was moderately serious because any smoke which might have 

come from the motor if an overload had occurred would have been 

unlikely to go toward the working face so as to create a hazard for 

the miners who are working inby the pump cited in the inspector's 

order. 

Concl~sions. A large penalty is not warranted under the criterion of gravity, but I have always considered the deliberate act 

of bridging over fuses to be an act of extreme and intentional 

negligenC'e. 3/ Therefore, a penalty of $1,000 will be Clssessed fo;: 

this violation of section 75.518. Exhibit G-2 shows that 14 previous violations of section 75.518 have occurred at respondent 1 s 

No. 7 Mine. The number of violations ranged from two to three in 

1971, 1972, and 1974, but there were seven ~iolations of section 

75.518 at the No. 7 Mine in 1976. That is a sharp increase iri 

failure to provide proper short circuit and overload protection 

justifying an increase of $500 under the criterion of history of 

previous violations. Therefore, the penalty of $1,000 will be 

increased by $500 to $1,500 because of respondent's unfavorable 

history of previous violations. 

~./ The inspector testified that the mine foreman told him that he 

had personally bridged over the fuses in the.switch box (Tr~ 551; 

556). The mine foreman testified that he did not tell the inspector that he had bridged over the fuses (Tr. 622). I have found 

that respondent was grossly negligent in bridging over the fuses. 

I would not change the finding as to negligence regardless of 

whether the mine foreman did the bridging or some other employee 

did it as all of respondent's witnesses agreed that fuses of the 

proper size were readily available at the time ·and that it was 

unnecessary to bridge over the fuses (Tr. 564; 576; 594)~ 

112 
Docket No. HOPE 78-562-P (MacGregor No. 7 UG Mine)' 

Order No. 2 RJW (7-104) 11/11/77 § 75.518 (Exhibit G-42) 

Findings. Respondent violated section 75.518 a second time 

on November 11, 1977, by bridging over two 10-amp fuses for a · 

three-fourths-horsepower pump. The second pump was located about 

60 to 80 feet inby the pump which was discussed above in connection 

with Order No~ 1 RJW. The seriousness of the violation is moderate 

because intake air was tra~eling in the wrong direction at the time 

the violation occurred so that any smoke that might have come from 

·an overloaded motor would have come out of the mine and would not 

have created any hazard for the miners working inby the pump. There 

was an extremely high degree of negligence because the two fuses in 

the switch box as well as a fuse in the nip at the irolley wire had 

all been bridged over with copper wire (Tr. 588-591)~ 

Discussion. The testimony given by the second-shift maintenance 

foreman indicated that he could not be certain whether he replaced 

the nip before or after the inspector's Order No. 2 RJW was issued 

because he said that the motor crew tears out the nips with considerable regularity (Tr. 593). The maintenance foreman could not understand why anyone would have bridged over the fuses with wire because 

he said there were plenty of fuses at the mine to replace any that 

might be blown (Tr. 594). 

Conclusion. Since the testimony is almost identical for the 

second violation of section 75.518 as it was with respect to the 

first violation, I conclude that a penalty of $1,000 should also be 

assessed for this second violatioti of section 75.518. There is no 

difference in respondent's history of previous violations because 

the first· and second violations were cited on the same day by the 

same inspector within a period of 15 minutes. There would not have 

been ti~e between the citing of the two violations for respondent 

to have institut·ed an· improved program for inspection of electrical 

equipment. In such circumstances, the penalty of $1,000 will be 

increased by $500 to $1,500 because of respondent's unfavorable 

history of previous violations of section 75.518 at the No. 7 Mine. 

Docket No. HOPE 78-563-P (MacGregor No. 7 UG Mine) 

Notice No. 3 OEB (7-13) 9/16/77 § 75.604 (Exhibit G-37) 

Findings. Section 75.604 requires that perma~ent splices be 

mechanically strong and effectively insulated and sealed so that the 

splices will exclude moisture. The splices are also required by that 

section to be made of suitable materials which will provide flarneresistant qualities and good bonding to the outer jacket. Respondent 

violated section 75.604 because there were five defective permanent 

splices on the trailing cable to the No. 86 shuttle car operating in 

113 
the No. 373 Section. The five splices had been rubbed and frayed to 

the.extent that at least one electrical conductor was showing for a 

distance of from one-fourth to three-fourths of an inch in each 

splice. The five splices began at a point about 60 feet outby the 

shuttle car and were all located within an additional 40 feet of the 

cable so that all of the defective splices were located within 

100 feet of the shuttle car. The violation was very serious because 

anyone who might have had reason to.pick up the trailing cable could 

have been electrocuted if he had touched any part of the bare conductors. Respondent was grossly negligent for allowing the five 

splices to deteriorate so as to expose the conductors* Respondent 

should have discovered the defective splices and should have repaired 

them before they deteriorated to the hazardous condition described in 

the notice (Tr. 511-516). 

Discussion. Respondent's witnesB testified that there was a 

wildcat strike at the No. 7 Mine which began on June 21, 1977, and 

ended on September 7, 1977. No weekly inspections of electrical 

equipment were made during the strike and the first inspection made 

after-the strike w.::s on September 16, 1977, which was the same day 

that the instant notice of violation was written. Additionally, 

respondent's witness stated that the five permanent splices cited 

in the notice were not in as bad a condition as the inspector 

claimed because he could see bare conductors at the ends of three 

of the splices only by lifting up on the ends of the sleeves on 

those three permanent splices~ Respondent's witness agreed with 

the inspector that two permanent splices had boles in the middle 

about the size of a match stem, but he said that the conductors in 

those two splices were still covered by their individual wrappings 

so that no bare conductors were exposed (Tr. 527-530). 

Respondent's witness also testified that 2 days after they had 

replaced the permanent splices cited in the inspector's notice, they 

examined the new splices and found that the same conditions cited in 

the inspector's notice again existed. They then discovered that the 

cable guide was too small for th~ standard-sized trailing cable being 

used on the shuttle car. The guide was large enough to accommodate 

the trailing cable until such time.as permanent splices were made in 

it. The splices, however, were so large that the guide squeezed them 

and c·aused them to wear out very fast. The excessive wear in the 

splices stopped when the cable guide was replaced with a guide large 

enough to permit permanent splices to pass through it (Tr. 531-532). 

Respondent's defense is not persuasive. Respondent's witness 

stated that it would not be normal for five permanent splices to be 

made in a single trailing cable within a time period of 12 weeks (Tr. 

540). Since the five permanent splices again wore out within 2 days 

after they were replaced following the writing of the inspector's 

notice (Tr. 531), there is reason to conclude that respondent should 

have discovered the worn condition of the splices over the period of 

114 
several weeks during which the five permanent splices would originally have been made. In other words, it is highly improbable 

that five permanent splices were made in fhe cable during a single 

day., Since all.the splices were within 40 feet of·each other, the 

electricians who installed the second, third, fourth, and fifth 

splices should have observed the worn and dangerous condition of 

the prior splices because they were wea~ing out within a ~eriod of· 

2 days after being made. If the electricians who made the successive permanent splices did not discover the worn condition of the 

prior spli~es at the time they were making additional splices, there 

was an ample period prior to the strike when the worn splices should 

have been discovered and corrected during the weekly examination of 

electrical equipment. 

Conclusionc. Respondent's witness claimed that bare conductors 

were visible only in three of the five worn splices, but he agreed 

that it would have been possible for a person handling the cable at 

one of the locations of those three splic~s to have been elecirocuted (Tr. 538-539). Therefore, regardless of whether one accepts 

respond~nt's description of the splices or MSHA's descriptiori of 

the splices, the violation was very serious. As I have explained 

and found above, the violation was the result of gro~s negligence. 

Therefore, a penalty of·$2,000 will be assessed for this violation 

of section 75.604. 

Exhibit G-2 shows that 11 prior violations of section 75.604 

have occurred at respondent's No. 7 Mine since 1973. Five violations 

occurred in 1974, two oc~urr~d in 1975, one occurred in 1976, ~rid 

one~ occurred in 1977 prior to September 16, 1977, when the instant 

violation was cited. The evidence shows, therefore, that rAspondent 

has made an effort to reduce the number of violations of section 

75.601+ which have occurred at its No. 7 Mine, although its record· 

for 1977 had deteriorated to two violations by Septeinber of 1977. 

Consequently, the penalty of $2,000 will be intrea~ed by only $50 

to $2,050 in view of respondent'~ relatively faMorable history of 

previous violations. 

Docket No. HOPE 78-564-P (MacGregor No. 9 Mine) 

Notice No. 3 BRS (7-32) 9/22/77 § 75.514 (Exhibit G-35) 

Findings. Section 75,514 provides that ail electrical connections or splices in conductora shall be me~hanically and electrically 

efficient and that suitable connectors shall be used. rhe section 

also requires thai elect~i~al connec~ions or splices in insulated 

wires be reinsulated at least to the same degree of protection as 

the remainder of the wir~~ Respondent violated secti6n 75.514 

because five permanent splices in the trailing cable to the No. 03 

shuttle car in the 9 Road Section had been made by tying the con• 

ductors together instead of using proper connectors which were 

115 
available at respondent's No. 9 Mine. In two of the five defective 

splices, the ground conductors had been laid parallel and taped. 

There were holes in the external covering over two of the five permanent splices. The violations were very serious.because conductors tied together are inclined to slip which, in turn, may have the 

effect of causing the two ends of the ground conductors to lose contact when the .ends are taped and placed parallel with each other~ If 

a bare conductor should happen to make contact with the frame of a 

shuttle car at a time when the ground conductor is not connected> 

any person touching the shuttle car's frame could be electrocuted. 

Additionally, if the ground conductor is ineffective, the cable m: 

beco:ne overheated. and cause a spark which could produce a fire or .1 

exp.lesion. The probability of an explosion in the No. 9 Mine was 

reduced by the fact that no methane has ever been detected in the 

mine. Respondent was grossly negligent for allowing the permanent 

splices to be made by tying knots in the conductors because respondent's chief electrician knew that his electricians were prone to 

tie knots in conductors when making splices, but he has never discharged anyone for such practices and there is nothing in the record 

to show tho!:. ht~ has imposed any sanctions on employees who make 

splices by tying knots in conductors (Tr~ 331-334; 337-343; 356; 

363·-364; 365). 

Discues1.on. Respondent's chief electrician and the inspector 

agreed that if-splices are made in cables by tying knots in the conductors instead of using proper ·connectors, then~ is no way to dis- , 

cover that the splices have been made inproperly once the splices 

have been covered by the vulcanized sleeves which are required to be 

placed over permanent splices (Tr~ 353; 358; 365). Respondent's 

chief electrician, however, knew that the five electricians who were 

employed at respondent's No. 9 Mine had a propensity for tying knots 

in conductors (Tr~ 365). The practice of makini splices by tying 

knots in the conductors was so prevalent at the No. 9 Mine that the 

inspector who wrote the instant notice of violation stated that he 

performed his examination of the permanent splices in this instance 

because Uh\JA had made a complaint to HSHA. that splices were being 

improperly made at the mine (Tr. 337). The same five electricians 

who were employed at the No. 9 Mine when the five improper splices 

were made are still working at the No. 9 Mine (Tr. 366). There is 

nothing in the record to show that respondent has announced any 

sanctions which will be used to assure that proper connectors will 

be used when splices are made at the No. 9 Hine. 

Conclusions. Since the violation was very serious and respondent 

was grossly i:;-egTigent for allowing the violation to occur, a penalt-y 

of $2) ooo-will be assessed for this violation of section 75 .5145 

Exhibit G-2 shows that one prior violation of ~ection 75 .. 514 has 

occurred at respondent's No. 9 Mina. Therefore, the penalty of 

$2,000 will be increased by $25 to $2,025 under the criterion of 

respondent's history of previous violations. 

116 
Docket No. HOPE 78-565-P (Paragon Mine) 

Order No. 1 RM (7-56) 4/14/77 § 75.400 (Exhibit G-17) 

. Findings. Section 75~400 requires that coal dust, includifig 

float coal dust deposited on rock-dusted surfaces, loose coal, ·and 

other combustibles be cleaned up and not be permitted to accumulate 

in active workings or on electric equipment. Re~pondent violated 

section 75.400 because loose coal, coal dust, and float coal dust 

existed on the structures and electrical components of the belt head 

ot the No. 713-C belt conveyor. Additionally, loose coal and ccal 

dust existed along the belt line from the belt head to the tailpiece 

in depths of from 0 to 17 inches for a distance of 1,500 feet. Most 

of the accumulations were either under the belt c~nveyor or in close 

proximity to the belt (Tr. 155-156). While electrical wires supplied 

power to the belt drive, the inspector saw no bare wires which cn'ated 

an explosion hazard. The Paragon Hine releases methane, but the inspector did not think methane would be likely to accumulate in the belt 

entry. For the foregoing reasons, the violation was only moderately 

serious. Respondent was negligent for permitting the accumulations 

to occur (Tr, 155-159; 164). 

Discussion. The assistant superintendent of respondent's Paragon 

Mine testT{1e-d-that resp•.1ndent lws u belt ex.:i~iner who checks the condition of the conv(:~ym: belts in the Paragon Hine on each shift. Hi:~ 

stated that the belt examiner 1 s book chowed that the No. 713-C belt 

conveyor was okay on April 11. The next entry for Apri 1 12 stated 11 [ n] eeds watet· fixed on head 11 • The suosequent entry for .Apri 1 13 

stated "713-C needs spot cleaned 11 • The entry for the cby the instant 

order was written stated "713-B .:md C belts need cleaned, needs 

rollers''• The assistant superintendent stated that the belt was not 

cleaned ori April 13 after the belt examiner had indicated thst the 

belt conveyor needed to be "spot cleaned11 • The inspector testified 

that no cle~ning was being done along the belt at the time he wrote 

his order on April 14 at 11:22 a.m. (Tr. 157)·~ In such circumstanc2s, 

the preponderance of the evidencJ shows that reipondent knew about 

the accmnulet.ions befon:: they were cited in the inspect''J" 1 s order, 

but respondent was taking no steps to cleaT.l. up the loos:· coal and 

coal dust et the time the accumulations were first observed by the 

inspector. Therefore, I find that the violation of section 75.400 

was proved under the former Board's opinion in Old Ben Coal Co., 

8 IBHA 98 ( 1977), which "has previously been dis-cussed in thT;-

decision. 

Conclusions. Since the vi6letion of section 75.400 was only 

moderately cerious and since the combustibles had not been accumulating for a very long period before they were cited by "the inspector, a pen~lty of $400 will be assessed. 

Exhibit G-2 indicates that 65 prior violations of section 75.400 

have.occurred at respondent's Paragon Mine- In 1970 and in every year 

117 
thereafter, there have been at least four violations of section 

75.400 at the Paragon Mine. ·A total of 16 violations occurred in 

1976 and five violations of section 75.400 had occurred in 1977 at 

the Paragon Mine by April 14, 1977. Respondent has not exercised a 

sufficient effort to reduce accumulations of combustible materials at 

the Paragon Mine. Therefore, the penalty of $400 will be increased by 

$500 to $900 because of respondent's unfavorable history of previous 

violations. 

Docket N~! HOPE 78-565-~ (Paragon Mine) 

Order No. 1 RM (7-46) 5/1+/77 § 75.400 (Exhibit G-18) 

Findings. Respondent again violated section 75.4-00 on May 4, 

1977, or just 2 weeks after the preceding order citing a violation 

of section 75.400 was written. This time loose coal, coal dust, and 

float coal dust existed along the No. 697-A conveyor belt for a distance of 4,000 feet~ The accumulations ranged from 0 to 16 inches 

in depth and were effectively continuous. The accumulations were 

deepest· on both side~; of the teilpiece, but float coa.l dust existed 

for the entire 4,000-foot length of the conveyor belt. Although the 

existence of the accumulations had been recorded in the preshift 

examination book, the inspector saw no cleaning alring the belt. at 

the time he issued his order. The violation was moderately serious 

because no ignition sources were observed by the inspector. Respondent was negligent in perwitti11g the accumulations to occur (Tr. lD0-

187). 

Conclusions. Since the accumulations were reported by the preshift-exa-;;iner a.nd no steps were being taken to clean up the accumulations at the tim~ the ord~r was written> I tonclude that respondent 

·was permitting the accumulatio11s to occur and that a violation of 

section 75.400 was therefore proven under the former Bo~rd's opinion 

in Old Ben Coal C~_.:_, 8 IBHA 93 ( 1977), supra. 

Although the inspector saw no active ignition sources with 

respect to either the preceding violation of section 75.400 or this 

violation of that section, the inspector said that he would classify 

the violation citad on May 4 as more serious than the one cited on 

April 14 because the violation of May 4 .involved an expanse of loose 

coal, ccal dust, and float coal dust which was 2,500 feet longer than 

the accumulations observed on April 14. I agree with the inspector · 

that the violation observed on May 4 was potentially more serious 

than the one observed on April 14~ The penalty for the violation of 

May 4 should, therefore, be greater than the penalty previously 

assessed for the violation of April 14. Consequently, a penalty of 

$800 will be assessed for this violation of section 75~400~ 

Exhibit G-2, as indicated above, shows that 65 pridr violations· 

of section 75~400 have occurred at respondent's Paragon Mine~ The 

118 
preceding violation of section 75 .. 400 which occurred on April 14 

raises to six the number of violations of section 75.400 which had 

occurred in 1977 at the Patagon Mine by April 14, 1977. In view of 

respondent's unfavorable history of previous violations, the penalty 

of $800 will be increased by $550 to $1,350. 

bocket No. HOPE 78-565-P (Paragon Mine) 

Order No. 1 RP (7-62) 4/14/77 § 75.200 (Exhibit G-19) 

Findings. Section 75.200 requires each operator of a coal mine 

to submit a roof-control plan suitable to the roof conditions and 

mining system of each coal mine. Respondent's roof-control plan provided that the width of the entries should not exceed 20 feet where 

roof bolts are the sole means of roof support. Respondent violated 

section 75.200 because the Nos,. 2, 3, 4, 5, ·and 6 entries in the 

No. 2 Section were up to 23 feet wide for a distance of 60 .feet inby 

the last open crosscut.. The entries were up to 3 feet wider than the 

20-foot width permitt<~d by the roof-control plan. Wide entrie.s nnr-· 

row the si~e of the pillars left for supporting the roof and increase 

the stress on the roof span. Although the inspector did not detect 

any actual loose roof, he said that 80 to 85 percent of the fatalities 

which occurred in underground coal mines in 1974 and 1976 result1o~d 

from failure of operators to comply with their roof-control plansw 

The potential for a roof fall made the viblation serious. Respondent 

was grossly negligent for allowing the widths to be driven excessively 

wide for a distance of 60 feet because 2 or 3 days would be required 

for the miners to advance 60 feet ~fuile continuously cutting the 

entries excessively wide (Tr. 195-205). 

Disc~ssion. Respondent's assistant superintendent testified that 

because of illness, vacations, etc., respondent had a shortage bf section foremen at the time Order No. 1 RP was written and that it had 

been necessary to use a section foreman from anoth2r mine. The substitute section foreman was inexperienced in supervising a section 

in wh:j_ch a continuous mining machine was used (Tr. 210). The assistant superintendent conceded, however, during cross-examination that 

the excessive widths occurred over a period of several days and that 

during part -0f that time, an experienced section foreman was also 

driving the entries excessively wi<le (Tr. 213). The assistant mine 

superintendent said there was no way to know which foreman had driven 

which parts of the entries and he concluded that both of them were 

probably driving the entries wider than they should have been driven~ 

The inspector said that it was a section foreman's duty to note 

when excessive widths were being driven and that he should have been 

able to narrow the cuts back to the proper width (Tr. 207). Additionally, since the roof bolter had begun to install five rows of bolts 

to compens~te for the excessive width, the section foremen should 

have noticed the extra row of roof bolts and should have narrowed 

119 
the entries so that the extra row of roof bolts would not have·been 

necessary. Moreover, the section foremen should have recogniied the 

excessive widths and should have installed timbers or cribs in order 

to give the roof increased support (Tr. 205). 

Respondent's assistant mine superintendent also testified that 

after the inspector cited the excessive widths, respondent had its 

engineers measure the entries cited in the inspector's order. The 

engineers measured the entries at lO~foot intervals and found the 

widths of the entriec to be as follows: No. 2 entry ranged from 

17.95 to 21.70 feet and averaged 20.33 feet. No. 3 entry ranged 

from 19.70 to 22.20 feet and averaged 20.82 feet. No. 4 entry 

ranged fro;n 21.5 to 23 feet and ave1:age.d 22 .25 feet. No. 5 entry 

ranged from 19.70 to 22.50 feet and averag~d 20.74 feet. No. 6 

entry ranged from 20.75 to 23.20 feet and avera.gc~d 2L.71 feet (Tr. 

212). The engineers' meacurenents support the inspector's order by 

showing that all the entries cited in the inspector's order were 

excessively wide in some places. The No. 4 entry was especially 

wide since it averaged 2.25 feet in excess of the 20-foot width 

require<l by respondent's roof-control plan~ 

Concl11sio,rn,. As the inspector's testimoc1y shows, it is extremely 

import:&-;:;f-ti~;·[:-o.peraton; cn.r.efu J ly adhere to their roof-control plans. 

Although the evidence fails to show th2t roof conditions were frsgile 

in the No. 2 Section, it is essential that miners be given as much 

protertion against potenti~l roof falls as possible. Since the violation was serious and respcndent was Brossly negligent for allowing 

the entries to be driven wide for several days, a penalty of $2,000 

will be assessed for this violation of section 75.200. 

Exhibit G-2 indicates that 53 prior violations of section 75,200 

have occurred at respondent's Paragon Mine. There were 10 violations 

in 1975 and eight violations in 1976. Only one violation had occurred 

in 1977 prior to April 14, 1977, the date of the instant violation. 

The evidence, therefore, shows that respondent has made an effort to 

reduce the number of violations of section 75.200 which have been 

occurring at its Paragon Mine. Therefore, the penalty of $2,000 will 

be increased by only $100 to $2,100 because of the improving trend in 

frequency of violations of section 75,200 at respondent's Paragon Mine. 

Docket No. HOPE 78-566-P (Paragon Mine)· 

Order No. 1 EW (7-129) 9/20/77 § 75.517 (Exhibit G-15) 

Findinos. Exce~t for certain wires not here relevant, section 

75.5llprovides that power wires and cables shall be insulated adequately and be fully protected. Respondent violated section 75.517 

because the trdiling cable to the continuous mining machine in the 

No. 2 Unit contained six places in the outer jacket with insufficient 

I 120 
insulation. Bare wires for a distance of 1 inch were exposed at three 

of the locations and the mine floor was wetw The continuous mining 

machine was not operating at the time the six inadequately insulated 

places were observed, but the m~chine had been operating on the previous shift. When the machine did operate, the trailing cable conducted 440 volts of alternating current. The six inadequately 

insulated places began at a point 30 feet outby the continuous mining machine and ended at a point 50 feet outby the machine. A defect 

in a trailing cable no larger than a pinhole is a sufficiently large 

opening to cause electrocution if a cable is touched where the hole 

exists. The violation was very serious (Tr. 117-121). 

The inspector had examined the No. 2 Se_ction. on September 16, 

1977, or 4 days prior to the day he wrote Order No. 1 EW here 

involved. During the previous inspection, he had observed the 

inadequate insulation but he did not then inspect the Lrailing 

cable because the continuous mining machine was out of service and 

was being repaired. The inspector, however, advised the section 

foreman, and both the assistant mine superintendent and the mine 

superintendent that the trailing cable to the continuous mining 

machine needed repairs and that he would inspect the trailing cable 

at a later date (Tr. 125; 130)w 

After the inspector had told them about th6 inadequate insulation 

on the trailing cllble on September 16, the assistant mine supe1·inten--

dent called the supply house and ordered the snpply house personnel 

to send to the mine the m~terials needed to repair the cable. The 

chief el.ectrician told the electrician on the night shift to rn~ke the 

requin'd repairs. The chief electrician then entered in the electrical book provided for recording examinations of electrical equipment 

that the rep~irs had been wade. After the inspector issued his order 

on September 20, 1977, citing the six defective plE'ces in the trailing 

cable, the assistant mjne superintendent again asked the chief electrician about the repairs ~1ich were supposed to have been made on 

September 16, and the chief electrician insisted that the repairs 

had been made on Septemb.:r 16. Therefore, the assistant mine superintendent testified that he had to assume that the repairs were made 

on September 16 and that additional defective places appeared in the 

cc:1ble between the :i.1spector' s cursory ex.cnnination on September 16 

and his c<:lreful inspection on September 20 when the order citing 

the inadequate insulation was issued (Tr~ 130-138). 

No one doubted the inspector 1 s finding that six inadequately 

insulated places were observed in the trailing cable on September 20 

(Tr. 135). The inspector presented rebuttal testimony in which he 

stated that he believed that the six inadequately insulated places he 

observed on September 20 were the same defective places which he saw 

in the cable on September 16, but he conceded that he did not observe 

the cable continually between September 16 and September 20 and could 

121 
not, therefore, state with certainty that no repair work had been performed on the cable between September 16 and September 20 (Tr~ 143; 

147-148). Respondent was negligent for failing to make certain that 

the defective places in the trailing cable were repaired (Tr. 143; 

147-148). 

Discussion.- The entry made by the chief electrician in the electrical examinution b0ok was "[r)etaped bad splices in cable, Number 22 

miner'' (Tr. 132). That entry supports a conclusion that the chief 

electrician may have misunderstood what type of defects the inspector wanted corrected because no "bad splices" were involved, There 

had been no severed wires which would have required the making of 

splices~ The bare conductors observed by the inspector were places 

where the insulation had been damaged so as to expose conductors, 

That type of defective insulation can be repaired simply by covering 

the defective places with proper tap1! so as to restore the insulBtion 

and prevent possible shock (Tr. 149-150). The assistant mine superintendent was definitely under the iMpression that permanent splicing 

materials would be required to repair the trcd ling cable because the 

materialu which he ordered the Eupply depart~ent to send to the mine 

were materials for making permaaent splices (Tr. 142). 

There is every reGnon to believe that the defective insul~tion 

reported to rnannf,eme;1t on se·ptembcr 16 was not repa.ired befo:re 

September 20 simply because the a8sist~nt mine superintBndent and 

mine supei;' .i.nt·~ndent misvudersto<Jcl the type of defect which the 

inspecl0l7 \-Wnted corrected. Therefore, the electricinn who m<Jde thc-• 

actual repairs could eaRily have retaped permanent splices in the 

trailing cable without realizing what he was supposed to be looking 

only for deft!ctive insulation at places where no splices weP~ needed. 

Despit;;.~ the confusion about 1·;hat the inspt~ctor actu.o.Uy told 

management O'J Septemb.::r 16, the fact remains that extremely dangerc.us 

bare con·:luctors were exposed in the trailing cable at a point which was 

no more tlwn 50 feet cut by the continuous mining machine. The mnchi.ne 

was out of service for repairs on Sept~mber 16. the section foreman 

knew that the inspect~r had s~~n so~e defects in the trailing cable. 

The least he could have done between September J.6 and September 20 

would have been to have examined th~ trailing cable so as to make 

sure that it was properly insulated from one end to the other. The 

gravity of existence of bare conductors in a 440-volt trailing cable 

ia a wet section is so great that no section foreman or chief electrician should have left any doubt as to whether such bare conductors 

had been located and fully reinsulated as req1!ired by section 75 ~517. 

Conclusions. Respondent's witness did not dispute the fact that 

bare conductors in a trailing cable expose miner~ to possible electrocution, particularly ~;hen it is considered that the mine was wet in 

the area where the continuous mining machine was being .operated¥ 

There was at least ordinary negligence by management in not having 

122 
made sure that the trailing cable was adequately.insulated between 

the inspector's informal warning given on September 16 and his offi-

. cial inspection raade on September 20. In any event, the. extreme 

·gravity of the violation warrants assessment of a penalty of $4,000 

(Tr. 121-124). 

Exhibit G-2 indicates that there have been 11 prior violations of 

section 75~517 at respondent's Paragon Mine. One violation occurred 

in 1970 and none occurred in 1971 or 1972. In all other years between 

1970 and 1977 one violation occurred except for the years 1973 and 

1976 when three and fot1r violations, respectively, occurred. In 1977 

one violation hti<l occurred prior to September 20, 1977, when the 

instant violation occurred. The largest number of violations of section 75.517 occurred in 1976. Two had occurred by September 20, 1977, 

and that is a poorer record of compljance than the Paragon Mine has 

achieved for S other years prior to 1976. In such circumstances, the 

penalty of $4,000 will be increased by $200 to $4,200 under the criterion of respondent's history of previous violations. 

Suwnary of ~~seasments and Conclusions 

(1) On the basis of all the evidence of record and the foregoing findings of f~ct, reGpondent is assessed the following civil 

penalties: 

Dock~t No. llOPE 78-315-P (No, 4-H UC Mine) ------------·-------·------·--··-·--... --

Notice No. 1 DTH (6-39) 11/30/76 § 75.400 ••••HW>•••• $ 550.00 

Total Assessments in Docket No. HOPE 78-315-P ••• $ 550.00 

Docket No. HOPE 78-559-P (N'J,· 4-H UG Mine) -------·-·--------

Notice No. 1 JCH (7-7) 5/13/77 § 75.1103-4 ~ •••••••••• $ 1,000.00 

Total Assessm8nts in DockHt No. HOPE 78-559-P ... $ 1,000.00 

DocJ(et No. HOPE 78-560·-P (No. 4-tl UG Hine) 

Order No. 1 DPC (7-35) 8/4/77 ~ 75.200 •••••·••••••••• $ 4,400.00 

Total Assessments in Docket No. HOPE 78-560-P 

Docket No. HOPE 78-561-P (~o. 4-H UG Min~) 

Order No. 1 JCH 0-.8) 5/13/77 § 75.400 ............... $ 950.(10 

Total Assessments in Docket No. HOPE 78-561-P ••• $ 950.00 

123 
Docket No. HOPE 78-316-P (No. 5.Mine) 

Order No .. 1 RAN (6-77) 11/30/76 § 75.302-1 uu.-. .... $ 2~025.00 

Total Assessments in Docket No. HOPE 78~316-P ••• $ 2,025.00 

Docket No. HOPE 78-317-P (No. 5 Mine) 

Notice No. 1 RAN (6-76) 11/30/76 § 75.402 ..,.,.•n••.,.n $ 2,000,00 

Total Assessments in Docket No. HOPE 78-317-P ••• $ 2,000.00 

Docket No. HOPE 78-562-P (MacGregor No .. 7 UG Mine) 

Order No-. 1 SWG (7-88) 11/4/77 § 75.400 ••••••n••n•• $ 2,500.00 

Order No. 1 SWG (7-102) 11/9/77 § 75.514 ••••••••••••• 

Order No. 1 RJW (7-103) 11/11/77 § 75.518 •••••••••••• 

Order No. 2 RJW (7-104) llill/77 § 75.518 

6,050.00 

1,500.00 

1,500.00 

Total Assessments in Docket No. HOPE 78-562-P ... $11",550,00 

Docket No. HOPE 78-563-·P (Mac~regor No-. 7 UG Mine) 

Notice No. 3 OEB (7-13) 9/16/77 § 75.604 

Total Assessments in Docket No. HOPE 78-563-P ••• $ 2,050.00 

Docket No. HOPE 78-564-P (MacGregor No. 9 Mine) 

Notice No. 3 BRS (7-32) 9/22/77 § 75.514 

Total Assessments in Docket No~ HOPE 78-564-P 

Docket No. HOPE 78-565-P (Paragon Mine) 

$ 2,0Z?~OO 

$ 2,025.00 

Order No. 1 RH (7-46) 5/4/77 § 75 .. 400 ...... u.n•H••• $ 1,350.00 

Order No. 1 RM (7-56) 4il4/77 § 75.400 ·••••••n·•••H•• 900.00 

Order No. 1 RP (7-62) 4/14/77 § 75.200 

Total Assessments in Docket No. HOPE 78-565-P w•¥ 

124 

2,100.00 

$ 4,350.00 
Docket No~ HOPE 78-566-P (Paragon Mine) 

Order No~ 1 EW (7~129) 9/20/77 § 75.517 •••••••••••••• $ 4,200.00 

Total Assessments in Docket No. HOPE 78-566-P ••• $ 4,200.00 

Total Assessments in This Proceeding $35,100.00 

(2) MSHA's Petition for Assessment of Civil Penalty filed in 

Docket No .. HOPE 78-415-P should be dismissed for failure of MSHA t_o 

prove that a violation of s~ction 77.205(a) existed as alleged in 

Notice No. 1 NK (7-5) dated April 7, 1977. 

(3) Respondent at all pertinent times was the operator of the 

Amherst No. L~-·H UG Mine, the Amherst No .. 5 Mine, the MacGregor Prep.'.lration Plaht, the MacGregor No. 7 UG Mine, the MacGregor No. 9 Mine, and 

the Paragon Mine and as such is subject to the provisions of the Act 

and to the health and safety standards promulgated thereunder. 

WHEREFORE,.it is ordered: 

(A) Amherst Co,·:l Company is assessed civil penalties tctaling 

$35,100.00 which it shall p::!y within 30 de!ys froni the dc.\te of this 

decision. 

(B) The Pctitiaa for Assessment of Civil Penalty file<l in Docket 

No. HOPE 78-415-P is dismissed for the reason stated in paragrnph (2) 

above. 

/" .... , • :•; .-·) /) r (!. .. ;- /7 ,"' 

;.-:: ~:~. (' .. /'..::t .. -f ..l;" (_ ./. >'-::._; /}')'-'·'J·-

Ri ch n rd C~ Steffey " 

Administrative Law Judge 

Dit1tribution: 

Edward H. Fitch IV 1 Trial Attorney, Office af the Solicitor, 

U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, 

VA 22203 

Edward I. Eiland, Esq., Attorney for Amherst Coal Compan)', P.O. 

Box 899, Logan, WV 25601 (Certified Mail) 

125 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGIN IA 22203 

April 5, 1979 

JOSEPH D. CHRISTIAN, 

Applicant 

Application for Review 

v. Docket No. BARB 77-184 

SOUTH HOPKINS COAL COMPANY, South. Hopkins No. 2 Underground 

INC., • Mine 

Respondent 

DECISION 

Appearances: Philip G. Sunderland Esq., Washington, D. C., for 

Applicant; 

Carroll S. Franklin, Byron L. Hobgood, Esqs., 

Madisonville, Kentucky, for Respondent. 

Before: Administrative Law Judge Stewart 

FACTUAL AND PROCEDURAL BACKGROUND 

On February 16, 1977, Joseph Christian (Applicant) filed an. 

application for review of discriminatory discharge by South Hopkins 

Coal Company, Inc. 1his application sought relief under section 

llO(b) of the Federal Coal Mine Health and Safety Act of 1969 (hereinafter, the Act), 30 u.s.c. § 820(b). 1/ Service of this application was effected on March 9, 1977. Respondent submitted its answer, 

a plea of limitations, and a motion to dismiss on May 6, 1977. 

1/ Section llO(b) provides as follows: 11 (1) No person shall discharge or in any other way discriminate against or cause to be discharged or discriminated against 

any miner or any authorized representative of miners by reason of 

the fact that such miner or representative (a) has notified. the 

Secretary or his authorized representative of any alleged violation or danger, (b) has filed, instituted, or caused to be filed 

or instituted any proceeding under this Act, or (c) has testified 

or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this Act. 

"(2) Any miner or representative of miners who believes that 

he has been discharged or otherwise discriminated against by any 

person in violation of paragraph (1) of this subsection may, within 

thirty days after such violation occurs, apply to the Secretary for 

126 
On June 28, 1977, the application for review was dismissed pursuant to Respondent's plea of limitations. This order was reversed 

by the Board of Mine Operations Appeals in light of an intervening 

decision, Phil Baker v. The North American Coal Company, 8 IBMA 164 

( 1977), which held that the 30-day filing period in section llO(b) (2) 

is a statute of limitations, and not a jurisdictional prerequisite. 

The Board noted·that Respondent had raised the issue of late filing 

in a timely fashion and remanded the case for determination whether 

Applicant had overcome this affirmative defense. 

A hearing on the merits was conducted on March 1 and 2, 1978, and 

again on April 26, 1978. A total of 11 witnesses were called. Applicant introduced four exhibits and Respondent introduced 12. Applicant 

filed a posthearing brief on July 3, 1978. Respondent's plea of limitations and posthearing brief were filed on August 7, 1978. Applicant's final posthearing brief and reply to Respondent's plea of 

fn. 1 (continued) 

a review of such. alleged discharge or discrimination. A copy of 

the application shall be sent to such person who shall be the 

respondent. Upon receipt of such application, the Secretary shall 

cause such investigation to be made, as he deems appropriate. Such 

investigation shall provide an opportunity for a public hearing at 

the request of any party to enable the parties to present information relating to such violation. The parties shall be given written 

notice of the time and place of the hearing at least five days prior 

to the hearing. Any such hearing shall be of record and shall be 

subject to section 554 of title 5 of the United States Code. Upon 

receiving the report of such investigation, the Secretary shall 

make findings of fact. If he finds that such violation did occur, 

he shall issue a decision, incorporating an order therein, requiring 

the person coIIDI1itting such violation to take such .affirmative action 

to abate the violation as the Secretary deems appropriate, including, 

but not limited to, the rehiring or reinstatement of the miner or 

representative of miners to his former position with back pay. If 

he finds tL.:1t there was no such violation, he shall issue an order 

denying t\ npplication. Such order shall incorporate the Secretary's fi '.gs therein. Any order issued by the Secretary under 

this pan;,.· ph shall be subject to judicial review in accordance 

with section 106 of this Act. Violations by any person of paragraph (1) of this subsection shall be subject to the provisions 

of sections 108 and 109(a) of this title. 

"(3) Whenever an order is issued under this subsection, at 

the request of the applicant, a sum equal to the aggregate amount 

of all costs and expenses (including the attorney's fees) as determined by the Secretary to. have been reasonably incurred by the 

applicant for, or in connection with, the institution and prosecution of such proceedings, shall be assessed against the person 

committing such violation. 11 

127 
limitations was filed on August 21, 1978. 1be request for an opportunity .to present additional oral arguments contained therein was 

denied. Applicant filed a supplemental memorandum regarding relief 

on January 5, 1979. The request contained therein, that Applicant be 

permitted to file documentation of costs and expenses after the issuance of a decision, was denied. On January 19, 1979, Respondent submitted its memorandum concerning relief. Applicant submitted what was 

to be its final memorandum on relief on February 5, 1979. Because 

this memorandum contained a great deal of information relating to fees 

and expenses which was seen by Respondent for the first time, Respondent was given the opportunity to submit an additional memorandum on 

relief. This memorandum was filed on March 14, 1979. Applicant submitted a final reply brief on March 23, 1979. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Joseph Christian was discharged from his employment at South 

Hopkins No. 2 Underground Mine at approximately 8:30 a.m. on 

November 11, 1976, at the completion of the third shift •. He was 

first employed at the No. 2 Mine in August of 1975 as a bratticeman. 

Early in the summer of 1976, Applicant began working as a greaser. 

During his tenure as a greaser, Applicant had three supervisors. His 

final supervisor, Paul Long, was his superior for approximately. 

3 months, from mid-September of 1976 until his employment was terminated in November. At that time, Long was the foreman in charge of 

maintenance employees. 

At the start of the third shift on November 10-11, Christian was 

assigned by Long to hang telephone line along 5,000 feet of the main 

west belt line. Christian was to start at the '

1

bottom,' 1 proceed up 

through the "high place, 11 down the west supply road to the second 

crosscut and through a brattice to the main west belt line (Applicant1 s Exh. No. 1). He was to proceed from there down the main west 

belt line to the face areas. 1be line was to be taken off 500-foot 

reels and spliced into telephones at various places along the route. 

Upon receiving his assignment from Long, Christian immediately 

objected, telling Mr. Long that he did not want to work by himself in 

certain areas through which the phone cable was to be strung because 

he felt they contained dangerously bad roof conditions. He stated 

that he was especially concerned with an area of roof located along 

the main west belt line one crosscut west of the north belt (hereinafter, area #5. See area marked #5 on Applicant's Exhibit No. 1), as 

well as several other unspecified areas down the main west line. 

Long replied that the stringing of telephone line was the only job he 

had for Christian to do and that he did not have anyone to send with 

Christian. Long also stated that he did not think that the top complained of was bad and that the area was better protected than anywhere else in the mine. In hopes of convincing Christian that the 

top was safe, Long called James Gardner, the third shift mine foreman 

128 
at the No. 2 Mine, to obtain a second opinion •. Gardner told Christian 

that the roof in the belt line area was not particularly unsafe. He 

told Christian, however, that he would send another man down to him 

later, if one could be spared. Christian then told Long that he 

~ould work in the area rather than lose his job. 

Long testified that he would not have fired Christian for the 

refusal to work~ but that he had no other work for him to do that 

shift. If Mr. Christian had persisted at the beginning of the shift 

in refusing to carry out his assigned task, he would have been sent 

home, thereby losing a day's wages. 

Long also testified that it was unusual for him to fire a man 

for doing less than was expected. He had fired three men other than 

Christian. Only one of these three was discharged for failure to do 

his job. 

Long expected Christian to string between 2,000 and 2,500 feet 

of line. In his estimation, Christian had 5 or 6 hours in which to 

accomplish his task. He felt that hanging line in the bottom and in 

the high place would not be more difficult or time-consuming than 

doing so along the belt. Along the belt line, the telephone line 

would be suspended with tape from a nail driven into a prop. In the 

area from the bottom up through the brattice where props were not 

continuous, the line could be suspended from roof bolts. 

The usual route for miners into the west section of the mine was 

the supply road, not the belt line. The belt line was regularly 

traveled by beltmen and rock dusters, who worked in groups of two or 

three •. In addition, the belt was inspected by a foreman every shift. 

Neither Long nor Gardner examined the roof along the main west 

belt line, or, more specifically, in area #5 immediately before 

assuring Christian that it was safe. Both wer~ familiar with its 

condition. Long estimated that he was on the belt line every other 

shift. Gardner testified that he was in area #5 on a daily basis. 

On the other hand, Applicant had been in the main west belt area only 

once, and that several months earlier in the summer of 1976. 

Long did examine the area in which Christian refused to work 

later on in the shift. He did so before Christian arrived there 

and satisfied himself that the roof was safe. He did not inform 

Christian that he had done so. 

Before he proceeded to work, Christian was told by Long to help 

Richard Ford with the repair of a pinner. When Ford finished this 

repair work, he was to help Christian string cable. Long told both 

Ford and Christian that Christian was to help only with the installation of the hydraulic jack on the pinner. This ·particular repair 

129 
·could be quickly done and it was the only part of the job that 

required two men. Christian understood that he was to help Ford on 

the pinner and Ford was to help him string cable. 

Christian began loading cable onto the supply car for transportation into the mine approximately 1 hour and 30 minutes after 

receiving his assignment. At the beginning of the shift, this supply 

car is used to bring rock dust and maintenance equipment into the 

mine. Long testified that ordinarily the transportation of these 

supplies took no more than 30 minutes. However, he did not know 

whether the supply car was actually in use for 2 hours that shift 

and he had no reason to believe that Christian was delaying during 

this time. Christian performed no work while he was waiting. 

After transporting 12 spools of cable into the mine, Christian 

transferred them to a personnel carrier and took them to an area 

three crosscuts inby the north belt line just off the west supply 

road (Applicant's Exh. No. 6; area marked 3a). He proceeded back to 

the high place looking for Richard Ford to help him repair the pinner. Since Ford was not there, Christian continued on to the bottom 

and started hanging line by himself. Christian estimated that he 

began stringing cable at approximnately 2 o'clock in the morning. He 

strung cable from the bottom until he reached the high place at 2: 30 

or 3 a.m. He met Richard Ford there and helped him work on a pinner 

until 3:30 or 3:45 a.m. At that time, Don McGeehan, a third shift 

welder, called the bottom and requested that somebody bring supplies 

and equipment which he needed at the west end of the mine. Christian 

loaded the material on the personnel carrier and transported it as 

requested. He covered the three-quarters of a mile between the high 

place and the west .end of the mine in 20 minutes, helped unload the 

carrier and, upon request, agreed to.assist McGeehan tack a brace 

onto the back end of the feeder. Christian arrived back at the high 

place at 4:30 or 4:45. He and Ford continued to work on the pinner 

until 5 o'clock when they broke for supper. Supper break lasted 

until 5:30. 

When Mr. Ford and the Applicant had nearly completed their 

supper, another miner, Earl Massey, arrived at the high place. He 

told the Applicant that he was supposed to help him string the phone 

cable. After the Applicant finished his supper, he and Massey 

decided to use the personnel carrier, which Massey then had with him, 

to transfer to the first crosscut inby the North belt some of the 

spools which had been stored by the Applicant earlier in the third 

crosscut. However, Mr. Massey told the Applicant that first he had 

to go to the west end of the mine to do an errand. Since they had 

decided to transfer the spools with the personnel carrier which 

Mr. Massey was to use to get to the west end of the mine, the Applicant decided to wait until Mr. Massey returned. Applicant was not 

sure how long Mr. Massey would be gone, but he did not think it would 

be long. Mr. Massey carried him to the place where the spools had 

130 
been stored and Applicant then waited for him to return. Mr. Massey 

left to do his errand at about 5:45 and returned at approximately 

6:15. During this half-hour period, Paul Lo~g saw the applicant 

sitting on the spools of cable. Mr. Long asked him ·what he was doing 

and Applicant replied that he was waiting for Mr. Massey to return 

from the west part of the mine. Mr. Long said nothing further and 

went on his way. 

When Mr. Massey returned about 6:15, he and the Applicant 

dropped their previous decision to transfer the spools and decided to 

hang additional phone line instead. They therefore returned to the 

point near the high place up to which the cable had already been ·hung 

and began hanging more line. They took the line through the high 

place, down the west supply road, under the north belt, and up to the 

first crosscut where they spliced it to an existing phone. They then 

continued with the line to the brattice that lay in the crosscut. 

They arrived at the brattice about 7:10. At that time, miners on the 

first shift had started to arrive in the first crosscut. The Applicant spent a few minutes talking with some of those miners and then, 

around 7:20, proceeded to leave the mine. Cable had been strung up 

to, but not intot the area of the mine which Applicant had told 

Paul Long at the start of the shift that he did not want to work in 

alone. 

After leaving the mine on the morning of November 11, 1976, 

Applicant went to the bathhouse to take a shower. Another miner, 

David Cotton, approached him in the bathhouse and asked him where he 

had stored the spools of phone cable. The Applicant told him where 

the spools had been stored.· He also told Cotton that he thought the 

top was bad in the area in which the cable was to be strung and that 

he did not think that he, Cotton, should work in that area alone. He 

also stated that he would not work in that area by himself because he 

considered the top to be bad. Mr. Cotton subsequently expressed 

fears about the top to Mr. Long. 

After the Applicant had finished his shower, Paul Long came into 

the bathhouse. He asked the Applicant whether he had told Cotton that 

he would not work untler bad top by himself. Applicant admitted that 

he had told Cotton that he had done so. Mr. Long testified that he 

then asked the Applicant why he had not hung more cable during the 

just-completed shift. According to Mr. Long, the Applicant said it 

was because he did not want to work in the west belt entry by himself 

since he felt it was dangerous due to the bad top. Mr. Long then 

told the Applicant that he was fired. 

Immediately after being discharged by Paul Long, the Applicant 

attempted to talk to Alton Taylor, the mine superintendent. He 

believed that once Mr. Taylor heard that Mr. Long had fired him for 

making a complaint about and expressing reluctance to work under 

unsafe conditions, he would assign him to another job. Applicant 

131 
could not reach Mr. Taylor at the mine on the morning of November 11. 

He eventually talked.to Mr. Taylor over the phone during the evening 

of November 11. Mr. Taylor, however, refused to rehire Christian and 

said that if Paul Long could not use him, neither could he. 

Christian did not attempt to contact the Mining Enforcement and 

Safety Administration (MESA) office in Madisonville, Kentucky, until 

the following Monday, 4 days after his discharge. He did not go a 

mile out of his way to stop at the MESA office on his way home 

Thursday, because he assumed that he would be rehired that night by 

Alton. Christian testified that he did not go on Friday because he 

was shaken up at being fired, nor on the weekend because he assumed 

the office would be closed. 

When Christian arrived at the MESA office on Monday, he spoke 

with a Federal mine inspector. He told the inspector about the roof 

conditions at the South Hopkins Mine that he considered to be dangerous and he discussed his discharge. He was informed by the inspector 

that MESA was not involved with discharges or other personnel actions 

taken by coal companies. He also made fruitless inquiries at the 

Kentucky Department of Labor. 

The roof along the main west belt line has more support than 

other areas of the mine. Roof bolts and props are used along its 

entire length. Crossbars are used in those areas with particularly 

bad roof. The props were boards which were 60 inches long, 6 inches 

wide, and 2 inches thick. Wedges are hammered in at the top and 

bottom to bring the prop into contact with the roof. There are three 

rows of props along the belt line. One row of props is situated 

along the northern rib. Two more rows run down the center of the 

entry, 4 feet apart. 'lllroughout most of the mine, props are set on 

5- to 6-foot centers. Belt-line props, however, are set on 3-foot 

centers. 

The crossbars were 20-foot long, 8- by 12-inch bars which were 

placed across the top and supported by props. The number and closeness of crossbars is related to the quality of the roof. 'llley are 

installed at odd intervals along the belt line. 

The roof along the main west belt line is comprised of shale. 

This shale runs in a north-south direction. Any falls in this area 

would run crosswise, rather than lengthwise. In addition, the roof 

is very rough. Cracks can exist in this roof up to a depth of 

one-fourth inch without it being considered bad. 

Applicant was particularly concerned with the roof in area #5, 

just beyond the brattice into the belt line entry. 'Ille roof in this 

area was rough, containing cracks up to an inch in depth. When 

tested, it was found to be drummy. It was warped and sagging. Roof 

pressure was great enough to damage prop wedges. The roof was broken 

132 
along both ribs for a distance of 50 feet, beginning approximately 

5 feet outby the crosscut which contained the brattice. Small pieces 

of roof had fallen from time to time. The area was roof bolted and 

contained 10 to 16 props. 

There were no major roof falls along the main west belt line as 

of Ap'plicant' s discharge. A minor fall did occur in August of 1977, 

approximately eight to 10 crosscuts inby area #5. This fall forced a 

2-hour shutdown of the belt line. Major falls had occurred prior to 

November of 1976 in the north belt line. The area affected extended 

200 to 300 feet up from a point 60 feet above the intersection of the 

west and north belts. The north sections had been sealed off and 

were no longer active at the time Christian was discharged. 

South Hopkins was a nonunion mine. Christian was· not working 

pursuant to a written contract. There was no organization at the 

mine that represented or otherwise acted on behalf of the miners, and 

there was no formal grievance procedure in effect for handling safety 

reports or disputes at the No. 2 Mine in November of 1976. The document entitled "South Hopkins Coal Company Health and Safety Policy" 

(Respondent's Exh. No. 7), which was issued in the summer of 1976 and 

purported to reflect the company's safety policy, indicated that .the 

president and safety director had responsibility.over safety-related 

matters. It did not establish a formal mechanism for the reporting 

of safety violations or dangerous conditions. John Campbell, the 

safety director at South Hopkins, testified that before contacting 

MESA, miners are expected to report safety problems to their immediate supervisors. Most questions of safety are resolved at this 

level. If a dispute were to arise and the miner did not receive satisfaction from his foreman, the miner would then contact Mr. Campbell. 

Mr. Campbell testified that he has never been confronted by a miner 

who disagreed with management at both levels. He believed that MESA 

had no role in the resolution of safety disputes until such an 

impasse was reached. None of the miners who testified at the hearing 

were aware of the procedure related by Mr. _Campbell. 

The safety record at the No. 2 Mine appears to be quite good. 

The rate of fatal and nonfatal injuries at this mine was appreciably 

lower than the industry as a whole in the last two quarters of 1976 

(Respondent's Exh. Nos. 8, 9). 

The consensus of those individuals who worked with Christian, 

both supervisors and fellow workers, was that he had a greater fear 

of the top than was common. Each of Christian's supervisors felt 

that his fear was unreasonable. Christian frequently commented on 

roof conditions. In one of these instances, Christian was asked to 

pass under top which had cracked overnight to retrieve a grease 

bucket. He refused to do so, and Long retrieved it himself. On 

another occasion, Christian was directed to retrieve cable from 

underneath bad top. He did so protestingly, but only because he was 

accompanied by another miner. 

133 
Marshall Lutz, a foreman on the second shift, was frequently 

asked by Christian to come and check the roof for him. Justice Uzzle, 

a timberer, testified that Christian complained abo_ut the roof more 

than anyone else and that these complaints about the roof were not 

always justified, however, he also testified that Christian's fear of 

the top was not unreasonable. Two other witnesses for the Applicant--

Oats and Littlepage--also testified that Christian's fear of the top 

was not unreasonable. 

The presence of a second miner can be of some value when working 

under bad top. If a miner is alone and is injured, he might wait 

several hours before help arrives. It is also useful to have one 

miner looking at and listening to the top. Before top falls, it may 

move slightly or make a popping noise, and most falls start with 

chipping of rock. The condition of the roof at the time of Applicant's discharge did not present an imminent danger nor constitute a 

violation of mandatory safety standards. 

Each of Christian's supervisors testified that he was a poor 

worker. Christian did what he was told and the quality of his work 

was good, but he worked very slowly. Marshall Lutz felt that 

Christian built brattices at about half the speed of his predecessor, 

a man who was 55 to 60 years of age. Christian had to be helped on 

occasion to catch up. Lutz testified that he had considered discharging Christian, but that he had not done so at the request of Alton 

Taylor, the mine foreman. Long stated that he talked to Christian a 

couple of times about failure to get work done. Both Long and Lutz 

thought that Christian's slowness was at least, in part, the result of 

fear of the top and laziness. Christian testified that he received 

only one adverse comment on his work while at South Hopkins; in particular, Paul Long never reprimanded him. Witnesses for the Applicant 

generally conceded that Christian was somewhat slow. Justice Uzzle 

qualified the observation of Christian's slowness by noting that he 

never saw him loafing on the job. 

Plea of Limitations 

Section 110(b)(2) of the Act requires that application to the 

Secretary for review of alleged discrimination be made within 30 days 

of the violation. 1his 30-day period is in the nature of a statute 

of limitations, rather than a jurisdictional requirement. Therefore, 

upon a showing of extenuating circumstances, it can be tolled or 

extended. Baker v. North American Coal Company, 8 IBMA 164 (1977). 

Applicant's failure to file within the sectiori llO(b) limitations period is justified by the circumstances in this ca-se. At the 

time of his discharge, he was not aware that he had any rights under 

the Act to challenge respondent's action. In addition, he was misled by a MESA inspector as to the existence of those rights. 

134 
Applicant approached two organizations which he believed would 

be able to inform him of his rights--the Mining Enforcement and 

Safety Administration (MESA) of the Department of the Interior and 

t~e Kentucky State Department of Labor. On Monday, November 14, 

1976, approximately 4 days after his discharge, he visited the MESA 

office in Madisonville, Kentucky, where he spoke with a MESA inspector. He explained to the inspector that he believed he had been 

discharged ·by the South Hopkins Coal Company because of his safetyrelated complaints. Applicant asked the MESA inspector whether he 

had any redress for his discharge under Federal law. The inspector 

stated that the MESA office did not become involved in discharges or 

other personnel actions taken by coal companies. He did not inform 

the Applicant of his right to seek a review of his discharge under 

section llO(b), but suggested that Applicant contact the Kentucky 

Department of Labor. 

On that same day, Applicant contacted by phone the Kentucky 

Department of Labor in Frankfort, Kentucky. After locating an individual who could respond to his questions, Applicant explained the 

circumstances of his discharge and asked whether he had any right to 

challenge Respondent's action. He was informed that the Kentucky 

Department of Labor had nothing to do with mining matters as they 

were solely within the jurisdiction of the Federal Government. 

Having exhausted the only sources of information he was aware of 

and not having been informed of any means to challenge Respondent's 

action, Applicant conclud_ed that he had no right or opportunity to 

redress his discharge. 

Applicant obtained construction work in December 1976. He 

gradually became friends with a co-worker, Bill Stevens, who l1ad previously been a miner at the Peabody Coal Company's Vogue Mine. In 

mid- to late January 1977, Applicant discussed his discharge with 

Mr. Stevens and expressed his frustration at the absence of a means 

for him to challenge it. Mr. Stevens informed him that a miner with 

whom he had previously worked at the Peabody Vogue Mine, Ernest 

Johnston, had challenged a similar adverse action by filing a complaint with the Department of the Interior. He suggested that the 

Applicant contact Mr. Johnston. 

In early February of 1977, the Applicant phoned Mr. Johnston and 

arranged to meet with him at his home. They met at Mr. Johnston's 

home on February 10. At that time, Mr. Johnston informed the Applicant of his right to file an application for review under section 

llO(b) and explained to him what information an application should 

contain and to whom it should be sent. Applicant personally pre:-

pared the application and filed it on February 16, 1977. 

It is clear that the Applicant did not 

the filing of thi's application for review. 

an extension of the 30-day period. 

135 

unnecessarily delay in 

'llle circumstances warrant 
'!he purpose of this 30-day limitation period is to prevent 

unfairness to coal operators by preventing the revival of old claims. 

There is no indication that Respondent has been prejudiced by the 

late filing of the application. Respondent's assertion that the 

application for review was not timely filed is rejected. 

Discriminatory Discharge 

The central issues presented herein are whether Christian engaged 

in protected activity and whether this activity was a motivating factor in the management's decision to discharge him. Section llO(b) 

of the Act, in pertinent part, provides a remedy for any discriminatory act against a miner by reason of the fact that such miner either 

(a) notified the Secretary or his authorized representative of any 

alleged violation or danger, or (b) filed, instituted, or caused to 

be filed or instituted, any proceedings under the Act. If he invoked 

, the protection of llO(b), and if his discharge was improperly motivated, Christian is entitled to reinstatement to his former position 

with back pay. 

In Phillips v. Interior Board of Mine Operations Aμpeals, 

500 F.2d 772 (D.C. Cir. 1974), the court held that a miner 1 s 

[N]otification to the foreman of possible dangers is an 

essential preliminary stage in both (A) the notification to 

the Secretary and (B) the institution of proceedings and 

consequently brings the act into play. 

Notification of a foreman does not automatically bring the miner 

under the protection of the Act. Examination in each instance must 

be made of "the overall remedial purpose of the statute; the practicalities of the situation * * * and particularly (of) the procedure implementing the statute actually in effect at the (mine)" 

in each instance. 

As noted above, notification of the foreman was recognized as 

the first step in the safety report or dispute procedure in effect at 

the No. 2 Mine. It was also the most practical means of registering 

a safety complaint in that mine at that time. Even though this safety 

complaint procedure was informal, Christian's initation of a complaint 

with Long was sufficient to bring the Act into play. 

In Baker v. U.S. Department of the Interior Board of Mine Operations Appeals, F.2d (D.C. 1978), the court held that '

1

a miner 

who makes a safety complaint is protected from employer retaliation 

whether or not the miner intended the complaint to reach federal officials at the time it was made." Whether Christian intended to notify 

Federal officials is, therefore, no longer an issue. 

136 
In Munsey v. Federal Mine Safety and Health Review Commission, 

F.2d (D.C. 1978), the court held ·that it was error to impose 

8"""g'Ood faith and not frivolous test for section llO(b) reports. In 

this case it is clear that Christian's complaint was not frivolous. 

The Act provides recourse for a miner who has been discharged 

by reason of the fact of his participation in protected activities. 

That is, the miner's participation in protected activity must be an 

underlying factor in the discharge. By ''underlying" is meant "the 

moving force but for which the discharge would not have occurred •11 

Shapiro v. Bishop Coal Company, 6 IBMA 28 at 59 (1976). 

The discharge by Paul Long was motivated by a combination of 

protected and unprotected activities on the Applicant's part. It is 

clear that the immediate precipitating factor was Christian's failure 

to complete his assigned task. However, the failure to do so was 

inextricably bound up with his refusal to work in certain areas along 

the main west belt line for what he perceived to be safety-related 

reasons. Foreman Long had been told by Christian that he did not 

complete his work because of his fear of the top. Long did not regard 

this as a legitimate fear, and, therefore, discharged Christian. 

Long had a number of grounds for refusing to accept Christian's 

excuse of fear of the top. Among these, were Christian's reputation 

for excessive fear of top, his substandard work and Long's personal 

examination of the top early in the shift. 

Most of those who testified at the meeting agreed that Christian 

was a poor worker. The quality of his work was up to par, but his 

speed was substandard. Prior to November 11, the day of the discharge, Long was dissatisfied with Christian's work. His observation of Christian on the day of discharge bore out this dissatisfaction. Not only did Christian string far less than was expected 

of him, but he was observed at one point lying atop the spools of 

cable. 

Long also believed that Christian had an excessive, unreasonable fear of top. He felt that this fear contributed in part to 

Christian's slowness. He suspected that Christian might be using 

his expressed fear of top as a cover for his slowness or laziness. 

Finally, Long gave little or no 

complaints on the day of discharge. 

at the beginning of the shift, and a 

area reinforced this belief. 

weight to Christian's safety 

He believed the top was safe 

personal examination of the 

Because of these considerations, Long failed to treat Christian 

as if·a legitimate safety dispute was at issue when, in fact, one was. 

'!his was evident not only in the discharge, but also in Long's earlier 

activities as well. When Christian complained at the beginning of 

137 
the shift that the roof was bad, Long properly sought the opinion of 

a more experienced foreman to alleviate Christian's fears. At the 

same time, however, he also stated that he had no other work for 

Christian to do, thereby inferring that Christian would be sent home 

with loss of a day's pay if he persisted. The threat and subsequent 

discharge were discriminatory acts improperly motivated by the 

Applicant's refusal to work under what he considered to be bad roof. 

Because his complaint gave use to the protection of section 

llO(b) and his discharge was improperly motivated, Christian is 

entitled to the relief provided for in the Act. 

Relief Due 

Under the provisions of 110(b)(2), the Applicant is entitled to 

an order requiring Respondent "to take such affirmative action to 

abate the violation as the Secretary deems approμriate, including, 

but not limited to, the rehiring or reinstatement of the miner to his 

former position with back pay.ii 

At the time he was fired, Applicant was the greaser on the third 

shift at Respondent's mine. There are no circumstances in this case 

which would warrant denial of reinstatement to this position. 

The back pay due Applicant is the difference between the income 

he would have received if he had not been discharged by Re.spondent, 

but had continued working as a third shift greaser until February 2, 

1979, offset by the income he actually received, in that same period 

from other sources. The cut-off date of February 2, 1979, is appropriate because the hourly wage rate received by Applicant in his 

current job exceeds the hourly wage rate he would be receiving were . 

he still employed by Respondent. In its supplemental memorandum 

regarding relief, filed on January 19, 1979, the Respondent advanced 

the figure of $48,746.37 as the amount Respondent would have earned 

as a greaser from November 10, 1976 to February 2, 1979. The Applicant had no objections to this figure. 

In the period from November 10, 1976, to February 2, 1979, the 

Applicant received $41,523.97 in income and unemployment benefits. 

Applicant has argued that two elements of the income and benefits 

included in the figure should be eAcluded. The first of these elements is $470 in unemployment compensation benefits received by 

Christian in February and March of 1978. After he had received these 

benefits, the Kentucky Department of Human Resources determined that 

he·was ineligible for them and that he was obligated to return this 

sum to the State. This sum is, therefore, properly excluded from 

the computation of back pay. The second of these elements is. the 

$2,951.36 earned by the Applicant in February and March of 1978. 

During this period, Respondent had closed down its coal mining operations because of a strike by the United Mine Workers of America. The 

138 
Applicant argued that because of this closure, he would have been 

free to earn this income even if he had been one of Respondent's 

employees. As a consequence, this $2,931.35 should not be offset 

against the income he would have earned from Respondent. Because of 

the absence of any indication on the record that Appli~ant would not 

have been free to earn this income if he had remained in Respondent's 

employ, this argument is_ accepted. 

The exclusion of these two elements lowers the amount by which 

Applicant's recovery of back pay is offset to $38,103.0l. Applicant 

is, therefore, entitled to a recovery of back pay in the amount of 

$10,643.36. 

Interest 

In theory, interest on each dollar of back pay should be calculated from the date on which the Applicant would have received it if 

he had been employed by Respondent. Because of the great difficulty 

of such a calculation, Applicant suggested a formula by which interest 

would be computed on the entire back pay award from a date approximately midway between the date of discharge and the date of this 

decision. Respondent did not object and did not propose an alternative. The formula proposed by the Applicant is, therefore, accepted. 

Using this formula, The Applicant is entitled to interest of 

$751.42. This figure represents 6 percent of the total back pay 

owed, calculated from January 1, 1978, through February 28, 1979. 

Medical Expenses 

In its "Second Supplemental Memorandum on Relief," filed on 

February 5, 1979, the Applicant asserted for the first time that he 

was entitled to reinib.ursement for certain medical expenses incurred 

since his discharge. As a result of the discharge, the Applicant 

lost the medical insurance which Respondent provided to all its 

employees. This insurance covered and paid for all medical expenses 

incurred by Respondent's employee and his dependents. 

The medical expenses and insurance premiums incurred by Applicant since the date of his discharge amount to a total of $441.99. 

Applicant is entitled to reimbursement of these premiums and expenses 

because they constitute expenses which he would not have incurre4 if 

he had not been discharged in November, 1976. 

Costs and Expenses of Litigation 

Under the provisions of section llO(b) (3) of the Act, the Applicant is entitled to ''a sum equal to the aggregate amount of all costs 

and expenses (including the attorney's fees) as determined by the 

Secr~tary to have been reasonably incurred by the applicant for, or 

139 
in connection with, the institution and prosecution'' of these llO(b) 

proceedings. Applicant is entitled, in the instant case, to the 

recovery of the following three categories of expenses: attorney's 

fees, the costs incurred by Applicant's attorneys and the costs 

incurred directly by the Applicant. 

With respect to attorney's fees, counsel for Applicant submitted 

the following hourly totals, hourly rates and proposed fees: 

Hours Hourly Rate Fees 

Sunderland 373.50 $60 $23,640.00 

Terris 4.50 85 382 .• 50 

Paralegals 36.00 20 720. 00 

Given the experience and ability of Mr. Sunderland, the novelty of 

the legal issues presented, and the quality of the services rendered, 

the $60 hourly rate he proposes for his services is reasonable and 

appropriate. Moreover, the amount of time which he devoted to the 

case was well documented. lhe number of hours, the hourly rates, and 

the fees proposed for the services of Mr. Terris and the paralegals, 

also seem reasonable and well documented. lhe total fee proposed 

by Applicant's counsel of $24,742.50 is, therefore, accepted. 

The 50-percent bonus factor proposed by Applicant is inappropriate. Its application would result in an unjustifiably high, 

unreasonable award for attorney's fees. lhe hourly fees proposed by 

Applicant and accepted here adequately compensate his attorneys for 

any risks they may have taken in pressing his claim, as well as for 

the quality of their representation. 

The expenses incurred by Applicant's attorneys in connection 

with this case are also reasonable and well documented. They 1nclude 

amounts for xeroxing, court and reporting services, messengers, telephone calls, postage, airline and local transportation, lodging and 

food during long distance traveling, and secretarial overtime. lhese 

expenses amounted to a total of $1,488.82. 

The costs incurred directly by the Applicant amounted to a total 

of $235.76. This figure includes the costs of transportation at $.10 

per mile and telephone calls. 

In summary, the relief due the Applicant, is as follows: 

Back pay 

Interest on back pay 

Medical Expenses 

Attorney's fees 

Costs incurred by attorneys 

Costs incurred directly by Applicant 

140 

$ 10,643.36 

751.42 

441-.99 

24,742.50 

1,488.82 

235.76 

$ 38,303.85 
All findings of fact and conclusions of law inconsistent with 

this decision are hereby rejected. 

ORDER 

It is hereby ORDERED that Respondent reinstate the Applicant to 

the position of greaser if he still desires to be reinstated. 

It is FURTHER ORDERED that Respondent pay to the Applicant the 

sum of $38,303.85 within 30 days of the date of this decision. 

Issued: April 5, 1979 

Distribution: 

For.rest E. Stewart 

Administrative Law Judge 

Philip G. Sunderland, Esq., 1526 18th Street, NW., Washington' 

DC 20036 (Certified Mail) 

Carroll S. Franklin, Esq., Franklin & Hobgood, 47 South Main 

Street, P.O. Box 547, Madisonville, KY 42431 

(Certified Mail) 

Assistant Solicitor, Office of the Solicitor, MSHA, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Administrator, Coal Mine Safety and Health, U.S. Department 

of Labor 

Standard Distribution 

141 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OfflCE Of ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 5, 1979 

SECRETARY OF LABOR, Civi.l Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION 41SHA), 

Petitioner 

Docket No. HOPE 78-422-P 

A.O. No. 46-05018-02005V 

v. 

SIMRON FUEL COMPANY, 

Respondent 

Docket No. HOPE 78-423-P 

A.O. No. 46-05018-02006V 

Appearances: 

Before: 

Lobo No. 1 Mine 

DECISIONS AND ORDER APPROVING SETTLEMENT 

John H. O'Donnell, Trial Attorney, Office of the 

Solicitor, Department of Labor, Arlington, Virginia, 

for Petitioner; 

Donald Lambert, Esq., Charleston, West Virginia, 

for Respondent. 

Judge Koutras 

These proceedings concern petitions for assessment of civil penalty filed by the petitioner on May 19, 1978, pursuant to section 

llO(a) of the Federal Mine Safety and Health Act of 1977, seeking in 

Docket No. HOPE 78-422-P, a $4,000 civil penalty assessment for a 

violation of the provision of 30 CFR 75.200, cited iii section · 

l04(c)(l) Order No. 7-0007 (1 JDW), January 6, 1977, and in Docket 

No. HOPE 78-423-P, a $1,500 civil penalty assessment for a violation 

of the provisions of 30 CFR 75.200, cited in section 104(c)(l) Notice 

No. 7-0002 (2 JDW), January 6, 1977. Petitioner has filed a motion 

seeking approval of a proposed settlement, whereby respondent has 

agreed to payment of a civil penalty in the amount of $2,000 in satisfaction of the violation in Docket No. HOPE 78-422-P and $800 in 

satisfaction of the violation in Docket No. HOPE 78-423-P 

In support of its motion for approval of the proposed settlement, 

petitioner has submitted proposed findings and conclusions with 

respect to the statutory criteria to be considered in the assessment 

of a civil penalty for a violation of any mandatory safety standard, 

and has included a detailed analysis of the factual circumstances 

surrounding the alleged violations. 

142 
Gravity, Negligence and Good Faith 

Docket No. HOPE 78-422-P 

This case involves an alleged violation of 30 CFR 75.200 in that 

a roof fall had occurred and had been cleaned up on the left side. of 

the No. 2 belt conveyor, approximately 200 feet outby the tailpiece •. 

However, no roof support had been set and the roof remained 

unsupported. 

Petitioner asserts that the roof fall was unintentional and the 

respondent's personnel were in the process of cleaning it up and 

supporting the roof and ribs when the inspector arrived on the scene. 

There were still broken unsupported pieces of rock present, but petitioner maintains that such would have been cleaned up and the necessary timbering installed even if the inspector had not appeared. 

Thus, according to petitioner, the primary violation was in failing 

to post the cleanup plan in the area for cleaning up and supporting 

where the unplanned roof fall had occurred as the approved roof 

control plan requires (Govt Exh. P-3). Usually, posting of the plan 

consists of copying pages 11, 12 and 13 of the roof control pan 

(which is part of the plan concerned with unplanned roof falls) and 

posting it in the area--even though the miners must already be thorougly familiar with the contents and requirements of that roof control 

plan. 'Ille violation was nonserious according to petitioner, but it 

was the result of ordinary negligence. The mine operator knew the 

requirements of the roof control plan, but the foreman failed to post 

the plan as required. 

With respect· to a showing of good faith on the part of respondent, an order of termination (Govt. Exh. P-5) was issued on 

January 7, 1977. 'Ille area had been timbered and cribbed as the 

inspector required, so a normal degree of good faith was demonstrated. 

Docket No. HOPE 78-423-P 

This case involves an alleged violation of 30 CFR 75.200 in that 

the roof at the entrance of all openings along the belt and mantrip 

haulageway were not being supported with posts in various locations 

from the entrance to the face area of the mine. Petitioner asserts 

that there had been posts installed along the haulageway, but the 

inspector considered certain places not adequate, so additional timbering was required. Petitioner asserts that the issue is ·a judgment 

call between the opinion of the mine operator's experts and the 

opinion of the inspector. 'Ille approved roof control plan in effect 

(Govt. Exh. No. P-8 at page 5) requires that all ribs shall be ade- · 

quately supported and the inspector considers in places this was· not 

done adequately. The personnel for the mine operator consider the 

supports to have been adequate. If the supports were not adequate 

the condition is serious, and the degree of negligence would depend 

on whether the inspector's opinion was supportable. 

143 
With respect to a showing of good faith ori the part of respondent, Government Exhibit No. P-9 indicates that additional posts were 

installed the following morning, which demonstrates a normal d.egree 

of. good faith. 

Size of business and effect of penalty assessment on respondent's 

ability to remain in business~ 

Petitioner asserts that there is a limited present market for 

the quality of coal produced at the Lobo No. 1 Mine, but that the 

respondent can make payment for civil penalties assessed for the 

two violations in question. Further, petitioner states that respondent's total coal production for 1976 was 386,685 tons and that the 

mine in question produced 14,100 tons. Thus, it would appear that 

respondent is a small operator and that the payment of civil penalties 

approved by me in this matter will not adversely affects it ability 

to continue in business. 

Previous History of Violations 

Petitioner has submitted a computer printout concerning respondent's prior history of violations for the period beginning January 1, 

1970, and ending January 6, 1977. During this 7-year period, respondent has paid assessments for 23 violations, none of which were for 

violations of 30 CFR 75.200. I cannot conclude that this constitutes 

a significant prior history of violations. 

In addition to its arguments concerning gravity, negligence, and 

good faith, petitioner relies on what it considers to be unique 

factual situations in support of the proposed settlement. Regarding 

the first alleged violation in Docket No. HOPE 78-422-P, petitioner 

points to the fact that the roof fall was unintentional, that tμe 

respondent was in the process of cleaning up and taking corrective 

action when the inspector happened on the scene, and that the crux of 

the violation was the fact that a cleanup plan had not been posted in 

the area, and that this was not a serious condition. As for the 

second alleged violation, petitioner obviously believes that the question of proof concerning the adequacy or inadequacy of roof supports 

at certain places along a haulageway which was otherwise apparently 

adequately supported, would depend on the credibility of the witness 

presented and that the matter is really one of ;'judgment call." 

Taking· into account the fact that the respondent is a small operator, 

·with an insignificant prior history of violation, petitioner believes 

that the· proposed settlemen.t is reasonable. I agree. 

ORDER 

After careful consideration of the detailed analysis submitted 

by the petitioner in support of its motion, particularly with respect 

144 
to the question of gravity, good faith compliance, and the respondent's size and history of prior violations, I conclude that petitioner's proposed civil penalty assessments are reasonable in the 

circumstances presented. Accordingly, the settlement is approved and 

respondent IS ORDERED to pay a civil penalty in the amount of $2,000 

for Violation No. 7-0007, January 6, 1977, 30 CFR 75.200 (Docket· No. 

HOPE 78-422-P) and $800 for Violation No.· 7-0002, January 6, 1977, 

30 CFR 75.200 (Docket No. HOPE 78-423-P) within thirty (30) days of 

the date of this decision and order. 

Distribution: 

John O'Donnell, Trial Attorney, Office of the Solicitor, MSHA 

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

22203 

Donald Lambert, Esq., P.O. Box 4006, Charleston, WV 25308 

(Certified Mail) 

Standard Distribution 

145 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION . OFFICE Of ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 5, 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ROBINSON-PHILLIPS COAL CO., 

Respondent 

Civil Penalty Proceeding 

Docket No. HOPE 77-313-P 

A.O. No. 46-01659-02005V 

Angus No. 1 Mine 

DECISION AND ORDER APPROVING SETTLEMENT 

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

Solicitor, Department of Labor, Arlington, Virginia, 

for petitioner; 

Donald Lambert, Esq., Charleston, West Virginia, for 

respondent. 

Before: Judge Koutras 

This proceeding concerns a petition for assessment of civil penalty filed by the petitioner on September 12, 1977, pursuant to section· 109(a) of the Federal Coal Mine Heal th and Safety Act of 1969, 

now section 110( a) of the 1977 Act, seeking a $1, 500 civil penalty 

assessment for one alleged violation of the provisions of 30 C¥R 

75.200, cited in section 104(c)(l) Notice No. 6-0043 (1 ATC), 

December 20, 1976. Petitioner has filed a motion pursuant to Commission Rule 29 CFR 2700.27(d), seeking approval of a proposed settlement, whereby respondent has agreed to payment of a civil penalty in 

the amount of $500 in satisfaction of the violation. 

In support of its motion for approval of the proposed settlement, petitioner has submitted proposed findings- and conclusions 

with respect to the statutory criteria to be considered in the 

assessment of a civil penalty for a violation of any mandatory safety 

standard, and a factual discussion and analysis concerning the alleged 

violation. 

Gravity, Negligence and Good Faith 

This case involves an alleged violation on December 20, 1976, of 

the provisions of 30 CFR 75.200 in that the approved roof control 

plan was not being followed and the inspector observed along the 

146 
active shuttle car roadways overhanging ribs and rocks which he considered to be loose. According to the notice of violation, this 

situation existed beginning at survey station No. 870 and through the 

co°'necti_ng crosscuts to Nos. 3 and 4 entries and inby for a distance 

of approximately 40 feet in each entry. The respondent insists that 

the rocks and ribs were not loose and were taken down with considerable effort. 

Respondent admits that as a matter of "good housekeeping11 in the 

mine, the rocks should have been taken down, but it insists there was 

no danger to the miners. The roof in this mine is known as a ''hard 

blue shale'' which is an excellent mine roof which does not fall 

easily. The Assessment· Office Narrative Statement °CGovt. Exh. 

No. P-5) notes that the miners had to bend ov'er because of the low 

roof, and the mine operator at a hearing would point out that this 

also means if a rock did fall from the roof it would have less distance to fall so it would do less damage than if it fell from a 

greater distance. The mine crew was small that day becaus.e the 

Christmas holidays were near and as a result. they had failed to do a 

good housekeeping job in the mine by trinnning the overhanging rocks. 

Respondent insists the condition was nonserious, however, the Office 

of the Solicitor considers it serious if the rocks were, in fact, 

loose. Petitioner asserts that the negligence is ordinary since.the 

condition was observable and miners did pass by. 

With respect to a showing of good faith on the part of respondent, a notice of abatement was issued the following day, thus indicating a normal degree of good faith. 

Size of Business 

Petitioner maintains that there is a limited present market for 

the quality of coal produced in the Angus No. 1 Mine, but that respondent can afford to pay any reasonable civil penalty for the subject 

violation without an adverse .effect on its business. Eleven miners 

were employed at the Angus No. 1 Mine and the annual production for 

the company, as shown by MSHA records for the year 1976, was 

3,483,827 tons. 

Previous History 

Petitioner has submitted a computer printout concerning respondent's prior history of violations for the period Januar,y 1, 1970, 

to September 20, 1976. · During this period of time, respondent has 

paid assessments for 197 violations, 11 of which were for violations 

of 30 CFR 75.200. For the period of time noted, including respondent's size, I cannot conclude that this constitutes a significant 

prior history of violations. 

147 
In addition to the elements of good faith, size of the respondent's mining operation, and the prior history of violations for 

which assessments have been paid, petitioner relies on the fact that 

the roof conditions in the mine in question are normaily good and it 

is obvious to me that if the case were to go to an evidentiary 

hearing, respondent would advance the proposition that the roof 

in question was not loose and that the ribs and rocks were in fact 

taken down with considerable effort. Taking into account these 

factors, and the fact that .the citation issued over 3 years ago and 

that the proposed assessment made by the Assessment Office was computed under a "special assessment" formula, I conclude that petitioner's proposals· are reasona.ble and should be accepted. 

ORDER 

After careful consideration of the detailed factual and evidential analysis submitted by the petitioner in support of its motion, 

particularly with respect to the question of gravity, good faith compliance, and the respondent's size and history of prior violations, 

I conclude that petitioner's proposed civil penalty assessment is 

reasonable in the circumstances presented. Accordingly, the settlement is approved and respondent IS ORDERED to pay a civil penalty in 

the amount of $500 for Violation No. 6-0043 (1 ATC), December 20, 

1976, 30 CFR 75.200, within thirty (30) days of the date of this 

decision·and order. 

Distribution: 

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

MSHA, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, 

VA 22203 

Donald Lambert, Esq., P.O. Box 4006, Charleston, WV 25304 

(Certified Mail) 

Standard Distribution 

148 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION . OFFICE OF ADMINISTRATIVE. LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 5, 1979 

SECRETARY OF ·LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FIRE CREEK COAL COMPANY OF 

TENNESSEE, 

Respondent 

Civil Penalty Proceedings 

Docket No. BARB 79-3-P 

A.O. No. 40-01612-03004V 

Docket No. BARB 79-4-P 

A.O. No. 40-01612-03005V 

Docket No. BARB 79-57-P 

A.O. No. 40-01612-03001 

Docket No. BARB 79-58-P 

A.O. No. 40-01612-03002 

Docket No. BARB 79-59-P 

A.O. No. 40-01612-03003V 

Fire Creek No. 1 Mine 

DECISIONS 

Appearances: Edward H. Fitch, Trial Attorney, Department of Labor, 

Office of the Solicitor, Arlington, Virginia, for the 

petitioner; 

Michael R. Kizerian, Vice President, Fire Creek Coal 

Company, Knoxville, Tennessee, for the respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

These proceedings concern petitions for assessment of civil penal ties filed by the petitioner against the respondent in October 1978, 

pursuant to section llO(a) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 820(a), charging the respondent with a total of 

27 alleged mine safety violations issued pursuant to the Act and 

implementing safety standards. Respondent filed timely answers in 

the proceedings and requested a hearing regarding the proposed civil 

penal ties initially assessed for the alleged violations. Respondent 

asserted that due to its adverse financial and economic condition, 

149 
payment of the assessed penalties would directly affect its ability 

to continue in business. A hearing was held in Knoxville, Tenn~ssee, 

on February 27, 1979. 

Issues 

The issues presented in these proceedings are (1) whether respondent has violated the provisions of the Act and implementing regulations as alleged in the petitions for assessment of civil penalties 

filed in these proceedings, and, if so, (2) the appropriate civil 

penalties that should be assessed against the respondent for each 

alleged violation, based upon the criteria set forth in section 

110( i) of the AcL 

In determining the amount of a civil penalty assessment, section 

llO(i) of the Act requires consideration of the following criteria: 

(1) the operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, 

(3) whether the operator was negligent, (4) the effect on the operator's ability to continue in business, (5) the gravity of the violation, and (6) the demonstrated good faith of the operator in 

attempting to achieve rapid compliance after notification of the 

violation. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Coal Mine Health and Safety Act of 1969, 

30 u.s.c. § 801 et seq., now the Federal Mine Safety and Health Act 

of 1977, P.L. 95".:"164;-effective March 9, 1978. 

2. Sections 109(a)(l) and (a)(3) of the 1969 Act, 30 u.s.c. 

§§ 819( a)( 1) and (a)(3), now section 110( i) of the 1977 Act. 

Discussion 

The alleged violations and applicable mandatory safety standards 

in issue in these proceedings are as follows: 

Docket No. BARB 79-3-P 

Section 104(d)(l) Citation No. 140809 issued at 9:25 a.m. on 

March 15, 1978, cites a violation of 30 CFR 75.302-1, and states as 

follows: 

Line brattice used to provide face ventilation was not 

installed continuously to within 10 feet of the working face 

of the No. 3 entry in working section 001, where coal was 

being mined with a continuous mining machine. The No. 3 

entry working place had been developed approximately 

100 feet inby the last open crosscut and no line brattice 

installed. 

150 
'!he notice was terminated at 10: 05 a .m., the same day it issued 

after the installation of the required line brattice to within 10 feet 

of the working face. 

Docket No. BARB 79-4-P 

Section 104(d)(2) Order No. 140845, issued at 9:10 a.m., April 7, 

1978, cites a violation of 30 CFR 75.301, and states as follows: 

1he active workings of the coal mine were not ventilated while miners were working underground in that the 

main fan was not operating and miners were working underground in No. 1 entry working place removing a fall of 

roof. 

'Ihe order was terminated at 9:15 a.m•, the same day it issued 

after the main fan was placed in operation. 

Secti~n 104(d)(2) Order No. 140849, issued at 10 a.m., April 7, 

1978, cites a violation of 30 CFR 75.301, and states as follows: 

Face ventilation was not provided in the Nos. 2, 3, 4, 

and 5 entry working places in the 001 working section m 

that ventilation was short circuited at the last open crosscuts. The above-mentioned working places were developed 

approximately 100 feet inby the last open crosscuts where 

the ventilation was short circuited. 

Section 104(d)(2) Order No. 140850, issued at 10:15 a.m., April 7, 

1978, cites a violation of 30 CFR 75.302 and states as follows: 

Line brattices were not used continuously from the 

last open crosscut to the faces of the Nos. 2, 3 and 4 

entries in that these working places in 001 working section were developed approximately 100 feet inby crosscuts 

and no line brattice installed. '!he inby end of line 

brattices in No. 5 entry was 50 feet from the face and 

coal had been mined from the working places. 

Section 104(d)(2) Order No. 140851, issued at 10:30 a.m., April 7, 

1978, cites a violation of 30 CFR 75.303(a), and states as follows: 

A preshift examination of the mine had not been made 

prior to miners entering the underground area of the mine. 

A record was not made of preshift examinations since 

3-27-78 and dates, times and initials were not in working 

places. The certified person at the mine stated he had 

not made an examination and did not know of anyone else 

making examinations. 

151 
Citations 140849, 140850, and 140851 were all terminated on 

April 10, 1978, after abatement of the conditions cited. 

Docket No. BARB 79-58-P 

Section 104(a) Citation 140853, issued at 8 a.m., April 10, 1978, 

cites a violation of section 103(d) of the Act, and states as follows: 

An unintentional roof fall had occurred in the No. 3 

entry working place of 001 working section and the operator 

had not made an investigation of the fall, made a written 

record or notified the District Office of Coal Mine Safety. 

The citation was terminated on April 17, 1978, after abatement of 

the cited condition. 

Docket No. BARB 79-59-P 

Section 104(d)(l) Citation No. 140808, issued at 9:20 a.m., 

March 15, 1978, cites a violation of 30 CFR 75.301-1, and states as 

follows: 

Face ventilation was not provided in the No. 3 heading working place in 001 working section where coal was 

being mined with a continuous mining machine. Ventilating 

devices were not installed in the working place and coal 

was being mined 100 feet inby the last open crosscut. The 

section foreman was operating a mine tractor and had just 

brought a load of coal to surface. 

The citation was terminated at 10:05 a.m., the same day it issued 

after abatement of the condition cited. 

Docket No. BARB 79-57-P 

This docket concerns a total of 20 section 104(a) citations 

issued by Federal mine inspector Harrison R. Boston as follows: 

March 15, 1978 

Citation No. 140810, 30 CFR 75.303(a), failure to make an adequate preshift examination. 

Citation No. 140811, 30 CFR 75.301, failure to provide face 

ventilation in four entries in the 001 working section, and failure 

to provide line brattice or other ventilation devices. 

Citation No. 140812, 30 CFR 75.302; failure to use line brattice 

or other approved ventilation devices to provide ventilation to working places in the 001 working section. 

152 
Citation No. 140813, 30 CFR 75.316, failure to install permanent stoppings in the third crosscut outby the working face in the 

001. working section as required by the approved mine ventilation 

system and methane and dust control plan. 

Citation No. 140814, 30 CFR 75.503, failure to maintain a tractor in permissible condition by failing to provide padlocks for the 

battery receptacles, and failing to secure battery cover lids as 

required by schedule 2-G. 

Citation No. 140815, 30 CFR 75.503, failure to maintain a scoop 

in permissible condition by failing to provide padlocks for the 

battery receptacles, and failing to secure battery cover lids as 

required by schedule 2-G. 

Citation No. 140816, 30 CFR 75.202, failure to support roof at 

the 001 section rectifier station for a width of 8 feet and a distance 

of 18 feet directly around the rectifier. Posts had been installed, 

but were taken out to install the rectifier. 

Citation No. 140817, 30 CFR 75.523-1, inoperative deenergization 

switch on a roof-bolting machine. 

Citation No. 140818, 30 CFR 75.523-2(c), inoperative deenergization activating bar on a continuous mining machine. 

March 16, 1978 

Citation No. 140819, 30 CFR 75.316; failure to supplement the 

mine ventilation system and methane a~d dust control plan by failing 

to submit required mine maps and other required information. 

Citation No. 140820, 30 CFR 75.1704-2(d), failure to post a map 

of the 001 working section escapeway. 

Citation No. 140821, 30 CFR 75.1100-2(d), failure to provide a 

portable fire extinguisher for the mine tractor, serial No. 270A-509, 

used to pull loaded coal cars from the 001 working section. 

Citation No. 140822, 30 CFR 75.1100-2(d), failure to provide a 

portable fire extinguisher for mine tractor, serial No. 270A-510. 

Citation No. 140823, 30 CFR 75.307-1, failure to conduct a 

methane examination at the face of the No. 5 entry working place in 

the 001 working section prior to the entrance of an electricallyoperated roof-bolting machine. 

Citation No. 140824, 30 CFR 75.503, failure to maintain the 

scoop, serial No. 482-1022, used inby the last open crosscut in the 

001 working ·Se~tion in a permissible condition in that the headlights 

were inoperative. 

153 
April 7, 1978 

Citation No. 140843, 30 CFR 75.1600-1, failure to provide a 

responsible person on duty at the surface communication facility to 

answer communications from three miners who were underground. 

Citation No. 140844, 30 CFR 75.1713, failure to provide an 

emergency communications system to the nearest point of medical 

assistance. 

Citation No. 140847, 30 CFR 75.503, inoperative headlights and 

lack of padlocks o.n the Uni track scoop and scoop battery receptacle. 

Citation No. 140848, 30 CFR 75..200, failure to submit a plan 

detailing cleanup and support procedures concerning a roof fall as 

required by the approved roof-control plan of May 20, 1977, page 7, 

item 19. 

Citation No. 140852, 30 CFR 75.300-4, failure to maintain a 

record of the daily fan examination, the last recorded date being 

March 27, 1978. 

Findings and Conclusions 

Fact of Violations 

Respondent did not contest any of the citations issued in these 

cases, and except for a few comments and observations made during the 

course of the hearing, did not rebut any of the citations and candidly 

a9mitted that he was responsible for them (Tr. 18-21). In the circumslances, I find that petitioner has established the fact of violation 

as to each of the citations issued in these proceedings. 

Gravity 

Except for Citation No. 140817 (Docket BARB No. 79-57-P), concerning a roof-bolting machine deenergization device, petitioner 

stipulated that all of the remaining citations issued in these proceedings were in the moderate to low range of seriousness. and that 

the inspector who issued the citations did not believe that any of 

the citations were of "great severity'' (Tr. 10-11, 23). Petitioner 

also pointed out that the mine is only developed some 500 feet high 

on a mountain, thereby eliminating any real ventilation problems, 

and no methane has ever been detected (Tr. 10). 

After careful review of the evidence adduced, including copies 

of the citations issued by the inspector, I conclude and find that all 

of the violations cited in these proceedings were serious. 

154 
Negligence 

Petitioner stipulated that except for the section 104(d) orders, 

all of the other violations in these cases resulted from ordinary 

n.egligence on the part of the respondent: (Tr o 12). Petitioner takes 

the position that the section 104(d) orders resulted from gross 

negligence on the part of the respondent (Tr. 12). Respondent conceded that both he and the persons hired to manage the mine should 

have been aware of the conditions cited, and he conceded that failure 

to correct the conditions cited constituted ordinary negli~ence 

(Tr. 22). Aside from the fact that the section 104(d) orders were 

issued, petitioner has presented no evidence or testimony supporting 

the assertion that the violations resulted from gross negligence. I 

find nothing in the record to support a conclusion that respondent 

deliberately and recklessly disregarded the safety standards cited. 

He candidly admitted that as the mine operator, he was responsible, 

along with the hired mine manager, for the safe ope~ation of the 

mine. However, the manager is no longer employed by the respondent, 

and petitioner agrees that marked improvements have been made in the 

operation of the mine. In the circumstances, I find that all of 

the violations resulted from ordinary negligence on respondent's 

part and the conditions cited were conditions which respondent 

admits he should have been aware of and should have corrected. 

Good Faith Compliance 

The present mine operator took over,. the operation and ownership 

of the mine in May 1977, and he instituted changes in the mine' s 

management, including replacing the prior mine manager. Petitioner 

agrees that the respondent has taken steps to improve its mining practices to insure that the mine is operated safely, and that prior to 

taking over the mine, the present owners had no previous mining experience and had to rely on its prior manager who has since left the 

employ of the company (Tr. 65-66, 68). As for the citations in question in these proceedings, the record supports a finding that they 

were timely abated and that respondent exercised n9rmal good faith in 

abating the condition's once the conditions were brought to his attention. The parties stipulated that all of the cita'tions issued in 

these proceedings were timely abated and that the respondent exercised good faith in correcting the conditions once they were brought 

to his attention (Tr. 21), and this is supported by statements made 

by counsel on the record with respect to conversations he had with 

MSHA mine inspector Harrison R. Boston, the inspector who issued all 

of the citations and orders in these proceedings. 

History of Prior Violations 

Petitioner has submitted a computer printout reflecting respondent's prior history of violations. That document reflects that 

75 violations were issued for the. period May 20, 1977, to March 12, 

155 
· 1979, and that. respondent has made payment for 26 violations during 

that period of time. Petitioner asserts that this reflects a moderate 

history of previous violations, and I agree and adopt that proposed 

·finding as my finding on this issue. 

Size of Business and Effect of Penalties Assessed on Respbndent's 

Ability to Continue in Business 

The evidence adduced in these proceedings reflects that the present mine owners took over the operation of the mine on May 20, 1977, 

and that total mine production since that time amounts to some 

15,000 tons of coal (Tr. 29,·Exh. R-5). Copies of an MSHA quarterly 

mine employment and coal production reports reflect that the 1978 

mine production was 7,620 tons, and that mine employment was seven 

workers underground and three workers on the surface, with a seasonal 

employment for 3 months of 53 employees (Exh. R-8). The mine was shut 

down for 3 months from July to November 1978, and this was corroborated by petitioner (Tr. 36). The mine presently employs seven miners, 

and during the time the violations issued, employed 9 to 10 full time 

miners (Tr. 47). The mine is a nonunion drift mining operation using 

a conventional miner, and petitioner stipulated that the mine is a 

very small mining operation which at one· time was being improperly 

supervised, but which appears to be on its way to functioning much 

safer with the individuals now operating it. 

The initial assessments made in these cases by MSHA' s Office of 

Assessments did not take into consideration the financial plight of 

respondent's mining operations (Tr. 13-14). At the hearing in this 

matter, respondent (Michael Kizerian) submitted detailed documentary 

evidence concerning the financial condition of the company. Included 

are copies of financial statements for the year ending June 30, 1978, 

billings from creditors, checkbook bank records indicating deposits 

and payments made on the company account, bank statements, State of 

Tennessee Department of Revenue and Taxation records indicating 

state severance taxes paid for coal produced by the respondent's mine, 

and State and local sales and use tax returns (Exhs. R-1 through 

R-6). 

The testimony and evidence adduced by the respondent in these 

proceedings reflects that for the initial 13 or 14 months of its 

operation, the mine lost $277,898.47, and that as of February 1979, 

respondent has outstanding debts in terms of accounts payable in the 

amount of $70,206.37, and which do not include a price adjustment 

penalty levied on the respondent by the TVA charging respondent's 

account for $8, 587. 05 for failure to guarantee the dry ash content of 

its product. Respondent testified that he is concerned over the fact 

that he cannot meet his expenses since he wants to pay his bills. 

However, he stated that one of the reasons tqat he did not contest 

the violations cited against him is the fact that he is on the verge 

156 
of going out of business, that he is operating from week-to-week with 

some $70,000 in outstanding debts, and that one major breakdown at 

the mine will place his operation in jeopardy (Tr. 58-59). 

The Fire Creek Coal Company is a mtning venture and wholly owned 

subsidiary of Real Estate West, an investment company operated by 

Mr. Kizerian's father in Utah. Mr~ Kizerian was hired by his father 

to operate the 'coal mining venture known as Fire. Creek Coal Company, 

and he is compensated by the coal company (Tr. 51-56). Real Estate 

West is not in the primary business of mining coal, and petitioner 

suggested that absent any evidence to the contrary, the question of 

the amount of civil penalties which should be assessed for the violations in question in these proceedings should be directed toward 

the operations of Fire Creek Coal Company and its ability t~ remain 

in the coal mining business (Tr. 56). 

Petitioner has filed posthearing arguments concerning the 

financial condition of the respondent, including an analysis of the 

documentary evidence concerning this issue. Petitioner asserts that 

the information submitted supports a finding that payment of normally 

reasonable fines for the violations would, in fact, have an adverse 

effect on the respondent's ability to remain in the business of mining coal. In support of this conclusion, petitioner argues that the 

controlling company here, Real Estate West, has been heavily subsidizing this coal mining venture, and that the records indicate that the 

current payable liabilities are in excess of $48,000 and that long 

term debt to Real Estate West is in excess of $400,000. Petitioner 

submits that civil penalties in the aggregate of $2,000 will not 

cause the respondent to go out of business, and that petitioner is 

agreeable to a schedule of up to four payments for the respondent to 

pay whatever penalties are assessed in the matter. 

In Robert G. Lawson Coal Company, 1 IBMA 115, 117-118 (1972), 

the former Board of Mine Operations Appeals made the following 

observations: 

We view the provisions of section 109(a)(l) as manifesting an intent by Congress to require a balancing 

process in arriving at an appropriate penalty to be 

assessed in any given case. Application of the criteria 

of section 109(a)(l) requires weighing the importance of 

imposing pecuniary penal ties, as a measure of deterring 

insufficient concern for the health and safety of miners, 

against other deterrents specified in the Act, such as 

closure orders. 1he amount of a monetary penalty imposed 

should be sufficiently high .to deter any laxity of vigilance on the part of·an operator to keep his mine in 

compliance with the Act •. In our view, however, the 

imposition of a penalty which would cripple an operator's 

157 
ability to continue his production of coal without a 

counter-balancing benefit to the safety of miners would 

not be appropriate. 

We do not view the civil penalty assessment procedure 

as a tool to force closure of mines; we look upon it as 

an auxiliary tool to bring about compliance. 1he Act 

contains several enforcement provisions permitting the 

closure of mines to protect the health and safety of 

miners. We believe that the intent of Congress was to 

give the Secretary great latitude in the assessment of 

monetary penal ties so as to permit him to weight the 

equities and render justice on a case-by-case basis. Of 

course, in doing so we must be particulary conscious of 

two of the statutory criteria--the size of the operator's 

business and the effect of a penalty on the operator's 

ability to continue in business. 1he most severe penalty 

authorized by the Act is mine closure with its consequent 

loss of production, idlement of miners, and impact upon 

both the operator and the public. We believe Congress 

intended a balanced consideration of all statutory 

factors, including the size of mine and the ability to 

remain in business, to permit assessments which would be 

equitable and just in all situations but which would not 

have the effect of drastically curtailing· coal production 

or employment of miners to the ultimate detriment of the 

public interest. 

Where numerous violations are found and cited during a 

tour of inspection, the aggregate amount of the proposed 

assessments, even though each separate violation may be 

assessed at a nominal value, may be an amount beyond the 

operator's ability to pay, and thus, for no other reason 

than this, may be unreasonable. In such cases it is 

incumbent upon an Examiner and this Board to look at the 

total amount and impact of the monteary penalty in arriving at a fair assessment. 

1he Board followed its Lawson Coal reasoning with respect to the 

question of the effect of civil penalties on small operators in two 

subsequent decisions, Newsome Brothers, Inc., 1 IBMA 190 (1972), and 

Hall Coal Company, 1 IBMA 175 (1972). In Hall, the Board al so ruled 

that in addition to the six statutory criteria, a civil penalty may 

also be mitigated by the fact that the infraction was a first offense, 

committed shortly after the effective date of the Act, by a small 

operator who demonstrated good faith by immediate abatement. The 

Board also observed that there is a presumption that such an operator 

will not be affected adversely by the imposition of a sizeable civil 

penalty, but that it is incumbent upon the operator to present .evidence of an adverse effect of a monetary penalty upon his mining 

operation. 

158 
After careful review of all of the evidence.adduced in these 

proceedings, I am in agreement with petitioner's proposed finding that 

the imposition of the initial civil penalty assessments recommended 

in these dockets, would in the aggregate, effectively put respondent 

out of business. Having viewed respondent's chief witness on the 

stand during the course of the hearing, I find he is a candid and 

honest individual. He voluntarily produced his company financial 

records, incl ud_ing bank statements, ledgers, tax returns, operating 

expenses, income statements, etc., and I find his testimony to be 

credible. Considering the fact that the respondent is a very small 

operator and is in serious financial difficulties, as attested to by 

the evidence adduced herein, I find that the proposed civil penalties 

in the total amount of $8,830 could jeopardize respondent's ability 

to remain in business. I therefore conclude that the circumstances 

presented justifies mitigation of the initial assessments made in 

these proceedings, and should be considered by me in assessing 

appropriate penalties. 

In view of the foregoing findings and conclusions, respondent is 

assessed civil penalties for the violations which have been. established as follows: 

Docket No. BARB 79-3-P 

Citation No. Date 30 CFR Standard Assessment 

140809 03/15/78 75.302-1 $150 

Docket No. BARB 79-4-P 

Citation No. Date 30 CFR Standard Assessment 

140845 04/07/78 75.301 $350 

140849 04/07/78 75.301 300 

140850 04/07/78 75.302 300 

140851 04/07/78 75.303(a) 100 

Docket No. BARB 79-58-P 

Citation No. Date 30 CFR Standard Assessment 

140808 03/15/78 75.301-1 $ 80 

Docket No. BARB 79-57-P 

Citation No. Date 30 CFR Standard Assessment 

140810 03/15/78 75.303(a) $ 60 

140811 03/15/78 75. 301 100 

140812 03/15/78 75.302 50 

• 

159 
140813 03/15/78 15. 316 40 

140&14 03/15/78 75.503 20 

140815 03/15/78 75.503 20 

140816 03/15/78 75.202 50 

140817 03/15/78 75. 52T-l 75 

140818 03/ 15/78 75.523-2(c) 35 

140819 03/16/78 75. 316 20 

140820 03/16/78 75.1704-2(d) 15 

140821 03/16/78 75.1100-2(d) 20 

140822 03/16/78 75.1100-2(d) 20 

140823 03/16/78 75.307-1 25 

140824 03/16/78 75.503 20 

140843 04/07/78 75.1600-1 25 

140844 04/07 /78 75.1713 25 

140847 04/07 /78 75.503 30 

140848 04/07/78 75.200 50 

140852 04/07 /78 75.300-4 20 

ORDER 

Respondent is ORDERED to pay the civil penalties assessed herein, 

in the amount of $2,009, within thirty (30) days of this order, or 

within a mutually agreeable time schedule which may be negotiated with 

the petitioner. 

Distribution: 

Ned Fitch, Trial Attorney, Office of the Solicitor, Mine Safety 

and Heal th Administration, U.S. Department of Labor, 

4015 Wilson Blvd., Arlington, VA 22203 

Michael R. Kizerian, Vice President, Fire Creek Coal Company 

of Tennessee, 510 Canberry Drive, Knoxville, Tn 37919 

(Certified Mail) 

Standard Distribution 

160 
FEDERAL MINE SAFETY· AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 5, 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No- DENV 78-566-PM 

A.O. No. 02-01843-05001 

v. 

Don Luis Pit Mine 

A. J., GILBERT CONSTRUCTION CO., 

Respondent 

Appearances: 

Before: 

DECISION 

Marshall P. Salzman, Trial Attorney, Office of the 

Solicitor, u.s. Department of Labor, San Francisco, 

California, for the petitioner; 

A. J~ Gilbert III, Bizbee, Arizona, for the 

respondent. 

Judge Koutras 

Statement of the Proceeding 

This proceeding concerns a petition for assessment of civil 

penalties filed by the petitioner against the respondent pursuant to 

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

• 

30 U.SwC. § 820(a), on September 21, 1978, charging the respondent 

with two alleged violations of the Act and implementing mandatory 

safety standards. Respondent filed a notice of contest and requested 

an opportunity for a hearing in the matter. A hearing was conducted 

in Tucson, Arizona, on March 6, 1979, the parties ,appeared and participated therein, and waived the filing of posthearing proposed 

findings and conclusions. · 

Issues 

The issues presented in this proceeding are (1) whether respondent has violated the provisions of the Act and implementing regulations as alleged in the petition for assessment of civil penalty 

filed in this proceeding, and, if so, (2) the appropriate civil penalty that should be assessed against the respondent for the alleged 

violations based upon the criteria set forth in section llO(i) of 

the Act .. 

161 
• 

In determining the amount of a civil penalty assessment, section 

llO(i) of the Act requires consideration of the following criteria: 

(1) t~e operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, 

(3) whether the operator was negligent, (4) the effect on the operator's ability to continue in business, (5) the gravity of the violation, and (6) the demonstrated good faith of the operator in 

attempting to achieve rapid compliance after notification of the 

violation. 

Applicable Statutory and Regulatory Provisions 

1. The Mine Safety and Health Act of 1977·,. 30 u.s.c. § 820(a) 

~~· 

2. Section llO(a) of the Act, 30 u.s.c. § 820(a). 

3. Part 2700, Title 29, Code of Federal Regulations, 43 Fed Reg. 

10320 et~· (March 10, 1978), the applicable rules and procedures 

concerning mine health and safety hearings~ 

DISCUSSION 

Section 104(b) Citation No~ 376649, dated June 15, 1978, cites 

a violation of 30 CFR 56.9-87, and states as follows: "The backup 

warning device on the 14 front-end loader was not working. This 

loader was being operated in and around the plant area in a backward 

as much as a forward operation." 

30 CFR 56.9-87 provides: 

Mandatory. Heavy duty mobile equipment shall be 

provided with audible warning'devices.- When the operator 

of such equipment has an obstructed view to the rear, the 

equipment shall have either an automatic reverse signal 

alarm which is audible above the surrounding noise level 

or an observer to signal when it is safe to back up. 

The inspector fixed the abatement time as 3 p.m~, June 15, 1978, 

and the termination notice reflects that the condition cited was 

abated at 1 p.m. on June 15, after a new backup signal was installed. 

Section 104(a) Citation No~ 376650, dated June 15, 1978, cites a 

violation of 30 CFR 56.11-2, and states as follows: "The elevated 

walkway along the crusher above the flywheel that employees use to get 

to the screen was not provided with handrails." 

30 CFR 56.11-2, provides: '~andatory, crossovers, ele~ated 

walkways, elevated ramps, and stairways shall be of substantial construction provided with handrails, and maintained in good condition. 

Where necessary, toeboards shall be provided." 

162 
The inspector fixed the abatement time as 7 a.m., June 15, 1978, 

and the termination notice reflects that the condition was abated at 

noon time, June 15, after handrails were manufactured and installed 

during lunch. 

Stipulations 

The parties stipulated to the following: 

1. Respondent is subject to the jurisdiction of the Act and 

the Administrative Law Judge (Tr. 6). 

2. Respondent is a small operator and the initial proposed 

civil penalties, if finalized and levied, will not adversely affect 

respondent's ability to remain in business (Tr. 5). 

3. Respondent has no prior history of violations (Tr. 6). 

4. The conditions cited were abated within the time fixed by 

the inspector who issued the citations (Tr. 6). 

Testimony and Evidence Adduced by Petitioner 

MSHA inspector Robert M. Hunter confirmed that he conducted an 

inspection at the mine in question on June 15, 1978, and that he 

issued the two citations in issue in this proceeding. He described 

the mining operation conducted by the respondent, and indicated that 

it is a surface operation entailing the removal of overburden and the 

mining of silica. 

With regard to the ~itation concerning the inoperative backup 

alarm on the front-end loader, inspector Hunter testified that he 

observed the loader in operation, that it operated in a backward 

motion 50 percent of the time, and forward for 50 percent of the time. 

The operator had obstructed vision when backing up, and this was due 

to the physical configuration of _the loader. Although he observed no 

one in close proximity to the machine while it was in operation, since 

the machine was backing up for a distance of some 200 to 300 feet 

without an operative backup alarm, he considered the violation to be 

serious. He also believed that the mine foreman should have been 

aware of the condition cited because the loader was in operation and 

the lack of an operative audible alarm was readily apparent. Once 

the condition was called to the attention of the operator, the loader 

was immediately taken out. of service, taken to the shop, and the 

condition was corrected before the time fixed for abatement. Under 

the circumstances, he believed the operator abated the condition 

rapidly and exercised good faith in this regard (Tr. 10-15). 

Regarding the handrail violation, Inspector Hunter testified 

that the elevated walkway in question was approximately 5 feet long, 

163. 
18 to 24 inches wide, and some 15. feet from the ground. Normally, 

one employee would use the walkway, but on the day in question he 

observed two employees using it. He believed the lack of a handrail 

was serious because an employee using the wa}kway .could slip and fall 

to the ground sustaining injuries or possible deathw Since the walkway was elevated and employees used it, the operator should have been 

aware of the requirement that it be provided with a handrailw He 

indicated that the condition was rapidly abated and that the operator 

immediate called a welder and had a handrail installed immediately 

during the lunch hour on the day the citation issued (Tr. 20-28). 

Inspector Hunter testified that inspections at the respondent's 

operation began in March 1978, and that respondent has had no previous 

citations. He also indicated that the respondent is aware of the 

need to conduct a safe operation, is cooperative, and has made a good 

faith effort to comply with all applicable safety regulations. 

Testimony Adduced by the Respondent 

A. J. Gilbert III, respondent's vice-president, testified that 

his company is a small operation engaged in a crushed stone operation 

in Bisbee, Arizona, and that the operation includes the mining of 

silica and silica flux which is processed and sold to several smelters 

in the state. He stated that his company employs four to six permanent employees, but has had as many as thirty on the payroll on a searsonal basis, depending on existing work demands and contracts for the 

sale of his products. 

Regarding the citations in question, Mr. Gilbert candidly conceded that mine management should have been aware of the conditions 

cited. However, he stated that he does. not employ a safety director, 

and due to the fact that the law in question is new and that his 

operation is also inspected by state inspectors, he is not as fully 

informed as he should be with regard to all of the Federal requirements of the Act. He also indicated that he has always welcomed 

Federal inspectors since they do present an opportunity for him to be 

advised as to what the requirements are, and that he is aware of the 

importance of insuring a safe working environment for his operations 

(Tr. 30-32). 

Regarding the audible alarm citation, Mr. Gilbert stated that 

while he was not present at the time the citation issued, he did not 

believe that the distance allegedly backed up by the loader was 300 to 

400 feet as testified to by the inspector was accurate. He believed 

the distance was less than 300 feet. He also indicated that in the usual 

normal course of loading operations, the loader operator will 

only backup for a short distance and then travel in a forward direction along a regular route which is known by all of the employees at 

the site. He also indicated that the loader operator is an experienced worker and that these factors mitigate the seriousness of the 

violation (Tr. 16-18). 

164 
With respect to the lack of a handrail at the crusher, 

Mr. Gilbert testified that the walkway is elevated some 9 to 10 feet 

and that due to the fact that a new protective cage had recently been 

installed around the crusher, employees who were required to be in 

the area had to travel around the walkway, and that this was not 

usually a normal practice. He conceded that the walkway was elevated 

and that a handrail should have been installed_ to prevent one from 

falling to the ground and possibly sustaining injuries and that the 

failure to install a handrail was an over sight which apparently had 

not been considered at the time the work was performed on the crusher 

(Tr. 32). 

Findings and Conclusions 

Fact of Violations 

Respondent did not rebut the conditions cited by Inspector Hunter, 

and stipulated that·the citations were duly served by l:ir. Hunter in 

his capacity as an authorized representative of the Secretary. I 

find that the testimony and evidence adduced by the petitioner supports a finding that the conditions cited were in fact present on·the 

day in question and that they constitute violations of the mandatory 

safety standards cited in Citation Nos~ 376649 and 376650 as issued 

by Inspector Hunter on June 15, 1978~ 

Negligence 

I find that the respondent knew or should have known ·of the 

conditions cited and that it failed to exercise reasonable care to 

prevent the conditions leading to the two violations. Under the 

circumstances, I conclude that this constitutes ordinary negligence. 

Gravity 

Although the inspector testified that no employees were within 

close proximity of the loader, and that the chances of an accident 

were slim, the fact is that he did observe a helper in the area 

where the loader was operating (Tr. 20), observed the loader back 

up for some distance, and he indicated that the loader operated 

had an obstructed view to the rear. In the circumstances, I find 

that the violation (376649) was serious~ 

Regarding the handrail citation (376650), I find that the 18 to 

24 inches walkway elevated some .10 to 15 feet off the ground without 

a handrail presented a serious falling hazard to the men who used it. 

Accordingly, I find the violation was serious. 

Good Faith Abatement 

I find that the respondent abated the conditions rapidly and in 

good faith .. 

165 
Size of Business and Effect of Penalty on Respondent's Ability to 

Remain in Business 

The parties stipulated that respondent is a small operator and 

I adopt this as my finding. I also find that the penalties assessed 

by me in this matter will not adversely affect respondent's ability 

to remain in busines~. 

Penalty Assessments 

It is clear from the evidence presented in this case that the 

respondent violated the two safety standards cited. While the violations were serious and were caused by the respondent's ordinary 

negligence, the evidence also establishe.s that the respondent is a 

very small operator, has no prior history of violations, and abated 

the conditions rapidly. With regard to the handrail citation, 

respondent took extraordinary measures to achieve abatement in the 

shortest possible time. In the circumstances, I find and conclude 

that that the penalties initially assessed in this proceeding are 

appropriate and they are affirmed and adopted as my civil penalty . 

assessments for the two citations namely $48 for Citation No. 376649 

and $56 for Citation No. 376650. 

ORDER 

Respondent is ordered to pay the penalties assessed, in the 

amount of $104 within thirty (30) days of the date of this order. 

~ d 1-;('~._p:--· ~.· .v :#~ j;l{outrls-~ ~ Administrative Law Judge 

Distribution: 

Marshall P. Salzman, Trial Attorney, Office of the Regional 

Solicitor, U.S. Department of Labor, 10404 Federal, 

450 Golden Gate Avenue, Box 36017, San Francisco, CA 

94102 (Certified Mail) 

A. J. Gilbert III., A. J. Gilbert Construction Co., P.O. 

Box 5288, Bisbee, AZ 85603 (Certified Mail) 

Standard Distribution 

166 
FEDERAL .MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE Of ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLmGTON, VIRGINIA 22203 

April 5, 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

BILL'S COAL COMPANY, INC .. , 

Respondent 

. .. 

Civil Penalty Proceedings 

Docket No .. DENV 78-359-P 

A/O No. 14-01116-02005 V 

Docket No .. DENV 78-437-P 

A/O No~ 14-01116-02007 V 

Docket No.. DENV 78-438-P 

A/O No .. 14-01116-02006 V 

Docket No .. DENV 78-493-P 

A/O No .. 14-01116-02009 V 

Fort Scott Strip Mine 

Docket No.. DENV 78-439-P 

A/O No.. 14-01230-02002 V 

Fulton Strip Mine 

DECISION 

Appearances: Judith N .. Macaluso, Esq .. , Office of the Solicitor, 

Mine Safety and Health Administration, u .. s .. Department of Labor, on behalf of the Petitioner; 

o .. B .. Johnston III, Esq .. , and Donald Switzer, Esq .. , 

Vinita, Oklahoma, on behalf of the Respondent .. 

Before: Administrative Law Judge Stewart 

FACTUAL AND PROCEDURAL BACKGROUND 

The above-captioned cases are civil penalty proceedings brought 

pursuant to section 109 l/ of the Federal Coal Mine Health and Safety 

];_/ Section 109(a)(l) of the Act reads as follows: 

"The operator.of a coal mine in which a violation occurs of a 

mandatory health or safety standard * * * shall be assessed a civil 

penalty by the Secretary under paragraph (3) of this subsection which 

167 
Act of 1969, 30 u.s.c~ § 819 (1970)i hereinafter referred to as the 

Act. 

Petitioner filed a petition for assessment of civil penalty in 

Docket No. DENV 78-359-P with the Mine Safety and Health Review Commission on April 27, 1978~ This petition was answered on May 30, 

1978. On May 31, 1978, petitions for assessment of civil penalty. 

were filed with the Commission in Docket Nos .. DENV 78-437-P, DENV 

78-438-P and DENV 78-439-P.. Respondent filed its answer to these 

petitions on July 5, 1978.. Docket No. DENV 78-493-P, the final 

petition involved herein, was filed on June 20, 1978, and answered 

on July 25, 1978 .. At the request of Respondent, the above cases 

were consolidated. 

A hearing was held on September 13 and 14, 1978, in Tulsa, 

Oklahoma. At that hearing, Petitioner called two witnesses and introduced 66 exhibits.. Respondent called two witnesses and introduced 

five exhibits. MSHA submitted a posthearing brief on November 15, 

1978, and a reply brief on December 13, 1978. Respondent submitted 

its brief on December 4, 1978 .. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Stipulations 

The parties entered into the following stipulations: 

1. Respondent Bill's Coal Company owns and operates the Fort 

Scott Strip Mine and the Fulton Strip Mine. 

2 .. In 1976 Bill's Coal Company produced 842,819 tons of coal .. 

The Fort Scott Strip produced 559,140 tons. 

3. All the violations that are involved in these proceedings 

were abated with normal good faith .. 

4 .. Bill's Coal Company is subject to the Federal Coal Mine 

Health ~nd Safety Act of 1969. 

fn .. 1 (continued) 

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

occurrence of a violation of a mandatory health or safety standard 

may constitute a separate offense. In determining the amount of the 

penalty, the Secretary shall consider the operator's history of previous violations, the appropriateness of such penalty to the size of 

the business of the operator c~arged, whether the operator was negligent, the effect on the operator's ability to continue in business, 

the gravity of the violation, and the demonstrated good faith of the 

operator charged in attempting to achieve rapid compliance after 

notification of a violation." 

168 
5. The Administrative Law Judge has jurisdiction over the parties and subject matter of.these proceedings. 

Docket No. DENV 78-359-P 

On September 6, 1977, Larry L. Keller, thert a surface mine 

inspector with MSHA, visited the Fort Scott Strip Mine to conduct a 

safety and heaith inspection. At about 2:45 p.m., Mr. Keller issued 

104(c)(l) Notice of Violation No. 1-LLK, citing 30 CFR 77.208(d). 2/ 

This mandatory standard requires that "[c]ompressed and liquid gascylinders shall be secured in a safe manner." While in the tipple 

area of the mine, the inspector had observed an oxygen cylinder and 

an acetylene cylinder standing unsecured in their wheeled cart. The 

cart had chains attached to it to secure the bottles, but these chains 

were left unconnected. As a result, the bottles could fall from the 

cart. 

The Respondent admitted in its answer that the condition existed 

in violation of section 77.208. 

The operator was negligent in that it knew or should have known 

of the violation yet failed to take time corrective action. The violation had existed for a long enough time to have been discovered 

and corrected. The condition had arisen prior to the lunch period 

when a welder-mechanic changed one of the cylinders. Although the 

mine superintendent who examined the tipple area during the lunch 

period failed to 'observe it, the condition was obvious. The bottles 

were in an active walkway .in plain view of Respondent's employees as 

they proceeded to the No. 1 or No. 2 belts or into the tipple operator's compartment. 

In this instance not only were the cylinders un~ecured but the 

hoses of the bottles were strung out across an active walkway. An 

accident was probable because a person walking by could accidentally 

jerk the hoses, hit the bottles, or in some other way knock the 

bottles out of the cradle. The caps were off the cylinders. In the 

event that the cylinders fell, it was probable that the valves would 

be knocked off causing sudden release of the gas. In addition, 

torches were being used nearby, presenting the chance of explosion. 

The bottles are 4 feet high, 8 inches in diameter, and under 

approximately 2,000 pounds of pressure. If a bottle fell and the 

valve was knocked off, the bottle would become a large, high-speed 

projectile. Accidents have happened in which fallen cylinders have 

"run wild" inside a building. They have been known to go through 

!:_/ 30 CFR 77.208(d) reads as follows: 

"Compressed and liquid gas cylinders shall be secured in a safe 

manner." 

169 
8-inch concrete walls and have penetrated one-quarter-inch steel 

bulkheads. The evidence clearly establishes that the workers in 

the tipple were exposed to a risk of serious injury or death. 

Respondent's Assessed Violations History Report (Govt;. Exh. 

No. 1) indicates that it had 27 paid violations from December 20, 

1976, through December 12, 1977, at the Fort Scott Strip Mine. No 

evidence indicates that a penalty in this case would adversely 

affect the operator's ability to continue in business • 

. Docket No. DENV 78-439-P 

On November 8, 1977, Inspector Keller issued 104(c)(l) Notice of 

Violation No. 1-LLK, citing a violation of 30 CFR 77.410. 3/ This 

section requires that trucks must be equipped with an audible automatic backup warning device. The Respondent admitted in its answer 

that an independently-owned coal hauler truck, which was not equipped 

with such a warning device, came onto the premises of its Fulton 

Strip Mine. Respondent further admitted that the presence of this 

truck constituted a technical violation of section 77.410. 

Petitioner has not shown that this violation was the result of 

Respondent's negligence. When Inspector Keller arrived at the mine 

that morning, Respondent's safety director, Homer Little, was in the 

process of conducting a company inspection of the mine. As part of 

this inspection, Mr. Little spot-checked a number of coal hauler 

trucks at the weighing scale for compliance with Federal regulations. 

Normally, the checking of trucks for compliance is .the responsibility 

of a nonmanagement employee, the scale man. This employee was·left 

to perform the safety checks when Mr. Little accompanied Mr. Keller 

during his inspection. 

Mr. Keller subsequently discovered the inadequately equipped coal 

haulage truck. This truck had entered Respondent's property after 

Mr. Little left the weighing scale, and he was unaware that it was 

without a backup alarm until the absence was discovered by Mr. Keller. 

The violation was abated within 10 minutes when the vehicle was permitted to leave the property. The driver of the cited truck stated 

that he·had not been at the mine for approximately 3 weeks. It was 

further developed by Respondent's Exhibits R-1 and R-2, and by admission of Inspector Keller, that Respondent had procedures which would 

normally insure that independent drivers complied with the relevant 

safety requirements. It was not established that under the circumstances that the operator knew or should have known of the violation 

3/ 30 CFR 77.410 reads as follows: 

"Mobile equipment, such as trucks, forklifts, front-end "loaders, 

tractors and graders, shall be equipped with an adequate automatic 

warning device which shall give an audible alarm when such equipment 

is put in reverse .. " 

170 
or failed to exercise reasonable care to prevent the occurrence of 

the violation. 

The failure of the truck to have a backup alarm did not present 

a serious hazard under the circumstances at the mine. It is improbable that an accident would have occurred because of this failure. 

The trucks had little occasion to back up, once they were on mine 

property. They pulled up in forward gear, and, after being frontloaded, they puiled away in forward. Moreover, pedestrian traffic 

in the area was very light. At the time the notice was issued, 

there were no pedestrians in the area. 

The operator had four prior paid violations at the Fulton Strip 

Mine, none of which were for violations of 30 CFR 77.410. A total 

of 1,841,420 tons of coal were produced at the Fulton Strip Mine in 

1978. There is no evidence indicating that a penalty in this case 

would adversely affect the operator's ability to continue in business. 

Docket No. DENV 78-437-P 

On December 12, 1977, inspector Larry Keller and inspectortrainee Don Summers, arrived at Respondent's Fort Scott Mine to conduct a safety and health inspection. In the course of this inspection, Inspector Keller issued at least three notices of violation 

and 13 withdrawal orders, all of which were directed at conditions 

existing in the mine tipple. The mine tipple had ceased operation 

during the evening hours of Friday, December 9, when a drive motor 

of the No. 2 conveyor burned out. The tipple did not operate on 

December 10 and 11, during which time repairs were carried out. 

A single violation is alleged in Docket No. DENV 78-437-P. 

Inspector Keller issued 104(c)(l) Notice No. 1-LLK, citing a violation of 30 CFR 77.205(b). 4/ He described the condition at issue 

as follows: -

The walkway extending along the #2 and #3 belts had 

the following stumbling and tripping hazards: two 20 lb. 

propane bottles, pulley and belt guard, log chain, rope, 

2 shovels, angle iron, pry bar, drop light, grease gun 

and a coal accumulation great enough at the transfer 

point from #2 to ffa3 belt to render the walkway in that 

area inaccessible. 

The inspector also alleged that the violation was of such a nature as 

could significantly and substantially contribute to the cause and 

4/ 30 CFR 77.205(b) reads as follows: 

"Travelways and platforms or other means of access to areas where 

persons are required to travel or work, shall be kept clear of all 

extraneous material and other stumbling or slipping hazards." 

171 
effect of a mine safety or health hazard, and that it was caused by 

an unwarrantable failure to comply with such standard. 

In its answer, the Respondent admitted the presence on the No. 2 

and No. 3 walkways of the items and materials listed by the inspector, 

but maintained that they were not extraneous and did not constitute 

a stumbling or tripping hazard in violation of section 77.205(b). 

In support of this contention, the Respondent explained the 

presence of each of the items or materials as follows: 

(a) The 20-pound propane bottles with torches were used throughout the winter months to melt ice from the conveyor idlers; 

(b) The pulley and belt had been removed during the drive 

motor repair of December 10 and 11; 

(c) The log chain and rope were used to hoist the drive motor 

to its mounting; 

(d) The shovels were used to remove coal from the belts and 

to break ice; 

(e) The pry bar and angle iron were used as a lever to move 

the No. 2 motor and to remove ice from the conveyor; 

(f) The grease gun was used to lubricate pulley sheaves after 

work on the idlers was done; and 

(g) The drop light was used to illuminate the walkway and the 

burnt out motor on the evening of December 9. 

Section 77.205(b) requires that travelways be maintained clear 

of stumbling hazards and there is no express exception of this 

requirement during repairs. Some of these items, including the rope 

and tackle, the drop light, log chain and grease gun, were no longer 

needed in the repair process. The inspector saw no workers actively 

engaged in actual repair work at the time of his inspection. 

Coal had accumulated in. two areas--at the transfer point from 

the No. 2 to the No. 3 conveyor and at the drive end of ~he No. 3 

conveyor. At the first of these areas, as much coal as the walkway 

could hold had accumulated. Although coal was no longer being transferred to the No. 3 belt, it had accumulated in passing. The accumulation at the drive of the No. 3 conveyor was far less than at the 

transfer point, but there were pieces of coal lying on the walkway .. 

The presence of the equipment, items and coal accumulations 

on. ~he walkway created stumbling hazards in violation of section 

77 .. 205(b) .. 

172 
The evidence indicates that the operator was negligent in its 

failure to properly maintain the walkways. Even though the items and 

materials were readily observable and had been used, for the most 

part, during the weekend repair efforts, no mention was made of the 

condition on Monday morning in the onshift examination record book. 

The operator knew or should have known of the condition, yet failed 

to take steps to correct it. 

The only access to conveyor belts No. 2 and No. 3 was along the 

walkways in question. Any employee assigned to work on these walkways would have been exposed to the stumbling hazard. Given the 

condition of the walkways, it was probable that a stumbling accident 

would occur. 

The injuries threatened ranged from bruises to broken bones--the. 

normal consequences of a fall. It was also possible that an individual 

might fall from the walkway to the coal pile below. The distance 

from the walkway to the coal pile was 25 feet in the vicinity of the 

coal accumulation at the transfer point from the No. 2 to No., 3 belts, 

the place where this more severe accident was most likely to occur. 

Of the 27 paid violations at the Fort Scott Strip Mine between 

December 20, 1976, and December 12, 1977, two were for violations of 

77.205, including one which was issued on December 12, 1977. No evidence indicates that a ~enalty in this case would adversely affect 

the operator's ability to continue in business" 

Docket No. DENV 78-438-P 

Two violations are alleged in Docket No. DENV 78-438-P. Both 

alleged violations were the subject of 104(c)(l) notices of violation 

issued by Inspector Keller in the course of the December 12 inspection at the Fort Scott Strip Mine. 

The first of these was Notice No. 5-LLK which cited a violation 

of 30 CFR 77"1713(c). 11 The inspector described the condition as 

follows: 

5/ 30 CFR 77.1713(c) reads as follows: 

"After each examination conducted in accordance with the provisions of paragraph (a) of this section, each certified person who 

.conducted all or any part of the examination required shall enter 

with ink or indelible pencil in a book approved by the Secretary the 

date and a report of the condition of the mine or any area of the mine 

which he has inspected together with a report of the nature and. location of any hazardous condition found to be present at the mine. The 

book in which such entries are made shall be kept in an area at the 

mine designated by the operator to minimize the danger of destruction 

by fire or other haza~d"" 

173 
The on-shift examination records of the tipple area by 

certified persons during the day shift on 12-12-77 indicated 

no hazardous conditions had been found.. The 4 notices of 

violation and the 14 closure orders issued at the tipple 

area this date indicated there were some hazardous conditions in that area which were not recorded .. 

Undisputed testimony established that an onshift examination o~ 

the tipple area was conducted on December 12, and there were no hazardous conditions noted in the examination record book. Respondent's 

contention that no hazardous conditions existed is rejected. The 

stumbling hazard discussed above in Docket No .. DENV 78-437-P existed 

at the time of the onshift examination.. In addition, the Respondent 

admitted the existence of three violations alleged in Docket No .. DENV 

78-493-P--Order Nos .. 7-0032, 7-0033 and 7-0034.. These violations 

involved the substantial accumulations of coal and the blockage of an 

escapeway.. The inspector testified that the coal accumulations in 

these areas had existed for numerous operative shifts.. As discussed 

below, there were also instances of unguarded machinery in the tipple. 

The failure to record these hazards in the examination record. book 

was in violation of section 77~1713(c) .. 

The operator's failure to record the existing hazards was 

negligence in that the conditions were visually apparent. 

It is improbable that the failure to record the hazards which 

existed in Respondent's 'tipple increased the risk of accident and 

inJury. The above-mentioned hazards were visually apparent.. It is 

unlikely that entry in the examination book would have increased the 

awareness of Respondent's employees with regard to these hazards. 

The second Notice, No. 2-LLK, cited a violation of 30 CFR 

77.512. 6/ The inspector described the condition as follows: "The 

junction-box located near the drive pulley of the No. 2 belt was not 

provided with a cover plate-." 

The Respondent admitted in its answer that .the condition existed 

as alleged. It contended, however, that the absence of the cover 

plate was not in violation of section 77.512 because of the "testing" 

exception contained therein. Section 77.512 provides that cover 

plates shall be kept in place at all times except during testing or 

repairs. 

The plate had been removed in order to allow replacement of the 

drive motor on the No. 2 conveyor.. While the junction box was 

2-_/ 30 CFR 77 .. 512 reads as follows: 

"Inspection and cover plates on electrical equipment shall be 

kept in place at all times except during testing or repairs .. " 

174 
unguarded, the belt had been operated for testing purposes only. As 

such, this condition did not constitute a violation of 30 CFR 77.512. 

The history of prior paid violations at Respondent's Fort Scott 

Strip Mine has been noted above •. No evidence indicates that a penalty in this case would adversely affect Respondent's ability to 

remain in business. 

Docket No. DENV 78-493-P 

Thirteen violations were alleged in Docket No. DENV 78-493-P. 

·These alleged violations gave rise to 104(c)(l) withdrawal orders 

which were issued by Inspector Keller on December 12 at the Fort 

Scott Strip Mine. In its answer, Respondent included a Motion to 

Confess Partial Judgment with regards to three of the violations. 

This motion is the equivalent here of a motion for approv~l of 

settlement. The Respondent admitted the occurrence of these 

violations and tendered a check for payment in full of the civil 

penalty as originally assessed by MSHA. · The three orders and 

corresponding civil penalties assessed and paid are as follows: 

No. 12-LLK (No. 7-32) for a violation of 77.1104 J_/ $2,200 

No. 13-LLK (No. 7-33) for a violation of 77.213 §_/ $2,500 

No. 14-LLK (No. 7-34) for a violation of 77.205(b) '!_/ $2,200 

Inspector Keller issued Order of Withdrawal No. 12-LLK after 

observing accumulations of loose coal and coal dust in the draw-off 

tunnel, under the No. 1 belt conveyor from the tail pulley to the 

east side of the tipple building and along the No. 1 belt conveyor. 

Order of Withdrawal No. 13-LLK was issued by the inspector because 

no usable escapeway was provided from the closed end of the drawoff tunnel to a safe location on the surface. Coal had accumulated 

to a height of 4 feet on the trap door leading from the tunnel to 

]_/ 30 CFR 77.1104 reads ~s follows: 

"Combustible materials, grease, lubricants, paints, or flammable 

liquids shall not be allowed to accumulate where they can create a 

fire haza·rd." 

~/ 30 CFR 77.213 reads as follows: 

"When it is necessary for a tunnel to be closed at one end, an 

escapeway not less than 30 inches in diameter (or of the equivalent, 

if the escapeway does not have a circular cross section) shall be 

installed which extends from the closed end of the tunnel to a safe 

location on the surface; and, if the escapeway is inclined more than 

30 degrees from the horizontal it shall be equipped with a ladder 

which runs the full length of the inclined portion of the escapeway." 

'ii See footnote 4. 

175 
the surface, preventing escape. The last of these three orders, 

Order of Withdrawal No. 14-LLK, was issued by the inspector because 

he observed that both walkways along the coal dump hopper were full 

of loose coal and coal chunks. In addition, coal had accumu,lated. 

around the ladder leading to the walkways to a height of approximately 4 feet. 

The inspector found that each of these three violations was of 

such nature as could significantly and substantially contribute to 

the cause and effect of a mine safety or health hazard arid that each 

was caused by an unwarrantable failure to comply with the respective 

standard on the part of Respondent. All three conditions were abated 

within the time prescribed by the inspector. 

In view of the above, the negotiated settlement of these three 

orders of withdrawal is hereby approved. 

The remaining 10 orders were directed at the absence or inadequacy of guards in various places throughout the tipple and along 

the conveyor belts. In each of them, Inspector Keller cited either 

section 77.400(a) or section 77.400(c)w 10/ Section 77.400(a) states 

that exposed moving machine parts, such as drive, head and tail 

pulleys, which may be contacted by persons, and which may cause 

injury to persons shall be guarded. Section 77.400(c) states that 

guards at the conveyor drive, conveyor head and conveyor tail pulleys 

shall extend a distance sufficient to prevent a person from reaching 

behind the guard and becoming caught between the belt and the pu1leyw 

The inspector also found that each alleged violation was of such 

nature as could significantly and substantially contribute to the 

cause and effect of a mine safety or health hazard, and was caused 

by unwarrantable fai;ure on the part of the .operator. 

In its posthearing brief, the Respondent asserted that the single 

overriding issue is whether the orders were directed at equipment 

10/ 30 CFR 77.400 reads as follows: 

"(a) Gears; sprockets; chains; drive, head, tail, and takeup 

pulleys; flywheels; couplings; shafts; sawblades; fan inlets; and 

simiiar exposed moving machine parts which may be contacted by 

persons, and which may cause injury to persons shall be guarded. 

"(b) Overhead belts shall be guarded if the whipping action 

from a broken line would be hazardous to persons below. 

"(c) Guards at conveyor-drive, conveyor-head, and conveyor-tail 

pulleys shall extend a distance sufficient to prevent a person from 

reaching behind the guard and becoming caught between the belt and 

the 'pulley. 

"(d) Except when testing the machinery, guards shall be securely 

in place while machinery is being operated." 

176 
which was being tested and/or repaired. This is an oversimplification. 

The alleged violations considered below are separate and apart and 

must be treated as such. 

As noted above, there were 27 paid violations at the Fort Scott 

Strip Mine from December 20, 1976, until December 12, 1977. There is 

no evidence which would indicate that a penalty would affect the 

'Respondent's ability to continue in business. 

The alleged violations are considered below in the sequence in 

which the corresponding orders were issued. 

a. Order No. 1-LLK 

Order No. 1-LLK cited section 77.400(c) and was directed at the 

following condition: "The belt drive pulley of the No. 3 horizontal 

conveyor had not been guarded." The Respondent admitted in its 

answer that the pulley was unguarded as alleged, but argued that no 

violation existed because its No. 3 conveyor belt was inoperative. 

Larry Pommier, Respondent's chief engineer, testified that the 

No. 3 belt had been inoperative since late summer or early fall of 

1977. Respondent had experienced icing problems with the belt during the prior winter, and, after unsuccessful attempts to correct 

the problems, had shut down the belt in anticipation of the oncoming 

winter. This testimony was uncontradicted,. Since the belt was not 

operational and had not been used for a long period of time, the 

record does not establish a violation of section 77.400(c). Under 

the circumstances, the belt did not ·present the hazard which the 

regulation was intended to prevent~ 

b. Order No. 2-LLK 

Order No. 2-LLK cited section 77.400(a) and was directed at the 

following condition: "The V-belts and pulleys of the No. 2 belt conveyor drive were not guarded. The guard had been removed and not 

replaced." The Respondent admitted in its answer that the guard was 

not in place. It had been removed to facilitate replacement of the 

No. 2 conveyor motor which had burned out on the evening of 

December 9, 1977. 

Respondent asserted in its defense that the equipment had been 

operated for testing purposes only while in its unguarded condition. 

The conveyor system was not operated from the time the motor failed 

until the morning of December 12, 1977,. At that time, two short 

test runs were made in order to check the newly-installed drive. 

motor, as well as the alignment of the belt. Coal was carried on the 

belt during the· second run in order to test the belt under normal 

operating tension. 

177 
Section 77.400(d) states: "Except when testing the machinery, 

guards shall be in place at all times while the machinery is being 

tested." Respondent established that the guard in question had been 

removed to facilitate repairs, and the belt was thereafter operated 

in an unguarded condition for testing purposes only. The absence of 

the guard in this instance did not constitute a violation of 

section 77.400(a). 

c. Order No. 3-LLK 

Order No. 3-LLK ~ited section 77.400(c) and was .directed at the 

following condition: "The belt drive pulley of the No. 2 conveyor 

had not been guarded to prevent a person from reaching behind the 

guard and becoming caught between the belt and pulley. One side of 

the guard had been removed and not replaced and one guard was 

inadequate." 

The Respondent admitted in its answer that the belt was unguarded 

as alleged. Chief Engineer Pommier testified that the guard on the 

south side of the belt had been taken off to allow replacement of 

conveyor idlers, as well as deicing of the belt. The guard had been 

removed to facilitate repair and other than test runs, the belt had 

not been operated without this guard. With respect to this side of 

the belt drive 'pulley, no violation existed. 

The testimony of Inspector K~ller and Inspector-Trainee Sum.~ers 

established that the guard on the north side of the drive pulley was 

inadequate, as alleged. This guard did not extend a sufficient distance down the belt to prevent a person from coming into contact with 

the pinchpoint _between the belt and pulley~ 

The operator was negligent in its failure to adequately guard the 

belt drive pulley. The condition was readily observable and existed 

along a regularly traveled portion of the belt~ The operator knew or 

should have known of its existence, yet failed to take corrective 

action. 

It is improbable that a person would come into contact with this 

particular pinchpoint. No evidence exists on the record that a person 

could do so inadvertently. The testimony adduced as to the probability 

of the occurrence of an accident and injury related to the absence of 

the guard from the south side of the belt and the record did not establish that it would be likely for a p~rson to be injured by 

inadvertently reaching behind the guard. 

If a person were to be caught between the belt and pulley at the 

pinchpoint, loss or breakage of a limb or fingers might occur,. 

178 
d. Order No. 4-LLK 

Order No. 4-LLK cited section 77.400(c) and stated: "['J;]he tail 

pulley of the No. 3 .belt conveyor had not been guarded. The guard 

was laying on the walkway under about 12 inches of loose coal." The 

Respondent admitted in its answer that the tail pulley was unguarded, 

but asserted in its defense that the No. 3 belt was inoperative and 

that the guard in question had been removed for purposes of repair. 

As noted above, the uncontradicted testimony of Larry Pommier, 

Respondent's chief engineer, established that the No. 3 belt had been 

inoperative since late summer or early fall of 1977. As such, the 

unguarded tail pulley did not present a hazard and was not in violation of section 77~400(c). \ 

e.. Order No. 5-LLK 

Order No. 5-LLK cited section 77.400(c). Inspector Keller 

observed that: "The drive pulley and feeder chain of the salting 

machine located over the No. 2 belt converyor had not been guarded." 

Respondent admitted in its answer that this equipment was unguarded. 

The guard had been taken off to repair the drive pulley of the salting machine. The guard was in the vicinity, but it had ~ot been 

replaced after repairs were completed. 

This condition was a clear violation of 77.400(c). Respondent's 

argument that no violation existed because the belt was being·tested 

is rejected. Although Respondent asserts in its posthearing brief 

that repairs were "recent," there is no evidli!nce on the record which 

indicates the time at which the repairs had been carried out. Respondent failed to establish a connection between the testing and the 

absence of this guard. 

Evidence indicates that the Respondent was negligent in its failure to guard this equipment. The absence of ·the guards was readily 

observable. 

It is probable that an accident would occur. The pulley was 

located along a walkway and was accessible to passersby.. The inspector estimated the pulley to be within 12 inches of the walkway. If 

such an accident were to occur, it is probable that a loss of fingers 

or a hand would result. 

f. Order No. 6-LLK 

Order No. 6-LLK cited section 77.400(c) and stated that "the 

drive pulley of the No. lA belt conveyor had not been guarded." 

Inspector Keller testified that this drive pulley had never been 

guarded. The Respondent admitted in its answer that the equipment 

was unguarded, but' isseited the absence of a guard did not co~sti~ 

tute a violation because the tipple had been operational for festing 

179 
purposes only on December 12, 1977. This defense is rejected in this 

instance because no causal link was established between the absence 

of this guard and the operation of the belt fo~ testing purposes. 

The Respondent was negligent in its failure to guard this drive 

pulley because the condition was readily observable and had existed 

for a long period of time. It knew or should have known of the con-

·dition, yet it failed to take corrective action. 

The pinchpoint between the pulley and belt was estimated by 

Inspector Keller to be 18 inches from the walkway between knee and 

waist height. Given the close proximity of the pinchpoiut to the 

walkway. it was probable that an accident would occur. If such an 

accident were to occur, it is probable that the resulting injury 

would be disabling. Inspector Keller testified that it was likely 

that an individual caught at this pinchpoint would be dragged into 

the belt and killed. 

g. Order No. 7-LLK 

Order No. 7-LLK cited section 77.400(c) and stated that "the 

tail pulley of the No. lA belt conveyor had not been provided with a 

guard." The Respondent had removed the guard because the pulley area 

could not be kept clear of coal otherwise~ The Respondent admitted 

in its answer that the tail'pulley was unguarded, but again asserted 

that the absence of a guard did not constitute a violation because 

the tipple operated on December 12, 1977, for testing purposes only. 

This defense is rejected because no causal link was established 

between the absence of the guard and the operation of the belt for 

testing purposes. 

The operator was negligent in that it knew the absence of the 

guard, yet it failed to take corrective action. 

Inspector Keller testified that an accident was probable because 

Respondent's employees were required to clean in the area. He knew of 

accidents where fatalities had occurred when a person caught a shovel 

in a tail pulley and was dragged into a belL Larry Pommier testified 

that all cleaning .in the area was accomplished with water under high 

pressure. Even so, the finding that an accident was probable is warranted because Respondent's employees had occasion to work in the 

area and the unguarded pulley was readily accessible. 

It is probable that a disabling injury would occur if a person 

was caught between the belt and pulley. 

h. Order No. 8-LLK 

Order No. 8-LLK cited section 77.400(a). The inspector described 

the condition as follows: 

180 
The guard o.n the north end (face) o.f the rotary breaker 

was not adequate to prevent personal contact of the drive 

chain and the breaker drum itself. The.guard was not of 

sufficient height and in addition had been damaged and 

repairs had been attempted by wiring the guard back in 

place. 

The guard on the rotary breaker normally reached a height of more 

than 6 feet. However, the guard had been damaged so that on one side 

it reached a height .of only 4 feet and extended out into the walkway. 

An attempt had been made to repair this damage with wire. The testi~ 

mony of Inspector Keller and Inspector-Trainee Summers established 

that an individual could come into contact with and be injured by the 

rotary breaker where its guard had been damaged. 

The Respondent was negligent in that it was or should have 

been aware of the damage to the guard, but failed to take adequate 

corrective measures. 

An accident was probable in that the inadequately guarded 

breaker was adjacent to a walkway frequently traveled by Respondent's employees" Inspector Keller testified that a falling man 

could reach for support and contact the breaker" 

If such an accident were to occur, the probable result would be 

a disabling injury. Loss of fingers, a hand or an arm might have 

resulted. 

i. Order No. 10-LLK 

Order No. 10-LLK cited section 77.400(c) and stated that "the 

tail pulley of the No. 1 belt conveyor had not been guarded." The 

Respondent admitted in its answer that this tail pulley was 

unguarded and Inspector Keller testified that a person could become 

caught between belt and pulley while performing his normal duties 

in the area., 

The "testing" defense interposed by Respondent is again rejected. 

No connection was established between the testing of the belt on 

December 12 and the absence of the guard on the tail pulley. 

The operator was negligent in that it knew or should have known 

that the pulley was unguarded. The condition was visually apparent. 

That accumulations of coal contacted and engulfed the pulley in<licated that the condition existed for a long enough time that it 

should have been discovered by the Respondent. If a guard had been 

present, it would have prevented contact between the pulley and the 

accumulations. 

It is.probable that an accident would occur because of the 

absence of this guard. The pulley was adjacent .to a walkway which 

181 
wa.s used by Respondent's employees in the performance of their ·duties. 

The presence of a water pump on the walkway and coal accumulat.ions 

in the area increased the likelihood that an accident would occur 

causing a miner to be caught in the belt. Larry Pommier testified 

that the pinchpoint between this pulley and the belt was inside a 

truss which was itself guarded. At the same time, Mr. Pommier testified that he was "not that familiar" with this tail pulley. Accordingly, Inspec~or Keller's testimony is given greater weight. 

If an accident were to have happened, it is probable that a disabling injury would have occurred. Loss of fingers or a hand might 

have resulted. 

j. Order No. 11-LLK 

Inspector Keller issued Order No. 11-LLK, citing section 

77.400(a). He stated that "the V-belt, clutch and pitman arms of 

the feeder drive located in the draw off tunnel had not been guarded." 

The Respondent admitted in its answer that this equipment was 

unguarded. Larry Pommier testified that they had been removed to 

allow for repair of the feeder and replacement of the clutch. Respondent argued that a violation of 77.400(a) did not exist because 

repairs had been made and the guards had been left. off until t~sting 

could be accomplished. This defense must be rejected because the 

record contains no indication of the time when these repairs were 

effected. More specifically, there is no indication that the repairs 

were made in the period from December 10 through 12, and therefore, 

no causal link was established between the absence of guards and the 

testing carried out on December 12. 

The operator was negligent in its failure to guard the machines. 

This condition was visually apparent and should have been known to 

the operator. 

Because of the absence of guards on this equipment, an accident 

was probable. One employee per shift was required to work in the 

area, and the walkway around the equipment had only a 16-inch 

clearance. 

If an accident occurred, the probable result would have been the 

loss of fingers or a hand. 

Penalties 

In consideration of the findings of fact and conclusions of law 

in this decision based on stipulations and evidence of record, the 

following assessments ar~ appropriate under the criteria of section 

109(a) of the Act. 

182 
Docket No. DENV 78-359-P 

Notice of Violation No. 1-LLK (9/6/77) $ 1,000 

Docket No. DENV 78-439-P 

Notice of Violation No. 1-LLK (il/8/77) 75 

Docket No. DENV 78-437-P 

Notice of Violation No. 1-LLK ( 12/12/77) 1,000 

Docket Now DENV 78-438-P 

Notice of Violation No. 5-LLK ( 12/12/77) 100 

Docket No. DENV 78-493-P 

Order of Withdrawal No~ 3-LLK (12/12/77) 1,000 

Order of Withdrawal No. 5-LLK ( 12/12/77) 1,000 

Order of Withdrawal Now 6-LLK (12/12/77) 1,500 

Order of Withdrawal No. 7-LLK ( 12/12/77) 1,500 

Order of Withdrawal No. 8-LLK ( 12/12/77) 1,000 

Order of Withdrawal No. 10-LLK (12/12/77) 1,000 

Order of Withdrawal No~ 11-LLK ( 12/12/77) 1,000 

ORDER 

The civil penalty proceedings with respect to Notice of Violation Now 2-LLK (December 12, 1977), Order of Withdrawal No. 1-LLK 

(December 12, 1977), Order of Withdrawal Now 2-LLK (December 12, 

1977), and Order of Withdrawal No. 4-LLK (December 12, 1977), are 

hereby DISMISSED. 

It is ORDERED that the settlement negotiated by MSHA and Respondent with regard to Order of Withdrawal No~ 12-LLK (December 12, 

1977), Order of Withdrawal No. 13-LLK (December 12, 1977), and Order 

of Withdrawal No. 14-LLK is hereby approved~ · 

183 
With respect to the remaining notices of violation and orders 

of withdrawal, it is ORDERED that payment in the amount of $10,175 

be made within 30 days of the date of this decision. 

Issued: April 5, 1979 

Distribution: 

Forrest E. Stewart 

Adminstrative Law Judge 

Judith N. Macaluso, Esq., Office of the Solicitor, Mine Safety 

and Health Administration,.U.S. Department of Labor, 

4015 Wilson Blvd., Arlington, VA 22203 

Donald K. Switzer, Esq., Logan, Lowry & Johnston, 101 South 

Wilson Street, P.O. Box 574, Vinita, OK 74301 (Certified Mail) 

Administrator, Coal Mine Safety and Health, U.S. Department 

of Labor 

Standard Distribution 

184 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE Of ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGIN IA 22203 

April 5, 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

TEXAS UTILITIES GENERATING CO., 

Respondent 

Civil Penalty Proceedings 

Docket No. DENV 78-51-P 

A/O No. 41-02632-02002 

Docket No. DENV 78-485-P 

A/O No. 41-02632-02001 

Docket No. DENV 78-503-P 

A/O No. 41-02632-02003 

Martin Lake Strip Mine 

Docket No. DENV 78-486-P 

A/O No. 41-01900-02002 

Docket Now DENV 78-487-P 

A/O No. 41-01900-02003 

Monticello Fuel Facilities Strip 

Mine 

Docket No. DENV 78-491-P 

A/O No. 41-01192-02001 

Docket No. DENV 78-492-P 

A/O No. 41-01192-02002 

Big Brown Strip Mine 

DECISION 

Appearances: John H. 0 1Donnell, Esq., U.S. Department of Labor, 

Office of the Solicitor, MSHA, on behalf of Petitioner; 

Richard L. Adams, Esq., Dallas, Texas, on behalf of 

Respondent. 

Before: Forrest E. Stewart, Administrative Law Judge· 

185 
FACTUAL AND PROCEDURAL BACKGROUND 

The above-captioned civil penalty proceedings were brought pursuant to section 109 1/ of the Federal Coal Mine Health and Safety Act 

of 1969, 30 u.s .. c. § 819 (1970), hereinafter referred to as the Act .. 

These proceedings were consolidated pursuant to a motion submitted by Petitioner on September 19, 1978,. Hearings were held on 

October 18 and 19, 1978, in Dallas, Texas,. The Petitioner called 

three witnesses and introduced 55 exhibits.. The Respondent called 

three witnesses and introduced eight exhibits. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Docket Nos .. DENV 78-51-P> DENV 78-485-P, and DENV 78-503-P, concern conditions which were allegedly observed at Respondent's Martin 

Lake Strip Mine. The Martin Lake Strip Mine is a surface lignite mine 

located in Beckville> Texas~ Production started at this mine in the 

early part of 1977.. At the time of the hearing, 200 to 300 men 

were employed at the mine. A total of six prior paid violations 

occurred there in the period from September 15; 1976 through May 16 1 

1977. 

Docket No. DENV 78-51-P 

Inspector Larry Maloney issued section 104(b) Notice of Violation 

No. 2-LGM on May 17, 1977. The inspector cited 30 CFR 77.1605(d) and 

described the condition allegedly in violation of this standard as 

follows: "The Caterpillar V 300 forklift (company #3405) was not 

. provided with an operative audible warning device. The forklift was 

located in the shop yard." 

The testimony of Inspector Maloney clearly established the existence of a violation of section 77.1605(d). This section requires 

1/ Section 109(a)(l) of the Act reads as follows: 

"The operator of a coal mine. in which a violation occurs of a 

mandatory health .or safety standard * * * shall be assessed a civil 

penalty by the Secretary under paragraph (3) of this subsection which 

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

occurrence of a violation of a mandatory health or safety standard 

may constitute a separate offense. In determining the amount of the 

penalty, the Secretary shall consider the operator's history of previous violations, the appropriateness of such penalty to the size of 

the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in business> 

the gravity of the violation> and the demonstrated good faith of the 

operator charged in attempting to achieve rapid compliance after 

notification of a violation .. " 

186 
that mobile equipment be provided with audible .warning devices., The 

inspector tested the horn on the forklift and found that it was not 

working. The cause of this malfunction was a faulty control button. 

At the time the notice was issued, there was no operator on 

the machine and it was not running. However, one of Respondent's 

mechanics told the inspector that the forklift was operational. At 

this mine, a tag forbidding use is normally placed on a machine in 

need of repair. No such tag had been placed on the forklift and 

nothing prevented its use. 

The inspector testified that it was improbable that an accident 

would occur because of the inoperative horn. 

No showing was made of negligence on the part of the Respondent. 

The inspector estimated the probability that the Respondent knew of 

the malfunction to be minute. 

The parties stipulated that the condition was aba.ted with a 

normal degree of good faith., 

Docket No. DENV 78-485-P 

Four alleged violations of mandatory standards are included 

within Docket No~ DENV 78-485-P. All four were objects of notices 

of violation issued at the Martin Lake Strip Mine. They are discussed below in the order of their issuance. 

A. Notice of Violation No. 2-LGM (September 15, 1976) 

Inspector Maloney issued Notice of Violation No. 2-LGM on 

September 15, 1976. He cited 30 CFR 77wl711 and described the condition allegedly in violation of this standard as follows: 

An employee was smoking a cigarette in.close proximity 

(appro~imately.2 feet) with the Chevrolet service truck's 

cargo bed (company #3516). The truck was provided with 

warning signs prohibiting smoking or open fiames in the 

immediate area of the employee. The truck was carrying a 

one thousand gallon diesel storage tank (over 1/2 full), 

oil, grease, and varsol. 

Inspector Maloney testified that he had stopped the service truck 

in order to inspect it. The inspector had twice before issued notices 

of violation directed at this same truck. Because of this, the oper~ 

ator of the vehicle was very nervous. He climbed down from the cab, 

leaned against a pipe at the.top of which was a sign which read "No 

smoking or open flame," ·took out a cigarette and lit it in the presence of the inspectorw The truck was transporting a large quantity 

of oil, varsol~ grease and diesel fuel. 

187 
30 CFR 75.1711 states that "No person shall smoke or use an open 

flame ·where such practice may cause a fire or explosion." A clear violation of this standard on the part of one of Respondent's employees 

is evident here. 

This violation was not accompanied by negligence on the part of 

the Respondent. The Texas Utilities Safety Manual contains a provision which reads, "Employees shall not smoke on company property 

where this act constitutes a fire hazard." Respondent's safety 

representative, David Thompso~. testified that the company made a 

diligent effort to enforce this provision. The operator of the truck 

was irrnnediately given a strong oral reprimand and, later, was issued 

a written reprimand which was placed in his file. It should be noted 

once again that the employee lit the cigarette directly under a "No 

smoking" sign. 

It is probable that this type of activity, if left unchecked, 

would cause a fire or an explosion. A disabling injury or a 

fatality would be the likely result of such an accident. At the 

time this infraction occurred, three people, including the truck 

operator, a representative of the Respondent, and Inspector Maloney, 

were threatened with injury. 

The parties stipulated that the Respondent demonstrated a.normal 

degree of good faith in abating these conditions once the notice of 

violation was issued. 

B., Notice of Violation No. 5-LGM (September. 15 • 1976) 

Inspector Maloney issued J04(b) Notice of Violation No. 5-LGM on 

September 15, 1976, citing 30 CFR 7].1702(c). The citation was issued 

because it was reported to the inspector that the company had not submitted a report on emergency medical or ambulance service arrangements 

to the MSHA subdistrict or district offices. 

Section 77.1702(c) requires that each operator shall, on or 

before September 30, 1971, report emergency medical or ambulance service arrangements to the MSHA district office., The Martin Lake Strip 

Mine had not yet produced coal by September of 1976. Even so, the 

definitions of "operator" and "coal mine" in sections 3(e) and (h) 

of the Act are broad enough to have encompassed the Respondent and 

its mine at that time. The Respondent was required to comply with 

the provisions of section 77.1702(c). 

The testimony of Inspector M~loney established a technical violation of section 77.1702(c). The Respondent failed to file the 

report in question because it was unaware that such a report was 

required. 

188 
There is no indication that the Respondent was negligent in its 

failure to file this report. Approximately 6 weeks before the citation was issued, the inspector delivered a "new mine packet" which 

- contained forms to be submitted by the Respondent. The inspector did 

not set a date by which these forms had to be submitted. This packet 

did not contain a form for the report in question and the inspector 

could not remember if the need for the report had been discussed. 

Prior to September 15, 1976, the Martin Lake Strip Mine had not 

been issued a mine I.D. number. This number is the legal identification of the mine and must accompany an operator's submissions to MSHA. 

Without this identification, there is a possibility that the information would be misplaced. 

The inspector did not consider the failure to submit the report 

to be a serious infraction. The company had provided for emergency 

medical and ambulance services, but failed only in its duty to 

notify MSHA of these arrangements. Emergency phone numbers had been 

posted on the bulletin board and each supervisor carried a pocket 

card with these numbers. 

The parties stipulated that the operator demonstrated a normal 

degree of good faith in abating the condition, once the notice of 

violation issued. 

c. Notice of Violation No. 1-LGM (September 16, 1976) 

Inspector Maloney issued section 104(b) Notice of Violation 

No. 1-LGM on September 16, 1976, citing 30 CFR 77.1713(c). The citation was issued because the onshift examination of the mine shop had 

not been recorded for the 12 a.m. to 8 a.m. shift. The inspector 

asked to see the onshift examination book for the shop area and was 

informed by Chad Abernathy, the operating engineer, that this book 

was not yet being kept. 

The operator was negligent in its failure to maintain an onshift 

examination record book. The inspector testified that the mine superintendent and other personnel had worked at mines where the record 

books were required. The superintendent and certified individuals 

qualified to make the examinations knew or should have known of the 

requirement .. 

The inspector was of the opinion that this was not a serious violation. No showing was made that the operator failed to carry out 

the onshift examination. In the event that such an examination was 

carried out, it is improbable that the failure to keep a record would 

result in accident and i"njury. The record serves primarily as a check 

to make certain that such an inspection did occur. 

189 
The parties stipulated that there was a normal degree of good 

faith demonstrated in the abatement of the condition, once the notice 

of violation was issued. 

D. Notice of Violation No. 2-LGM (February 2, 1977) 

Notice of Violation No. 2-LGM was issued by I.nspector Maloney on 

February 2, 1977. ~e cited 30 CFR 77.1110 and issued the notice 

because he observed that the fire extinguisher in a winch truck was 

"not maintained in a useable and operative condition." The inspector did not find that the condition was of such a nature as could 

significantly and substantially contribute to the cause and effect of 

a mine safety hazard or that it was caused by an unwarrantable failure on the part of the Respondent. The condition was abated within 

the time specified by the inspector. 

The parties agreed to settle this case for $43, the amount 

originally assessed by MSHA's Office of Assessments. This settlement 

was approved by the administrative law judge at the hearing and this 

approval is affirmed here. 

Docket No. DENV 78-503-P 

A single alleged violation is included under this docket ~umber. 

On October 12, 1977, Inspector Maloney issued Notice of Violation 

No. 1-LGM at the Martin Lake Strip Mine. .The inspector cited 

30 CFR 77.1104 and described the condition found by him as follows: 

Excessive oil spillage and oil soaked rags were allowed 

to accumulate creating a fire hazard on and around the swing 

gear case and hydraulic control valves on the Koehring 1266 

backhoe. The gear case and control valves are located in 

the front of the machine house next to the operator's cab. 

The backhoe is used to load coal in 001 pit. 

The testimony of the inspector established that the condition 

existed as alleged. The backhoe had leakage problems., At the time 

the condition was first observed by the inspector, the machine had 

been out of service for approximately 1 hour and had.been removed 

200 to 300 feet from the location at which it had been working. The 

machine had not been tagged to prevent its use because the repair to 

be made was considered minor. 

Oil covered a 4-foot by 8-foot plate. Some of the oil had 

gathered in puddles of approximately one-quarter inch deep. In 

other places, it was smeared. Two to four rags of a size approximately 2 feet by 2 feet had been thrown in the oil. 

No plans to clean up the oil spillage had been made by the 

Respondent. Before issuing the notice, the inspector spoke with 

190 
representatives of mine management and ascertained that a cleanup 

program had not been initiated. The machine operator also denied 

. responsibility~ 

The inspector believed that this condition created a fire hazard. 

The accumulations were beside the operator's cab and in the area of 

the hydraulic.tanks. 

Given the absence of a cleanup program and the hazard presented 

by these accumulations, their presence was in violation of section 

77 .1104 .. 

No showing was made that the Respondent was negligent in its 

failure to keep the backhoe free of accumulations. 

It was improbable that a fire would start and cause injuries. 

There were no ignition sources in the immediate vicinity~ In the 

opinion of the inspector, the two most likely sources of fire were 

discarded cigarettes or welding activities~ The engine on the 

backhoe sits towards the rear of the machine and was considered not 

to be an ignition source by the inspector. Not only was there an 

absence of ignition sources, but the hydraulic oil was fireresistant. The temperature at which this oil would ignite was 

considerably higher than that of untreated hydraulic oil. 

Finally, the inspector testified that the operator of the backhoe was the individual most endangered by the accumulations. Since 

the backhoe had been removed from service, this threat no longer 

existed~ 

The Respondent demonstrated a normal degree of good faith in 

abating the condition, once the notice of violation was issued. 

Docket No. DENV 78-486-P 

Eleven alleged violations of mandatory standards are included 

within Docket No. DENV 78-486-P. Each of the 11 occurred at Rcspondent 's Monticello Fuel Facilities Strip Mine .. This lignite mine is 

located in Winfield, Texas~ It has an annual production of between 

6 and 7 million tons and employs approximately 400 employees. In 

the period from April 18, 1975, through January 10, 1977, there were 

a total of 22 prior paid violations at the Monticello Fuel Facilities 

Strip Mine. 

Each of the violations alleged herein was the object of a 104(b) 

notice of violation. Th~se notices are discussed below in the order 

of their issuance. 

191 
A. Notice of Violation No. 1-JF (Marc~ 4, 1976) 

Notice of Violation No. 1-JF was issued on March 4, 1976, by 

inspector John Franco. He issued the notice on the basis of information contained on a printout received from the MSHA Denver Office. 

This printout indicated that the Respondent had submitted only eight 

of the 10 valid respirable dust samples required under the provisions 

of 30 CFR 71.106(c). The Respondent had submitted 10 samples, but 

two of these were subsequently invalidated. Glen Hood, Respondent's 

employee in charge of the submission of this data, testified that he 

filled out a form incorrectly so that the sample appe.ared to have 

been taken in the wrong location. He had wrtten "001-0" where he 

should have written "001-L" The second sample contained oversized 

particles. Respondent's failure to submit 10 valid samples was in 

violation of section 71.106(c). 

The inspector was of the opinion that the operator would not 

necessarily know that one of the submitted dust samples contained 

oversized particles. No showing was made that the Respondent was 

negligent with respect to the sample invalidated because of clerical 

error .. 

It is improbable that the failure to submit valid samples in this 

instance would lead to the occurrence of accident, illness, or injury~ 

This is particularly true because no respirable dust problem exists 

at this mine .. 

The operator demonstrated a normal degree of good faith in complying with the requirements of section 77.106(c), once the notice 

of violation issued. 

B.. Notice of Violation No. 1-JDC (May 6, 1976) 

Notice of Violation No. 1-JDC, May 6, 1976, was issued in error. 

It was alleged that the Respondent failed to submit a respirable dust 

sample for a particular miner as required by the provisions of 30 CFR 

71.108. After the notice had .issued, it was determined that the 

Respondent no longer ~mployed the miner in question. A card had been 

sent to MSHA with this information, but it had been misfiled. 

The proceeding with respect to this notice was dismissed at the 

hearing. This dismissal is ratified here. 

c. Notice of Violation No. 1-LGM (May 12, 1976) 

Inspector Maloney issued Notice of Violation No. 1-LGM on May 12, 

1976, citing 30 CFR 77,1110. He did so because he observed that the 

automatic halogen gas fire-extinguishing unit on the B.E. 1350 W. 

dragline did not have a current examination tag. Section 77blll0 

requires that an examination of fire extinguishers be carried out 

192 
every 6 months and that the date of this examination be recorded on 

a tag attached to the extinguisher. The last date recorded on the 

tag of the halogen unit was October 1975. This failure to examine 

the unit and note the examination within 6 months was in violation of 

-section 77.1110. 

There is no indication on the record that the Respondent was 

negligent in its failure to examine the halogen unit and record this 

examination on the attached tag. 

It is improbable that this violation would result in the occurrence of an accident or injury. The inspector believed that the 

halogen unit was operational and gauges indicated that its cylinders 

were full. The unit protects a 12-foot by 24-foot room where the 

7200 volt cable enters the dragline. Moreover, it is only one of a 

number of extinguishers on the machine. The other extinguishers were 

in good condition and haJ current examination tags. 

The operator abated the condition in good faith, once the notice 

of violation was issued. 

Dw Notice of Violation No. 1-LGM (May 13, 1976) 

Inspector Maloney issued Notice of Violation No. 1-LGM on May 13, 

1976, citing 30 CFR 77.604. Section 77.604 requires that trailing 

cables be adequately protected to prevent damage by mobile equipment. 

The inspector issued the notice when he observed that a power cable 

had been damaged by a bulldozer to such an extent that the current 

breakers had been tripped and the cable was deenergized. The outer 

jacket of the cable was noticeably damaged. 

The inspector felt that the best way to avoid this kind of 

accident was to provide a spotter for the operator of the 

bulldozer. 

No showing was made that the operator was negligent in its failure to adequately protect the cable. The person operating the bulldozer should have seen the cable which was clearl.y visible at the 

point where it was run over. The cable is black and the sand on 

which it lies is light-colored. Yellow flags are also used to mark 

the location of the cable. This use of flags was of limited effectiveness because they were frequ~ntly knocked out. 

No injury resulted from this accident. When the circuit breaker 

system is functioning properly, the cable is deenergized after a small 

time lag. An individual sitting on the bulldozer would not be injured. 

There was some risk of injury to a person if he were to touch the 

bulldozer while standing.on the ground. It was unlikely, however, 

that anyone would have been in contact with the machine when it was 

in motion. 

193 
This condition was abated with a normal.degree of good faith, 

once the notice of violation was issued. 

E. Notice of Violation No. 1-LGM (May 24, 1976) 

The inspector issued Notice of Violation Now 1-LGM on May 24, 

1976, citing 30 CFR 77.1605(d). He did so after discovering that 

the "trouble shooter's" truck did not have an operative audible 

warning device. This condition was quickly abated. The inspector 

did not find that the condition was of such a nature as could significantly and substantially contribute to the cause and effect of 

a mine safety hazard or that it was caused by an unwarrantable failure on the part of the Respondent. The condition was abated within 

the time specified by the inspectorw 

The operator and MSHA agreed at the hearing to settle this case 

for $78, the amount originally assessed by MSHA's Office of Assessments. The settlement was approved by the administrative law judge 

at the hearing and this approval is affirmed here. 

F. Notice of Violation No. 3-LGM (May 24, 1976) 

Inspector Maloney issued Notice No~ 3-LGM on May 24, 1976, citing 30 CFR 77. lllOw He did so when he observed that the fire 

extinguisher on the "trouble-shooter's" truck had not been inspected 

in the prior 6 months. The·order was terminated within 3 hours of 

its issuance. The inspector did not find that the condition was of 

such a nature as could significantly and substantially contribute to 

the cause and effect of a mine safety hazard or that it was caused 

by an unwarrantable failure on the part of the Respondent. 

At the hearing, the operator and MSHA agreed to settle this case 

for $55, the amount originally assessed by MSHA's Office of Assessmentsw This settlement was approved at that time by the administrative law judge and this approval is affirmed here. 

G. Notice of Violation Now 1-LGM (May 25, 1976) 

The inspector issued Notice of Violation No. 1-LGM on May 25, 

1976, citing 30 CFR 77.410w He issued the notice because he discovered that a four-wheel drive buggy had a nonoperational backup 

alarm. The inspector based his decision that a backup alarm was 

necessary on the type of equipment involved and the visibility from 

the operator's seat• In this instance, the operator of the vehicle 

would be unable to see an individual iunnediately behind the vehicle 

if that individual was crouching, kneeling, or on the ground. 

Because the operator's vision was impaired, the absence of an 

automatic backup alarm was in violation of section 77.410. 

There was no negligence on the part of the Respondent in its 

failure to equip the buggy in question.with an operable backup alarm. 

194 
The truck was equipped with an alarm, but it was not functioning. 

No showing was made which would establish when the warning device 

stopped functioning. Although it is probable that the driver of 

the vehicle knew the horn was not working, there is no evidence 

that the Respondent or any of its agents, knew or should have known 

of the problem. 

It is improbable that this violation would result in accident 

or injury. Only a small area immediately behind the machine could 

not be seen from the operator's seat. 

The parties stipulated that the Respondent demonstrated a 

normal degree of good faith in abating this condition, once the 

notice of violation was issued~ · 

H. Notice of Violation No. 1-LGM (August 16, 1976) 

The inspector issued Notice No. 1-LGM on August 16, 1976, citing 

30 CFR 77.1004(b). This section requires that overhanging highwalls 

and banks shall be taken down and other unsafe ground conditions 

shall be corrected promptly, or the area shall be posted. The inspector discovered visible cracks at the top of the highwall, a few feet 

from the edge. In addition, a seam of sand with water running through 

it undercut the top of the highwall. Because of these conditions, 

the inspector believed that the highwall was unstable. Immediately 

prior to the issu~nce of the order, one of Respondent's operations 

foremen brought two employees into the area and began to post it. 

The inspector felt that the unstable condition of the highwall had 

developed prior to the beginning of the shift, and that it had not 

been posted in a timely fashion. The failure to correct the condition or to post the area of the unstable highwall in a timely 

fashion was in violation of section 77.1004(b). 

There is no e-vidence on the record which would indicate that the 

Respondent negligently violated ~ection 77.1004(b). 

It is improbable that an accident and injury would have occurred 

. because the area in question was not marked off. There was no pedestrian traffic in the area. The coal trucks which passed the highwall 

did so on the spoils side of the cut, at least 60 feet from the wall. 

Men are required periodically to walk in the area threatened in order 

to set pumps. There are safety procedures which must be followed at 

.these times, including the requirement that one man watch the highwall at all times for sloughage. These procedures make it improbable that a pump setter would be injured. 

This condition was abated with a normal degree of good faith. 

195 
I~ Notice of Violation No. 2-LGM (August 16, 1976) 

Inspector Maloney issued Notice No. 2-LGM on August 16, 1976, 

immediately after he issued Notice No~ 1-LGM~ He again cited section 

77.404(b) because he believed that a section of Respondent's 

highwall was unstable. The notice dealt with a separate pit along 

the same highwall approximately one-half mile down from the area 

at which the first notice was directed~ The inspector believed the 

second area to be worse than the firstw The upper portion of the 

highwall had been undercut by ground water. The inspector observed 

a section of wall break and fall while he was in the areaw A violation of section 77.404(b) existed in this instance because the 

area was unpasted even though the highwall was in an unstable 

condition. 

No sh6wing was made that the Respondent was negligent in its 

failure to post this area, as required by section 775404(b). 

It was improbable that this violation would have resulted in 

inJury. As discussed above, coal-bearing trucks do not travel 

within 60 feet of the highwall and safety procedures were in effect 

to prevent an accident when pumps are reset in the area¥ Immediately prior to the inspector's arrival in this pit, a loading 

shovel had been moved through the area~ Because of this, it was 

necessary for four of Respondent's employees to carry cable past 

the affected area on the highwall side of the pit~ As a safety precaution, one of these employees did nothing but watch the highwall 

for hazardous areas, in order to give warning if sloughage occurred. 

This condition was abated with a normal degree of good faith, 

once the notice of violation was issuedw 

J. Notice of Violation No. 1-LGM (September 29, 1976) 

Inspector Maloney issued Notice No* 1-LGM on September 29, 1976, 

citing 30 CFR 77.1109(c)(l). The notice was issued because a "cherry 

picker" which was being operated in the 001 pit was not equipped with 

a fire ·extinguisher. The inspector did not find that the condition 

was of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety hazard or that it 

was caused by an unwarrantable failure on the part of the Respondent. 

This violation was immediately abated. 

At the hearing, the parties agreed to settle this case for $78, 

the amount originally assessed by the MSHA Office of Assessments. 

The administrative law judge approved the settlement at that time. 

This approval is affirmed here. 

196 
K¥ Notice of Violation No. 2-LGM (September 30, 1976) 

Notice of Violation No. 2-LGM was issued by Inspector Maloney on 

September 30, 1976. The inspector cited 30 CFR 77 .. 513 which reads 

as follows: "Dry wooden platforms, insulating mats, or other electrically nonconductive material shall be kept in place at all switchboards and power-control switches where shock hazards exist., 11 

(Emphasis added.) The inspector issued the notice because the Respondent had not placed electrically nonconductive material on the floor 

at the power switch for the dust suppression system. The power switch 

was located on the ground floor of a crusher plant and a considerable 

amount of water was present on the floor around it. The switchboard 

in question had two grounding systems. There was·a grounding system 

for the conduit and case, and a separate system for the conductors 

themselves. 

The inspector believed at the time he issued the notice that the 

power switch itself presented a shock hazard arid that this hazard 

was aggravated by the wet floor. He did not examine the switchboard's grounding systems. At the hearing, he admitted that he no 

longer believed the condition presented a hazard. Section 77.513 

requires nonconductive platforms or mats only if a shock hazard 

exists. A violation of this section is not evident here because 

no shock hazard ex.isted .. 

Docket No. DENV 78-487-P 

Seven alleg~d violations of mandatory standards are included 

within Docket No. DENV 78-487-P. Each of these alleged violations 

was the object of a 104(b) notice of violation issued at Respondent's Monticello Fuel Facilities Strip Mine. These notices are 

discussed below in the order of their issuance. 

A. Notice of Violation No .. 1-CH (December 28, 1976) 

Inspector Clarence Horn issued Notice No~ 1-CH on December 28, 

1976, during the course of a spot electrical inspection. He cited 

30 CFR 77.902 which· requires that three-phase, low-voltage resistancegrounded systems to portable and mobile equipment shall include a 

fail-safe ground check circuit or other no less effective device to 

monitor continuously the grounding circuit to assure continuity. 

The inspector issued this notice after observing two portable welders 

.were without a fail-safe monitoring device on their ground circuit~ 

These welders were located at the field house between pits A and c. 

The power to these welders was supplied from a portable transformer 

through a 440-volt three-phase, resistance-grounded system. The 

transformer was equipped with a ground circuit breaker, but it was 

not hooked up to the welders. 

The two welders were low-voltage, portable equipment and were 

subject to the provisions of section 77,902. The inspector based 

197 
his conclusion that this equipment was portable on the manner in 

which the welders were wired. · The absence of a monitoring device 

on these two welders was in violation of section 77.902~ 

The operator was negligent in its failure to provide a ground 

monitor on this equipmentw Inspector Maloney was told by David 

Nesmith, fuel engineer at Respondent's mine, that the monitoring 

circuit was no't hooked up because it could not be stopped from 

tripping out. The operator knew of the absence of a ground monitor 

on this equipment, yet continued to operate it. 

In order for an accident and injury to occur, two events would 

have to occur simultaneously. A ground failure would have to occur 

at the same time as a phase-to-ground fault. The inspector testified 

that such an occurrence was probable. At least two of Respondent's 

employees were subjected to the hazard in question. If a phase-toground fault occurred, the frame of the welders would be charged 

with 227 volts.. An individual who came into contact "with the frame 

could be severely injured, 

The operator demonstrated good faith in abating the condition, 

once the notice of violation was issued. 

B. Notice of Violation No~ 1-LGM (January 5, 1977) 

Inspector Maloney issued Notice No. 1-LGM on January 5, 1977, 

citing 30 CFR 77~1607(a). The inspector issued the notice because 

a coal haulage truck was not properly trimmed so as to prevent coal 

from falling off. The inspector did not find that the condition was 

of such a nature as could significantly and substantially contribute 

to the cause and effect of a mine safety hazard or that it was 

caused by an unwarrantable failure on the part of the Respondent. 

The condition was abated within the time specified by the inspector~ 

At the hearing, the parties agreed to settle this case for $115, 

the amount originally proposed by MSHA' s Office of Assessments.- The 

settlement was approved at that time by the administrative law judge~ 

This approval is affirmed here~ 

c. Notice of Violation No. 2-LGM (January 5, 1977) 

Inspector Maloney issued 104(b) Notice of Violation Now 2-LGM 

on January S, 1977. He cited 30 CFR 77.1605(k). This section 

requires that berms or guards shall be provided on the outer banks 

of elevated roadways. The notice was issued because the inspector 

observed that a 300-foot section of the coal haulage roadway at the 

bottom of the No. 3 ramp in pit 001 was without berms or guards on 

its outer bank. The roadway turned approximately 90 degrees to the 

left at this point and was elevated approximately 15 feet. It was 

being used by three 100-ton haulage trucks. Despite its being in 

198 
the pit, this area was a 11 roadwai' within the meaning of section 

77.1605(k). The absence o.f berms or guards in this area was in 

violation of section 77.1605(k). 

The operator was negligent in its failure to place guards or 

berms in this area. It had not done so because it did not consider 

this area to be part of the roadway. 

The inspector was of the opinion that the berms would not prevent a haulage truck which was out of control from running off the 

roadway. However, berms might be of assistance in guiding a truck, 

thereby keeping it on the roadway. 

The operator demonstrated good faith in abating the condition, 

once the notice of violation was issued. 

D. Notice of Violation No. 1-LGM (January 6, 1977) 

Inspector Maloney issued Notice No. 1-LGM on January 6, 1977, 

citing 30 CFR 77.409(b). This section requires that handrails shall 

be provided around all walkways and platforms on shovels. The notice 

was issued because the inspector observed one handrail to be missing 

and another to be damaged on Respondent's loading shovel in pit 002. 

These handrails had been struck and damaged by parts of the shovel 

which perform the function of running the bucket in and out when the 

shovel is in operation. 

At the time the not.ice was issued, the shovel had been walked 

out of the pit a distance of 200 to 300 feet. The machine had been 

taken out of service in order to allow repairs to be made. One of 

the repairs to be made was the replacement of these handrails. The 

inspector testified that he would not have issued the citation if 

his supervisor had not been there with him. 

In view of the. above, no violation of section 77.409(b) existed 

here. The shovel had been provided with handrails as required, but 

these rails were damaged. Thereafter, the machine had been removed 

from service so that repairs could be made, including the replacement of these handrails. 

E. Notice of Violation No. 2-LGM (January 6, 1977) 

Inspector Maloney issued 104(b) Notice of Violation No. 2-LGM 

on January 6, 1977, citing 30 CFR 77.1607(d). This section requires 

that cabs of mobile equipment shall be kept free of extraneous materials. The inspector issued the notice because he observed goggles, 

rubber gloves, air hoses, rive welding rod cans, rags, four aerosol 

cans, and a headlight lying on the floorboard inside the cab of a 

boom truck. This truck was being used in pit 002 at the time the 

notice was issued. 

199 
No showing was made that the Respondent knew or should have 

known of the failure to keep the truck's cab free of extraneous 

materials. The record does not contain evidence of the length of 

time which the materials had been left in the cab and these materials could be observed only when the cab door was open. 

The inspector testified that this material presented a hazard 

because it might strike the operator of the truck if it ever overturned. It is improbable that this condition would cause accident 

or injury. The truck was not moving at the time the condition was 

observed by the inspector. Even if it was moving, it is highly 

unlikely that it would overturn under the circumstances. 

The operator demonstrated a normal degree of good faith in 

abating the condition, once the notice of violation was issued. 

F. Notice of Violation No. 1-LGM (January 10, 1977) 

Inspector Maloney issued 104(b) Notice No. 1-LGM on January 10, 

1977, citing 30 CFR 77.1605(a). This section requires that cab 

windows be of safety glass or equivalent, in good condition. The 

inspector issued this notice when he observed a shattered upper right 

side window in the cab of a coal haulage truck. Gray tape was used 

to hold the window together, further obscuring the truck operator's 

vision. The operator of the truck agreed with the inspector that 

the cracked window and tape obscured his vision. 

The operator was negligent in its violation of this safety standard. Even though the condition was readily observable, the operator failed to replace the window. 

It was improbable that an accident and injury would occur bec~use 

of this condition. The driver of the truck did not feel that the 

window interfered with the truck's operation. The righthc:tnd,window 

was seldom used in maneuvering. 

The Respondent demonstrated a normal degree of good faith in 

abating the condition. 

G. Notice of Violation No. 2-LGM (January 10, 1977) 

Notice of Violation No. 2-LGM was issued by Inspector Maloney on 

January 10, 1977. He cited 30 CFR 77.1605(b) which requires that 

front-end loaders shall be equipped with parking brakes. The inspector issued this notice when he observed a front-end loader which was 

~ot equipped with an operative parking brake. This condition was 

abated by the following day with the installation of a new parking 

brake. The inspector did not find that the condition was of such a 

nature as could significantly and substantially contribute to the 

cause and effect of a mine safety hazard or that it was caused by an 

unwarrantable failure on the part of the Respondent~ 

200 
The parties agreed to settle this case at the hearing for $98, the 

amount proposed by MSHA's Office of Assessments.. The administrative 

iaw judge approved the settlement at that time.. This approval is 

affirmed here. 

Docket No. DENV 78-491-P 

Nine alleged violations of mandatory standards are included 

within Docket N6. DENV 78-491-P. Each of these alleged violations 

was the object of a 104(b) notice of violation issued at Respondent's Big Brown Strip Mine. The Big Brown Strip Mine is located 

in Fairfield, Texas, produces from 4 to 5 million tons per year of 

lignite, and employs approximately 300 men. There were 16 prior 

paid violations at this mine between August 18, 1975, and June 16, 

1977. 

The notices are discussed below in the order of their issuance. 

A~ Notice of Violation No. 3-JF (March 29, 1976) 

Inspector John Franco issued Notice No .. 3-JF on March 29, 1976, 

citing 30 CFR 77.505. This section requires that cables shall enter 

metal frames, splice boxes, and electrical compartments only through 

proper fittings. The inspector issued the notice when he observed 

that the fittings around a cable were not secured with proper fittings where the cable entered the frame of a circuit breaker. The 

cable was comprised of two segments. The first segment, the trailing cable, led from the dragline to the circuit breaker. The second 

segment, the power cable, led from the circuit breaker to the main 

power source. Wooden fittings had been placed around the cable at 

both entry points, but they were not bolted or clamped to the cable. 

The Respondent was negligent in its failure to secure the cable 

with proper fittings. The inspector was of the opinion that the fittings had never been secured. Moreover, the condition was readily 

observable. The Respondent should have known of the condition. 

It was improbable that an accident would occur. No damage to 

the cables was observed. 

The condition was abated with a normal degree of good faith .. 

B.. Notice of Violation No. 1-LGM (July 28, 1976) 

Inspector Maloney issued 104(b) Notice 

on July 28, 1976, citing 30 CFR 77 .. 1605(a). 

this notice because the front windshield on 

badly. It had shattered to the extent that 

be· damaged if used. At the time the notice 

had been raised. The condition was clearly 

77.1605(a), which requires that cab windows 

201 

of Violation No,. 1-LGM 

The inspector issued 

a grader had shattered 

the wiper blades would 

was issued, the window 

in violation of section 

be kept in good condition. 

) 
No showing was made that the Respondent was negligent in its 

failure to maintain the cab window in good conditionw The inspector 

testified that he was unsure whether the Respondent knew of the condition and he did not give an indication of the length of time which 

the windshield had been damaged. 

It was improbable that the shattered windshield would lead to an 

accident or injury. Because the windshield was up, its condition did 

not reduce visibility. The weather conditions were not such that the 

operator would need to lower the windshield., 

The operator demonstrated a normal degree of good faith in 

abating this.condition, once the notice of violation was issued. 

C. Notice of Violation No. 1-LGM (August 4, 1976) 

This notice of violation was issued on August 4, 1976. The 

inspector cited 30 CFR 77.1110, which requires that an examination of 

fire extinguishers be carried out once every 6 months, and that the 

date of this examination be recorded on a permanent tag attached to 

the extinguisher •. The inspector issued the notice when he observed 

that the fire extinguisher on the trouble-shooter's truck did n6t 

have an attached tag. He did not find that the condition was of such 

a nature as could significantly and substantially contribute to the 

cause and effect of a mine safety hazard, or that the violation was 

caused by an unwarrantable failure on the part of Respondent., The 

condition was abated within the time prescribed by the inspector. 

The parties agreed at the hearing to settle this case for $61, 

the amount originally assessed by MSHA's Office of Assessments. 

lhis settlement was approved by the administrative law judge at the 

hearing. This approval is affirmed here. 

D. Notice of Violation No. 2-LG:M (December 20, 1976) 

Inspector Maloney issued Notice of Violation No~ 2-LGM on 

December 20, 1976, citing 30 CFR 77.400(a). He issued the notice 

~fter he observed that the V-belt and pulleys on a gasoline motor 

and air compressor mounted on the bed of a service truck were 

unguarded. The inspector did not find that the condition was of 

such a nature as could significantly and substantially contribute 

to the cause and effect of a mine safety hazard or that it was 

caused by unwarrantable failure on the part of the Respondent. The 

c~ndition was abated within the time prescribed by the inspector. 

The parties agreed at the hearing to settle this case for $90, 

the amount originally.assessed by MSHA's Office of Assessments. This 

settlement was approved by the administrative law judge at the hearing. This approval should be affirmed here. 

202 
E. Notice of Violation No. 1-LGM (December 22, 1976) 

Inspector Maloney issued Notice No. 1-LGM on December 22, 1976, 

citing 30 CFR 77.1104. The inspector issued the notice when he 

observed that the ground in the area of the storage tanks was 

saturated with diesel fuel. Diesel fuel oozed from the ground when 

the inspector kicked away a surface layer of pea gravel. The i~spec-

·tor did not observe an ignition source in the area and warning signs 

against smoking and open flames were present. This accumulation of 

·diesel fuel was in violation of section 77.1104. 

It was improbable that an accident would occur because of the 

absence of ignition sources~ Fire extinguishers are set in the area 

to stop fire which occurred outside the tanks. However, if a fire 

were to occur within the tanks, it ·could not be stopped. 

No negligence on the part of the Respondent was shown. The 

inspector testified that the condition was not readily observable. 

People did not walk in the area on a regular basis. 

The condition was abated with a normal degree of good faith, once 

the notice was issued. 

F~ Notice of Violation No~ 4-LGM (February 17, 1977) 

Inspector Maloney issued Notice of Violation No. 4-LGM on 

February 17, 1977, citing 30 CFR 77.1607(d). This section requires 

that cabs be kept free of extraneous material. The inspector issued 

the notice when he observed extraneous items in the cab of a truck 

being used by welders. These extraneous materials were as follows: 

welding rod containers, tank regulators, a cutting torch, a ~qelding 

hood, a jumbo air chuck, a fire extinguisher and other miscellaneous 

materials. The inspector did not find that the condition was of such 

a nature as could significantly and substantially contribute to the 

cause and effect of a mine safety hazard or that the condition was 

caused by an unwarrantable failure on the part of the Respondent~ 

The condition was abated within the time limit prescribed by the 

inspector. 

The parties agreed at the hearing to settle this case for $74, 

the amount originally assessed by MSHA's Office of Assessments using 

the approved formula. This settlement was approved at the hearing 

by the administrative law judge. This approval is affirmed here. 

G. Notice of Violation No. 1-LGM (March 9, 1977) 

Inspector Maloney. issued Notice No. 1-LGM on March 9, 1977-, citing 

30 CFR 77.1110. He issued the notice when he observed that a permanent 

tag recording a current examination date had not been attached to the 

fire extinguisher in a coal haulage truck. The inspector did not find 

203 
that the condition was of such a nature as could significantly and 

substantially contribute to the cause and effect of a mine safety hazard or that it was caused by an unwarrantable failure on the part of 

the Respondent. The condition was abated within the time specified by 

the inspector .. 

The parties agreed at the hearing to settle this case for $74, 

the amount originally assessed by MSHA's Office of Assessments~ This 

settlement was approved by the administrative law judge at the hearing. This approval is affirmed here. 

H.. Notice of Violation No. 2-LGM (March 9, 197i) 

Inspector Maloney issued Notice No. 2-LGM on March 9, 1977, 

citing 30 CFR 77.1110. He issued this notice when he observed that 

the extinguisher on a coal haulage truck did not have an examination 

date tag affixed to it and its pin had been pulled. The inspector 

did not find that the condition was of such a nature as could significantly and substantially contribute to the cause and effect of 

a mine safety hazard or that it was caused by unwarrantable failure 

on the part of the Respondent. The condition was abated within the 

time prescribed by the inspector. 

The parties agreed at the hearing to settle this case for $46, 

the amount originally assessed by MSHA's Office of Assessments. This 

settlement was approved by the administrative law judge at the hearing. This approval is affirmed here. 

I. Notice of Violation No. 1-LGM (March 10, 1977) 

Inspector Maloney issued Notice No. 1-LGM on March 10, 1977, 

citing 30 CFR 77.204(b). He issued the notice when he observed a 

buildup of grease in two places along a catwalk which went up the 

boom on the dragline. The grease covered steps and handrails in 

the affected area. 

At the hearing, the inspector testified that he had incorrectly 

cited 30 CFR 77.204(b) in the notice when he had intended to cite 

30 CFR 77.205(b). Because of this, the parties agreed to settle this 

case for $25, rather than the $58 originally assessed by MSHA's Office 

of Assessments. 

There is no indication on the record that this was a serious 

lation or one involving negligence on the part of the Respondent. 

condition was abated within the time prescribed by the inspector. 

vioThe 

This settlement was approved at the hearing by the administrative 

law judge. This approval is affirmed here. 

204 
Docket No. DENV 78-492-P 

Three violations of mandatory standards are included within 

Docket No. DENV 78-492-P~ Each of these alleged violations was the 

object of a 104(b) notice of violation issued at Respondent's Big 

Brown Strip Mine. These notices are discussed below in the order 

of their issuancew 

A.. Noti~e of Violation No. 3-LGM (March 14, 1977) 

Inspector Maloney issued Notice No. 3-LGM on March 14, 1977, 

citing 30 CFR 77 .. 1102. The inspector issued this citation when he 

noted that s service truck was equipped with a sign ~arning against 

smoking, but not with one warning against open flame. At the time 

the notice was issued, the truck had been hauling a quantity of oil 

and diesel fuel on the mine haul road. Section 77 .. 1102 requires 

that signs warning against smoking and open flame be posted so that 

they can be readily seen in places where fire or explosion hazards 

exist. In view of the cargo carried by the truck, the failure to 

equip it with a sign warning against open flame was in violation of 

section 77 .1102. 

The inspector did not find that the condition was of such a 

nature as could significantly and substantially contribute to the 

cause and effect of a mine safety hazard or that it was caused by 

an unwarrantable failure on the part of the Respondentw The condition was abated with a normal degree of good faith. 

The parties agreed at the hearing to settle this case for $46, 

the amount originally assessed by MSHA's Office of Assessments~ This 

settlement was approved by the ~dministrative law judge at the hearing. This approval is affirmed here. 

B~ Notice of Violation Now 1-LGM (March 16, 1977) 

Inspector Maloney issued Notice No. 1-LGM on March 16, 1977, 

citing 30 CFR 77.1607(p). While in the Now 2 pit, the inspector 

stopped a front-end loader which had been loading coal. The operator of the vehicle left the cab and stepped to the ground without 

lowering the bucket to the ground first. The bucket remained 

suspended approximately 3-1/2 feet in the air. This failure to 

lower the bucket was in violation of section 77.1607(p) which 

requires that "buckets * * * shall be secured or lowered to the 

ground when not in use." 

No negligence existed on the part of the Respondent. It was 

not a policy at the mine to allow buckets to remain suspended when 

not in uses This violation was the fault of the machine operator. 

It was improbable that the machine operator's failure to lower 

this bucket would cause accident or injury. There were four people 

205 
in the area at the time the violation occurred. All four were immediately aware of the condition and the danger presented by it. 

The condition was abated immediately. 

c. Notice of Violation No. 1-LGM (June 16 1 1977) 

Inspector Maloney issued Notice lfo,. 1-LGM on June 1'6 1 1977, 

citing 30 CFR 77.1605(a). The inspector issued the notice because 

the bottom windows in the cab doors of a bulldozer had been removed. 

These windows had been removed by the machine operator to allow 

better ventilation of the cab. The absence of this glass was technically a violation of section 77.1605. 

It is improbable that this violation would cause accid_ent or 

inJury. The ~nspector testified that he saw very little danger 

to be presented by this condition. 

The inspector had no knowledge of the length of time the window 

had been ~issing. 

The Respondent demonstrated good faith in abating the condition, 

once the notice of violation was issued. 

There is no evidence that any penalty which might be assessed~ 

in the cases discussed above would affect Respondent's abili,ty to 

continue in business. 

Penalties 

In consideration of the findings of fact and conclusions of law 

in this decision based on stipulations and evidence of record; the 

following assessments are appropriate under the criteria of section 

109(a) of the Act. 

Docket No. DENV 78-51-P 

Notice of Violation No. 2-LGM (May 17, 1977) $100 

Docket No. DENV 78-485-P 

Notice of Violation No. 2-LGM (September 15, 1976) $24 

Notice of Violation No. 5-LGM (September 15, 1976) $28 

Notice of Violation No. 1-LGM (September 16, 1976) $28 

Docket No. DENV 78-503-P 

Notice of Violation No. 1-LGM (October 12~ 1977) $82 

206 
Docket No. DENV 78-486-P 

Notice of Violation No .. 1-JF (March 4, 1976) 

Notice of Violation No. 1-LGM (May 12, 1976) 

Notice of Violation No. 1-LGM (May 13, 1976) 

Notice of Violation No. 1-LGM (May 25, 1976) 

Notice of Violaton No .. 1-LGM (August 16, 1976) 

Notice o'f Violation No .. 2-LGM (August 16, 1976) 

Docket No .. DENV 78-487-P 

$61 

$55 

$74 

$78 

$78 

$78 

Notice of Violation No .. 1-CH (December 28, 1976) $98 

Notice of Violation No. 2-LGM (January 5, 1977) $120 

Notice of Violation No .. 2-LGM (January 6, 1977) $90 

Notice of Violation No. 1-LGM (January 10, 1977) $90 

Docket No. DENV 78-491-P 

Notice of Violation No .. 3-JF (March 29, 1976) $110 

Notice of Violation No., 1-LGM (July 28, 1976) $78 

Notice of Violation No. 1-LGM (December 22, 1976) $86 

Docket No. DENV 78-492-P 

Notice of Violation No .. 1-LGM (March 16, 1977) 

Notice of Violation No .. 1-LGM (June 16, 1977) 

Settlements 

$90 

$64 

The settlements discussed ab6ve were negotiated and approved 

in conformance with the statutory criteria for assessment of civil 

penalties.. In each instance, the approval of settlement by the 

administrative law judge at the hearing is affirmed here.. The 

settlements and corresponding penalties are as follows: 

Docket No .. DENV 78-485-P 

Notice of Violation No. 2-LGM (February 2, 1977) $43 

Docket No. DENV 78-486-P 

Notice of Violation No .. 1-LGM (May 24, 1976) $78 

Notice·of Violation No., 3-LGM (May 24, 1976) $55 

Notice of Violation No., 1-LGM (September 29, 1976) $78 

Docket No .. DENV 78-487-P 

Notice of Violation No., 1-LGM (January 5, 1977) $115 

Notice of Violation No .. 2-LGM (January 10, 1977) $98 

207 
Docket No. DENV 78-491-P 

Notice of Violation No .. 1-LGM (August 4, 1976) $61 

Notice of Violation No. 2-LGM (December 20, 1976) $90 

Notice of Violation No. 4-LGM (February 17, 1977) $74 

Notice of Violation No,, 1-LGM (March 9, 1977) $74 

Notice ;of Violation No., 2-LGM (March 9, 1977) $46 

Notice of Violation No. 1-LGM (March 10, 1977) $25 

Docket 'No. DENV 78-492-P 

Notice of Violation No .. 3-LGM (March 14, 1977) $46 

ORDER 

The civil penalty proceeding with respect to Notice of Violation 

No .. 1-JDC (May 6, 1976), Notice of Violation No. 2-LGM (September 30, 

1976), and Notice of Violation No. 1-LGM (January 6, 1977), are 

hereby DISMISSED,, 

With respect to the remaining notices of violation included 

within the above-captioned civil penalty proceedings, it is ORDERED 

that payment in the amount of $2,395 be made within 30 days of the 

date of this decision., 

Issued: April 5, 1979 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

John H. O'Donnell, Esq., Mine Safety and Health Administration, 

Office of the Solicitor, u.s .. Department of Labor, 4015 Wilson 

Blvd,,'· Arlington, VA 22203 

Richard L. Adams, Esq., Worsham, Forsythe & Sampels, 2500-2001 

Bryan Tower, Dallas, TX 75201 (Certified Mail) 

·Administrator, Coal Mine Safety and Health, U.S. Department of 

Labor 

Standard Distribution 

208 
FEDERAL MINE SAFETY AND HEALTH R'EVIE\V COl\1MISSION 

OFFICE Of ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGIN IA 22203 

April 6, 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEERLESS EAGLE COAL CO., 

Respondent 

Civil Penalty Proceeding 

Docket No. HOPE 78-511-P 

A/O No. 46-01616-02018V 

No~ 2-A Mine 

DECISION AND ORDER APPROVING SETTLEMENT 

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

Solicitor, Department of Labor, Arlington, Virginia, 

for petitioner; 

Donald Lambert, Esq., ,Charleston, West Virginia, for 

respondent. 

Before: Judge Koutras 

This proceeding concerns a petition for assessment of civil pen-

~ alty filed by the petitioner on June 13, 1978, pursuant to section 

llO(a) of the Federal Mine Safety and Heal th Act of 1977, seeking 

civil penalty assessments for three alleged violations of 30 CFR 

75.200, namely a $3,600 civil penalty assessment for 104(c)(2) Order 

No. 7-0008 (1 JDD), January 26, 1977, a $4,000 civil penalty assessment for Order No. 7-0011 (2 JDD), January 26, 1977, and a $5,000 

civil ~enalty assessment for Order No. 7-0013 (3 JDD), January 26, 

1977. Petitioner has filed a motion pursuant to Commission Rule 

29 CFR 2700.27(d), seeking approval of a proposed settlement, whereby 

respondent has agreed to payment of a civil penalty in the amount of 

$1,800 for Order No. 7-0008 (1 JDD), $2,000 for Order No. 7-0011 

(2 JDD), and $2, 500 for Order No. 7-0013 (3 JDD). 

In support of its motion for approval of the proposed settlement, petitioner has submitted proposed findings and conclusions with 

respect to. the statutory criteria to be considered in the assessment of 

civil penal ties for the ··· iolations. Counsel for petitioner has 

further stated that he has discussed in depth the Office of Assessment's Narrative Statement with Federal coal mine inspector John D. 

Dotson and the inspector does not agree with the facts set forth by 

the Office of Assessments. · 

209 
Gravity, Negligence and Good Faith 

Order of Withdrawal No. 1 JDD (7-8) (Order No. 7-0008) 

The subject order alleged that the roof support plan was not 

being followed on the 4th East Section to a point approximately 

150 feet outby the belt fender in that a boom hole had been shot out 

in the mine roof and the roof bolts were installed 5-1/2 to 6 feet 

apart, whereas the roof support plan required that they be set on 

4-foot centers lengthwise and crosswise. Petitioner asserts that the 

mining height in the No. 2-A Mine is low so areas must· sometimes be 

dug out of the roof into the rock so certain machinery or activities 

can have enough height to be performed--these holes into the rock are 

called "boom holes''. To make a boom hole, of course, the existing 

roof bolts in that area must be removed and then should be replaced 

in the boom rock hole. The roof bolts had been replaced in the boom 

hole a greater distance apart than allowed by the roof control plan 

(Govt. Exh. No. P-3.). According to petitioner, Inspector Dotson 

would deny that the area had been mined wider than allowed as stated 

in the Narrative Statement of the Office of Assessments (Govt. Exh. 

No. P-9). The violation was not having the roof bolts in the boom 

hole close enough together. Inspector Dotson is of the opinion that 

no miner was endangered although any of 14 miners could be injured or 

killed in the unlikely event the boom hole roof did fall. 

Petitioner maintains that the mine operator knew the requirements of its roof control plan and the violation is the result of 

ordinary negligence. The condition was abated in 3 hours which 

demonstrated a normal degree of good faith. 

Order of Withdrawal No. 2 JDD (7-11) (Order No. 7-0011) 

The above order again alleged that the roof control plan was not 

being followed in the 4th East Section in that a boom hole had been 

dug out of the mine roof to allow enough height and the roof bolts 

had either not been reinstalled or were installed too far apart. 

There were no excessive widths mined in a roadway as stated in the 

Office of Assessment's Narrative Statement. 

P~titioner maintains that Inspector Dotson is of the opinion 

that two workers were exposed to probable risk by reason of the condition. Since respondent knows the requirements of its roof control 

plan, ordinary negligence was demonstrated. 

With respect to a showing of good faith on the part of respondent, the condition was abated in less than 3 hours, which demonstrates a normal degree of good faith. 

210 
Order of Withdrawal No. 3 JDD (7-13) (Order No. 7-0013) 

The above order alleged that the roof control plan was not being 

followed in the No. 2 Entry in the 4th East Section in that the roof 

bolts were spaced further apart than the plan called for. But again, 

petitioner asserts that there were no excessive widths in the roadway 

as mentioned in the Narrative Statement of the Office of Assessments. 

However, the roof was drummy. According to petitioner, the condition 

is the result of ordinary negligence for the same reasons stated in 

discussing the above two orders of withdrawal. Petitioner further 

submits that the condition was abated the following day which demonstrates a normal degree of good faith. · 

·size of Business 

Petitioner asserts that there is a 1 imited present market for 

the quality of coal produced by the No. 2-A Mine, but the respondent can still· pay any reasonable amount that may be assessed for 

each of the three violations under consideration, without an adverse 

effect on its business. 

Previous History 

Petitioner has submitted a computer printout concerning respondent's prior history of violations for the period January 1, 1970, 

to January 26, 1977. During this 7-year period, there have been 

eight prior 30 CFR 75.200 violations, and a total of 280 prior violations of all types. I cannot conclude that this constitutes a significant prior history of violations. 

ORDE;R 

After careful consideration of the detailed analysis submitted 

by the petitioner in support of its motion, pai;ticularly with respect 

to the question of gravity, good faith compliance, and respondent's 

size and history of prior violations, I conclude that petitioner's 

proposed civil penalty as~essment is reasonable in the circumstances 

presented. Accordingly, the settlement is approved, and respondent 

IS ORDERED to pay for violations of 30 CFR 75. 200 a civil penalty in 

the amount of $1,800 for Order No. 7-0008 (1 JDD), January 26, 1977, 

211 
·I 

$2,000 for Order No. 7-0011 (2 JDD), January 26, 1977, and $2,500 for 

Order No. 7-0013 (3 JDD), January 26, 1977, within thirty (30) days 

of the date of this decision and order. 

Distribution: 

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

MSHA, U.S. Department of Labor, 4015 Wilson Blvd., 

Arlington, VA 22203 

Donald Lambert Esq., P.O. Box 4006, Charleston, WV 25304 

(Certified Mail) 

Standard Distribution 

212 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDG.ES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 9, 1979 

CLIMAX MOLYBDENUM COMPANY, 

A division of AMAX, Inc., 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

CLIMAX MOLYBDENUM WORKERS, 

LOCAL NO. 2-24410, OIL, 

CHEMICAL AND ATOMIC WORKERS 

INTERNATIONAL UNION, 

Respondent 

Applications for Review 

Docket No. DENV 78-556-M 

Citation No. 331770 

August 2, 1978. 

Docket No. DENV 78~562-M 

Citation No. 333299 

August 7, 1978 

Climax Mine 

DECISION GRANTING MOTIONS TO DISMISS 

Appearances: William F. Schoeberlein, Esq., Charles W. Newcom, Esq., 

Dawson, Nagel, Sherman & R,oward, Denver, Colorado, for 

Applicant; 

Robert A. Cohen, Esq., Office of the Solicitor, Department of Labor, for Respondent, MSHA; 

Edward L. Farley, Leadville, Colorado, for Respondent, 

Oil, Chemical and Atomic Workers International Union, 

Local No. 2-24410. 

Before: Judge Cook 

Applications pursuant to section 105(d) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 815(d) (1977 Mine Act), 

for review of citations issued pursuant to section 104(a) of the 

1977 Mine Act, were filed for Climax Molybdenum Company (Climax). 

On February 15, 1979, MSHA filed motions to dismiss these proceedings in which it was alleged that the citations involved have 

been fully abated and that such citations have been terminated. 

Those motions went on to state, in part, as follows: 

213 
* * * * * * * 

2. The Board of Mine Operations Appeals in considering 

a similar review provision in the Federal Coal Mine Health 

and Safety Act of 1969 (1969 Act) (Secw 105(a)) held that 

Citations such as the subject one (104(b) Notices in the 

1969 Act) could not be reviewed after the cited violation 

had been abated because there no longer existed an issue for 

review. Reliable Coal Corporation, 1 IBMA 50, 59 (197l)w 

3. The 1977 Act likewise does not provide for review 

of an abated Citation, and provides for review of an unabated 

citation only as to whether or not the time for abatement is 

reasonable. Helve~ia Coal Company, PITT 78-322 (August 23, 

1976); Monterey Coal Company, VINC 78-372 (June 19, 1978); 

Peter White Coal Mining CorP..!_, HOPE 78-371 (June 16> 1978); 

Itmann Coal Co., HOPE 78-356 (May 26, 1978). 

Climax filed a memorandum in response to such motions on 

February 28, 1979. In that memorandum Climax agreed that such 

citations had been abated, but set forth legal arguments in opposition to such motions~ 

The motions to dismiss will be granted because Climax in these 

proceedings is apparently not now chall~nging the reasonableness of 

the length of abatement time fixed in the citations and the Applicant 

is premature as to a review of the citations on any other issue. 

There is no showing that a notice of proposed assessment of penalty 

has been issued in these cases as yet. 

Section 104(a) of the 1977 Mine Act provides for the issuance of 

citations by an inspector for violations committed by an operator of 

a mine. 

Section 105(a) of the 1977 Mine Act provides in pertinent part: 

If, after an inspection or investigation, the Secretary issues a citatioh o~ order under section 104, he 

shall, within a reasonable time after the termination of 

such inspection or investigation, notify the operator by 

certified mail of the civil penalty proposed to be assessed 

under section llO(a) for the violation cited and that the 

operator has 30 days within which to notify the Secretary 

that he wishes to contest the citation or proposed assessment of penalty. * * * If, within 30 days from the receipt 

of the notification issued by the Secretary, the operator 

fails to notify the Secretary that he intends to contest 

the citation or the proposed assessment of penalty, and no 

notice is filed by any miner or representative of miners 

under subsection (d) of this section within such time, the 

214 
citation and the proposed assessment of penalty shall be 

deemed a final order of the Commission *· * *• [Emphasis 

added.] 

Section 105(d) of the 1977 Mine Act also sets forth provisions 

for the assessment of penalties where the Secretary believes an operator has failed to correct a violation within the period permitted 

for its correction. Under this provision, the operator also has 

30 days within which .to contest the Secretary's "notification of the 

proposed assessment of penalty.'' 

Section 105(d) of the 1977 Mine Act provides in pertinent part: 

If, within 30 days of receipt thereof, an operator of 

a coal or other mine notifies the Secretary that he intends 

to contest the issuance or modification of an order issued 

under section 104, or citation or a notification of proposed assessment of a penalty issued under subsection (a) 

or (b) of this section, or the reasonableness of the length 

of abatement time fixed in a citation or modification thereof 

.issued under section 104, * * * the Secretary shall immediately advise the Commission of such notification, and the 

Commission shall afford an opportunity for a hearing * * *., 

[Emphasis added.] 

A study of subsection 105(d) shows that Congress provided for 

review to be obtained as relates to three categories of actions taken 

by representatives of the Secretary of Labor, First, an operator is 

permitted to "contest the issuance or modification.of an order issued 

under section 104." Second, an operator is permitted to obtain 

review of a "citation or a notification of proposed assessment of a 

penalty issued under subsection (a) or (b)" of section 105. Third, 

an operator is permitted to obtain review of "the reasonableness of 

the length of abatement time fixed in a citation or modification 

thereof issued under section 104." 

In view of subsection 105(a), the words of subsection 105(d) 

referring to review of "a citation or notification of proposed assessment of a penalty issued under subsection (a) or (b) * * *" must be 

read to mean that the citation can be reviewed when the notification 

of proposed assessment is reviewed. 

It is therefore clear that the time for Climax to file an application to review a citation will not begin to run until after a 

notice of proposed assessment of penalty has been received by the 

operator, except in the instance where the operator intends to con- · 

test the reasonabl~ness of the length of abatement time fixed in the 

citation. The issue as to the validity of the citation will then be 

determined in the civil penalty proceeding. 

215 
The operator can then contest both the.fact of violation (i.e., 

the citation) and the amount of the penalty, assuming there is ~ ;iolation. If it fails to file such a notice within 30 days as provided, both the citation and the penalty become a final order of the 

Commission. 

This interpretation is supported by the legislative history. 

An extensive discussion of this history is contained in decisions on 

similar motions by Judge Steffey in Itmann Coal Company v. MSHA (HOPE 

78-356), dated May 26, 1978, and Judge Merlin in United States Steel 

Corporation v. MSHA (PITT 78-335), dated July 11, 1978~ 

It should be further noted that under the Federal Coal Mine 

Health and Safety Act o~ 1969 (1969 Act) notices of violation (citations under the 1977 Mine Act) were not reviewable where abatement 

had occurred and no penalty was sought. Freeman Coal Mining Company, 

1IBMA1 (1970); Reliable Coal Corporation, 1 IBYiA 50 (1971); Lucas 

Coal Company, et al. v. Interior Board of Mine Operations Appeals, 

522 F.2d 581 (3rd Cir. 1975). 

The Court of Appeals for ~he Third Circuit stated that: 

The Board's interpretation here (of section 105 of the 

1969 Act as expressed in Freeman and Reliable) is a particulaily acceptable one in view of the safety objectives of the 

Act, the obvious desirability of encouraging prompt abatement of violations while still allowing ultimate review, and 

the necessity of limiting review in order to permit more 

expeditious consideration of serious grievancesw Lucas Coal 

Co., v. Interior Board of Mine Operations Appeals, 522 F~2d 

581, 587 (1975). (Parenthetical portion added.) 

The legislative history of the Federal Mine Safety and Health 

Amendments Act of 1977 contains nothing to indicate that Congress 

intended to change the Board's interpretation of section 105 of the 

1969 Act as stated in Freeman and Reliable. Since all of the alleged 

violations were abated, the subject citations may not be reviewed 

under section 105(d). The "reasonableness of the length of time set 

for abatement by a· citation" is the only issue reviewable in a section 105(d) proceeding to review citations. Abatement of the citation renders the issue of "reasonableness of time" moot. Review of 

fact of violation remains available through a challenge to the civil 

penalty assessed under section 110. 

The Procedural Rules of the Federal Mine Safety and Health Review 

Commission contain certain regulations relating to the processing of 

applications for review of citations and orders. Part of these rules 

are contained in 29 CFR 2700.lB(a). If it were not for the fact that 

the intent of Congress is expressed in subsections 105(a) and (b) and 

subsection 105(d) of the 1977 Act, it would be possible to argue that 

216 
29 CFR 2700.18(a) allows review of citations generally rather than 

only as to the reasonableness of the length-of abatement time. However, the word "citation" in the regulation cannot be construed to 

grant more than the type of review of a citat-ionwhich the statute 

itself grants at that stage, and that is a review of the reasonableness of the time for abatement. Unlimited review of the citation will 

eventually be obtained, but that will take place during the course of 

the civil penalty proceeding. 

In view of the statements of the Court of Appeals in Sink v. 

Morton, 529_F.2d 601 (4th Cir. 1975), it is clear that no due process 

problem arises in this instance. 

The court therein noted that the District Court: 

[T]hough concluding that the obligation of the plaintiff 

to "exhaust his administrative remedies under the Act [was] 

entirely reasonable and in accord with accepted principles 

of administrative law," held that the plaintiff had made a 

showing of irreparable harm, without any countervailing 

interests of safety, by reason of the "failure of the Secretary of the Interior to utilize his discretion in order 

to provide a hearing before a mine closure order is issued" 

and had "had no opportunity to present his case to the 

appropriate authorities." For these reasons, it granted 

an injunction agains~ the enforcement of the notice and 

withdrawal orders "pending a final administrative determination of the isuses involved." [Footnote omitted.] 

at 603. 

The Court of Appeals ruled that the District Court erred in this 

finding. It went on to state: 

Nor is it of any moment that the inspector's withdrawal 

orders were issued without a hearing. By appeal, the plaintiff can obtain a hearing, which, by the terms of the Act, 

is to be held as soon as practicable, and he is accorded the 

right to apply, as an incident to that appeal, for a temporary stay of the orders. Such procedure accords the plaintiff due process. Due process does not command that the 

right to a hearing be held at any particular point during 

the administrative proceedings; it is satisfied if that 

right is given at some point during those proceedings. 

Reed v. Franke (4th Cir. 1961) 297 F.2d 17, 27. 

at 604~ 

217 
Accordingly, MSHA's motions to dismiss are GRANTED. IT I~ 

THEREFORE ORDERED that the above-captioned proceedings be, and they 

hereby are, DISMISSED. 

~----,,John .---~~ --;_~·~ F. Coo~--~ ~--... 

~Administrative Law Judge 

Issued: _ April 9, 1979 

Distribution: 

William F. Schoeberlein, Esq., Charles W. Newcom, Esq., Dawson, 

Nagel, Sherman & Howard, 2900 First of Denver Plaza, 633 Seventeenth Street, Denver, CO 80202 (Certified Mail) 

Robert A. Cohen, Esq., David F. Barbour, Esq., and Edward c. 

Hugler, Esq., Mine Safety and Health Administration, Office 

of the Solicitor, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 

David Jones and 

Edward L. Farley, Oil Chemical and Atomic Workers International 

Union, Local No. 2-24410, P.O. Box 949, Leadville, CO 80461 

(Certified Mail) 

James F. Engelking, Esq., and l·l. Michael Hackett, Esq., 139li9 West 

Colfax Avenue, Golden, CO 80202 (Certified Mail) 

Mr. Edwin Matheson, Chairman, International Brotherhood of Electrical Workers, Local Union No. 1823, P.O. Box 102, Minturn, 

CO 81645 (Certified Mail) 

Ms. Sylvia Balltrip, Office of Professional Employees International Union, Local No. 410, P.O. Box 1179, Leadville, CO 

80461 (Certified Mail) 

218 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 11, 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

HELEN MINING COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. PITT 79-11-P 

A/O No. 36-00926-03001 

Homer City Mine 

DECISION 

Appearances: Leo McGinn, Esq., Office oft.he Solicitor, Department 

of Labor, Arlington, Virginia, for Petitioner, MSHA; 

Todd D. Peterson, Jones, Day, Reavis and Pogue, 

Washington, D.C., for Respondent, Helen Mining Company. 

Before: Judge Merlin 

Statement of the Case 

This case is a petition for the assessment of a civil penalty 

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

1977. 

MSHA alleges a violation of section 103(f), the "walkaround" 

provision of the Act. A hearing was held on March 20, 1979. Both 

parties presented oral evidence (Tr. 9-36). At th~ conclusion of the 

taking of evidence, counsel waived the filing of written briefs, 

presented oral argument, and agreed to have a decision rendered from 

the bench (Tr. 36-80). Upon the conclusion of oral argument, a decision was rendered from the bench (Tr. 80-89). 

Bench Decision 

The bench decision is as follows: 

1be issue presented in this case is whether a miner 

representative who accompanies an MSHA inspector during 

a section 103( i) 11 spot inspection'' is entitled to be 

paid pursuant to the provisions of section 103(£) of the 

Federal Mine Safety and Health Act of 1977. 

219 
'lhe facts are undisputed. On April 6, 1978 an 

i~spector of the Mine Safety and Health Administration 

made a spot inspection pursuant to section 103(i) of the 

Act. Section 103(i) directs, inter alia, that where a 

mine liberates excessive quantities of methane, it shall 

be fospected during every five working days. 

On April 6, 1978 the inspector made a 103(i) inspection and during that inspection was accompanied by a miner 

representative for three hours. 1he operator refused to 

pay the miner representative for the three hours, resulting in the issuance of the subject citation and order, 

and also resulting in the assessment of a civil penalty 

and filing of the instant petition. 

The evidence also shows that three days earlier, on 

April 3, 1978, this inspector had begun a "regular" 

inspection of the mine. Section 103(a) requires that 

each underground coal mine be inspected in its entirety. 

at least four times a year. Each total inspection is of 

course done over a period of time, and the individual 

inspections which comprise the total inspection are 

referred to as "regular;• inspections. 

On April 6, 1978 the inspector performed a 103( i) 

spot inspection for methane instead of continuing on the 

regular inspection which he was performing during that 

period. 1he inspector testified, however, that a regular 

103( a) inspection and a 103( i) spot inspection could be 

going on at the same time with two different inspectors, 

and that if this were so, MSHA would require that if 

miner representatives accompanied both inspectors, both 

miner representatives be paid. Accordingly, it makes no 

difference that in this case only the spot inspection 

was being performed because it is MSHA's position that 

all walkarounds on 103(i) spot inspections must be compensated pursuant to section 103(f). Section 103(f) · 

provides that a miner representative shall be given the 

opportunity to accompany the MSHA inspector during the 

physical inspection of any coal or other mine made under 

section 103( a), and that the miner representative shall 

suffer no loss of pay while he so participates in the 

ins pee t ion. 

It is the operator's position that under 103(f) 

it is required to pay only the miner representative who 

accompanies an MSHA inspector on a regular inspection, 

and that, therefore, it was not required to pay the 

miner representative in this case who accompanied the 

inspector on a section 103(i) spot inspection. 

220 
MSHA' s position is that the operator is required 

to pay the miner representative who participated for 

three hours in the 103(i) spot inspection. As the 

Solicitor's oral argument makes clear, MSHA's position 

is predicated essentially upon the Interpretive Bulletin 

published by the Secretary of Labor at 1-i-3 Federal 

Register 17546, April 25, 1978. 1he Bulletin recognizes 

that the participation and payment provisions of section 

103(f) refer to inspections made pursuant to section 

103(a). However, the Bulletin refers to all the purposes enumerated in 103(a) for which inspections are 

made, including determinations for inuninent danger and 

violations. Since 103(i) spot inspections are made for 

the purposes of finding inuninent dangers or violations, 

the Bulletin takes the position that a spot inspection 

constitutes an inspection under 103(a) for purposes of 

the participation and payment provisions of 103(f). 

According to the Bulletin, the requirement of four 

inspections per year for each mine in its entirety as set 

forth in section 103(a) is only a statutory miniml.llll and 

has nothing to do with the right of participation or the 

right to compensation. It is on this basis that MSHA 

contends in this case the operator must pay the miner 

representative who accompanied the inspector under 103(i) 

spot inspections. 

I have carefully considered MSHA's position as 

explained here today at length by the Solicitor and as 

set forth in the Interpretive Bulletin. I am unable to 

accept MSHA' s position. I recognize the Interpretive 

Bulletin represents the Secretary's position, and that it 

should be reviewed in light of the Secretary's responsibilities under the Act. However, the Interpretive 

Bulletin is not binding upon me. This was.expressly 

decided by the United States District Court for the 

District of Columbia in Bituminous Coal Operators 

Association, Inc. versus Marshall and the-United Mine 

Workers, Civil Action No. 78-0731, (January ii, 1979). 

I must review and judge the Interpretive Bulletin 

in light of the language of the statute and the legislative history. The Interpretive Bulletin and the 

interpretation advanced by the Solicitor here today in 

effect, read section 103(i) back into 103(a). In addition, the Bulletin recognizes that there are other 

inspections such as those under 103(g) which are performed at the request of a miner. The Bulletin also 

reads these inspections back into subsection (a) by 

relying upon the purposes for which such inspections 

221 
are carried out, i.e., discovering violations or imminent dangers. 

'!be insuperable difficulty I have .with this 

approach is that if section 103(f) covered all inspections, it could have provided for walkarounds and payments for all inspections without making any reference 

whatsoever to subsection (a). Reference to subsection 

(a) must be regarded as a limitation because it leaves 

out the other subsections pursuant to which inspections 

also are undertaken. Any other interpretation renders 

the reference to subsection (a) as it appears in subsection ( f) meaningless. Accordingly, reading the other 

subsections, such as (i) and (g) back into subsection 

(a) -in the manner of the Interpretive Bulletin in 

effect violates the language of the statute and the 

way it is written and organized. In this connection 

also I note that subsection (f) precedes (i) and (g). 

I conclude, therefore, that the reference in 103(f) to 

inspections under 103( a) means the regular inspections 

described in that section. 

On this basis, I conclude the operator was not 

required to pay for the walkaround in this case, and 

that, therefore, there was no violation. 

During oral argument great attention was given, 

both by the Solicitor and operator's counsel, to the 

remarks of Congressman Perkins who was the manager of 

the Conference Committee for the House of Representatives. When introducing the conference bill and report 

to which the House and Senate c'onferees had agreed, 

Congressman Perkins explained on the floor of the House 

the meaning of section 103(f) with respect to compensation. First, the congressman set forth all the purposes 

for which inspections are .Performed under 103(a) and . 

that each mine must be inspected in its entirety at 

least four times a year. He then pointed out that in 

addition to the regular inspections performed under subsection (a), inspections also were performed under subsections ( i) and ( g). Turning then to section 103( £)', 

Congressman Perkins gave the following explanation with 

respect.to compensation: 11 Since the conference report 

reference is limited to the inspections conducted pursuant to section 103(a), and not to those pursuant to 

section (g) (1) 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 

222 
of each underground mine and two regular in.spections of 

each surface mine in its entirety, including pre and 

post-inspection conferences •11 · 

C.Ongressman Perkins then compared section 103(f) 

of the present Act with section 103(h) of the 1969 Act, 

which gave the miner representatives the right to 

participate in "any'' inspection, but which had no provision at all for compensation. The congressman then 

·stated as follows: "Since the conference report does 

not refer 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." 

Finally, the congressman stated: "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.'' 

The congressman's statements appear at Volume 123, 

No. 174, Congressional Record, H-11663, Daily Edition, 

October 27, 1977; and in Legislative History, Committee 

Print (July 1978) at pages 1356 to 1358. 

Immediately after Congressman Perkins' statements, 

the House of Representatives voted to pass the bill. I 

believe the congressman's remarks regarding the operator's obligation to pay for walkarounds are too clear 

to be ignored and do not point to any interpretation 

other than that the operator only has to pay for the 

walkarounds on the four regular inspections. ·As the 

Solicitor has persuasively stated, it may be desirable 

to compensate miner representatives who accompany MSHA 

inspectors on all inspections. This, however, is not 

what the Act presently says. Moreover, the congressman, 

who perhaps had more to do with the enactment of this 

legislation than any other, specifically stated the 

opposite. I cannot legislate and neither can the 

Secretary. Change must come from Congress. 

One final matte~: I recognize that limiting the 

right to compensation to regular inspections performed 

223 
under subsection (a} may raise a question of whether 

there is a walkaround right for inspections other than 

regular inspections. Congressman Perkins' statement 

quoted above indicates that the miner representative 

can accompany the inspector during any inspection other 

than a regular inspection, exclusive of the operator's 

responsibility to pay. The statutory basis of the congressman's assertion of the general walkaround right for 

all inspections is not apparent. Be that as it may, 

however, the congressman's explanations limiting the 

operator's obligation to compensate walkarounds is so 

clear and the statutory language regarding the limited 

obligation to pay under these circumstances is so clear 

to me that they simply cannot be ignored. Here, again, 

if the ~alkaround right without compensation has inadvertently been limited, then the remedy lies with Congress. However, I must point out that for present 

purposes, this issue is not presented in this case, 

and I do not have to decide it. I only make the general 

observation that if the problem exists, it is one to be 

set right by legislation and not by administrative fiat. 

Of course, based upon the representations made to me 

during oral argument, it appears that as a practical 

matter, the problem does not exist because the walkaround right is available during all inspections, generally, pursuant to the union contract. 

In light of the foregoing, therefore, I find there 

was no violation. 1/ MSHA's petition for the assessment 

of a civil penalty-is hereby dismissed. I express my 

appreciation to both counsel for the very fine oral 

arguments that were made. 

ORDER 

·It is hereby ORDERED that the foregoing bench decision be 

affirmed, that no penalty be assessed for the reason that no 

l/ Administrative Law Judge Michael A. Lasher, Jr., interpreted sec~ 

tion 103(f) .in a similar manner in two recent decisions. KentlandElkhorn Coal Corporation v. Secretary of Labor and United Mine Workers 

(PIKE 78-399) and Magma Copper Company v. Secretary of Labor and 

United Steel Workers (DENV 78-533-M), dated March 8, 1979. 

224 
violation existed and that the instant petition ·for a penalty 

assessment be DISMIS:: \ ~ . \\ , 

Pa~~ 

• 

Assistant Chief Administrative Law Judge 

Issued: April 11, 1979 

Dis tr ibut ion: 

Leo McGinn, Esq., Office of the Solicitor, MSHA, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Todd D. Peterson, Esq., Jones, Day, Reavis & Pogue, 

1100 Connecticut ·Avenue, NW., Washington, DC 20036 

(Certified Mail) 

Administrator, Coal Mine Safety and Health, U.S. Department 

of Labor 

Standard Distribution 

225 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES . 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 12, 1979 

CONSOLIDATION COAL COMPANY, 

Applicant 

Appiication for Review 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

UNITED MINE WORKERS OF AMERICA, 

Respondent 

Docket No. PITT 79-161 

Order No. 231630 

January 19, 1979 

Westland Mine 

DECISION 

Appearances: Michel Nardi, Esq., and Karl Skrypak, Esq., Consolidation Coal Company, Pittsburgh, Pennsylvania, for 

Applicant; 

James H. Swain, Esq., and Sidney Salkin, Esq., Office 

of the Solicitor, Department of Labor, Philadelphia, 

Pennsylvania, for Respondent MSHA; 

Joyce Hanula, Esq., and Mary Lu ·Jordan, Esq., for the 

.United Mine Workers. 

Before: Judge Merlin 

Statement of the Case 

This is a proceeding filed under section 105(d) of the Federal 

Mine Safety and Health Act of·1977 by Consolidation Coal Company for 

review of an order of withdrawal issued by an inspector of the Mine 

Safety and Health Administration (MSHA) under section 104(d)(2) of 

the Act. 

Pursuant to a notice of hearing issued March 5, 1979, this case 

was set for hearing on April 3, 1979, in Arlington, Virginia. The 

hearing was held as scheduled. The operator, MSHA, and the United 

Mine Workers appeared and presented evidence (Tr. 8-132). At the 

conclusion of the taking of evidence, the parties waived the filing 

of written briefs, agreed to have a decision rendered from the bench, 

and set forth their positions in oral argument. 

226 
Bench Decision 

The decision rendered from the bench is as follows: 

The validity of a section 104(d)(2) order is being 

challenged in this case. The parties agree that the 

issues are the existence of a violation and unwarrantable failure. 

With respect to the existence of a violation the 

cited section is 75.1002 which provides "Trolley wires 

and trolley feeder wires, high voltage cables and transformers shall not be located inby the last open crosscut and shall be kept at least 150 feet from pillar 

workings." 

Admittedly, a battery charger was within the area 

prohibited by the mandatory standard. The question is 

whether a battery charger is a transformer within the 

meaning of the mandatory standard. The Government's 

electrical expert testified that a battery charger 

has two components, a transformer and a rectifier. With 

respect to the battery charger in this case, the transformer would reduce voltage, and the rectifier would 

convert AC voltage to DC voltage. Because a transformer is one of the two integral parts of a battery 

charger, I hold that where a transformer is present in 

the battery charger, the citation of a battery charger 

'under section 75.1002 includes a transformer. 

In this case the inspector did not actually look 

in the battery charger to see if the transformer was 

present. However, batteries on the scoop were changed 

in the normal manner with the rundown battery being 

placed on the rack of this battery charger either for 

storage or to be recharged. Indeed, because the 

battery charger was in the subject location for 

10 days, and because the scoop during that period was 

being used to haul materials for longwall mining, I 

conclude that the battery charger must have been used 

to charge batteries. Of course, in order to charge 

~he scoop's batteries, the battery charger had to have 

its transformer. Accordingly, I conclude· the battery 

charger,- in this instance, contained the transformer, 

as would be normal practice. If the transformer was 

not in the battery charger, then it was incumbent upon 

the operator to prove this deviation from normal practice, which it did not do. 

I recognize that another mandatory standard, section 75.1105, specifically refers to transformer 

227 
stations and battery charging stations. Section 

75 .1105 is, of course, a different mandatory standard 

designed to cover other situations. I do not view it 

as dispositive here. Rather, I remain persuaded by 

the fact that in this case the transformer is one of 

the two indispensable components of the battery charger, 

a fact which the testimony of MSHA's electrical expert 

shows is known to all knowledgeable people in the field. 

All of the operator's employees do not, of course, have 

to be electricians; but those in charge should be apprised 

of the components of the equipment they are dealing with 

so that they may discharge their duties in accordance with 

the mandatory standards. 

Accordingly, I conclude a violation within the purview of section 75.1002 existed and was validly cited. 

Longwall mining had been going on for 10 days before 

the subject order was issued. The evidence shows without 

dispute that for these 10 days this equipment was in a 

prohibited location. The operator, through its management 

personnel, knew of this situation during the entire period. 

This constitutes unwarrantable failure. 

The subject order is hereby upheld. The application 

for review is dismissed. 

ORDER 

The bench decision is hereby affirmed. Accordingly, it is ORDERED_ 

that Order No. 231630 ~~ U~hat the operator's application 

for review is DISMISSED~~ 

Paul Merlin 

Assistant Chief Administrative Law Judge 

. Issued: April 12, 1979 

Distribution: 

Michel Nardi, Esq., Kad T. Skrypak, Esq., Consolidation Coal 

Company, Consol Plaza, 1800 Washington Road, Pittsburgh, PA 

15241 (Certified Mail) 

James H. Swain, Esq., Sidney Salkin, Esq., Office of the Solicitor, U.S. Department of Labor, Room 14480-Gateway Building, 

3535 Market Street, Philadelphia, PA 19104 (Certified Mail) 

Joyce A. Hanula, Legal Assistant, United Mine Workers of America, 

900 15th Street, NW., Washington, DC 20005 (Certified Mail) 

.228 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION . OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

APR 13 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

EASTERN ASSOCIATED COAL CORP., 

Respondent 

Civil P~nalty Proceeding 

Docket No. MORG 78-314-P 

A. C. No. 46-0l429-02020I 

Federal No. 1 Mine 

DECISION 

Appearances: Edward H. Fitch, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

R. Henry Moore, Esq., Rose, Schmidt, Dixon, Hasley, 

Whyte, and Hardesty, Pittsburgh, PA, for Respondent. 

Before: Judge Lasher 

This proceeding arose under section 109 of the Federal Coal Mine . 

Health and Safety Act of 1969, 30 U.S.C. § 801 ~~· (1970). Pursuant 

to section 301(c)(3) of the Federal Mine Safety and Health Act of 1977, 

proceedings pending at the time such act takes effect shall be continued 

before the Federal Mine Safety and Health Review Commission. 

A hearing on the merits was held in Morgantown, West Virginia, on 

March 20, 1979. After considering evidence submitted by both parties, 

and argument, I entered a detailed oral opinion on the record at the 

close of the hearing. It was found that the violation charged did occur. 

I also found that the violation was serious, that it resulted from gross 

negligence on the part of Respondent, that Respondent is a large mine 

operator with an average history of violations, and had abated the violation in good faith. It was further determined that a penalty otherwise 

warranted by consideration of the other penalty assessment criteria provided by statute would have no adverse affect on Respondent's ability to 

continue in business. Respondent was assessed a penalty of $5,000.00 for 

the violation charged in Notice No. 1 MES dated September 2, 1976. 

Respondent-is ordered to pay MSHA the penalty assessed of $5,000.00 

within 30 days from the date of this decision. 

~de//~/.- Michael A. Lasher, Jr., Judge 

229 
FEDERAL MINE SAf.ETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 17, 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket Nos. Assessment Control Nos. 

v. 

SKYVIEW MINING, INC., 

Respondent 

PIKE 78-365-P 

PIKE 78-380-P 

No. 4 Mine 

DECISION 

15-09746-02005V 

15-09746-02006 

Appearances: Eddie Jenkins, Esq.; Office of the Solicitor, 

Department of Labor, for Petitioner; 

Harold Akers, President, Skyview Mining, Inc., 

Pikeville, Kentucky, for Respondent. 

Before: Administrative Law Judge Steffey 

Pursuant to written notice dated October 11, 1978, a hearing in 

the above-entitled proceeding was held on November 14, 1978, in 

Pikeville, Kentucky, under section 105(d) of the Federal Mine Safety 

and Health Act of 1977. 

The Petitions for Assessment of Civil Penalty in Docket Nos. PIKE 

78-365-P and PIKE 78-380-P were filed on May 12, 1978, and June 8, 

1978, respectively, and each Petition seeks assessment of a civil penalty for one alleged violation of the mandatory safety standards. 

Completion of the Record 

Respondent's president asked that his company's financial condition be considered in the assessment of penalties. As part of respondent's evidence, respondent agreed to provide bank statements received 

by respondent_ from the time respondent stopped mining coal in June 

1978 up to the time of the hearing held in November 1978. It was 

agreed at the hearing that the bank statements would be provided to 

me after all testimony had been received and that I would mark the 

bank statements as exhibits and would receive them in evidence at the 

time I prepared my decision in this proceeding (Tr. 23). 

230 
A one-page statement of account for Skyview Mining, Inc., issued 

on July 31, 1978, by the First National Bank of Pikeville is.marked 

as Exhibit A; a one-page statement of account dated August 31, 1978, 

is marked as Exhibit B; a one-page statement of account dated 

September 30, 1978, is marked as Exhibit C; and a one-page activity 

statement dated October 31, 1978, is marked as Exhibit D. Pursuant 

to the agreement of the parties, Exhibits A through D are· received 

in evidence (Tr. 22-24). 

Issues 

The issues raised by the Petitions for Assessment of Civil 

Penalty are whether violations of 30 CFR 75.523 and 30 CFR 75.200 

occurred and, if so, what monetary penalties should be assessed, 

based on the six criteria set forth in section llO(i) of the Act. 

At the hearing, respondent stipulated that the alleged violations 

occurred. Therefore, it was agreed that insofar as the criteria of 

negligence and gravity were concerned, penalties would be assessed 

on the basis of the conditions set forth in the inspector's notices 

of violation which were attached to the Petitions. Respondent, however, did elect to present evidence concerning two of the six criteria, namely, the size of respondent's business and the question 

of whether payment of penalties would affect respondent's ability to 

continue in business (Tr. 4). 

I shall herein~fter make findings of fact with respect to the 

six criteria and penalties will thereafter be assessed based on those 

findings. 

History of previous violations 

The inspector who wrote the notices of violatJon here involved 

stated that there is no history of previous violations to be considered (Tr. 15). Therefore. when penalties are hereinafter assessed, 

it will be unnecessary to consider the criterion of history of previous violations. 

Appropriateness of penalty to size of operator's business 

Respondent opened the No. 4 Mine in 1976. The mine was developed 

· · with three entries for a distance of about 1, 500 feet. R~spondent 

then pulled out of the mine, extracting pillars as it withdrew. All 

coal reserves were exhausted at that point (Tr. 7-8). 

During the time that the No. 4 Mine was in operation, respondent 

employed five miners to produce about 200 tons of coal per day. 

Respondent's equipment consisted of a scoop, loading machine, roofbolting machine, and two Joy end-dump shuttle cars. The coal was 

shot from the solid, that is, no cutting machine was used before the 

coal was .blasted loose. Respondent did not have conveyor belts and 

231 
all coal was transported to the surface in the shuttle cars (Tr. 6-8; 

18). 

On the basis of the facts given above, I find that respondent 

operated a small mine and that any penalties which are hereinafter 

assessed should be in a low range of magnitude to the extent that 

the penalties are based on the size of respondent's business. 

Effect of penalties on operator's ability to continue in business 

Summary of Respondent's Evidence Regarding Its Financial 

Condition 

Skyview Mining, Inc., is a family corporation which was formed by 

the issuance of 300 shares of stock. The president of the corporation 

testified as a witness at.the hearing. He owned 100 shares of stock, 

a cousin owned another 100 shares, and two other family members owned 

50 shares each (Tr. 6). After the coal reserves in the No. 4 Mine had 

been exhausted, the members of the corporation recognized that they 

were not getting along harmoniously in running the corporation. Each 

of the four family members who had advanced capital to form Skyview 

Mining, Inc., was repaid in full and the president of Skyview Mining 

formed another corporation under the name of A. A. & W. Coal, Inc. 

When Skyview Mining, Inc., stopped mining coal in June 1978, it had 

in its possession a roof-bolting machine and a scoop on which a total 

amount of $75,000 was owed. A. A. & W. assumed Skyview's payments 

on the scoop and roof-bolting machine in return for the use of the 

equipment in the new mine which A. A. & W. had opened (Tr. 9-11). 

Skyview's president testified at the hearing that the balance in 

Skyview's bank account amounts at the present time to about $1,300 

and that there are no outstanding obligations to be paid from that 

balance other than the payment of civil penalties for violations of 

the mandatory health and safety standards. The president said that 

if respondent only owed for the two violations which are involved in 

this proceeding, he would not be concerned about having enough money 

in respondent's account to pay all penalties. The president noted, 

however, that respondent also owes penalties for several other violations which occurred while respondent was producing coal, but which 

.have not yet become the subject of civil penalty proceedings. Skyview's president stated that he believed that the Assessment Office 

had proposed .total penalties for all outstanding violations which 

would be greater than the assets which Skyview has for payment of 

sucn penalties (Tr. 13-14). 

Discussion. Any findings that I make must be based on the facts 

presented by the parties• Examination of the bank statements submitted 

by respondent's president makes it difficult to find that respondent 

would be unable to pay any penalties that might be assessed in this 

proceeding. I base that conclusion upon several facts in the record. 

232 
First, Exhibit A shows that the other corporation, A. A. & W., formed 

by respondent's president advanced $10,300 to Skyview's account in 

order to pay taxes and compensation owed by Skyview. Second, although 

respondent's president stated that he did not have authority as president of A. A. & W. to assume any of Skyview's obligations except for 

the roof-bolting machine and scoop which A. A. & W. is using, Exhibit 

A clearly shows tpat A. A. & W. advanced $10,300 to Skyview in July 

1978 to enable Skyview to pay taxes and other obligations. 

The burden was on respondent to show that payment of penalties 

would have caused respondent to discontinue in business if it had not 

already done so. Alternatively, the burden was on respondent to 

demonstrate that if it had had to pay civil penalties wh~n it was producing coal, such payments would have had an adverse effect on its 

ability to continue in business. The evidence shows instead, hc,>wever, 

that respondent discontinued in business because all the coal reserves 

in the No. 4 Mine had been exhausted (Tr. 7). Although respondent's 

president testified that Skyview could not afford at the present time 

to·open a new mine because it now costs about $75,000 more to open a 

new mine than it did in 1976 (Tr. 8-9), the president later stated 

that the problem of Skyview's being able to continue in business was 

not a question of raising capital, but a question of the "family" 

stockholders' ability to run the corporation in an amiable fashion 

(Tr. 11). 

The evidence also shows that A. A. & W. has assumed Skyview's 

obligations as to payment for equipment and payment of taxes. While 

respondent's president stated that he did not have authority to assume 

any of Skyview's other obligations (Tr. 12), it is a fact that the 

penalties which are sought in this proceeding relate to violations 

which occurred while Skyview was mining coal and therefore the payment of civil penalties is as much an obligation to be met by Skyview as the payment of taxes. There was certainly a balance in 

respondent's account as of the date of the hearing to pay any penalties which might be assessed in this proceeding. ];_/ 

!/ It should be noted that respondent still has in its possession 

two shuttle cars and a loading machine (Tr. 8) on which no debts are 

·presumably owed because A. A. & W. did not have to assume any payments 

on that equipment to keep it from being repossessed when respondent 

stopped producing coal. Therefore, if respondent should not have 

enough funds in its checking account to pay penalties on all outstanding violations, and if A. A. & W. does not wish to deposit additional 

funds into respondent's account, respondent should be able to sell 

some of its equipment to obtain money for payment of civil penalties 

because the evidence indicates that respondent has no plans to open 

any more coal mines (Tr. 11). 

233 
Good faith effort to achieve rapid compliance 

Notice No. 12 RHH was written on February 1, 1977, citing respondent for failure to have an adequate panic bar on its Joy loading 

machine. The notice of termination was written on February 17, 1977, 

after two short extensions of time had been granted. Inspectors 

normally consider that an operator has shown good faith efforts to 

achieve rapid compliance when the violations are corrected within the 

time originally given or within the time given in notices of extension 

of time. 

The other notice of violation involved in this proceeding, Notice 

No. 7 RHH, was also written on February 1, 1977. One extension of 

time was given and the violation was corrected by the expiration of 

the extended time period. 

Based on the notices of extension of time and notices of termination, I find that respondent showed a normal good faith effort to 

achieve rapid compliance with respect to each notice of violation. 

Therefore, when penalties are hereinafter assessed, respondent will be 

given full credit for having achieved rapid compliance. 

Gravity and Negligence 

Docket No. PIKE 78-365-P 

Notice No. 7 RHH (7-8) 2/1/77 § 75.200 

Findings. Section 75.200 requires each operator of a coal mine 

to submit to MSHA and to adopt a roof-control plan suitable to the 

roof conditions and mining system of each coal mine. Respoudent's 

roof-control plan provides that roof bolts are to be installed on 

4-foot centers. Respondent violated the provisions of its roofcontrol plan by installing roof bolts in the No. 1 through No. 5 

entries in widths ranging from 5 to 15 feet from the rib line, 

starting at spad No. 1525. The violation·was very serious because 

distances of up to 15 feet between roof bolts expose the roof to 

unusual stress with the result that a roof fall is likely to occur. 

Respondent was grossly negligent in installing roof bolts at distances which were almost four times the spacing permitted by its 

roof-control plan. 

Conclusions. Roof falls continue to be the primary cause of 

deaths and injuries in underground coal mines. Even though respondent was a small operator, a roof-control violation of the gravity 

and high degree of negligence which is here involved warrants assessment of a penalty of $300. There is no history of previous violations to be considered. 

234 
Docket No. PIKE 78-380-P 

Notice No. 12 RHH (7-13) 2/1/77 § 75.523 

Findings. Section 75.523 requires that electric face equipment 

be provided with devices which will permit the equipment to be 

deenergized quickly in the event of an emergency. Respondent violated section 75.523 because its Joy loading machine had not been 

provided with an adequate panic bar having proper design. The 

inspector's notice shows that respondent had equipped the loading 

machine with a panic bar but it was not properly designed. Since 

respondent had made an effort to provide a panic bar, there was a 

low degree of negligence. The fact that two notices of extension 

of time had to be issued for the reason that additional time was 

needed to obtain a satisfactory panic bar is an indication-that respondent had difficulty in locating or designing the proper type of panic 

bar. Moreover, the inspector's notice does not say that the panic bar 

was inoperable. Consequently, I conclude that the panic bar would work 

but was not as long or in as convenient position as it should have 

been. In such circumstances, the evidence shows that the violation 

was only moderately serious. 

Conclusions. Considering that a small operator is involved, that 

there was a low degree of negligence, that the violation was only moderately serious, and that there is no history of previous violations, 

a penalty of $15 will be assessed for this violation of section 75.523. 

Summary of Assessments and Conclusions 

(1) On the basis uf all the evidence of record and the foregoing 

findings of fact, respondent is assessed the following civil penalties: 

Docket No. PIKE 78-365-P 

Notice No. 7 RHH (7-8) 2/1/77 § 75.200 ••..•........•• $ 300.00 

Total Assessments in Docket No. PIKE 78-365-P ... $ 300.00 

Docket No. PIKE 78-380-P 

Notice No. 12 RHH (7-13) 2/1/77 § 75.523 ............. $ 15.00 

Total Assessments . in Docket No. PIKE 78-380-P •.. $ 15.00 

Total Assessments in This Proceeding ...•......••. $ 315.00 

(2) Respondent at all pertinent times was the operator of the 

No. 4 Mine and as such is subject to the provisions of the Act and 

to the health and safety standards promulgated thereunder. 

235 
WHEREFORE, it is ordered: 

Skyview Mining, Inc., is assessed civil penalties totaling $315.00 

which it shall pay within 30 days from the date of this decision. 

Distribution: 

~ C. ~~JJO,,. .. Richard C. Steffe~ 

Administrative Law Judge 

Eddie Jenkins, Trial Attorney, Office of the Solicitor, U. s·. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 

Skyview Mining, Inc., Attention: Harold Akers, President, 

Box 458, Pikeville, KY 41501 (Certified Mail) 

236 
FEDERAL MINE SAFETY AND HEALTH· REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 17, 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

Docket No. VINC 78-455-P 

A.O. No. ll-00598-02037V 

Eagle No. 2 Mine 

DECISION 

Appearances: Inga A .• Watkins, Trial Attorney, Office of the 

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

Virginia, for the petitioner; 

Thomas F. Linn and Thomas R. Gallagher, Esqs., 

St. Louis, Missouri, for the respondent. 

Before: Judge Koutras 

Statement of the Proceeding 

This is a civil penalty proceeding pursuant to section llO(a) 

of the Federal Mine Safety and Heal th Act of 1977, initated by the 

petitioner against the respondent on August 17 $ 1978, through the 

filing of a petition for assessment of civil penalty, seeking a 

civil penalty assessment for one alleged violation of the provisions of mandatory safety standard 30 CFR 75.316, as set forth in a 

section 104(c)(2) order issued by a Federal coal mine ins~ector on 

June 14, 1977, pursuant to the 1969 Act. Respondent filed an answer 

and notice of contest on September 7, 1978, denying the allegations 

and requesting a hearing. A bearing was held in St. Louis, Missouri, 

on February 13, 1979, and the parties submitted posthearing proposed 

findings, conclusions, and briefs, and the arguments set forth 

therein have been considered by me in the course of this decision. 

Issues 

The principal issues presented in this proceeding are (1) whether 

respondent has violated the provisions of the Act and implementing 

regulations, as alleged in the petition for assessment of civil -penalty filed in this proceeding, and, if so, (2) the appropriate civil 

penalty. 

237 
In determining the amount of a civil penalty assessment, section 

llO(i) of the Act requires consideration of the following criteria: 

(1) the operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, 

(3) whether the operator was negligent; (4) the effect on the operator's ability to continue in business; (5) the gravity of the violation, and (6) the demonstrated good faith of the operator in 

attempting to achieve rapid compliance after notification of the 

violation. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Coal Mine Health and Safety Act of 1969, 

30 U.S.C. § 801 et seq., now the Federal Mine Safety and Health Act 

of 1977, P.L. 95-16~effective March 9, 1978. 

2. Part 2700, Title 29, Code of Federal Re~ulations, 43 Fed. 

Reg. 10320 et seq. (March 10, 1978), the applicable rules and procedures concerning-mine health and safety hearings. 

Stipulations 

The parties stipulated to the court's jurisdiction, agreed ·that 

the respondent is a large coal mine operator, and that any civil 

penalty assessed by me in this matter will not adversely affect 

respondent's ability to remain in business (Tr. 9). 

Discussion 

On June 14, 1977, MSHA inspector Harold Gulley issued section 

104(c)(2) Order No. 1 HG, 7-0232, charging a violation of 30 CFR 

75.317, and it states as follows: 

The ventilation system and methane and dust control 

plan was not being followed on section 033, 4 North off 

2 Main East in that the permanent stoppings were not substantially constructed and reasonably air tight to minimize air leakage on the intake aircourse to the section. 

( 1) Permanent stopping no' d 9 had 4 holes where the stopping was partially crush [sic] out. (2) No. 10 stopping 

had a hole beside the man dOOr where stopping had 

partially crush [~] out and not repaired or rebuilt. 

Three crosscuts outby trap door on the 4 North supply roadway a stopping had a hole 4 inches by 13 inches 

and not repaired or plastered. No. 24 and 25 stopping 

had been rebuilt and not plastered and 25 holes were 

observed in the 2 stoppings. No. 28 stopping had hole 

6 inch by 8 inch and had not been repaired. lhe approve 

plan states stoppings, overcast or undercast, shall be 

238 
properly maintained for the life of the stoppings to 

assure minimum air leakage. 

Testimony and Evidence Presented by Petitioner 

MSHA inspector Harold Gulley testified as to his expertise .and 

training as a mine inspector, and confirmed that he issued the crrder. 

of June 14, 1977, after observing the conditions cited and described. 

He was accompanied by George Morris, respondent's safety inspector. 

While walking the roadway next to the intake stopping line that 

~eparates the intake from the return, they observed the permanent 

stoppings in question and identified their approximate location by 

means of a mine map (Exh. P-2). Some of the stoppings had been 

crushed out, some had been partially replaced and blocks had been 

stacked, but they were not wood-fibered or sealed so as to exclude 

leakage. He believed that the stopping leaks would affect the ventilation that goes to the 2 West and Main North sections, since the 

crushed stoppings along the intake would cause the air to short circuit and travel to the belt isolation and into the return to the 

areas at the areas shown at the top of the mine map. The defective 

stoppings were on the intake aircourse from the left isolation ('I'.r. 

10-22). 

Inspector Gulley identified the notes which he made during his 

inspection (Exh. P-3), and a copy of the mine ventilation plan (Exh. 

P-4, Tr. 25-26). 1be specific ventilation plan provision which he 

believes was violated is No. 4( f), 1 abeled ''General, Meth&ne and 

Dus_t Control Plan," which reads "These stoppings, overcast and under-· 

cast shall be properly maintained for the life of the stoppings, overcast and undercast to assure minimum air leakage." He al so relied on 

plan No. 4(f)(2) and (3). He described what he believed was a substantially constructed stopping and stated that a stopping which is 

reasonab~y airtight would be one that has a minimtnn of air leakage. 

He· believed that the stoppings cited in his order were not substantially constructed because they had been partially crush.cl out and 

partially built back. Stopping No. 9 had four holes in it which he 

could see through and they were pulling the air from the intake into 

the belt isolation. 1be No. 10 stopping had holes beside the man door 

where the stopping had partially crushed out and the outer layer of 

blocks had a hole in it 4 inches by 8 inches by 26 inches. The 

stopping No. 3 crosscuts outby the trap door on the supply road had 

a 4-inch long hole at the top, and he observed 13 other holes and 

cracks in the stopping which were not plastered. Pieces of concrete 

were simply shoved into the holes and were not plast·.ered or woodfibered to keep them in place. The Nos. 24 and 25 stoppings had 

crushed out and were rebuilt and he observed 25 holes in the stoppings, 1/2 to 4 inches and he could observe that. ventilation was 

going through them. 1be No. 28 stopping had a hole in it 6 inches 

by 8 inches which had not been repaired (Tr. 34~40). 

239 
Inspector Gulley stated that the stopping conditions affected 

the ventilation in the entire mine. The crushed-out stopμings at 

No. 4 could have dropped and short circuited the ventilation. 'Ille 

No. 10 stopping door was not fitting tightly because the blocks and 

steel frames were crushed out and he could see through the holes. 

The 25 holes in the Nos. 24 and 25 stoppings resulted from failure 

to mortar the block joints when the stopping was built, and the 

No. 28 stopping hole allowed the ventilation to be sucked out (Tr. 

40-44). He used a smoke tube to detect that the air was leaking 

through the stoμpings in question, and an anemometer where the ventilation was going through the stoppings, and it turned. 'Ille mine 

does liberate gas, and gas feeders have been found and recorded on 

the mine books (Tr. 47). 

On the particular day in question, Inspector Gulley did not take 

air readings and he could not state the danger to which the men may 

have been exposed (Tr. 48). Although he checked the preshift examination books, he could not state whether the specific stoppings 

which he cited were recorded in the books (Tr. 49). 'Th.e company was 

aware of the stopping problems because they were having problems with 

smaller type blocks which were taking weight and the section.foreman 

should have observed the stoppings when he drove by the stopping line. 

Weekly examinations of the intake and returns are required to be made. 

Abatement took about 5 hours and all of the 10 to 13 men on the section were used to abate the conditions (Tr. 50-52). 

On cross-examination, Mr. Gulley testified that there was suffic.ient au on the last open crosscut of the 033 unit on the day the 

order issued. He indicated the area being worked that day, but could 

not recall the specific rocms on the map. He took no anemometer 

readings and only used that instrument to detect air movement. He 

did not know how much air was leaking through the stopping in question and made no calculations regarding air loss. He issued the 

order because the stoppings were not substantially constructed and 

not because of lost air velocity. The Nos. 24 and 25 stoppings were 

completely rebuilt, and the holes resulted because the concrete 

blocks used to construct the stopping were not plastered properly. 

Had they been plastered properly, the leakage would have been corrected. He was not aware of the wildcat strike the week before his 

inspection. 'Th.e cited area was not subject to excessive roof squeeze. 

The ventilation plan previously identified was the plan in effect on 

the day the order issued, and the plan is modified by attaching supplements to it, but he was not aware of any changes in the criteria 

in question (Tr. 55-78). 

Mr. Gulley conceded that his order does not specifically cite 

the particular ventilation plan requirement allegedly violated by the 

respondent. He also indicated that stoppings do leak, but good stoppings have a small percentage of leakage, and he is not surprised that 

240 
60 to 80 percent of the air that enters a mine never reaches the working face because of leakage through permanent stoppings. He did not 

know how many stoppings were installed along the stopping line in 

question. None of the stoppings were completely crushed out, and 

stoppings crush out because of the. weight ·to which they are subjected. 

No one advised him that a ventilation man was assigned permanently to 

the section to repair stoppings. He did not check to see whether air 

was being directed from the neutral return to the working sections. 

He made methane checks on the day in question, but found none. 'Th.e 

unit had sufficient air and he ''possibly" could have told face boss 

Amos Drone that ''I'm not shutting you down for air, I'm shutting you 

down because of the holes in the permanent stoppings" (Tr. 78-87). 

On redirect examination, Mr. Gulley confirmed that there was sufficient air in the last open crosscut where mining was taking place 

(Tr. 87). 'Th.e preshift reports for June 13, 1977, reflect air readings of 7,500 cfms on the intake, and 9;200 cfms in the return of the 

2 West section, and ·on another shift that day, the readings were 

6, 000 in the intake and 8, 000 on the return with 2-1/2 percent methane 

noted in the No. 4 entry (Tr. 90). He reviewed the preshift books for 

June 14, but could not recall all of the recorded air readings for 

that day, and did not know whether there was sufficient air throughout 

the entire mine (Tr. 97). The mine is on a' 10-day spot frequency 

inspection schedule because it liberates methane freely (Tr. 106). 

Testimony and Evidence Presented by Respondent 

Amos Drone, respondent• s 11 floating boss'' on the day the order 

issued, testified that Inspector Gulley advised him of the conditions 

of the stoppings in question, but there was sufficient air on the unit. 

He observed the stoppings after Mr. Gulley brought them to his attention, but he did not check them all prior to that time while going 

underground. The stoppings are on the intake and they serve to maintain the air and to keep it separated from the return. 'Th.e law does 

not require the stoppings to be preshifted. There were ~ total of 

pO stoppings on the intake in question, and Mr. Gulley cited six of 

them. Four of them had holes, and the other two needed plaster. He 

described the procedure for constructing the stoppings, and indicated 

they were in the process of rebuilding the two which needed plaster 

and it would have been completed the same day since a man was on the 

section to do the work. He indicated that the company has a program 

for maintaining stoppings and seven men on each of two production 

shifts are assigned these tasks. It is not uncommon for stoppings 

to take weight, particularly in the unit in question. He admitted 

the stoppings cited were in need of repair, but indicated the others 

were apparently in pretty good shape (Tr. 123-132). Mr. Drone identified Exhibit R-2 as the preshift examination book covering June 14, 

5 to 7 a.m •. to 8 to 11 a.m. on June 7, 1977, for the unit in question. 

On June 13, the day he was there, the air reading in the last open 

crosscut.was 10,2.00, andthe two prior shifts were 13,500 and 9,.000. 

241 
lhe first preshift indicated 15, 000, and he could recall detecting no 

methane on the unit on June 14 or prior to that time. The preshift 

for June 7 indicates three intake stoppings were out, and there were 

strikes on and off for several days and several shifts (Tr. 133-

138). lhere was a wildcat strike at the mine during the week prior 

to June 14 (Tr. 138). Referring to the preshift books, Mr. Drone 

indicated the days that the mine was idle due to the strikes or for 

other reasons (Tr. 146-157). He also indicated the days that stopping 

conditions were noted in the preshift books (Tr. 157-158). 

On cross-examination, Mr. Drone testified that the unit had not 

yet begun production when the order was issued. He conceded that he 

was responsible for repairs to the stoppings, and that they were 

visually obvious once they were pointed out to him, but he did not 

see them while riding in (Tr. 159-163). 

Mark Etters, respondent's section manager in the safety department, identified Exhibit R-3 as a list of the days between June 4 and 

June 13, 1977, that the mine was idle due to a wildcat strike (Tr. 

187-189). 

Or1 cross-examination:, he testified that the mine was idle on 

June ll and that was a management decision and not a strike day (Tr. 

189). 

Jerry Tien, mine ventilation specialist, testified as to his 

expertise and education in mine engineering. He is a specialist in 

ventilation, has published three articles on the subject, and was 

accepted as an expert in mine ventilation (Tr. 191-193). Mr. Tien 

testified it is not uncommon to have a 60- to 80-percent air loss in 

a mine before it reaches the working face. Air is lost through leakings on the stoppings and overcasts. He identified Exhibits R-5, R-6, 

and R-7, as the Bureau of Mines' publications supporting his statement regarding air loss. He read excerpts from these publications 

indicating that due to air leakage, as iittle as 30 percr.1t, and 

less than 40 percent, of the air induced in a mine actually reaches 

the working faces (Tr. 193-197). 

Mr. Tien testified that he made a determination as to the amount 

of air lost in the ventilation system at the Eagle No. 2 Mine. He 

took a pressure survey in July 1977, and determined an average fresh 

air lo.ss of 43 percent, and he believed that was acceptabie. No significant and substantial changes were made in the mine ventilation 

system between June 14 and July 5 to 11. He indicated that. he is 

familiar with the order issued by Inspector Gulley and that he has 

listened to all of the testimony in the case, and he expressed an 

opinion that the air loss from the areas described was not uncommon 

or unusual for the areas described because the area was formed by a 

242 
flooding plain which resulted in faults and excessive squeeze. His 

pressure survey reflected 27,000 cfms of air flowing through the 

4 North Section, and he explained that air leakage through stoppings 

is.caused by roof convergence, concussions from blasting, and the 

actual stopping construction itself. He explained the effects of 

convergence and marked off the areas in question on Exhibit R-8 (Tr. 

197-205). 

On cross-examination , Mr. Tien testified that he has been in and 

out of mines during the course of conducting pressure surveys and he 

reiterated that 60 to 80 percent of ·the air is lost due to leakage. 

He stated he was familiar with the Eagle No. 2 Mine, did not know the 

amount of air leakage· on the day the order issued, and conceded that 

air leakage is a serious problem. He indicated it is possible that 

the conditions of the stoppings which were cited. could have affected 

the air in the other mine section_s, but explained that due to the type 

of exhaust system used in the mine, the pressure.differential across 

the stopping line would be minimal and would not cause that much difference insofar as air leakage is concerned (Tr. 205-210). Mr. Tien 

confirmed that the particular mine area in question has had problems 

with stoppings being squeezed out because of excessive roof squeeze, 

and that the problem has existed since 1976 and the. company is aware 

of it (Tr. 218-219). He indicated that the total mine air intake is 

approximately 220,000 cfms, and the 320,000 cfms goes out. The condition of squeeze or convergence of the mine roof and floor is common 

to all mines and is a natural condition (Tr. 223). 

Petitioner's counsel asked Mr. Tien to compute the air· leakage in 

the entry which resulted from the stopping conditions noted by the 

inspector on the face of his order. After making certain assumptions, 

and considering the size of the stopping holes described by Mr. Gulley, 

Mr. Tien stated he could not calculate the precise air leakage because 

he would have to measure the entire length of the 60 stoppings, and 

would have to know the amou:t of air traveling along the stopping line. 

He indicated that it would be difficult to calculate each individual · 

'Stopping for leakage, but that the entire stopping line leakage could 

be calculated by determining the air coming in and the air going out, 

divided by the number of stoppings (Tr. 228-234). In response to a 

question from respondent's counsel, Mr. Tien calculated the air loss 

through three stopping hol.es of 26 cfms of air (Tr. 236). 

Findings and Conclusions 

Fact of Violation 

The arguments presented by the parties in support of their respective positions in this proceeding, as well as the facts presented, are 

essentially the same as those raised in the prior consolidated cases 

of Peabody-C~al Company v. MSHA, Doc_ket No. VINC 78-:1, and MSHA v. 

Peabody Coal Company, DocketNo. VINC 78-441-P, decided by meort 

243 
December 13, 1978. In those proc'eedings, I found that MSHA had 'failed 

to establish a violation and dismissed the petition for assessm'ent of 

civil penalty. 1be thrust of my decision is found on page 19 of that 

decision, which states, as follows: 

, In order to establish a violation of the ventilation 

plan, MSHA must first establish by a preponderance of the 

credible evidence that the failure by Peabody to properly 

maintain the stoppings and to keep the stopping doors reasonably airtight did not assure minimum air leakage. MSHA's 

contention is that the conditions of the stoppings and 

doors resulted in significant air leakage, the magnitude of 

which it claims made it apparent that the violation could 

significantly reduce the amount of air reaching the working 

faces where 'it was needed to carry away methane and respirable dust. 1be critical question presented is whet_her the 

conditions cited did, in fact, result in any reduction of the 

air reaching the faces. Since the ins_pec tor failed to take 

any air measurements on the day in question, I cannot conclude that MSHA has establi'shed by a preponderance of the 

evidence that the air leakage was more than minimtml or that 

the failure to maintain the stoppings and doors resulted in 

a violation of the ventilation plan. In short, I find that 

MSHA has failed to carry its burden of proof and that a violation has not been established. In the circumstances, the 

order must be vacated and the petition for assessment of 

civil penalty must be dismissed. [E.'llphasis in original.] 

Under the circumstances herein presented, I adopt my previous 

findings and conclusions made in the aforementioned decison as dispositive of the instant proceeding and those previous findings and 

conclusions are herein incorporated by reference as my findings and 

conclusions in this case and serve as the basis for my findings and 

conclusions that MSHA has again failed to establish a violation of 

30 CFR 75.316 as charged in Inspector Gulley's Order No. 1 HG, 

·June 11, 1977, and' which is the basis for the petition for assessment of civil penalty filed in this proceeding. It is clear to me 

in this proceeding that in issuing his order of withdrawal, Inspector 

Gulley believed that the stopping -conditions which he observed prevented the legal minimum limit of air from reaching the working faces 

because of the air loss caused by leakage through the stoppings in 

question. He al so stated that the stoppings condition affected the 

ventilation in the entire mine. His order charges that the cited 

stoppings were not substantially construe ted and reasonably airtight 

to minimize air leakage on the intake aircourse to the section. 

However, by failing to take any air measurements or to otherwise 

establish that the air leakage through the stoppings did, in fact,_ 

result in a diminution of air at the faces below the minimum allowable limits, the inspector's beliefs and conclusions are simply 

unsupportable-. 

244 
Petitioner admits that 12,000 cfms of air were present at the 

last open crosscut of the 4 North Section at the time the order 

issued (Brief, p. '14). However, petitioner concludes that it would 

not require a significant increase in the leakage through the stoppings to result in the quantity of air at the face dropping below the 

minimum required. While this may be true in theory, the short answer 

to the asserted conclusion is that petitioner has not proved its 

theory by any credible evidence. I simply fail to understand how 

one can conclude as a matter of fact that the quantity of air reaching the face is below the minimumrequired by the law without taking 

an air reading or otherwise testing the sufficiency of the air reaching the working face, and petitioner's arguments have not enlightened 

me in this regard. 

Petitioner's argument that the physical condition of the stoppings, alone, estabishes that less air than that which was possible, 

was reaching the face of every working section, begs the question. 

The issue is not whether less air than that which was possible was 

reaching the face, but rather, the question presented is whether the 

amount of air required by the law was, in fact, reaching the working 

faces. In this case, the evidence and testimony adduced establishes 

that there were a total of sixty (60) stoppings on the stopping line 

in the section, six (6) of which were found to be in various stages 

of disrepair. Two of these stoppings had been rebuilt, but were 

inadequately plastered, one had a hole next to the man door, and the 

others needed plastering and patching. Based on the testimony and 

evidence adduced by the petitioner in support of its case, I simply 

cannot conclude that petitioner has established that the six defectiv'e stoppings, out of a total of 60 along the entire stopping line 

in question, in fact, disrupted the ventilation to the point where it 

resulted in other than minimum air leakage.in violation of the ventilation plan. The ventilation plan requires that stoppings be properly maintained to assure minimum arr leakage. The problem is that 

petitioner has not established by a preponderance of any credible 

evidence that failure to maintain the six stoppings in question 

failed to assure minimum air leakage. Petitioner's entire case is 

·built on the proposition that def~ctive stopping1s somehow disrupt 

ventilation in the entire mine, and that this disrupti'O!l'in the ventilation results in less air reaching the face, thereby establishing 

a violation. Petitioner glosses over what I believe are the critical 

facts to establish a violation, namely, the amount of air introduced 

on the section through the normal mine ventilation system, the amount 

of air lost through leakage through the six defective stoppings, and 

the amount of air ultimately reaching the working faces. Without 

these essential ingredients, such ventilation plan terms as ''minimum 

air leakage'' and ''reasonably airtight'' lead to meaningless and 

speculative guessing games. . 

Petitioner's reliance on the testimony of respondent's witness 

Amos Drone aftd the assertion at page 5 of its brief, that he admit;ted 

245 
that four of the stoppings were not maintained to assure minimum air 

leakage must be taken in context. The transcript reference relied 

on by petitioner, at page 132, reflects the following: 

'Q. Well, in your judgment, as a section boss, was the, 

were the stoppings on your unit maintained to assure minimum 

air leakage? 

A. Well, I would say, I'd have to, with all honesty, 

say that, as a whole, we got sixty stoppings there and 

the.re's about four of them that were really, you know, 

right at that time, needed repairs that we found. 

Q. So is it your judgment then that they were maintained. to assure minimum air leakage? 

A. Yes, up to a point. 

Q. Why do you say, "Yes, up to a poine'? 

A. Well, I can't say that these stoppings here didn't 

need repair. In other words, I couldn't tell you that. 

They did need repair. But, like I said, in comparison with 

the whole section and everything, with the problems we had, 

I can say that the rest of them, you know, apparently were 

in pretty good shape. 

At pages 12 and 14 of its brief, petitioner suggests that the 

condition of the stoppings ilcould affect the ventilation of the 

entire .mine," and that the maintenance of the stoppin:gs to assure 

minimum air leakage is a preventive measure designed to insure continuous adequate ventilation during the mining process in which conditions are in a c.on.stant state of flux. I agree with this proposition. My disagreement with the petitioner's position in this case, 

as well as in my previous decision of December 13, 1978, in VINC 78-1 

and VINC 78-441, lies in the fact that petitioner simply has failed 

to establish a case,. In this case, the inspector not only failed to 

take air readings, but he did not know the total number of stoppings 

installed along the intake aircourse which he cited, nor did he 

attempt to determine whether the air from the neutral return was 

being directed to the working sections. Since he believed there was 

sufficient air in the last open crosscut where mining was taking 

.place, I simply fail to understand how the 6 defective stoppings 

adversely affected the entire mine ventilation system or cause significant air leakage of the magnitude suggested by the petitioner. 

246 
ORDER 

Based on the above findings of fact and conclusions of law, IT 

IS .ORDERED that petitioner's petition for assessment of civil penalty, 

insofar as it seeks a civil penalty assessment on Order No. 1 H~, 

June 14, 1977, be dismissed. 

Distribution: 

~-z1,e_t'.1.K~ ~~e /{- Koutras 

Administrative Law Judge 

Inga A. Watkins, Trial Attorney, Office of the Solicitor, Mine 

Safety and Health Administration, U.S. Department of Labor, 

4015 Wilson Blvd., Arlington, VA 22203 

Thomas F. Linn, Esq., 301 N. Memorial Drive, P.O. Box 235» 

St. Louis, MO 63166 (Certified Mail) 

Standard Distribution 

247 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 18, 1979 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

C F & I STEEL CORPORATION, 

Respondent 

Docket No. DENV 78-362-P 

A.O. No. 05-00296-02008 

Allen Mine 

Docket No. DENV 78-363-P 

A.O. No. 05-02820-0200& 

Maxwell Mine 

Dock.et No. DENV 78-369-P 

A.O. No. 05-02820-02010 

Maxwell Mine 

DECISION 

On March 14, 1979, the Mine Safety and Health Administration 

moved the Judge to approve a settlement to which the parties had 

agreed and dismiss the above-captioned. 

The alleged violations and proposed settlements are as follows: 

Docket No. DENV 78-362-P 

Citation or 

Order Number Date 

Docket 

1 DLJ 

3 WWT 

1 CET 

1 CET 

No. DENV 

7-0003A/ 

1 DLJ 

7-0003B/ 

1 DLJ 

01/22/74 

·03/30/74 

07/12/77 

07 /13/77 

78-363-P 

04/07 /77 

04/07/77 

30 CFR 

Standard Assessment Settlement 

75.510 $42 $42 

75.510 42 42 

75.509 135 0 

75.400 102 0 

77.190l(d) 190 75 

77.1911 130 0 

248 
7-000JC/ 

l DLJ 04/07 /77 77.1914 125 75 

7-0024C/ 

1 EM 06/08/77 77.205(b) 145 0 

7-0024A/ 

1 EM 06/08/77 77. 202 250 125 

7-0024B/ 

1 EM 06/08/77 77.512 180 90 

7-0047/. 

1 LAR 08/01/77 75.200 86 86 

7-0059/ 

4 CET 08/08/77 75. l 712-6(a) 36 0 

7-0060/ 

5 CET 08/08/77 75.509 52 0 

7-0066/ 

6 CET 08/09/77 75.509 52 0 

7-0067/ 

7 CET 08/09/77 75.316 67 0 

Docket No. DENV 78-369-P 

7-0020/ 

4 EM 06/07 /77 77.516 67 67 

7-0080/ 

2 AD 10/19/77 77 .1109(d) 49 49 

As grounds to support the proposed settlement, MSHA avers as 

follows: 

I. DENV 78-362-P 

104(b) Notices 1 DLJ, January 22, 1974 and 3 WWT, 

March 30, 1974, alleging violations -0f 30 CFR 70.510 were 

previously assessed at $42.00 each in Case No. 3724-0. The 

assessed amount was paid by Respondent November 14, 1975. 

Counsel for MSHA therefore moves that these two citetions 

be dismissed. 

104(b) Notice 1 CET, July 12, 1977, 30 CFR 75.509 and 

104(b) Notice 1 CET, July 13, 1977, 30 CFR 75.400 were issued 

by Federal Coal Mine Inspector Carl E. Thompson Jr. Inspector Thompson is now deceased, and as MESA's sole witness in 

establishing a prima facie case as to all elements of the 

violation, MSHA moves that the two notices of violation be 

dismissed. 

II. DENV 78-363-P 

1. 104(a) Order 1 DLJ April 7, 1977 30 CFR 77.190l(d) 

The standard cited requires that "no work shall be performed in any slope or shaft, .... if the methane content 

249 
in such slope or shaft is 1.0 volume percentum, or more of 

methane." Testimony in the review proceeding by witness for 

C F & I was that work was stopped as soon as the warning 

light on the continuous mining machine appeared. MSHA's 

witness testified that when he entered the area, coal was 

being cut. As a result of the conflicting and inconclusive 

testimony as to the exact time mining operations ceased when 

methane was detected, the parties have agreed to a settlement in the amount of $75.00. The originally assessed 

amount was $190.00. 

2. 104(a) Order 1 DLJ April 7, 1977, 30 CFR 77.1911(3) 

In the above referenced decision the Judge specifically 

found that the Inspector's testimony failed to establish the 

recirculating of the air as alleged. As a result of the 

testimony in the subsequent decision, MSHA moves that.the 

alleged violation of 30 CFR 77.19ll(c) be dismisse~. 

3. 104(a) Order 1 DLJ April 7, 1977, 30 CFR 77.1914 

This order was also the subject of the above referenced 

review proceeding in which the Judge found that the auxiliary 

fan and the power center, the most important peices [sic] of 

equipment, were outby the fork or collar of the slope and 

were not subject to the standards cited. As a result of 

the diminution in gravity, the parties agreed to a settlement in the amount of $75.00. The original assessment was 

in the amount of $125.00. 

4. 104(a) Order 1 EM June 8, 1977, 30 CFR 77.205(b) 

This order was the subject of an application for review 

in which the decision was issued February 8, 1979, by Administrative Law Judge Char 1 es C. Moore, Jr., in which the 

imminent danger order was vacated. This violation requires 

that travelways be kept clear of extraneous material or 

other slipping hazards. The record in the review proceeding clearly indicates that travelway was in the process of 

being shovelled-clean of the wet, muddy material which had 

spilled. Since the travelway was already in the process of 

being maintained when the violation was cited, MSHA moves 

the Administrative Law Judge to dismiss the violation of 

30 CFR 77.205(b). 

5. 104(a) Order 1 EM June 8, 1977, 30 CFR 77.202 

While this violation was not directly litigated in the 

review proceeding, the record there indicates that the 

entire area was wet and muddy; and that the conditions 

250 
present would significantly reduce any potential for fire 

or explosion. At a hearing. [sic] Respondent would contend 

that the accumulations cited would have been cleaned up by 

the travelway shoveller had time been given. As a result 

of the potential conflict in testimony and the condition 

observed, the parties agreed to a se·ttlement in the amount 

of $125.00.. The original assessment was in the amount of 

$250.00. 

6. 104(a) Order 1 EM June 8, 1977, 30 CFR 77.512 

This condition was in the same area cited above, and 

as a result of the wet and muddy conditions any possible 

resulting hazards would be significantly decreased. On 

this basis the parties agreed to a settlement in the amount 

of $90.QO. The original assessment was in the amount of 

$1.80.00. 

7. 104(b) Notice 1 LAR August 1, 1977, 30 CFR 75.200 

This violation was assessed at $86.00. After consideration of the gravity and negligence involved, MSHA concludes that payment in the full amount of $86.00 is 

warranted. 

8. 104(b) Notice 4 CET August 8, 1977, 30 CFR 

75.1712-6(a) 

9. 104(b) Notice 5 CET August 8, 1977, 30 CFR 75. 509. 

10. 104(b) Notice 6 CET August 9, 1977, 30 CFR 75.509 

11. 104(b) Notice 7 CET August 9, 1977, 30 CFR 75.316 

These four notices of violation were issued by Federal Coal Mine Ins.pector Carl E. Thompson who i:s now 

deceased. As a result, since Inspector Thompson was MSHA's 

sole witness. [sic] MSHA is unable to present a prima facie 

case as to each of the elements involved and moves the 

Administrative Law Judge to dismiss each of the four notices 

of violation. 

III. DENV 78-369-P 

1. 104(b) Notice 4 EM June 7, 1977, 30 CFR 77.516 

2. 104(b) Notice 2 AD October 19, 1977, 30 CFR 

77.1109(d) 

These two notices of violation were initially assessed 

at $67·.oo and $49.00 respectively. After a consideration of 

251 
the facts, particularly as to gravity arid negligence, MSliA 

believes that payment in full is warranted as a proper 

settlement in each instance. MSHA therefore moves the 

Administrative Law Judge to dismiss these violations on the 

basis of full payment. 

The above grounds adequately explain the rationale of the Solicitor in his disposition of the above. I hereby APPROVE the settlement 

to which the parties agreed. 

As section llO(a) makes penalties mandatory for violations, and 

as MSHA avers that it cannot establish certain of the alleged violations, those that cannot be established, must be vacated. 

WHEREFORE Notice Nos. 1 CET, July 12, 1977; 1 CET, July 13, 1977; 

4 CET, August 8, 1977; 5 CET, August 8, 1977; 6 CET, August 9,.1977; 

and 7 CET, August 9, 1977; and Order Nos. 1 DLJ, April 4, 1977; and 

1 EM, June 8, 1977, are hereby VACATED. 

Pursuant to the motion, the above-captioned are DISMISSED. 

The hearings that were scheduled for Wednesday and Thursday, 

March 21 and 22, 1979, in Pueblo, Colorado, were VACATED . 

Distribution: 

.., ·-""" ........ :. .1;:1 •': • ··~~ ..,. ..~.f 

~~, .. , .. /),~ ~~2 . ./,,....J~. c.· ~ ,.:.·~ ~.i.'.t:/* .. '!._.1""':':.l)~~:.;:~i:J;;:.:t~~~~~ .~~-1-.~,. ... Ir? ; .. •v.· , 

Malcolm P. Littlefield :r 

Administrative Law Judge 

Leo McGinn, Trial Attorney, Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

C F & I Steel Corporation, P.O. Box 316, Pueblo, CO 81002 

(Certified Mail) 

Welborn, Dufford, Cook & Brown, 1100 United Bank Center, Denver, 

CO 81003 (Certified Mail) (Attn: Mr. Haxton, Room 207) 

252 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE Of ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

RAY MARSHALL, 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

TRAIL MOUNTAIN COAL CO., 

Respondent 

APR 2 0 1979 

DECISION 

Civil Penalty Proceeding 

Docket No. DENV 78-460-P 

42-01211-02005 

Trail Mountain Mine 

On April 2, 1979, Petitioner moved to withdraw its petition for 

civil penalty pursuant to 29 CFR § 2700.15(b). As grounds therefore, 

petitioner avers that Respondent has agreed to pay the assessed 

civil penalty of $466 in full. 

The motion to withdraw the petiton is GRANTED, subject to the 

case being reopended if the assessed penalty is not paid as agreed 

to by the parties. 

The hearing scheduled for Tuesday, April 10, 1979, in Salt Lake 

City, Utah was VACATED. 

Distribution: 

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Malcolm P. Littlefield 

Administrative Law Judge 

Joseph M. Walsh, Trial Attorney, Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 

22203 

James H. Barkley., Attorney, Offi(!e of the Solicitor, U.S. 

Department of Labor, 1585 Federal Bldg., 1961 Stout St., 

Denver, CO 80294 (Certified Mail) 

Trail Mountain Coal Ltd., P.O. Box 356, Orangeville, UT 84537 

(Attn: Mr. Carson R. Realty) (Certified Mail) 

253 
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. 

BLUE ROCK, INDUSTRIES, 

Respondent 

Ap.ril ~3, 1979 

Civil Penalty Proceedings 

Docket No. WILK 79-11-PM 

A.O. No. 17-00123-05001 

Cumberland Pit & Mill 

Docket No. WILK 79-12-PM 

A.O. No. 17-00001-05001 

Westbrook Quarry & Mill 

DEClSION AND ORDER APPROVING SETTLEMENT 

As the result of a settlement conference held on April 10, 

1979, the operator agreed to pay $700 in settlement of six of 

the seven violations charged. The Secretary in turn agreed 

to withdraw the other violation. The amounts agreed upon exceed 

the penalties proposed by the Assessment Office. 

Based upon an independent evaluation and de novo review 

of the circumstances of each violation as reflected in the 

parties' prehearing submissions, the representations'made at the 

settlement conference, and the factors set forth in: the Secretary's 

motion to approve settlement, I find the settlement proposed is 

in accord with the purposes and policy of the Act. 

Accordingly, it is ORDERED that the motion to approve 

settlement be, and hereby is, GRANTED subject to payment and 

furnishing of a letter from the president of respondent a~suring 

me that steps have been taken to prevent a recurrence of the 

violation involving the lubrication of machinery in motion, 

including, if necessary, disciplinary action against e~rant 

employees. It is FURTHER ORDERED that respondent pay the agreed 

upon penalty of $700.00 and furnish the letter of assurance on or 

before Wednesday, May 2, 1979. Finally, it is ORDERED that·, 

subject to receipt of payment and the required letter, the captioned 

petitions be DISMISSED. . 

254 

Joseph B. Ken edy 

Administrative Law 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 24, 1979 

PETER WHITE COAL MINING CORP., 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA); 

Petitioner 

v. 

PETER WHITE COAL MINING CORP., 

Respondent 

Applications for Review 

Docket Nos. HOPE 78-23 

HOPE 78-41 

HOPE 78-42 

HOPE 78-48 

HOPE 78-49 

Civil Penalty Proceedings 

Docket Nos. HOPE 78-615-P 

HOPE 78-616-P };__/ 

A.O. Nos. 46-04338-02021V 

46-04338-02022V 

War Eagle No. 1 Mine 

DECISION 

The five applications for review were brought by Peter White Coal 

Mining Corporation under section 105(a)(l) of the Federal Coal Mine 

Health and Safety Act of 1969, 2/ 30 U.S.C. § 801 et seq., to vacate 

five orders of withdrawal issued by Federal mine inspectors under 

sections 104(c)(2) and 104(b) of the Act. 

The parties submitted prehearing statements pursuant to a notice 

of hearing and the hearing was held in these cases on April 6 and 7, 

1/ Jurisdiction in this case is limited to the civil penalty based on 

Order No. 7-0127 issued on September 30, 1977. A case with the same 

docket number involving other issues is pending before Judge Moore. 

2/ In 1977, Congress passed the Federal Mine Safety and Health Amendiii"ents Act of 1977, (P.L. 95-164, 91 Stat. 1290), which supercedes the 

1969 Act. The "Act" for the purpose of this decision, refers to the 

1969 Act before amendment. Effective March 9, 1978, administration 

of the Act was transferred from the Department of the Interior to the 

Department of Labor, and administrative adjudications were transferred 

from the Interior Department to the newly created Federal Mine Safety 

and Health Review Commission. 

255 
1978, in Bluefield, West Virginia. The United Mine Workers submitted 

a prehearing statement stating that it would not appear at the hearing 

and would rely on evidentiary presentations of the Mine Safety and 

Health Administration. 

After the hearing, counsel for MSHA and the operator moved that 

the above two civil penalty petitions (then before other judges) be 

consolidated with the subject applications for review and submitted 

on the prior hearing record. An order granting the motion to sever 

was issued by Judge Charles Moore on December 8, 1978, to consolidate 

one of the penalty assessments at issue in HOPE 78-616-P with HOPE 

78-41. On January 24, 1979, Judge Richard Steffey issued an order 

granting the parties' motion to sever Docket No. HOPE 78-615-P from 

a proceeding before him and to consolidate it with Docket No. HOPE 

78-42. 

The final submission in these cases was filed on April 9, 1979. 

MSHA has conceded in its brief that it was in error issuing the 

orders of withdrawal in Docket Nos. HOPE 78-23, and HOPE 78-49. The 

two w1thdrawal orders in those cases are therefore vacated and the 

applications for review in Docket Nos. HOPE 78-23, and HOPE 78-49 

will be GRANTED. 

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, the Applicant, Peter White Coal 

Mining Corporation, operated an underground bituminuous coal mine, 

known as the War Eagle No. 1 Mine, in Mingo Coun.ty, West Virginia, 

which produced coal for sales in or affecting interstate commerce. 

2. Peter White is a medium-sized operator and the subject mine 

produces approximately 95, 000 tons of coal per year. On Sep·tember 30, 

1977, a total of 166 union and salaried people were employed at the 

War Eagle No. 1 Mine with a total of 12 people employed in the No. 6 

section on the day shift. 

3. The assessment of a penalty in these proceedings will have 

no affect on Peter White's ability to continue in business. 

4. Respondent demonstrated good faith in attempting to achieve 

rapid compliance after notiffcation of the violations in the two 

cases in which civil penalties are being sought. 

5. Further findings with conclusions as to allegations and 

defenses are set forth in the following numbered paragraphs (6 

through 38): 

256 
HOPE 78-41 arid HOPE 78-616-P 

6. Inspectors Edward M. Toler and Tom Goodman arrived at the 

War Eagle No. 1 Mine on September 30, 1977, around 7:30 a.m·. The 

inspectors intended to investigate a union complaint concerning 

ventilation and electrical violations in the mine. 

7. When they arrived at the mine, they met with Mr. Tim Maynard, 

a management representative, and informed him of the complaint. The 

inspectors, accompanied by Mr. Maynard, went underground about 10 a.m. 

8. When the inspectors arrived underground, they announced the 

purpose of their investigation to the miners present on the section. 

About 10:30 a.m., Inspector Toler began to take air readings on the 

intake side and found that the ventilation was inadequate. After completing the investigation at 12:30 p.m., Inspector Toler orally issued 

a 104(c)(2) withdrawal order. The operator has not rebutted the 

existence of the violation as described in the order of withdrawal. 

9. The fire boss reports indicated that air readings taken by 

management personnel showed adequate ventilation on September 28, 29, 

and 30. The amount of air required by the mine's ventilation plan 

was 9,000 cubic feet per minute, and the fire boss reports showed 

air circulation in excess of 10,000 cubic feet per minute. The fire 

boss inspection on September 30, 1977, was made prior to 7:30 a.m. 

10. No coal was being produced at the time of the investigation 

in this section. The ventilation problem was due in part to faulty 

line curtains and the operator was in the process of installing line 

curtains to correct the deficiency at the time the inspector was 

taking air readings. Some of the men on the section were.engaged in 

routine maintenance. Mr. Maynard testified that the lack of adequate 

ventilation was also due to a damaged stopping and gob in the main 

intake. 

11. The preponderance of the evidence shows that the operator 

was aware of the inadequate ventilation in the section and was in 

the process of abating the problem before the inspectors arrived. 

Considering that the operator was aware of the violation, had 

stopped production, and was in the process of correcting the violation before the inspectori arrived in the section, I conclude 

that MSHA has not proved that the operator was negligent. I therefore find that there was no unwarrantable failure on the part of 

the operator regarding this violation. ~./ 

3/ If the subject order were not invalid for other reasons, it could 

be vacated for MSHA's failure to demonstrate that the violation was 

due to the operator's unwarrantable failure. See Zeigler Coal Co. 

v. Kleppe, 536 F.2d 398 (D.C. Cir. 1976). 

257 
12.- The failure to provide adequate ventilation in a mine is 

ordinarily a serious violation. However, the miners were not producing coal in the section at the time the violation was discovered 

and they were working on improving the ventilation by tightening 

the check curtains to prevent leakage. Danger to the miners was 

possible, but not probable. 

13. There had been one violation of 30 CFR 75.316-2(b) issued 

prior to September 30, 1977, at the War Eagle No. 1 Mine. 

14. A section 104(c)(2) order of withdrawal is a part of a 

"chain" and the Act requires an underlying 104(c)(l) order as a 

prerequisite to a valid 104(c)(2) order. The inspector cited a 

notice of violation issued on May 5, 1977, as the underlying document to support the 104(c)(2) order. Under the Act, the cited 

notice could not support a valid 104(c)(2) order. Applicant based 

its application for review, in part, on the failure of Respondent 

to-properly cite a valid underlying 104(c)(l) order. 

15. Respondent attempted to modify the order on two occasions. 

Respondent issued the first modification on October 5, 1977, after 

the order was terminated, but before the filing of the subject application for review. This.modification was for the purpose of changing 

the references to "velocity" in the order to "cubic feet per minute." 

Although the wor_d "velocity" was originally used, it was clear from 

the figures an4 the context that volume was meant. It has not been 

shown· that Applicant was prejudiced or misled by this error or the 

subsequent modification. I find that this modification should be 

allowed. 

16. The second modification was issued on March 30, 1978, by 

Inspector Toler and was served on Applicant's counsel at the hearing 

on the application on April 7, 1978. This modification was an attempt 

to correct the mistaken reference to a notice as the underlying document for the 104(c)(2) order. The modification states: 

Order No. 1 EMT., dated September 30, 1977, is hereby 

modified to refer to Order No. 1 PT, dated May 5, 1977. 

This order was issued under the provisions of section 

104(c)(2) of the Federal Coal Mine Health and Safety Act 

of 1969 and Title 30 CFR Section 75~316 on September 30, 

1977, and is changed to.section 104(c) to reflect the 

correct section under the 1977 Amendments Act. 

The modification is not, as it states, a correction of the section number to conform to the 1977 Amendments Act. Instead, it is 

an attempt to provide a citation to a required underlying 104(c)(l) 

258 
order. 4/ The Applicant objected to this modification at the hearing 

at the time it was introduced. 

17. MSHA contends that it has unlimited authority to modify an 

order and that Applicant was not prejudiced by either of these modifications. I find that Applicant was prejudiced by MSHA's failure to 

provide a proper citation to the underlying order prior to the hearing, in adversely affecting its ability to prepare the application for 

review and to prepare for the hearing thereon. 

18. Applicant based its application for review, in large part, 

on the failure of the inspector to cite a required underlying order. 

The operator was prejudiced by MSHA's failure to timely.modify this 

order. Applicant's objections to the order and to the attempt to 

modify the order should therefore be sustained. Furthermore, it 

was plainly the duty of MSHA to disclose any intention to modify· 

the order in its prehearing submissions required by the notice of 

hearing. Failure of MSHA to meet this responsibility further misled 

and prejudiced the operator's rights. 

19. For the above reasons, I conclude that Applicant's motion to 

exclude the attempted modification of Withdrawal Order No. 1 EMT 

issued on September 30, 1977, at its War Eagle No. 1 Mine, be granted, 

and the withdrawal order is therefore held to be invalid. 

HOPE 78-42 and HOPE 78-615-P 

20. After the meeting with the miners described in Finding 8, 

Inspector Goodman proceeded to the section power center. Inspector 

Goodman is a qualified electrical inspector. He was accompanied by 

Mr. Paul Blankenship, the chief electrician at the mine, and Mr. Jerry 

Halem, the section electrician. 

21. When they arrived at the section power center they cut the 

power off, so that Inspector Goodman could .check the section's circuit 

breakers. 

22. The particular section was using three circuit breakers (two 

400-amp Westinghouse circuit. breakers and one 225-amp Westinghouse 

circuit breaker). When Inspector Goodman tested the circuit breakers 

they failed to deenergiie under a fault condition. 

23. Inspector Goodman informed management at that time that he 

was issuing a 104(c)(2) order. The operator did not introduce any 

evidence to show that the violation found by the inspector did.not 

exist and I find that the violation was proven. 

4/ The c.orrect citation to the corresponding sectio·n in the 1.977 

Amendments Act is 104(d)(2). 

259 
24. The reason the circuit breakers failed to operate was that 

the relays were missing and the sockets that the relays were supposed 

.to be plugged into were bridged with No. 14 strand wires. The inspector testified that he believed the operator was aware of the condition because Mr. Halem immediately reached into the under-voltage 

relay and pulled out a piece of No. 14 strand wire that bridged the 

breaker socket. 

25. Because of the above condition, none of the breakers in use 

could operate under a fault condition. Inspector Goodman testified 

that this condition would have been discovered by someone familiar 

with electricity who looked at the circuit breakers because the door 

covering the breakers was open and it was evident that the relays were 

missing. In addition, he gave his opinion that management should have 

discovered the condition when the section was deenergized between 

shifts. 

26. The operator had instituted a program of weekly inspections 

to prevent this type of violation in February, 1977. The last such 

inspection prior to the discovery of the condition by Inspector 

Goodman was conducted by Mr. Macky May on September 22, 1977. Mr. May, 

a certified electrician, testified that all the breakers in use operated properly at that time. Nonetheless, I find that the operator 

should have been aware of the violation and I find it negligent in 

failing to have instituted a more effective method of correcting this 

pattern or practice of unlawfully bridging circuit breaker relays. 

Following this· incident, the operator began installing a radio 

monitoring fail-safe system to detect and prevent this practice. 

27. This violation was very serious. The failure to provide 

miners with the grounded phase protection afforded by operative 

circuit breakers could result in serious injury ·or death. 

28. There had been no previous violations of 30 CFR 75.900 

at the War Eagle No. 1 Mine. 

29. The order of withdrawal indicated, as did the order in 

Finding 14 above, that the action supporting this order was a notice 

of violation issued on May 5, 1977. The attempted modification of 

this order, to reflect a valid 104(c)(l) order as the basis of the 

.104(c)(2) order as required by statute, was not issued until 

March 30, 1978, and was not served on Applicant's counsel until 

the date of the hearing. 

30. Applicant included in its application for review of this 

order the same contention described in Finding 18. The Applicant 

demonstrated that it was prejudiced by MSHA's failure to timely 

modify this order. For the reasons discussed in Finding 18, I 

conclude that Applicant's objection to the attempted modification 

should be granted, and Withdrawal Order No. 1 TEG issued on 

260 
September 30, 1977, at its War Eagle No. 1 Mine is therefore held 

to be invalid. 

HOPE 78-48 

31. On October 10, 1977, Inspector Toler, accompanied by 

Mr. Maynard, came across a splice that was in violation of 30 CFR 

section 75.514. ·The notice of violation, issued about 10 a.m., 

described the violation as follows: "The power cable to the belt 

control line to the No. 4 pony belt conveyor was not provided with 

suitable connectors in that the leads were twisted together." The 

operator was given 30 minutes to abate the violation. 

32. Upon leaving the mine, Mr. Maynard told Mr. Blankenship 

that the notice had been issued and described to him the location of 

the faulty splice. Mr. Blankenship assigned an electrician on the 

oncoming shift to repair the splice. 

33. There was confusion among the witnesses regarding the location of the violation. In the notice, the inspector stated that the 

violation was at the No. 4 Pony Belt Conveyor. Mr. Maynard testified 

that the location of the violation was at the No. 16 section belt 

head. Mr. Blankenship testified that the No. 4 belt was also called 

the No. 11 belt. 

34. Mr. Blankenship was told by the midnight foreman, on the 

morning of October 11, that the cable had been repaired. The electrician assigned to repair the cable apparently went to the next 

belt head past the site of the violation that was specified in the 

notice. 

35. At 4 p.m. on October 11, 1977, Inspector Toler and 

Mr. Maynard returned to the section and found that the violation had 

not been abated. Inspector T"ler issued a 104(b) order alleging·"no 

attempt was made to splice the belt control line to the No. 4 Pony 

Belt and the wires were left exposed. 11 

36. Inspector Toler was told by Mr. Maynard that an electrician 

had been assigned to make the repair on the cable and must have made 

a splice in another area of the mine. The inspector testified, and I 

find, that he did not give any consideration td extending the time for 

abatement. 

37. Section 104(b) of the Act provides that an inspector shall 

issue an order of withdrawal if the time given for abatement in the 

underlying 104(b) notice expires and the violation is not abated, and 

"if he also finds that the period of time should not be further 

extended. 11 

38. Inspector Toler did not comply with the provision of section 

104(b) that requires that he make a findi~g that the period of time 

261 
allowed for abatement should not be extended. According to the 

inspector's testimony, he did not consider extending the time. Moreover, the inspector failed to check on the subsequently issued written 

order the box indicating that he had made a finding that the time 

allowed for abatement should not be extended. I therefore find that 

the subject 104(b) order is invalid and should be vacated. 

DISCUSSION 

HOPE 78-41 and HOPE 78-42 

The primary issue in an application for review of a withdrawal 

order is whether the order is valid. Applicant failed to show that 

the violations described in the subject orders did not exist. However, Applicant did raise serious questions as to the validity of 

the orders. 

The inspectors in both of these cases indicated in the orders 

of withdrawal that a 104(c)(l) notice supported the 104(c)(2) order. 

Section 104(c) of the Act provides: 

(c)( 1) If, upon any inspection of a coal mine, an 

authorized representative of the Secretary finds that 

there is a violation of any mandatory health or safety 

standard, and if he also finds that, while the conditions 

created by such violation do not cause imminent danger, 

such violation is of such nature as could significantly 

and substantially contribute to the cause and effect of 

a mine safety or health hazard, and if he finds such 

violation to be caused by an unwarrantable failure of 

such operator to comply with such mandatory health or 

safety standard, he shall include such finding in any 

notice given to the operator under this Act. If, 

during the same inspectj~n or any subsequent inspection 

of such mine within ninety days after the issuance of 

such notice, an authorized representative of the Secretary finds another violation of any msndatory health or 

safety standard and finds such violation to be also 

caused by an unwarrantable failure of such operator to 

so comply, he shall forthwith issue an order requiring 

the operator to cause all persons in the area affected 

by such violation, except those persons referred to in 

·subsection (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 violation has been abated. 

(2) If a withdrawal order with respect to any area 

in a mine has been issued pursuant to paragraph (1) of 

this subsection, the withdrawal order shall promptly be 

262 
issued by an authorized representative of the Secretary 

who finds upon any subsequent inspection the existence 

in such mine of violations similar to those that 

resulted in the issuance of the withdrawal order under 

paragraph (1) of this subsection until such time as an 

inspection of such mine discloses no similar violations. 

Following an inspection of such mine which discloses 

no similar violations, the provisions of paragraph (1) 

of this subsection shall again be applicable to that 

mine. 

The Act.requires a 104{c)(l) order to serve as the basis for a · 

104(c)(2) order. The inspectors instead cited a 104(c)(l) notice 

in the orders being contested. 

Applicant contends that this failure to provide a correct citation could not be modified once the subject orders were terminated; 

however, that position does not have to be ruled on in disposing of 

these cases. The question presented here is whether an order that 

fails to provide a correct citation can be modified and rehabilitated 

a few days before a hearing on the application for review. 

A review of the facts leads to the conclusion that in these circumstances the modification sought by MSHA should not be allowed. 

Applicant stated in its application for review of these orders filed 

on October 25, 1977, that the orders were invalid because they failed 

to indicate that a ~tatutory prerequisite, a prior 104(c)(l) order, 

existed. MSHA, therefore, was aware of Applicant's basic contentions 

in these proceedings 7 months before the hearing. 

MSHA did not try to correct these orders by moving to modify 

them in its answers to the applications for review filed in November 

1977, or in its prehearing statement filed on March 6, 1978. MSHA 

did not issue the modifications until March 30, 1978, about 1 week 

before the hearing, and approximately 7 months after the orders 

were terminated. Notice of this action was.not given to Applicant's 

counsel until the hearing on April 7, 1978. 

I find that Applicant was entitled to notice of these attempted 

modifications of the 104(c)(2) orders prior to the hearing, and was 

prejudiced in preparing for the hearing by the failure of Respondent 

to timely inform Applicant of the modifications of the orders. A 

party has a right to know the basic facts in dispute prior to the 

hearing on an application for review. The Commission's rules provide 

for prehearing discovery and the parties in this case were required 

to exchange prehearing statements. MSHA has given no reason for its 

failure to include the proposed modifications in its prehearing 

statement. 

An operator has the right to expect that information furnished 

by the Government in an order of withdrawal is accurate. In .these 

263 
cases, Applicant determined, based on the information supplied by the 

Government, that a valid (c) chain did not exist, and exercised its 

right to file the subject applications for review. MSHA has 

prejudiced Applicant's rights by its 7-month delay in seeking a 

modification of the orders. 

In a similar case, a (c)(2) order was vacated because of the 

Government's failure to properly document its action. The Judge 

stated: 

It is false reasoning for MESA to argue that the 

operator has already been served with the earlier (c) 

chain citation and that therefore, MESA does not have a 

responsibility for providing accurate citations. The 

Act clearly requires that notices and orders contain a 

detailed. description of a condition or practice which 

constitute a violation. This includes proper and correct 

information on the underlying (c) sequence of citations. 

Old Ben Coal Company v. MESA, VINC 76-56 (June 15, 1976) at p. 8. 

In the instant cases, MSHA had an obligation to provide accurate 

information in the withdrawal orders or at least to correct any fundamental errors within a reasonable time. The attempted modifications 

on March 30, 1978, were not timely. Therefore, Applicant's objection 

to the modifications, issued on March 30, 1978, made at the hearing 

are SUSTAINED, and the instant orders are VACATED and the applications 

for review will be GRANTED. 

HOPE 78~615-P and HOPE 78-616-P 

Although the withdrawal orders in these proceedings have been· 

found to be invalid, that finding does not constitute a bar to the 

civil penalty proceedings consolidated with the applications for 

review. The Commission has reaffirmed the Interior Department's 

former Board of Mine Operations Appeals' position that the invalidity 

of a withdrawal order may not be considered as a mitigating factor 

in a civil. penalty proceeding under section 109 of the Act. MSHA v. 

Wolf Creek Collieries Company, Docket No. PIKE 78-70-P (March~ 

1979). 

These civil penalty cases will therefore be considered for appropriate penalties in light of the six statutory criteria in section 

109(a)(l). 

In Docket No. HOPE 78-616-P, the operator failed to overcome 

MSHA's prima facie showing of a violation of the ventilation standard. 

However, the preponderance of the evidence showed that the operator 

was aware of the problem, had halted production in the affected section, and was in the process of c.orrecting the problem when the 

inspectors arrived. MSHA did not prove that the operator was 

264 
negligent in regard to this violation and a substantial penalty is 

therefore not warranted. 

In Docket No. HOPE 78-615-P, the operator failed to overcome a 

prima facie showing of the violation as described in the order. It is 

also evident from the facts that the operator knew or should have known 

that the violation existed. The·failure to provide adequate protection against electrical shock is a very dangerous practice and warrants 

a substantial penalty. ·The Applicant has installed a fail-safe radio 

monitoring system to prevent a reoccurence of this practice, so it is 

unlikely to occur in the future. 

HOPE 78-48 

The parties in this cas~ agreed.that the primary issue is 

whether or not the time fixed in the notice should have been extended. 

A more basic question, though, is whether the inspector followed.the 

statutory framework by failing to consider whether or not the time 

fixed in the notice should have been extended. Section 104(b) of 

the Act provides in part: 

If, upon the expiration of the period of time as 

originally fixed or subsequently extended, an authorized 

representative of the Secretary finds that the violation 

has not been totally abated, and if he also finds that 

the period of time should not be further extended, he 

shall find the extent of the area affected by the viola-

.tion and shall promptly issue an order requiring the 

operator of such 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 the violation has been a}>ated. [Emphasis added.] 

The inspector testified that h.e gave no consideration at all to 

extending the time fixed for abatement. Mr. Maynard had told him that 

apparently the electrician had mistakenly repaired a different splice 

in another location in the mine. The inspector should have considered 

and weighed this explanation; and should have considered the confusion, 

evident on this record, regarding the location of the violation. 

Mr. Maynard, for example, called the location of the violation the 

No. 16 section while the inspector referred to it in the notice as the 

No. 4 Pony belt and Mr. Blankenship thought that No. 4 al~o was the 

No. 11 belt entry. 

One of the basic requirements for the issuance of a 104(b) order 

is a reasonable determination by the inspector that the time should 

not be extended. Since the inspector did not give any consideration 

to this responsibility, .the order should be vacated. 

265 
CONCLUSIONS OF LAW 

1. The undersigned Judge has jurisdiction over the parties and 

the subject matter of these proceedings. 

2. At all pertinent times, Applicant's War Eagle No. 1 Mine was 

subject to the provisions of the Act. 

3. By concession of MSHA, the withdrawal orders in Docket Nos. 

HOPE 78-23 and HOPE 78-49 are VACATED and the applications for review 

are GRANTED. 

4. In Docket Nos. HOPE 78-41 and HOPE 78-42, the Applicant 

showed that the orders issued were invalid because they failed to 

cite a required underlying 104(c)(l) order, and the attempted modifications made on March 30, 1978, were not timely. The Applicant also 

proved that the order issued on October 10, 1977, at issue in HOPE 

78-48, was invalid because the inspector failed to consider whether 

the time allowed for abatement should be extended. 

5. In civil penalty Docket No. HOPE 78-615-P, the operator 

violated the mandatory safety and health standard as alleged. 

6. In civil penalty Docket No. HOPE 78-616-P, the operator 

violated the mandatory safety and health standard as alleged. However, no negligence was shown and the operator was in the process 

of abating the violation when the inspectors arrived in the section. 

CIVIL PENALTIES 

Based on the statutory criteria for assessing civil penalties, 

Respondent is assessed the following penalties for the violations 

found herein: 

DOCKET NO. 

HOPE 78-615~P 

HOPE 78-616-P 

30 CFR 

75.900 

75.316 

CIVIL PENALTY 

$5,000 

$100 

All proposed findings and conclusions inconsistent with the 

above are hereby rejected. 

ORDER 

WHEREFORE, IT IS ORDERED that the applications for review are 

GRANTED and the subject orders of withdrawal are hereby VACATED and 

IT IS FURTHERED ORDERED that Peter White Coal Mining Corporation 

266 
shall pay MSHA the above civil penalties totaling $5, 100 within 

30 days from the date of this Decision. 

z;}~ .f:A44v~ WILLIAM FAUVER, JUDGE 

Distribution: 

Joyce A. Doyle, Esq., Counsel for Peter White Coal Mining 

Corporation, l Dag Hammarskjold Plaza, New York, NY 10017 

(Certified Mail) 

Joseph M. Walsh, Esq., Assistant Solicitor, Division of Mine 

Safety and Health, U.S. Department of Labor, 4015 Wilson 

Blvd., Arlington, VA 22203 

Harrison Combs, Esq., United Mine Workers of America, 

900 15th St., NW., Washington, DC 20005 ( Certi,fied Mail) 

267 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION . OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 25, 1979 

AUBREY M. BRADLEY III, 

Applicant 

Application for Review 

v. Docket No. DENV 78-17 

UNIVERSAL COAL AND ENERGY 

COMPANY, 

Respondent 

DECISION 

Appearances: David B. Rogers, Esq., Smith, Lewis & Rogers, Columbia, 

Missouri, for Applicant; 

N. William Phillips, Esq., Milan, Missouri, & George J. 

Anetakis, Esq., Frankovitch & Anetakis, Weirton, 

West Virginia, for Respondent. 

Before: Judge Charles C. Moore, Jr. 

Aubrey M. Bradley III alleges discrimination on the part of 

Universal Coal and Energy Company (hereinafter referred to as 

Universal) in that he was fired because of safety violation complaints. Mr. Bradley was employed by Universal as a scraper operator from August 27, 1977, to October 4, 1977. During the last 

3 weeks of this time frame, Mr. Bradley noted in his daily time 

reports that the 627 Cat scraper he was operating did not have 

effective brakes. Thereafter, he orally reported to the mine superintendent, Mr. Russ Walker, the condition of the relevant brakes. 

Furthermore, on Friday, October 1, 1977, 3 days before the Applicant 

was discharged, he spoke with the union safety officer, Don Durham, 

concerning the condition of the brakes. Mr. Durham immediately contacted Mr. Walker to inquire whether anything could be done about 

the condition of the brakes. When Mr. Bradley came to work the 

following Monday, October 4, 1977, he was discharged. He noted that 

the scraper had been put on blocks and its wheels had been removed 

for purposes of repairing it$ brakes. 

The Applicant alleges that the brakes on the scraper did not 

work and that the scraper could not be stopped without the use of 

the bucket (Tr. 16). In fact, he was of the opinion that if one 

were going backwards on an incline, the machine could not be 

stopped (Tr. 17). The Applicant was also of the opinion that Universal never examined or made any repairs in response to his complaints concerning the brakes (Tr •. 22). 

268 
The Respondent offered evidence that the brakes were examined 

and the necessary adjustments were made to the brakes. The mechanic, 

Thomas H. Gann, who had worked in the same pit area as Mr. Bradley, 

testified that upon receiving a complaint from Mr. Bradley, he would 

check and adjust the brakes (Tr. 67, 68). He did not find anything 

wrong with the brakes, nor did he receive a complaint from anyone 

else about them (Tr. 67). 

The Respondent also showed that it was normal procedure to use 

the pan when stopping the scraper. Mr. Meyer, a scraper operator, 

who worked the same shift as Mr. Bradley, testified that any brakes 

would only serve to slow down a fully-loaded scraper. This necessitated the use of the pan to stop a scraper (Tr. 43). Mr. Meyer also 

testified that he had operated Mr. Br9dley's scraper for a few days 

and during this time, he had no trouble stopping the scraper (Tr. 

43). 

The president of the union local, Mr. Couch, who operated the 

same scraper as Mr. Bradley, but on a different shift, testified that 

he had no trouble with the brakes. He also said a brand new fullyloaded scraper going down a hill would very seldom be stopped by 

using only the brakes (Tr. 81); thus, it is quite common to use the 

pan when stopping the scraper (Tr. 87). 

The mechanic, Mr. Gann, also explained why the scraper was on 

blocks on Monday, October 4, 1977. He indicated that the scraper 

had been in good working order on the previous Friday when he had 

last-checked it (Tr. 70). It was only over the weekend that a problem developed and when it was discovered, it was repaired immediately 

(Tr. 70, 75, 76, 77). 

I thus find that Universal was properly maintaining and repairing 

the brakes on the 627 Cat scraper. It should be noted that not only 

did each of the three union witnesses speak favorably as to Universal's 

regard for the safety of its employees and the maintenance of its 

equipment (Tr. 58, 71, 82), but the mine in question had recently won 

a safety award for its low occurrence of accidents (Tr. 83, 90). 

Universal maintains that the discharge of Mr. Bradley had nothing 

to do with his safety complaints (Tr. 88, 105). Under his contract, 

Mr. Bradley was classified as a probationary employee. This meant 

that Universal had 60 days to evaluate the performance of Mr. Bradley 

to determine whether he was qualified to continue working with the 

company, and thus gain membership in the union (Tr. 20, 87, 116). If 

the company during this time period, makes a determination that an 

individual has not performed satisfactorily, they have a right to_ 

release him under the contract (Tr. 87). As a consequence of this 

contractual relationship, Universal argues that Mr. Bradley was 

properly discharged as an employee whose performance during his 

probationary period did not merit continued employment (Tr. 116). 

269 
In support of its position, Universal presented evidence that 

Mr. Bradley was not operating his scraper properly. Three witnesses 

testified that he carried the pan too high, which could cause the 

machine to overturn (Tr. 45, 46~ 92, 102). Also, there was testimony 

that the Applicant would drive over large rocks which could damage 

the machine's transmission (Tr. 52). Furthermore, three witnesses 

testified that not only would Mr. Bradley repeatedly get his machine 

stuck in the mud; but on a few occasions would intentionally attempt 

to do so (Tr. 47, 48, 49, 53, 68, 93, 108). Also, there was testimony presented that the Applicant would take excessively long work 

breaks (Tr. 50, 51, 72, 92); not punch out when his machine was being 

repaired (Tr. 52, 60); and his behavior was generally uncooperative 

(Tr. 43, 93, 100, 102, 104). The foregoing evidentiary presentation 

was not only proffered by the company's vice president of operations 

and pit foreman, but it is also noteworthy that these observations 

were made by two of Mr. Bradley's fellow employees who worked in the 

same pit area with him. It is noted that when the company was having 

meetings where they reviewed Mr. Bradley's probationary status, they 

did not even discuss the Applicant's safety reports during such meetings (Tr. 89). 

I find from the foregoing that the evidence indicates that 

Mr. Bradley was fired because he was not operating his scraper properly, he had poor relations not only with management but also with 

his fellow employees, and his behavior was generally uncooperative. 

Based on the foregoing, I find that Applicant has failed to 

carry its burden of showing he was discharged because of safety 

complaints. The case is accordin~s~-~~ [. 

Issued: April 25, 1979 

Distribution: 

Charles C. Moore, Jr. 

Administrative Law Judge 

David B. Rogers, Esq., Smith, Lewis & Rogers, Haden Building, 

901East Broadway, Columbia, MO 65201 (Certified Mail) 

N. William Phillips, Esq., Attorney at Law, 103 North Market 

Street, Box 69, Milan, MO 63556 (Certified Mail) 

George J. Anetakis, Esq., Frankovitch & Anetakis, 334 Penco 

Road, Weirton, WV 26062 (Certified Mail) 

Administrator for Coal Mine Safety and Health 

Standard Distribution 

270 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES . 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 27, 1979 

SECRETARY OF LABOR, Civil P~nalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

OLD BEN COAL COMPANY, 

Respondent 

Docket No. VINC 79-119-P 

A.O. No. 12-00329-03004-V 

Old Ben No. 2 Strip Mine 

DECISION 

Appearances: Rafael Alvarez, Esq., Office of the Solicitor, U.S. 

Department of Labor, Chicago, Illinois, for Petitioner; 

Edmund J. Moriarty, Esq., Chief Counsel, Old Ben Coal 

Company, Chicago, Illinois, for Respondent. 

Before: Chief Administrative Law Judge Broderick 

STATEMENT OF THE CASE AND FINDINGS OF FACT 

This is a civil penalty proceeding. Respondent is charged with 

a single violation of the mandatory standard contained in 30 CF~ 

77.1710(g) occurring on April 12, 1978. A hearing was held in 

St. Louis, Missouri, on April 10, 1979. Joseph Hensley testified for 

Petitioner. Robert Tooley and Dale Wools testified for Respondent. 

At the conclusion of the hearing, each party waived its right to file 

proposed findings of fact and conclusions of law. 

The facts are essentially not in dispute. ANSCO, Inc., was constructing a bucket building on Respondent's premises under a contract 

with Respondent. The building was intended to be used for maintenance 

and repair of the buckets which Respondent used in extracting coal. 

On April 12, 1978, one of ANSCO's employees was observed working 15 

to 20 feet in the air standing on an I-beam on the side of the building. He was not wearing a safety belt and there was danger of his 

falling. 

The contract between Respondent and ANSCO provided that ANSCO 

was to erect the building for a fixed sum according to certain 

specifications. Under the terms of the contract and in carrying it 

271 
out, ANSCO was independent of any control by Respondent. Its 

employees were supervised by its own supervisor and Respondent did 

not hire, fire, direct or control them in their duties. There were 

no employees of Respondent close to the area where the allegeq violation occurred except Dale Wools, Old Ben mine inspector, who 

accompanied the Federal inspector, Joseph Hensley. When the violation was observed, Hensley told Wools that he was writing a citation and Wools told the ANSCO employee to come down. The ANSCO 

supervisor was not in the immediate vicinity at that time. The 

employee admitted that he had been instructed to wear a safety belt, 

but thought he could finish his job before the supervisor returned. 

On April 11, 1978, Inspector Hensley was at the same site and 

noticed ANSCO employees in elevated places without safety belts. 

Hensley discussed this situation with the ANSCO supervisor who 

promised to instruct his men about the requirements for safety 

belts. No citations were written as a result of these occurrenc~s. 

ISSUES 

1) Whether Respondent, a coal mine operator, is responsible in 

a penalty proceeding under the Federal Mine Safety and Health Act of 

1977 fer violations which involve only the employees of an independent 

contractor. 

2) If so, what is the appropriate penalty? 

STATUTORY PROVISIONS 

Section llO(a) of the Federal Mine Safety and Health Act of 1977 

provides: 

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

violates any other provision of this Act, shall be assessed 

a civil penalty by the Secretary which penalty shall not be 

more than $10,000 for each such violation. 

Seciion 3(d) of the Act provides: 

'Operator' means any owner, lessee, or other person 

who operates, controls or supervises a coal or other mine 

or any independent contractor performing services or construction at such mine. 

REGULATION 

30 CFR 77.1710 provides in part: 

Each employee working in a surface coal mine or in the 

surface work areas of an underground coal mine shall be 

272 
required to wear protective clothing and devices as indicated 

below: 

* * * * * 

(g) Safety belts and lines where there is danger of falling * * * 

THE REPUBLIC STEEL AND COWIN CASES 

On April 11, 1979, the day following the hearing in this case, the 

Commission issued its decisions in Secretary of Labor, Mine Safety and 

Health Administration (MSHA) v. Republic Steel Corporation, Docket Nos. 

MORG 76-21 and MORG 76X95-P (79-4-4) and in Secretary of Labor, Mine 

Safety and Health Administration (MSHA)· v. Cowin and Company, Inc., 

Docket No. BARB 74-259 (79-4-5). Both of these cases arose under the 

Federal Coal Mine Health and Safety Act of 1969. The 1969 Act defined 

"operator" as "any owner, lessees or other person who operates, controls 

or supervises a coal mine." In Cowin, the Commission held that Cowin 

and Company, a construction contractor under contract with a coal mine 

owner "was an 'oper;-.tor' of a 'coal mine' under the 1969 Act***·" In 

Republic, the Commission held that "as a matter of law under the 1969 

Act an owner of a coal mine can be held responsible for any violations 

of the Act committed by its contractors." 

The legal issue here is therefore a narrow one: Does the specific 

inclusion in the 1977 Act of independent contractors within the definition of operator affect the liability of coal mine operators for violations of such contractors? The fact that an independent contractor is 

an "operator" and thus liable under the Act for safety violations, does 

not necessarily exclude the liability of the coal mine operator, as the 

two Commission decisions clearly illustrate. I interpret the decisions 

to give the Secretary discretion under the 1969 Act to assess a penalty 

for a violation committed by an independent contractor against the 

contractor or against the mine op.erator. The fact that a contractor is · 

an operator by explicit statutory language rather than by construction, 

should logically not limit the Secretary's discretion. The legislative 

history does not support Respondent's position that Congress intended to 

limit or withdraw the liability of coal mine operators for acts or 

omissions of independent contractors. See JOINT EXPLANATORY STATEMENT 

OF THE COMMITTEE OF CONFERENCE, S. REP. NO. 95-461, 95th CONG., 1st 

SESS. (1977), reprinted in LEGISLATIVE HISTORY OF THE FEDERAL MINE 

SAFETY AND HEALTH ACT OF 1977, at 1315. 

CONCLUSIONS OF LAW 

1. Respondent, Old Ben Coal Company, is liable as a matter o~ law 

under the Federal Mine Safety and Health Act of 197°7 for violations of 

safety standards committed by its contractor, ANSCO, Inc. 

273 
2. On April 12, 1978, Respondent violated the safety standard 

contained in 30 CFR 77.1710(g), because the employee of ANSCO was 

not required to wear a safety belt when working on a high place. 

3. The violation was serious, since it could have resulted in 

a fatality or serious injury. 

4. The evidence does not establish. that the violation resulted 

from Respondent's negligence. The employee in question was not 

directly or indirectly under Respondent's control. I do not accept 

the position that a violation of a safety standard is negligence per 

se. Such a position makes the specific inclusion of negligence as 

a criterion for determining the amount of the penalty, nonsensical. 

5. Respondent is a large operator. There is no evidence that 

a penalty will have any effect on its ability to continue in business. 

6. There is no evl.dence concerning Respondent's previous history 

of violations. 

7. Respondent demonstrated good faith in attempting to achieve 

rapid compliance after being notified of the violation. 

I conclude, based on the above findings of fact and conclusions 

of law, and considering the statutory criteria in section llO(i) of 

the Act, that an appropriate penalty for the violation is $750. 

ORDER 

WHEREFORE Respondent is ORDERED to pay within 30 days of the date 

of this decision the sum of $750 as a penalty for the violation found 

herein to have occurred. 

t3 . - #1 

J / 12' 

c-1//,1.,l.. .~ ./{ "" ,·v iv-vt-&/(_ 

James A. Broderick 

· Chief Administrative Law Judge 

Distribution: 

Edmund~· Moriarty, Esq., Attorney for Old Ben Coal Company, 125 

South Wacker Drive, #2400, Chicago, IL 60606 (Certified mail) 

Rafael Alvarez, Esq. and Miguel Carmona, Esq~, Trial Attorneys, Office 

of the Solicitor, U.S. Department of Labor, 230 South Dearborn Street, 

Chicago, IL 60604 (Certified mail) 

Assistant Administrator, MSHA, U.S. Depart~ent of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 

274 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRG INJA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SEWELL COAL COMPANY, 

Respondent. 

April 30, 1979 

.. . 

: . 

Civil Penalty Proceedings 

Docket No. HOPE 78-619-P 

A.O. No. 46-03859-02033V 

Docket No. HOPE 78-620-P 

A.O. No. 46-03859-02034V 

Sewell No. 1-A Mine 

Docket No. HOPE 78-516-P 

A.O. No. 46-03467-02040V 

Docket No. aoPE 78-661-P 

A.O. No. 46-03467-02068V 

Docket No. HOPE 79-202-P 

A.O. No. 46-03467-03008 

Meadow River No. 1 Mine 

Docket No. HOPE 78-662-P 

A.O. No~ 46-01477-02075V 

Docket No. HOPE 78-680-P 

A.O. No. 46~01477-02073 

Docket No. HOPE 79-203-P 

A.O. No. 46-01477-02020V 

Sewell ?fo. 4 Mine 

DECISION AND ORDER APPROVING SETTLEMENT 

The captioned penalty enforcement proceedings were assigned 

to the Presiding Judge in February and March 1979. Notices of hearing 

and pretrial orders were issued between February 28 and March 27, 

1979. On April 18, 1979, the Secretary filed a motion to approve 

settlement of all 44 violations in the amount of $115,000.00. 

In support thereof, the Secretary showed the following: 

1. Within 30 days of approval, respondent will pay 

one hundred and fifteen thousand dollars ($115,000.00) 

in settlement of the violations -- the amounts to be 

allocated among the individual violations at the 

discretion of the Presiding Judge. 

275 
2. The Office of Assessments has, at the request of 

counsel for the Secretary, had a Connnittee of 

Assessment Specialists review all of the violations. 

As a result of that review the Committee has 

determined that payment of $115,000.00 in penalties 

is a reasonable and appropriate resolution in this 

instance of all of the violations charged. 1/ 

3. None of the violations involved in these charges 

actually resulted in death or disabling injuries 

to any miner, and, in fact, no injuries were sustained by any miner as a result of any of these 

violations. 

4. The vice-president of Sewell Coal Division of the 

Pittston Coal Group 2/ has provided a letter stating 

these matters were brought to his personal attention, 

that they are a subject of continuing concern, and 

that he has instructed his safety director to take 

necessary steps to minimize delays in taking remedial 

action especially on unsafe roof conditions and 

accumulations of combustibles, including where 

necessary disciplinary action against supervisory 

personnel. 

5. The settlement provides for an average penalty of 

over thirty-five hundred dollars ($3,500) for each of the 

32 unwarrantable failure violations. 

6. Of the 12 citations, one originally assessed at $240.00 

(No. 7-0309) has been withdrawn for the reasons stated. 

The other 11 were issued during the coal strike of 

1977~1978. The amounts assessed totalled $1,316~00. 

The Secretary states ~he gravity and negligence involved in these violations was considered minor 

because very few employees were available to observe 

or correct the conditions or to be exposed to the 

hazards created. 

1/ The record shows the amount originally assessed by the 

Asses.sment Office was $213,056.00. The amount now approved for 

settlement, is approximately 54% of the amount initially proposed. 

J:./ .The Pittston Company, owner of Sewell Coal Company, is 

one of the largest coal producers in the United States. 

276 
7. With respect to the fourteen (14) violations 

originally assessed at ten thousand dollars ($10,000.00) 

the Secretary concluded that "some of these were 

over assessed". In addition it is urged that with 

respect to several of these violations "the inspectors' 

failure to keep detailed notes on their inspections 

could cause the Secretary evidentiary problems 

should each violation be the subject of an adversary 

evidentiary hearing." 

8. The Secretary urges I consider "substantial reductions" 

from the proposed penalties for the two roof control 

violations cited in Orders Nos. 7-159 and 7-161 in 

Docket No. HOPE 78-620--P. As the Secretary notes: 

"The physical evidence to establish that violations 

of 75.200 occurred would probably necessitate 

reliance on circumstantial evidence and opinion, 

in that, if in fact any timbers had been_ set in the 

fall area, they were covered by falls themselves and 

direct observation was impossible." 

Based on the presiding Judge's independent evaluation_and de 

novo review of the circumstances, 3/ including the gravity and 

negligence indicated, as well as the other statutory criteria, 

I find the amount proposed for settlement should be allocated 

as set forth in Exhibit A, Schedule of Penalties. 

The premises considered, _I conclude the total amount proposed for settlement as allocated is in the public interest and 

in furtherance of the purposes and policy of the Act because of 

(1) the factors recited in the parties' motion; (2) the fact 

that my evaluation indicated it is' unrealistic to expect litigation 

would result in any substantial increase in any of the settlement 

·amounts; (3) the absence of any assurance that forcing these 

matters to trial would be m~re productive in terms of voluntary I 

3/ Counsel for the parties are to be commended for the 

cooperation furnished the Presiding Judge in making this evaluation. I wish to commend also my law clerks for their prompt, 

dedicated and perceptive responses to my demands for development of 

facts necessary to enable me to make the overall evaluation and 

detailed review of each violation deemed necessary to ensure 

compliance with the Congressional mandate. As a result of the 

hard work and cooperation of all concerned, the Presiding Judge 

has been ab_le to dispose of 107 violations paid or withdrawn 

since April 5, 1979. 

277 
long-run compliance than prompt approval of the penalties proposed. In this connection, I find it significant that the 

operator has undertaken to institute disciplinary action against 

errant supervisors for non-compliance with th~ roof control 

and combustible accumulations standards. 

Accordingly, it is ORDERED that the motion to approve 

settlement be, and hereby is, GRANTED. It is FURTHER ORDERED 

that the operator pay the agreed upon penalty of $115,000.00 

on or before Wednesday, May 30, 1979, and that, subject to payment, the captioned petitions be DISMI D. 

Issued: April 27, 1979 

Distribution: 

Gary W. Callahan, Esq., Sewell Coal Company, The Pittston Coal 

Group, Lebanon, VA 24266 (Certified Mail) 

Edward H. Fitch, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

278 
,. , ·.; .. . .. , .; • ..- ~..:.J 

EXHIBIT.A 

SCHEDULE OF PENALTIES 

DOCKET ORDER/CITATION STANDARD GRAVITY NEGLIGENCE AMOUNT .. r .... -M-~19 7-0158 75.200 Serious High degree of $2000 

ordinary negligence 

78-620 7-159 75.200 Serious High degree of $1000 (See ,,a, 

ordinary negligence supra) 

7-161 75.200 Serious High degree of 

ordinary negligence $1000 (See ~8, 

supra) 

7-164 75.200 Serious High degree of 

ordinary negligence $2000 

79-202 7-0309 75.1101-10 --- --- Withdrawn 

78-516 7-25 75.200 Serious High degree of $3000 

ordinary negligence 

7-43 75.200 Serious High degree of $2000 

ordinary negligence 

78-661 7-0354 75.400 Extremely Gross negligence $7000 

serious 

7-0423 75 .• 400 Serious High. degree-· of .$3000 

ordinary negligence 

7-0455 75.1403-6 Serious High degree of $3000 

(b) (3) ordinary negligence 

7-0456 75.1403-6 Serious High degree of $3000 

(b) { 3) ordinary negligence 

7-0457 75.1403-6 Serious High degree of $3000· 

{b) (3) ordin~ry negligence 

7-0482 75.1725{a) Non-serious High degree of 

ordinary negligence $1000 

..... 
DOCKET O~~R/CITATION STANDARD GRAVITY NEGLIGENCE AMOUNT 

\{ () f E 

78-661 7-0483 75.200 Extremely serious Gross negligence $9000 

(cont.) 

78-662 7-0262 75.200 Extremely serious Gross negligence $5000 (See 114, 

supra) 

7-0270 75.200 Extremely serious Gross negligence $5000 (See 114, 

supra) 

7-0306 75.200 Serious Ordinary negligence $1000 (See 117, 

supra) 

7-0338 75.200 Extremely serious Gross negligence $6000 (See 114, 

supra) 

7-0343 75.200 Non-serious Minimal negligence $ 500 (See 117, 

supra) 

7-0344 75.200 Non-serious Minimal negligence $ 260 (See 117, 

supra) 

7-0369 75.200 Very serious Ordinary negligence $3500 (See 117, 

supra) 

7-0431 75.400 Very serious Gross negligence $3000 (See 114, 

supra) 

7-0466 75.200 Extremely serious Gross negligence $10000 (See 114, 

supra) 

7-0552 75.400 Extremely serious Gross negligence $6000 (See 114, 

suEra) 

7-0524 75.1722(a) Very serious Gross negligence $3000 (See 114, 

suEra) 

, 

7-0533 75.400 Very serious Gross negligence $3000 (See 114, 

supra) 

. \~) ~t·: .. >~ 

.. ;;:: .. ::Jir: 1~.: : .. <' :;::·:~ .•. · . ;:!'.:·: 
DOCKET ORDER/CITATION STANDARD GRAVITY NEGLIGENCE AMOUNT 

\\0~1: 78- 62 

(cont.) 

7-0568 75.400 Very serious Gross negligence $3000 (See 114, 

supra) 

7-0689 75.200 Extremely serious High degree of $9000 

ordinary negligence 

1..:io111 75.400 Extremely serious Gross negligence $5000 (See 114, 

supra) 

7-0766 75.200 Extremely serious High degree of $5000 (See 117, 

ordinary negligence supra) 

78-680- 8-0027 75.400 

(See 116, 

Non-serious Ordinary $ 100 

supra) 8-0028 75.200 Non-serious Ordinary $ 100 

8-0029 75.200 Non-serious Ordinary $ 100 

8-0030 75.400 Non-serious Ordinary $ 115 

8.-0031 75.400 Non-serious Ordinary $ 100 

8-0032 75.400 Non-serious Ordinary $ 110 

8-0033 7r:.. .200 Non-serious· Ordinary $ 130 

8-0034 ~·.:;,. 400 Non-serious Ordinary $ 110 

8-0035 75.200 Non-serious Ordinary $ 130 

8-0036 75.400 Non-serious Ordinary $ Tl5 

8-0037 75.200 Non-serious Ordinary $ 130 
DOCKET 

79-203 

ORDER/CITATION 

044007 

044446 

044558 

STANDARD 

75.200 

75.200 

75.200 

GRAVITY 

Serious 

Serious 

Serious 

NEGLIGENCE 

Gross-negligence 

Gross negligence 

Gross negligence 

Total 

AMOUNT 

$1500 (See 114) 

$1500· (See 1[4) 

$2500 (See 1{4) 

$115,000 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD ' 

ARLINGTON, VIRGINIA 22203 

APR 3 0 1979 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION {MSHA), 

On Behalf of LARRY J. HORN, 

Applicant 

v. 

PONTIKI COAL CORPORATION, 

Respondent 

. . Application for Review of Acts 

of Discrimination 

Docket No. PIKE 79-9 

Pontiki No. 1 Mine 

DECISION 

Appearances: Thomas P. Piliero, Esq., Office of the Solicitor, 

Department of Labor, for Larry J. Horn, Applicant; 

William H. Howe, Esq., Loomis, Owen, Fellman & 

Coleman, Washington, D.C., for Respondent. 

Before: Administrative Law Judge Michels 

This is a proceeding under section 105 of the Federal Mine Safety 

and Health Act of 1977 brought by the Mine Sa'fety and Health Administration {MSHA) on behalf of the Applicant, Larry J. Horn. Mr. Horn 

has alleged that the Pontiki Coal Corporation, which he has named as 

Respondent in this proceeding, discriminated against him in connection with a safety dispute at Respondent's Pontiki No. 1 Mine. 

On October 24, 1978, MSHA filed an application for temporary 

reinstatement of Mr. Horn in his employment with Respondent. Tbe 

application included a finding by MSHA on behalf of the Secretary of 

Labor that the complaint filed by Mr. Horn alleging discrimination 

was not frivolously brought. Thereafter, Acting Chief Administrative 

Law Judge Broderick ordered that the Pontiki Coal Corporation reinstate Mr. Horn to a comparable position·at the Pontiki No. 1 Mine at 

the rate of pay and the same or equivalent work duties assigned him 

immediately prior to his discharge. 

Respondent, in answer to that order, disputed the factual basis 

of the application, alleged that the case was frivolously brought, and 

generally took issue with the appropriateness of the reinstatement. 

283 
A hearing was held in Prestonsburg, Kentucky, on April 10, 1979, 

at which both sides were represente<;l_· by counsel. 

"· 

At the outset of the hearing, Applicant•s counsel advised that 

the parties had reached a mutually acceptable settlement agreement 

(Tr. 2). The terms of this agreement were then placed on record: 

* * *. Both parties agree to mutual exchange and general 

release of any and all claims whatsoever arising out of 

Mr. Horn's employment with Pontiki Coal Corporation. 

Pontiki Coal Corporation agrees to, one, tender the 

amount of $14,000, payable to Larry J. Horn on this 

day, April 10, 1979. Two, to expunge from Mr. Horn's 

employment record all references to the circumstances 

surrounding his discharge of May 9, 1978. Three, to 

tender payment pursuant to the order of temporary reinstatement dated October 26, 1978, in full satisfaction 

of said order. The tender will be up to and including 

April 10, 1979. 

Larry J. Horn agrees, one, to withdraw his allegation of discrimination and complaint filed with MSHA on 

June 1, 1978. Two, to authorize the Secr~tary of Labor 

to withdraw the complaint of discrimination filed.with 

the Federal Mine Safety and Health Review Commission on 

January 8, 1979. Three, to authorize t.he Secretary of 

Labor to move for the vacation of the order of temporary 

reinstatement dated October 26, 1978, and four, that he 

has no further employment rights with Pontiki Coal 

Corporation. 

(Tr. 3). Counsel for both parties advised the court that these terms 

represent the totality of the settlement agreement (Tr. 3-4). 

Thereafter, Mr. Horn was cal led as a witness and gave .the 

following testimony in response to the court's questioning: 

Q. You did hear the terms read, Mr. Horn, and I 

assume that with your attorney you have discussed this, 

and I ask you, do you understand fully the terms of this 

settlement? 

A. Yes, Your Honor, I do. 

Q. You do understand that you are giving up and will 

not have employment rights as a result of this settlement --

re-employment rights? 

A. Yes, sir, I do. 

284 
Q. You understand that. Do you have any comment, or 

are you fully satisfied with this settlement? 

A. Fully satisfied, sir. 

(Tr. 6). 

On the basis of the terms of the settlement offered, and on the 

basis of Mr. Horn's understanding of and agreement with the terms of 

the agreement, the court approved the settlement. 

I find that this settlement is in accord with the remedial purposes of the Federal Mine Safety and Health Act of 1977. Accordingly, 

I hereby AFFIRM the settlement, as set out above. 

As specifically provided for in the settlementi Applicant's 

counsel then moved for permission to (1) withdraw Mr. Horn's complaint, and (2) for the court to vacate the order of temporary reinstatement. Both motions were granted at the hearing (Tr. 7). I 

hereby AFFIRM these rulings. Accordingly, 

It is ORDERED that the parties, to the extent they have not 

already done so, comply with the terms of the settlement within 

30 days from the date of this decision. 

This proceeding is hereby DISMISSED. 

Distribution: 

' ;:!f:i,~t:;,, p, 9?.!/_L;_fu_.iJ ~Franklin P. Michels 

Administrative "Law Judge 

Thomas P. Piliero, Esq., Mine Safety and Health Administration, 

Office of the Solicitor, U.S. Department of Labor, 4015 Wilson 

Blvd., Arlington, VA 22203 

Mr. Larry J. Horn, Rt. 3, Inez, KY 41224 (Certified Mail) 

Pontiki Coal Corporation, c/o C. T. Corporation Systems, Kentucky 

Home Life Building, Louisville, KY 40202 (Certified Mail) 

William H. Howe, Esq., Loomis, Owen, Fellman & Coleman, 2020 K 

Street, NW., Washington, DC 20006 (Certified Mail) 

Special Investigations, Mine Safety and Health Administration, 

U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

285 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE Of ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 30, ,· 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA),. 

Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. HOPE 78-433-P 

A/O No. 46-01412-02002F 

No. 7 Mine 

.DEC.ISION .. AP:E>ROVLNG. SE'.fT;LEMENT 

AND 

ORDERING PAYMENT OF CIVIL PENALTY 

Appearances: Robert S. Bass, Esq., Office of the Solicitor, Department of Labor, for Petitioner; 

Karl T. Skrypak, Esq., Consolidation Coal Company,· 

Pittsburgh, Pennsylvania, for Respondent. 

Before: Ju~ge Cook 

The Mine Safety and Health Administration (MSHA) filed a petition 

for assessment of civil penalty pursuant to section llO(a) of the 

Federal Mine Safety and Health Act of 1977 (Act) in the above-captioned 

proceeding. Subsequent thereto, the proceeding was set for hearing. 

At. the time of the hearing, counsel for both parties proposed a 

settlement concerning the penalty assessment to be paid by Respondent 

as to the alleged violations involved. · 

During the hearing, counsel for MSHA explained the basis for the 

settlement and stated that he would file a motion for approval of the 

settlement which would embody such explanation. 

MSHA filed motions requesting approval of a settlement and for 

dismissal of the proceeding. The last motion, filed on April 9, 1979, 

provided, in part, as follows: 

The Secretary moves to withdraw Notice No. 6-0021, 

dated July 6, 1976, and the assessed penalty of $10,000 

therefor. In support of this motion the Secretary states: 

1. That Notice No. 6-0021 citing a violation of 30 CFR 

75.200 was issued in error as the result of.observations 

286 
made by the inspector after a roof ~all on iuly 6, 1976. 

As a result of a thorough inspection on the .following day, 

July 7, 1976, inspector Filipek.determined that Respondent 

was not removing the last pushout at the time of the roof 

fall and therefore was not in violation of Drawing No. 8 of 

its roof control plan governing extraction of twin pushouts. 

With respect to Notice No. 6-0022, citing a violation 

of 30 CFR 75.201, dated July 6, 1976, with an assessed 

penalty of $160, the Secretary and Respondent moved to have 

the following settlement approved: 

1. Respondent has agreed to pay a penalty of $1350. 

At any hearing into the alleged violation of 30 CFR 75.201, 

there would be conflicting "testimony as to the danger pre-

~ented to the miners by Respondent's pillar recovery 

methods. there would be conflicting testimony· as to 

whether or not the operator was following his established 

pillar recovery plan, and whether or not following that 

plan would have resulted in a sufficiently supported roof 

which would have prevented the roof fall which did occur on 

July 6, 1976. 

2. In the opinion of the Secretary a violation of 

30 CFR 75.201 existed, and gravity and negligence were 

greater than first evaluated. At any hearing, the Secretary would have put on evidence in an attempt to persuade 

.the administrative law judge that the assessed penalty was 

unreasonably low. It is the parties' belief and conviction 

that approval of this settlement is in the public interest 

and will further the intent and purpose of the Federal Mine 

Safety and Health Act of 1977. 

3. In view of the Secretary's withdrawal of 30 CFR 

75.200, Respondent agrees that the Secretary could have 

reason for requesting a greater ~enalty than a~sessed for 

Notice No. 6-0022. 

4. Respondent did demonstrate good faith in attempting 

to achieve rapid compliance. 

This information, along with the information provided· as to the 

statutory criteria contained in section 110 of the 1977 Act which is 

attached to the first motiori filed, has provided a full disclosure 

of the nature of the settlement and the basis for the original determinations. Thus, the parties have. complied with the intent ·Of the 

law that settlements be a matter of public record. 

In view of the reasons given above by counsel for MSHA for the 

proposed. set~lement, and in view of the disclosure ·as to th.e elements 

287 
constituting the foundation for the statutory criteria, it appears 

that a disposition approving the settlement will adequately protect 

the public interest. 

ORDER 

Actordingly, IT IS ORDERED that the proposed settlement, as outlined abovE!, be, and it hereby is, APPROVED. 

IT IS FURTHER ORDERED that the motion of Petitioner to withdraw 

the petition as relates to Notice No. 6-0021, July 6, 1976, be, and· 

it hereby ts, GRANTED. 

IT IS FURTHER ORDERED that Respondent, within 30 days of the date 

of this decision, pay the agreed-upon penalty of $1,350 assessed in 

this proceeding. 

Administrative Law Judge 

Issued: April 30,.1979 

Distribution: 

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

of Labor, 2106 Federal Office Building·, 911 Walnut Street, 

Kansas City, MO 64106 (Certified Mail) 

Karl T. Skrypak, EGq., Consolidation Coal Company, Consol Plaza, 

Pittsburgh, PA 15241 (Certified Mail) 

Administrator for Coal Mine Safety and Health 

Standard Distribution 

288 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 .WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 30, 1979 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PITT 79-121-P 

A/O No. 36-00963-03007 

v. 

MATHIES COAL COMPANY, 

Respondent 

Docket No. PITT 79-149-P 

A/O No. 36-00963-03008 

Mathies Mine 

DECISION APPROVING SETTLEMENTS 

, AND 

ORDERING PAYMENT OF CIVIL PENALTIES 

Appearances: Eddie Jenkins, Esq., Office of the Solicitor,_Department 

of Labor, for Petitioner; 

Before: 

Karl T. Skrypak, Esq., Mathies Coal Company, Pittsburgh, 

Pennsylvania, for Respondent. 

Judge Cook 

The Mine Safety and Health Administration (MSHA) filed petitions 

for assessment of civil penalty pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977 (Act) in the above-captioned 

proceedings. Answers were filed and a notice of hearing was issued. 

Subsequent thereto, MSHA filed motions requesting approval of settlements and to provide time for payment of penalties. 

The motions provid.e, in part, as follows: 

a. As to Docket No. PITT 79-121-P! 

The alleged violations in this case and settlement are 

identified as follows: 

Number 

09901010 

00233523 

00233137 

00233461 

Date 

5/11/78 

6/19/78 

6/22/78 

6/22/78 

30· CFR 

70.lOOB 

75.517 

75!-503 

75 .1720A 

Assessment 

289 

$ 140 

255 

170 

240 

Settlement 

$ 140 

255 

170 

0 
As grounds for the settlement the Secretary states. 

1. The reduction of violation on 00233461 was because 

of the decision in North American, 3.IMBA [sic] 93 at 107. 

(See PITT 79-150-P) 

2. There was good faith compliance. 

3. The settlements other than 00232471 are for 100% 

of the assessed penalties. 

4. The violations did not pose a significant and 

substantial hazard to the health and safety of the 

miners. }:_/ 

.b. As to Docket" No. ·PiTT 79-i49;.;p: 

The alleged violations in this case and settlement are 

identified as follows: 

Number Date 30 CFR Assessment Settlement 

00233471 7/13/78 75.1720A $ 140 $ 0 

00233472 7/13/78 75.1704 180 180 

00233887 7/24/78 75.1707 150 150 

As groung [sic] for the Settlement the Secretary 

states: 

1. The reduction of notice 00233471 was because of 

the decision in North American Coal Corportion, [sic] 

3 IBMA 93 at 107. (See PITT 79-150-P) 

2. There was good faith compliance. 

3. The settlements other than 00233471 are for 100% 

of assessed penalties. 

}:_/ In Docket No. PITT 79-150-P, MSHA filed a motion to withdraw its 

petition and to dismiss, which stated, in part, as follows: 

"l. The operator did not violate 30 CFR 75.1720A. The operator took the necessary precautions to advise the miners to wear protective eye gear. Therefore, in accordance with the reasoning of 

North American Coal Corporation, 3 IBMA 93, which held if 'the failure to wear glasses is entirely the result of the employees disobedience or negligence rather than a lack of a requirement by the 

oper·ator to wear them then a violation has not: occurred'. at 107." 

[Emphasis. ·in .original. J . 

290 
4. The violatio.ns did not pose a significant and 

substantial hazard to the health and safety of the miners. 

This information, along with the information as.to the statutory· 

criteria referred to above and attached to the motions, has provided 

a full disclosure of the nature of the settlement and the basis for 

the original determination. Thus, the parties have complied with the 

intent of the law that settlement be a matter of public record. 

In view of the reasons given above by counsel for MSHA for the 

proposed settlement, and in view of the disclosure as to the elements 

constituting the foundation for the statutory criteria, it appears 

that a disposition approving the settlement will adequately protect 

the public interest. 

ORDER 

Accordingly, IT IS ORDERED that the proposed settlements, as 

outlined above, be, and hereby are, APPROVED. 

IT IS FURTHER ORDERED that Respondent, within 30 days of the 

date of this decision, pay the' agreed-upon penalty of $895 assessed 

in these proceedings. 

~~~~~ ~~ .. ·ok Administrative Law Judge 

Issued: April 30, 1979 

Distribution: 

Eddie Jenkins, Esq., Mine Safety and Health Administration, 

Office of the Solicitor, U.S. Department of Labor, 

4015 Wilson Boulevard, Arlington, VA 22203 

Karl T. Skrypak, Esq., Consolidation Coa.l Company, Consol 

Plaza, Pittsburgh, PA 15241 (Certified Mail) 

Administrator for Coal Mine· Safety and Health 

Standard Distribution 

291 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON E;OULEVARD 

ARLINGTON, VIRGINIA 22203 

April 30, -1979 · 

SECRETARY OF LABOR, Civil Penalty Proceeding 

M~NE SAFETY ANP HEALTH 

ADMINISTRAT~ON (MSHA), 

Petitioner 

Docket No. BARB 79-117-P 

A/O No. 15-08104-03003. 

v. 

No. 1 Mine 

SUE-JAN COAL COMPANY, 

Respondent 

DECISION APPROVING. SETTLEMENT 

"AND. 

ORDERING PAYMENT OF CIVIL PENALTY 

Appearances: David F. Barbour, Esq., Office of the Solicitor, Department of Labor, for Petitioner; 

Jack McPeek, Sue-Jan Coal Company, St. Charles, Kentucky, 

for Respondent. · 

Before: Judge Cook 

The Mine Safety and Health Administration (MSHA) filed a petition· 

for assessment·of civil penalty pursuant to section llO(a) of the Federal Mine Safety and Health Act of. 1977 (Act) in the above~captioned 

proceeding. An answer was filed and a notice of hearing was issued. 

Subsequent thereto, MSHA filed a motion requesting approval of a 

settlement and for dismissal of the proceeding. 

MSHA's motion stated, in part, as follows: 

Section 104(a) Citation No. 396847·, 7/18/78, 

30 CFR 75.523 originally assessed at $90.00 

to be settled for $30.00 

Gravity and Negligence 

The inspector found the panic bar on the Galis 300 roof 

bolter to be broken and inoperative. This was a serious 

violation because in the event of a miner being caught 

'between the rib and the energized machine the roof bolter 

could not be instantly stopped. The inability to use the 

panic bar thus created the possibility of serious injury 

or death (see E~hibit A). 

292 
Sue-Jan Coal Company (Sue-Jan) should have known of 

this violation. The broken panic bar was visually obvious 

and its condition should have been observed and corrected 

during the required electrical inspection (see Exhibit A). 

It was not. Failure to repair the panic bar was the 

result of S~e-Jan's ordinary negligence. 

Good Faith 

Sue-Jan exhibited its good faith in attempting to 

rapidly abate the violation by repairing the panic bar 

within the time set by the inspect~r.e-· 

Size 

At the time the violation was written Sue-Jan was a 

small company.· It operated only the No. 1 Mine. That mine 

employed approximately 13 miners and produced approximately 

300 tons of coal per day during one production shift (see 

Exhibit B). During the last full year prior to the subject violation its total production was only 7,602 tons of 

coal (see Exhibit C, page 1). 

Previous History 

Sue-Jan had no history of previous violations (see 

Exhibit c, page 2). 

Settlement Amount 

The settlement represents a substantial reduction in 

the proposed penalty. However, MSHA believes that reduction is full [sic] justified by the small size of the operator, 

by its lack of a prior history of violations and by 

following mitigating circumstances. 

1. Sue-Jan is no longer in business. The company 

ceased operation during November 1978. MSHA inspector 

Larry Cunningham (MSHA's Madisonville Kentucky Office) 

has confirmed this. 

2. Sue-Jan leased the No. 1 Mine. That lease was 

terminated in November 1978. The company has no other 

leases and plans to acquire none. 

3. The company has two stockholders, Jack McPeek and 

Dwight Rogers. Neither, they nor the company intend to 

resume mining activity. 

293 
4~ Mr. McPeek claims the company's liabilities exceed 

its assets. He has agreed to pay the settlement amount from 

his personal resources. 

This information, along with the information as to the statutory 

criteria referred to above, has provided a full disclosure of the 

nature of the settlement and the basis for the original determination. Thus, the parties have complied with the intent of the law that 

settlement be a matter of public record. 

In view of the reasons given above by counsel for MSHA for the 

proposed settlement, and in view of the disclosure as to the elements 

constituting the foundation for the statutory criteria, it appears 

that a disposition approving the settlement will adequately protect 

the public interest. 

Of major significance, are the factors: 

1. That Sue-Jan had no history of prior violations. 

2. That Sue-Jan was a small company which is no longer in 

business. 

3. That a co-owner of the former coal mine operator claims 

that the company's liabilities exceeded ~ts assets and such co-owner 

has agreed·to pay the settlement from his personal resources. 

ORDER 

Accordingly, IT IS ORDERED that the proposed settlement, as outlined above, be, and hereby is, APPROVED. 

IT IS FURTHER ORDERED that Respondent, within 30 days of the 

date of this decision, pay the agreed-upon penalty of $30 assessed 

in this proceeding. 

Issued: April 30, 1979 

Distribution: 

David F. Barbour, Esq., Mine Safety and Health Administration, 

Office of the Solicitor, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 

Jack McPeek, Sue-Jan Coal Company, Box 245, St. Charles, KY 

42453 (Certified Mail) 

Jack McPeek, Box 86, Nortonville, KY 42442 (Certified Mail) 

Administrator ·for Coal Mine Safety and Health 

Standard Distribution 

294 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

40l5 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

April 30, 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

Docket No. DENV 79-79-P 

A/O No. 02-00533-02014 

Black Mesa Strip Mine 

DECISION APPROVING SETTLEMENT 

AND 

ORDERING PAYMENT OF CIVIL PENALTIES 

Appearances: David F. Barbour, Esq., Office of the Solicitor, Department of Labor, for Petitioner; 

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

Missouri, for Respondent. 

Before: Judge Cook 

The Mine Safety and Health Administration (MSHA) filed a petition 

for assessment of civil penalty pursuant to section llO(a) of the Federal Mine Safety and Health Act of 1977 (Act) in the above-captioned 

proceeding. An answer was filed and a notice o-f hearing was issued. 

Subsequent thereto, MSHA filed a motion requesting approval of a 

settlement and for dismissal of the proceeding. 

Pursuant to an order of the Administrative Law Judge, information 

as to the six statutory criteria contained in section 110 of the Act 

was submitted. This information has provided a full disclosure of 

the nature of the settlement and the basis for the original determination. Thus, the parties have complied with the intent of the law 

that settlement be a matter of public record. · 

In its motion, MSHA stated, in part, as follows: 

Section 104(b) Notice No. 1 CET (8-0002), 1/17/78,. 

30 CFR 71.100 originally assessed at $98.00 to be 

settled for $90.00 

295 
The Violation 

Based upon the results of five respirable dust samples 

submitted by Peabody Coal Company (Peabody), the inspector 

found that the average concentration of respirable dust for 

a surface work position exceeded the applicable limit by 

2 .3 milligrams. 

Gravity and Negligence 

The violation was serious in that excessive concentration of respirable dust could lead to the contraction of 

pneumoconiosis. Peabody is under a statutory duty to 

maintain the concentration of respirable dust within the 

prescribed limits. Its failure to do so is prima facie 

evidenc~ of a lack of compliance with that duty and 

accordingly of it ordinary negligence. 

Good Faith 

Peabody was given until February 16, 1978, to abate 

the violation .. It submitted its samples (which were in 

compliance) by February 5, 1978. In so doing it exhibited 

more than ordinary good faith in attempting to achieve 

rapid compliance. 

Size 

Peabody Coal Company has a yearly production of approximately 61,707,236 tons per year. (See Exhibit A). The Black 

Mesa Strip Mine produces approximately 3,900,364 tons per 

year and employs approximately 299 miners (see Exhibits A 

and B). Peabody is large in size, as is the Black Mesa 

Strip Mine. 

Previous History 

In the 24 months prior to February 14, 1978, 30 assessable violations were cited in the Black Mesa Strip Mine 

during 28 inspection days (see Exhibit A). Given the size 

of the mine this represents a small history of previous 

violations. 

Settlement Amount 

MSHA believes the proposed settlement, although modest 

for an operator of Peabody's size, accurately reflects the 

criteria set forth in the Coal Mine Health· and Safety Act 

of 1969 and in its successor, the Federal Mine Safety and 

Health Act of 1977, particularly in light of Peabody's 

rapid compliance and favorable past history of violations. 

296 
In view of the reasons given above by counsel for MSHA for the 

proposed settlement, and in view of the disclosure as to the elements 

constituting the foundation for the statutory criteria, it appears 

that a disposition approving the settlement will adequately protect 

the public interest. · 

ORDER 

Accordingly, IT IS,ORDERED that the proposed settlement, as outlined above, be, and hereby is, APPROVED. 

IT IS FURTHER ORDERED that Respondent, within 30 days of the 

date of this decision, pay the agreed-upon penalty of $90 assessed 

in this procee~ing. 

Law Judge 

Issued: April 30, 1979 

Distribution: 

David F. Barbour, 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· 

Standard Distribut~on 

297