JULY 1979 

Tlie following cases were Directed for Review during the month of July: 

Secretary of Labor, MSHA v. Halquist Stone Company, Inc., VINC 79-118-PM. 

Secretary of Labor, MSHA v. Waukesha Lime and Stone Co., Inc., VINC 79-66-PM. 

Hilo Coast Processing Company v. Secretary of Labor, MSHA, DENV 79-50-M, etc. 

Secretary of Labor, MSHA v. Coaltrain Corporation, MORG 79-26-P. 

Eastern Associ~ted Coal Corporation v. Secretary of Labor, MSHA, WEVA 79-117-R. 

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

Secretary of Labor, MSHA v. Massey Sand & Rock Company, DENV 78-575-PM. 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR . 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. .(:. 

REPUBLIC STEEL CORPORATION 

WASHINGTON, D.C. 20006 

July 2, 1979 

Civil Penalty Proceedings 

DECISION 

Docket Nos. 

Banning Mine 

Russelton Mine 

Clyde Mine 

Newfield Mine 

PITT 78-156-P 

PITT 78-157-P 

PITT 78-396-P 

PITT 78-397-P 

PITT 78-406-P 

PITT 78-407-P 

PITT 78-408-P 

PITT 78-409-P 

PITT 78-410-P 

On November 27, 1978, the CoI!llllission directed review of a decision 

approving a settlement in this penalty proceeding. The case was remanded 

to the administrative law judge so that he could supplement the record 

with a statement of his reasons for approving the settlement and the 

facts supporting his approval. Based upon our review of the record as 

supplemented, we have determined that the judge did not err in approving 

the settlement. Accordingly, the decision of the judge is affirmed. 

, . I 

. . j ; ./,,, ' • . / i ·-'? () __ Ii ' .. L L..., ,/1...,, C t-·,) "'--'-(t.-

Jero · ··. e R. Waldie, Chairman -

~~~ Marian Pearlman Nease, CoIIllllissioner 

79-7-1 

790 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 9, 1979 

SECRETARY OF LABOR Docket No. MORG 78-46-P 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

VALLEY CAMP COAL COMPANY 

DECISION 

This is a rev~ew of a decision holding the operator, Valley Camp 

Coal Company, in default in a penalty proceeding. 

On January 30, 1978, the Mining Enforcement and Safety Administration (MESA) filed a petition for assessment of civil penalty seeking a 

penalty of $10,000 for an alleged violation of 30 CFR 75.400. The 

Company's answer was due on or before March 2, 1978. No answer was 

timely filed. The Company discovered its omission and on April 6, 1978, 

filed an answer with a cover letter explaining the delay. On April 13, 

1978, the administrative law judge defaulted the Company. The order of 

default stated in pertinent part that: 

Counsel for respondent "mistakenly took this. docket number for MORG 

78-26-P, which was another matter that had been previously settled 

and---S: dismissal order entered." 

Respondent having failed to show cause why it should not be deemed 

to have waived its right to a hearing and contest of the penalty 

proposed, ••• respondent ••• is held in default ••• 

The Company filed a motion for reconsideration on May 3, 1978, and 

again described the circumstances surrounding its failure to file a 

timely answer. Counsel for the Company characterized its omission as 

"mistake, inadvertence and excusable neglect." In denying the motion 

for reconsideration, the judge stated: 

The reasons for late filing set forth in Respondent's affidavit 

filed May 10, 1978 do not add materially to the excuse set forth in 

the letter of April 6, 1978" accompanying its Answer, and do not 

establish good cause for setting aside the Order of Default. 

79-7-4 

791 
The Company timely filed a petition for discretionary review which 

the Commission granted on October 11, 1978. 

The Company argues that the judge erred in failing to issue a show 

cause order in accordance with 43 CFR 4.544(a) and 29 CFR 2700.26 1/ 

prior to summarily imposing a penalty. The Company asserts that its 

failure to file a timely answer is excusable and that, therefore, it 

should be relieved of the consequences of a penalty based upon a procedural irregularity rather than on the merits of the case. 

We find that the operator has shown adequate cause to excuse the 

late filing of its answer. 2/ Courts do vacate final orders for mistake, 

inadvertence, or excusable neglect. 1/ In its submissions to the judge, 

the Company explains that due to a change in personnel, the petition for 

assessment of civil penalty was forwarded to the Company's counsel 

without being marked as needing action. Since counsel had just settled 

a case with a very similar docket number, he erroneously assumed the 

document related to the settled case. When he discovered his error, 

counsel promptly filed an answer. We deem the mistake or neglect shown 

in this case to constitute cause justifying the failure to timely file 

an answer, particularly where, as here, no prejudice has been shown. 

1./ The Board of Mine Operations Appeals' rules were in effect until 

March 8, 1978. The Company's answer was due on March 2, 1978. The 

judge's default order was entered after the interim rules (29 CFR 

2700.01 et~.) became effective, and accordingly his actions are 

governed by those rules. 

29 CFR 2700.26 of the Commission's inter;im rules provide: 

(a) Where the respondent fails to file a timely answer to a petition for assessment of civil penalty, or fails to timely comply 

with any prehearing order of a Judge, the Judge may issue an order 

to show cause why (1) the respondent should not be deemed to have 

waived his right to a hearing and contest of the proposed penalty 

and (2) the proposed order of assessment should not be summarily 

entered as the final order of the Commission and not subject to 

further review by the Commission or a court. 

(b) If the order to show cause is not satisfied as provided therein, 

the Judge may order that the respondent be held in default and 

issue a summary order imposing the proposed penalties as final and 

directing that such penalties be paid. 

]:_/ Because we find on the facts of this case that justifiable cause 

exists to excuse the late filing, and because, in denying the motion for 

reconsideration, the judge determined whether, in his opinion, such 

cause existed here, we do not reach the issue of whether 29 CFR 2700.26 

required an order to show cause prior to the entry of a default decision. 

We note, however, that §2700.63 of the ·commission's permanent Rules of 

Procedure (published in the Federal Register on June 29, 1979, at page 

38232 do require a show cause order prior to entry of a default. 

l,/ See Rule 60(b), F.R. Civ. P. 

792 
The decision holding the operator in default is reversed and the 

case is remanded for a hearing on the~rits. , 

l1I~ (LL{)~ Jer1 me R. Waldie, Chairman 

Al E. Lawson, Commissioner 

'-\\lWi1w~l\lwo Marian Pearlman Nease, Commissioner 

793 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

RUSHTON MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 9, 1979 

: Docket No, PITT 75-399-P 

IBMA No. 76-37 

DECISION 

This appeal was pending before the Interior Department Board of 

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

the Commission for disposition. Section 301 of the Federal Mine Safety 

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

Administrative Law Judge Sweeney assessed penalties against Rushton 

Mining Company for five violations of the Federal Coal Mine Health and 

Safety Act of 1969. 30 U.S.C. §901 et~· (1976) (amended 1977) ("the 

1969 Act"). Rushton appealed the judge's decision regarding three of 

the violations. 

The judge found violations of 30 CFR §75.1107-l(b) and 30 CFR 

§75.1725(a), and assessed penalties of $200 and $300, respectively. 

Rushton does not deny the violations. Rushton asserts, however, that 

the gravity of the violations does not warrant the penalties assessed. 

Rushton'a arguments do not demonstrate that the judge erred in his conclusions regarding the gravity of the violations. We conclude that the 

penalties assessed are supported by the evidence and reflect proper consideration of the statutory criteria set forth in section 109(a)(l) of 

the 1969 Act. The penalties are appropriate and will not be disturbed. 

Rushton further argues that the judge's finding of a violation of 

30 CFR §75.1105 1/ is not supported by the evidence and must be reversed. 

Specifically, Rushton argues that the evidence does not support the 

judge's conclusion that the pump at issue was a "permanent pump" within 

the meaning of the cited standard. Neither the 1969 Act nor the standards 

define the term "permanent pump." In resolving this question in the 

present case, the judge looked to the purposes of the cited standard 

1/ 30 CFR §75.1105 provides: 

Underground transformer stations, battery-charging stations, substations, compressor stations, shops, and permanent pumps shall be 

housed in fireproof structures or areas. Air currents used to 

ventilate structures or areas enclosing electrical installations 

shall be coursed directly into the return. Other underground 

structures installed in a coal mine as the Secretary may prescribe 

shall be of fireproof construction. 

79-7-5 

794 
and the characteristics of the pump involved. The judge's conclusion 

that the pump is "permanent" within the meaning of the standard is wellreasoned and supported by the evidence. 

Accordingly, the judge's decision is affirmed. 

Jerome· R. Waldie,. Cha.irmatt /. f .-: / C· , :/ . i 

~ /1,.1!;f j./ . . ~,._{(/~//~ A -~'. I / '·; .· .,l //,f·./ J 

Frank F. .Jes6~'Q; Commissioner .· ").., 

5 '--.?' 

i (/ ~ .~ -t-c.-"<"~Y\ A. E. Lawson, Commissioner 

~~\ ~tl\~,ll\ft,{,'\ 1\~~ Marian Pearlman Nease, Commissioner 

795 
FEDERAL. MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

July 25, 1979 

v. Docket No. WILK 79-13-P 

CUT SLATE, INCORPORATED 

DECISION 

On November 21, 1978, the Secretary of Labor filed a petition for 

assessment of civil penalty against Cut Slate, Inc., seeking penalties 

totaling $170 for three alleged violations of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C.A. §801 et~· (1978). ]:_/ On December 

20, 1978, Cut Slate answered pro se. On May 16, 1979, the administrative 

law judge issued a notice of a prehearing conference to be held in 

Arlington, Virginia on June 5, 1979, to "expedite settlement, hearing 

or other disposition of the ••• matter ••• unless prior thereto the 

parties confer and file a joint motion to approve settlement." On May 

25, an officer of Cut Slate responded by requesting that Cut Slate be 

excused from "attendance at a hearing and/or conferences at a point 

this great distance from my home and place of business." Cut Slate 

described itself as the operator of a very small slate quarry, and 

stated that its office in Fair Haven, Vermont is approximately 900 

miles round-trip from Arlington. The matter was not settled, and Cut 

Slate did not appear at the June 5 prehearing conference. On June 5, 

1979, the judge issued a decision pursuant to Rule 26(c) of the Commission's interim Rules of Procedure, 30 CFR §2700.26(c), holding Cut 

Slate in default and entered an order assessing the proposed penalty 

of $170. We reverse. 

Rule 7 of the Commission's interim Rules of Procedure, 30 CFR 

§2700.7, provides: 

All cases will be assigned a hearing site by order of 

the presiding Judge, who sh~ll give due regard to the 

convenience and necessity of the parties or their 

representatives and witnesses, the availability of 

suitable hearing facilities, and other relevant 

factors. Y 

1/ The petition alleged violations of 30 CFR 56.15-4 (employee not 

wearing safety glasses), 30 CFR 56.4-4 (storage of flammable liquids), 

and 30 CFR 56.4-1 (posting of no smoking signs). 

]:_/ This rule will become Rule 51 of the Commission's permanent Rules 

of Procedure, effective July 30, 1979 (see Federal Register, June 29, 

1979, page 38231). 

796 79-7-13 
In order to effectuate the intent of Rule 7 to insure that all parties 

have reasonable access to the adjudicative process under the Act, we 

interpret the rule to apply to all instances where the parties are 

required to personally convene, including prehearing conferences as 

well as evidentiary hearings. l_/ 

Rule 7 was derived from section 5(a) of the Administrative Procedure 

Act, 5 U.S.C. §554(b), which states: "In fixing the times and places 

for hearings due regard shall be had for the convenience and necessity 

of the parties or their representatives." The report of the Senate 

Judiciary Committee considering the APA clarified how the interests of 

the parties and the agency are to be balanced: 

The last sentence, requiring the convenience and 

necessity of the parties to be consulted in fixing the 

time and places for hearings, includes an agency party 

as well as a private party; but the agency's convenience 

is not to outweigh that of the private parties and, 

while the due and required execution of agency functions 

may be said to be paramount, that consideration would 

be controllin_g only where a lack of time has been 

unavoidable or a particular place of hearing is indispensable and does not deprive the private parties of 

their full opportunity for a hearing. 

Sen. Doc. No. 248, 79th Cong., 2d Sess., 203 (1946). 

In NLRB v. Prettyman, 117 F.2d 786, 790 (6th Cir. 1941), the employer 

claimed that the agency action of designating Washington, D.C. as the 

hearing site resulted in great inconvenience and a heavy financial 

burden. The respondent's place of business was 700 miles from Washington. 

The court held that fair play required the Board to hold the hearing 

at a place convenient to each of the parties and stated: 

The power conferred on the Board by the Act to 

hold hearings anywhere within the territorial limits of 

the United States, was not conferred for its sole 

benefit, but for the benefit also of those subject to 

the provisions of the Act. It was not intended that 

those affected by the Act should be penalized by being 

required to travel and transport witnesses unreasonable 

distances to attend hearings pursuant to complaint, nor 

was it intended that the Act should be used as an 

instrument of intimidation or oppression on those 

affected by it. One of the purposes to be accomplished 

in the administration of every law is the maintenance 

of public confidence in the value of the measure. 

11 The Secretary of Labor also advocated this interpretation of Rule 

7 in his brief on review in this case. We note, in reaching our 

decision, that interim Rule l(b), 30 CFR §2700.l(b), provides that 

"[t]hese rules shall be liberally construed to secure the just, prompt 

and inexpensive determination of all proceedings consistent with 

adequate consideration of the issues involved." 

797 
There is nothing in the record in this case to indicate that 

Arlington was selected as the prehearing site because either party 

requested that location. In fact, Cut Slate strenuously opposed the 

selection of Arlington as the prehearing site. In its letter to the 

judge of May 25, 1979, Cut Slate protested the designation of the site: 

[I]t does not appear reasonable .•• that we should 

be required to travel 900 miles to attend a prehearing 

conference in Arlington, Virginia, which constitutes 

not only expense for travel and lodging, but loss of 

time from our business during our busiest season. It 

appears that we are being unfairly penalized for standing 

up for our convictions in declining to pay a penalty 

assessed by the Department of Labor which we feel was 

not warranted •••• [I] respectfully request that this 

matter be disposed of without requiring my attendance 

at a hearing and/or conferences at a point this great 

distance from my home or place of business. 

In the circumstances of this case, Cut Slate demonstrated 

sufficiently compelling reasons to excuse its attendance at a 

prehearing conference in Arlington, Virginia. !!._/ Accordingly, we 

hold that the judge ~bused his discretion in holding a prehearing 

conference in Arlington and in defaulting the operator for failing 

to attend the conference. The case is reversed and remanded for 

further proceedings consistent this decision. 

ra , 

{i:fl~ · A. E. L4w~nj Connnissioner 

~w_k ~ V>Ouw.k!, jQ.a.lO 

rtan ~arlman Nease, Commissioner . I 

!±./ Cut Sla.te expressed concern not o l~ at the financial burden 

and loss of time away from its bu.siness that a hearing in Arlington 

would require, but also at whether it was being unduly penalized 

for having exercised its right under the Act to contest the 

violations alleged and penalties sought by the Secretary of 

Labor. We are mindful that providing due process often entails 

additional cost to the government. However, we believe the 

remedial purposes of the Act are best served by providing for 

fair and accessible hearings, and by avoiding even the appearance 

of the use of inconvenient sites or other procedural obstacles to 

force settlements or defaults. 

798 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

SHAMROCK COAL COMPANY 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

GREENWOOD LAND AND MINING 

COMPANY 

July 25, 1979 

Docket Nos. BARB 76X656-P 

BARB 76X661-P 

BARB 76X662-P 

BARB 76X663-P 

Docket No. BARB 76X552-P 

DECISION 

This is a penalty proceeding under section 109 of the Federal Coal 

Mine Health and Safety Act of 1969, 30 U.S.C. §801 et ~· (1976) 

(amended 1977) ("the 1969 Act"). On October 11, 1978, the Commission 

granted the petition for discretionary review filed by Shamrock Coal 

Company and Greenwood Land and Mining Company. 

In a summary fashion, petitioners raised arguments regarding the 

administrative law judge's disposition of 32 notices of violation. 

Petitioners' arguments generally concern whether the judge erred in 

finding that the violations occurred and whether the penalties assessed 

for the violations are excessive. Having reviewed the record and considered the arguments of the parties on review, we conclude that the 

judge's findings of violations of the cited standards are supported by 

the record and must be affirmed. We note, however, that our affirmance 

of the judge's finding of a violation of 30 CFR §77.410 1/ in Docket No. 

BARB 76X552-P is based only on the lack of an operable backup alarm on 

petitioners' front-end loader. On the record before us, we do not reach 

the question of petitioners' responsibility for the lack of a backup 

alarm on the tandem truck hauling soil for the U.S. Forest Service. 

];_! 30 CFR §77.410 provides: 

Mobile equipment; automatic warning devices. 

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. 

79-7-14 

799 
We further find that, with the exception of the $150 penalty assessed 

for the violation of 30 CFR §77.410 noted above, the penalties assessed 

by the judge are reasonable and reflect correct consideration of the 

statutory criteria set forth in section 109(a)(l) of the 1969 Act. 

Regarding the violation of 30 CFR §77.410, we find that a penalty of $75 

is appropriate. Accordingly, the judge's decision is affirmed to the 

extent that it is consistent with this decision. 

(k\.i;'ft.L R. f.uAf...o£'..___, Je~~R. Waldie, Chairman 

800 
ADMINISTRATIVE LAW JUDGE DECISIONS 

JULY 1, 1979 - JULY 31, 1979 

FEDERAL MINIE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

July 2, 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FIRE CREEK COAL COMPANY 

OF TENNESSEE, 

Respondent 

Docket No. BARB 79-264-P 

A.O. No. 40-01612-03008 

Fire Creek No. 1 Mine 

DECISION 

Appearances: 

Before: 

Darryl A. Stewart, Attorney, U.S. Department of Labor, 

Nashville, Tennessee, for the petitioner. 

Judge Koutras 

Statement of the Case 

This proceeding concerns a petition for assessment of civil 

penalty filed by the petitioner against the respondent on January 31, 

1979, pursuant to section llO(a) of the Federal Mine Safety and Health 

Act of 1977, charging the respondent with one alleged violation of 

the provisions of 30 CFR 70.212, as set forth in Citation No. 140948 

issued pursuant to section 104(a) of the Act by MSHA inspector 

Arthur A. Grant on June 9, 1978. 

Respondent filed an answer to the petition and a hearing was 

convened at Knoxville, Tennessee on May 24, 1979. Petitioner 

appeared by and through counsel, but respondent did not. Respondent's 

intention not to appear personally at the hearing was communicated 

to me shortly before the hearing convened by petitioner's counsel who 

indicated that respondent wished to incorporate by reference the 

previous documentary evidence submitted in a prior proceedings involving the same parties. Under the circumstances, respondent's failure 

t~ appear was treated as a waiver of its right to a hearing as provided for by Connnission rule 29 CFR 2700.49 and petitioner presented 

evidence in support of its petition. At the conclusion of the hearing, I rendered a bench decision in the matter and my findings and 

conclusions are incorporated her~in and served on the parties as 

required by 29 CFR 2700.54. 

801 
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 

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

the Act. 

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 ii,e of the business of the operator, 

(3) wfiether 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) 

et seq. 

2. Section llO(a)of the Act, 30 u.s.c. § 820(a). 

3. 29 CFR 2700, the applicable rules and procedures concerning 

mine health and safety hearings. 

Findings and Conclusions 

Fact of Violation 

Citation 140948, June 9, 1978, charges a violation of 30 CFR 

70.212, and reads as follows: "The concentration of the intake air 

samples submitted by the operator for 001 section was 06.3 milligrams 

per cubic meter of air. Management shall submit additional 0intake 

air samples to determine if the working section is in compliance with 

the applicable respirable dust limit • 11 

Respondent did not contest the citation as issued and MSHA 

Inspector Arthur C. Grant testified that during his inspection of the 

mine on June 9, 1978, he issued the citation in question and served 

it on the mine superintendent. The citation concerned a violation of 

the respirable dust standards in that the intake air sample submitted 

by the respondent indicated a heavy concentration of dust on the section cited. He fixed three weeks for abatement and the condition was 

abated timely. He identified his "inspector's statement" which he 

802 
filled out at the time of the citation and stated that the respondent 

was not negligent because he had no way of weighing the dust samples 

submitted and did not know what the dust concentration was on the 

section. He-also indicated that tpe mine in question is a small 

operation, and that five or six men were exposed to the high dust 

concentration (Tr. 6-13, Exhs. P-1 through P-4). 

In view of the foregoing, I find that petitioner has established 

a violation of 30 CFR 70.212, as stated in the citation in question. 

Negligence 

On the basis of the inspector's testimony, I find that the 

rspondent was not negligent. 

Size of Business and Effect of Penalties assessed on Respondent's 

Ability to Continue in Business 

On April 5, 1979, I issued a decision in MSHA v. Fire Creek Coal 

Company, Docket Nos. BARB 79-3-P, BARB 79-4-P,--:6.ARB 79-57-P, 

BARB 79-58-P, and BARB 79-59-P, in which I found that the imposition 

of the initial civil penalty assessments recommended by the petitioner 

would in the aggregate effectively put respondent out of business. 

r·also concluded that the documentary evidence adduced by the respondent in those proceedings supported its assertion that the imposition 

of the recommended penalties would adversely affect respondent's 

ability to remain in business. 

In the instant proceeding, respondent requested that I consider 

the prior documentary evidence introduced in the prior proceedings 

with respect to the adverse financial and economic condition of the 

respondent as set ·forth in its answer of March 22, 1979. Since the 

citation in this case was issued on June 9, 1978, some 2 or 3 months 

from the issuance of the citations in the prior proceedings, respondent requested that I adopt my previous findings on this issue as my 

finding in the instant proceeding. During the course of the hearing, 

petitioner interposed no objection to the adoption of my previous 

findings concerning the adverse effect of substantial civil penalties 

on the respondent's ability to remain in business as my finding in 

this proceeding. Accordingly, my previous findings and conclusions 

are therefore incorporated by reference and adopted as my finding 

in this case. 

My previous finding that respondent is a very small mine operator 

is herein incorporated by reference and adopted as my finding in this 

reg~rd in the instant proceeding and that fact is reflected in the civil 

penalty assessment made by me with respect to the citation. 

History of Previous Violations 

My previous finding made in the prior proc·eedings as set forth 

803 
in my decision of April 5, 1979, that respondent has a moderate 

history of prior violations is adopted and incorporated by reference 

as my finding on this issue in the instant proceeding. 

Gravity 

The dust concentration for the section cited was in excess of 

the required limits and four or five men were exposed to said 

concentrations while working in the section. In the circumstances, 

I find that the condition cited was serious. 

Good faith compliance 

I find that the evidence adduced by the petitioner supports a 

finding that the condition cited was abated within the time fixed by 

the inspector and this constitutes normal good faith compliance. 

Conclusion and Order 

In view of the foregoing findings and conclusions, I believe that 

a $25 civil penalty .is appropriate for the citation in question and 

respondent is ordered to pay that amount within thirty (30) days of 

the date of this decision. 

!lr(l;/{out~~~ Administrative Law Judge 

Distribution: 

Darryl A. Stewart, Attorney, U.S. Department of Labor, Office 

of the Solicitor, Room 280, U.S. Courthouse, 801 Broadway, 

Nashville, TN 37203 (Certified Mail) 

Michael R. Kizerian, Vice President, Fire Creek Coal Company, 

P.O. Box 329, Oliver Springs, TN 37840 (Certified Mail) 

Standard Distribution 

804 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

July 2, 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. WILK 79-35-PM 

A.O. No. 36-03429-05002 

v. 

Spring House Quarry & Plant 

GILL QUARRIES, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

David St~eet, Esq., Office of the Solicitor, u.s. 

Department of Labor, Philadelphia, Pennsylv~nia, for 

Petitioner; 

Richard F. Brown, Sales Manager, Gill Quarries, Inc., 

for Respondent. 

Chief Administrative Law Judge Broderick 

Statement of the Case 

This case was commenced by a petition for the assessement of a 

civil penalty alleging a single violation on April 18, 1978, of the 

mandatory standard contained in 30 CFR 56.5-50(b). The parties 

stipulated that Respondent's operations were covered by the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et seq., and that 

on April 18, 1978, the noise level in the hearing zone ~the sampled 

employee was higher than the noise level permitted by 30 CFR 56.5-50. 

They further stipulated that the employee was wearing ear muffs. 

The case was called for hearing on the merits on May 23, 1979, 

in Philadelphia, Pennsylvania. 

Stephen Moyer, a federal mine inspector, testified for petitioner. Richard F. Brown, Sales Manager of Gill Quarries, Inc., 

testified for Respondent. 

Regulation 

30 CFR 56.5-50 provides in part: 

Mandatory. (a) No employee shall be permitted an 

exposure to noise in excess of that specified in the 

805 
table.below. Noise level measurements shall be made 

using a sound level meter meeting specifications for 

type 2 meters contained in American National Standards 

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

Sound Level Meters," approved April 27, 1971, which is 

hereby incorporated by reference and made a part hereof, 

or by a dosimeter with similar accuracy. This publication may be obtained from the American National Standards 

Institute, Inc., 1430 Broadway, New York, New York 10018, 

or may be examined in any Metal and Nonmetal Mine Health 

and Safety District or Subdistrict Office of the Mining 

Enforcement and Safety Administration. 

PERMISSIBLE NOISE EXPOSURES 

Sound level 

Duration per day, dBA, slow 

hours of exposure response 

8 • ••••••••••••••••• ill ••••••••••• 41 • • • • • • • • • • • • 90 

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

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

3 ••••••••••••••••••••••• ill••················· 97 

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

1-1/2 •••• ~.................................. 102 

1........................................... 105 

1/2......................................... 110 

1/4 or less•••••••••••••••••••••··-···•••••• 115 

No exposure shall exceed 115 dBA. Impact or impulsive 

noises shall not exceed 140 dB, peak sound pressure level. 

Note: When the daily noise exposure is composed of 

two or more periods of noise exposure at different levels, 

their combined effect shall be considered rather than the 

individual effect of each. 

* * * * * * 

(b) When employees' exposure exceeds that listed in 

the above table, feasible administrative or engineering 

controls shall be utilized. If such controls fail to 

reduce exposure to within permissible levels, personal 

protection equipment shall be provided and used to reduce 

sound levels to within the levels of the table. 

Findings and Conclusions 

* 

At the close of the hearing, the parties were given the opportunity to orally state their positions on the issues, and I issued a 

decision from the bench as follows: 

806 
JUDGE BRODERICK: All right. In the case of 

Secretary of Labor, Mine Safety and Health Administration 

versus Gill Quarries, Incorporated, Docket No. 

WILK 79-35-PM, based upon the evidence presented this 

morning, I make the following findings of fact: 

Number One, on April 18, 1978, Respondent, 

Gill Quarries, Incorporated, was the operator of a 

crush-stone quarry in Montgomery County, Pennsylvania, 

known as the Spring House Quarry and Plant. 

Number Two, on April 18, 1978, Respondent's 

operation affected interstate commerce. The operation 

was of moderate size. 

Number Three, on April 18, 1978, the noise level 

survey was made at Respondent's operation by Federal 

Mine Inspector Stephen Moyer. A noise level reading 

was made of the primary crusher operator on that date 

showing exposure to noise of 156-percent of the allowable limit. this translates to be between 93.0 and 

93.5 decibels for an eight-hour period. 

Number Four, at the time of the survey, the 

employee affected, the primary crusher operator, was 

wearing earmuffs which, while worn, reduced the noise 

level to which he was exposed to permissible limits. 

Number Five, there are feasible engineering controls 

which could be utilized in Respondent's operation to 

reduce the noise level exposure from the primary crusher 

operator to within permissible limits. Respondent has 

not utilized these feasible engineering controls. 

Therefore, I find that the Respondent on April 18, 

1978, was in violation of the mandatory standard contained 

in 30 CFR 56.5-50. 

Number Six, the violation was moderately serious 

because of the possibility of permanent hearing loss to 

the exposed employee. The seriousness was diminished 

because the exposed employee was wearing ear protection 

at the time of the inspection. 

Number Seven, Respondent was aware of the excessive 

noise exposure to which this employee was subjected and 

had not utilized the feasible engineering controls to 

reduce them. Therefore, I find that Respondent was 

negligent and the negligence contributed to this 

violation. 

807 
Number Eight, Respondent did not show good faith in 

promptly abating the citation after it was issued. This 

is based upon his failure to utilize the feasible 

engineering controls to reduce exposure. 

Based on the foregoing findings of fact and conclusions, and considering the criteria set out in 

Section 110 I of the Act, I assess a penalty of $100 

for the violation which I have found. A written decision confirming this order, this decision, will be 

issued, and· the Respondent will be directed in the 

written decision to pay within 30-days of the date of 

the issuance of the decision. That will complete 

the record in this case. 

ORDER 

The bench decision is confirmed. Respondent is ordered to pay 

the sum of $100 for the violation found therein within 30 days from 

the date of the issuance of this written decision. 

J

:J-1 .. ~ _,lj./lJn>det· d. 

James A. Broderick 

Chief Administ-rative Law Judge 

Distribution: 

David Street, Office of the Regional Solicitor, U.S. 

Department of Labor, Room 14480, Gateway Building, 

3535 Market Street, Philadelphia, PA 19104 (Certified Mail) 

Richard F. Brown, Sales Manager, Gill Quarries, Inc., 

1505 Sandy Hill Road, Norristown, PA 19401 (Certified Mail) 

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

Blvd., Arlington, VA 22203 

808 
FEDERAL. MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFflCE OF ADMINISTF!ATIVE I.AW JUDGES 

4015 WILSDrJ BOULEVARD 

ARLINGTOfll, VIRGIN IA 22203 

July 3, 1979 

SECRETARY OF LABOR, 

MINE.SAFETY AND HEALTH 

ADMINISTRATION (MSH.A), 

Petitioner 

Civil Penalty Proceeding 

Docket No. VINC 79-21-PM 

A.O. No. 12-00064-05001 

v. 

Greencastle Quarry & Mill 

LONE STAR INDUSTRIES, INC., 

Respondent 

DECISION 

Appearances: Ann Rosenthal, Trial Attorney, Office of the Solicitor, 

U.S. Department of Labor, .Arlington, Virginia, for. the 

petitioner; 

Before: 

Michae.l T. Heenan, Esquire, Washington, D.C., for the 

respondent. 

Judge Koutras 

Statement of the Proceeding 

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

the Federal Mine Safety and Health Act of 1977, initiated by the petitioner against the respondent on October 18, 1978, through the filing 

of a petition for acsessment of civil penalty, seeking a civil penalty 

assessment for eight alleged violations of the provisions of mandatory 

safety standard. 30 CFR 56.14-1, set forth in citations issued by 

Federal ·coal mine ins'pectors on March 29, 30, and April 6, 1978. 

Respondent filed an answer and notice of contest on November 17, 1978, 

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

in Indianapolis, Indiana, on March 29, 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 

809 
filed in this proceeding, and, if so, (2) the appropriate civil pen-

~lty that should be assessed against the respondent for the all~ged 

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 

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

(1) the operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, (3) 

whether the operator was negligent, (4) the effect on the operator's 

ability to continue in business, (5) the gravity of the violation, 

and (6) the demonstrated good faith of the operator in attempting to 

achieve rapid compliance after notification of the violation. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act o~ 1977, P.L. 95-164, 

effective March 9, 1978, 30 U.S.C. § 801 .!:.!.~· 

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

3. Commission Rules, 29 CFR 2700.l !.!, seg. 

Stipulations 

The parties stipulated to the following (Tr. 4-5): 

1. Respondent owns the mine in question and is subject to the 

jurisdiction of the Commission. 

2. Respondent has no.prior history of violations, and each of 

the violations at issue in this proceeding was abated by the respondent with a "maximum amount of good faith." 

3. Respondent employs 150 individuals, working three shifts, 

7 days a week. Its annual production is 1 million tons of raw 

material and 700,000 pounds of finished material. 

Discussion 

The petition for assessment of civil penalty filed in this proceeding charges the respondent with eight alleged violations of mandatory saf~ty standard 30 CFR 56.14-1, and the violations were noted 

in the following citations issued by MSHA inspectors Thurman Worth 

and Stanford Smith during the course of inspections they conducted 

at the facility in question on March 29, 30, and April 6, 1978: 

810 
Citation No. 365010 

The guard was not adequate on the No. 306 V belt conveyor on the 

top floor of the raw bin silos (Exh. G-2). 

Citation No. 367201 

The large return idler pulley on stacker belt conveyor Wo. 214 

in the quarry was not provided with a guard (Exh. G-3). 

Citation No. 367203 

The first (from the head pulley) large return idler pulley on 

stacker belt conveyor No. 214 was not provided with ·a guard (Exh. 

G-4), 

Citation No. 367204 

The head pulley on the No. 214 stacker belt conveyor was not provided with a guard (Exh. G-5). 

Citation No. 367205 

The first large return idler pulley for the takeup on five crude 

material belt conveyor No. 21 to the screen house was not provided 

with a guard (Exh. G-6). · 

Citation No. 367206 

The first large return idler pulley for the takeup on crude 

material belt conveyor No. 305 to the main plant was not provided 

with a guard (Exh. G-7). 

Citation No. 367207 

The first large return idler pulley for the takeup on belt conveyor No. 215 from the surge pile to the impact crusher was not 

provided with a guard (Exh. G-8). 

Citation No. 367208 

The first large idler pulley on the takeup of the belt conveyor 

feeding the raw mill was not provided with a guard (Exh. G-9). 

~mony and Eviden~e Adduced by the Petitioner 

MSHA mine inspector Thurman Worth testified that the facility in 

question is an open pit stone quarry operation which produces cement. 

He confirmed that he inspected the site on March 29, 1978, and that 

he issued Citation No. 365010 citing a violation of section 56.14-1 

811 
on the track-mounted raw bin conveyor belt because he believed the 

head pulley guard was not extended far enough to protect a person 

from getting into the pinch point. The criteria he used to determine 

whether the guarding was adequate was 30 inches, or an arm's length, 

and ''if a person could get their arm into the pinch point, the guard 

would not be adequate." The 30-inch criteria is MSHA policy which 

has been in effect since he has been an inspector and at least since 

July 1976 (Tr. 8-11). 

Inspector Worth stated that employees would have occasion to be 

near the pulley in question, possibly once a day or once a shift while 

performing maintenance on the belt, checking the motor, or greasing 

the bearings, and the belt would probably be turned on. lf the belt 

were not running, there would be no danger, and it is possible to 

grease and service the pulley with the belt turned off. The checking 

of the bearings, which requires listening, could not be done with the 

belt turned off, and a person would be standing near the belt when 

this was done. If someone were to catch his hand in the pinch point, 

serious injuries or a fatality could occur. Also, someone could 

catchhis~lothing or a shovel or grease gun in the pinch point 

(Tr. 11-14). 

On cross-examination, Inspector Worth testified that he was 

accompanied on his inspection by Mr. Jim Bennett, respondent's maintenance coordinator, and Mrs. Viola Cox, the union safety committeeperson. His inspection followed the material through the processing 

cycle, and he indicated that the raw material is mined at the quarry, 

travels through a.primary crusher, then along some belts to a stockpile and a secondary crusher, and eventually ends up at the raw mill 

which is the building where the citation in question was issued. The 

inspection in question was his first enforcement inspection, but he 

had visited the site earlier in order to acquaint himself with the 

operation and t_hat was a ca-sual visit. However, he would have taken 

action at that time had he observed any safety hazards. The plant 

had been previously inspected by the Bureau of Mines (Tr. 15-21). 

The belt conveyor in question is not stationary and is designed 

to be moved from place to place over a track, and to discharge the 

materials into various silos. A guard was installed on the conveyor 

belt in question at the time he observed it. Mr. Worth identified 

Exhibit R-1 as a photograph of the belt tail pulley, and Exhibit R-2 

as the head pulley~ He could not recall whether there was a guardrail at the location in question on the day of the citation 

shown in Exhibit R-2, and as to the half-round cover guard depicted 

in Exhibit R-1, he indicated that it was installed after the citation 

issued in order to abate the violation, and he considers it to be 

fully adequate. He did not believe that there was any way a person 

could reach in and under that guard to get to the pinch point unless 

he did it deliberately. He could not state with any certainty 

whether another inspector would at some future time again cite the 

812 
respondent for a guarding violation. However, he would not cite 

another violation as long as the guard is in place (Tr. 22-31). 

With regard to the 11 30-inch"criteria, Inspector Worth stated 

that he followed MSHA policy which is in the form of "memos sent from 

Washington" which are sent to the MSHA offices, but not published in 

the Federal Register, and he did not have a copy with him. He cited 

the violation because he believed the pinch point was not adequately 

guarded. He believed the respondent should have been aware of the 

fact that the guard which was provided at the pulley location was not 

adequate and that a better one should have been provided. The location was partially guarded, but a person could still get into the 

pinch point accidentally by ~lipping on loose material on the floor, 

or while shoveling spillage onto the belt the shovel could get caught 

in the belt and could pull a person into the pinch point while the 

belt was running. The previous guard was a box-type guard which 

extended over the belt, but not far out along the belt so as to 

prevent a person from reaching back into the pulley (Tr. 31-35). 

Inspector Worth identified Exhibit R-3 as copies of citations 

issued on January-·25, 1973, citing the same belt in question for not 

having a guard. At the time of his inspection, he did not inquire as 

to the circumstances under which guards were provided for the belt in 

question (Tr. 41-43). 

On redirect examination, Inspector Worth stated that the handrail 

depicted in the photograph, Exhibit R-2, does not replace the guard, 

and someone could accidentally slip on a rainy day and get caught in 

the belt pulleys, but that is less likely since the belt in question 

is indoors. However, persons could slip on the walkway. The inadequate belt guard should have been obvious to anyone with experience 

working around belts (Tr. 47-49). 

On recross-examination, Inspector Worth stated that in order to 

perform work on the head or tail roller, the guard would have to be 

·taken off, but when adjustments are made for proper belt tension, the 

belt is running. Company policy dictates that the belt be locked out 

or turned off when maintenance is performed, and the only time the 

belt would be running is when it is being adjusted. He did not 

observe anyone working on the moving belt, but in hts experience, 

workers do not always follow company policy (Tr. 51-53) • 

. In response to questions from the bench, Inspector Worth st5l'ted 

that the square, box-type guards shown on Exhibits R-1 and R-2 were 

the guards which were in place at the time of the inspection and that 

the "half-moon" guards were the ones installed to abate. the citation. 

Those guards are 36 inches long and are bolted to the side of the 

belt. The area back under the guards seldom requires cleaning 

because the material on the belt dumps directly into a silo or bin, 

but certain types of maintenance requires that the guard be taken off. 

813 
He defined a "pinch point" as the place where the belt and either the 

head or tail pulley meet. The idler rollers could be considered pinch 

points, and.the ones depicted in Exhibits R-1 and R-2 would be pinch 

points and accidents do occur there, but it is less likely that anyone could be mutilated or killed by those rollers because they do not 

have the tension that the head or tail pulleys have. He conceded that 

someone could slip on the walkway along an idler pulley and get hurt, 

but did not know why the belt at those locations is not required to 

be guarded (Tr. 54-57). Section 57.14-3 is an advisory standard and 

would have been a more appropriate standard in this case if it were 

mandatory (Tr. 60). 

MSHA inspector Stanford Smith confirmed that he issued Citation 

Nos. 367201, 367203, and 367204 tExhs. G-3, G-4, and G-5) during his 

inspection of the facility in question and he cited section 56.14-1 

because of the lack of pulley guards on the No. 214 stacker belt conveyor belt. He described the piece of equipment in question and 

indicated that it had a head and tail pulley and idler pulleys where 

the belt angle changed. There was a walkway along the belt in question at the locations where he cited the violations and these locations were not guarded at all with physical guards. The large return 

idler pulley citation location had a handrail away from the head 

pulley, but someone could slip or reach into the pinch point. He 

identified Exhibit R-4 as a diagram of the belt in question and the 

specific location is where he issued the citations (Tr. 64-73). 

With regard to the large return idler pulley citation (No. 

367201), Inspector Smith indicated that someone could reach into the 

pinch point from the walkway in order to reach an adjustable scraper 

located on the bottom of the belt and that they would do so when 

attempting to adjust the belt. The purpose of requiring a guard is 

to remind people to shut the belt down before attempting any adjustments, and by having a guard there, the belt would be shut down before 

the guard is removed to make adjustments to the scraper. In addition, 

the pinch point was close enough to someone's foot or leg and could 

·possibly injure them if they slipped. Although persons generally use 

walkways to travel around the plant, he observed no one using the 

walkways in question on the day the citation issued. The operator 

should have known that someone walking along the walkway could slip 

on grease, rock, or a wet walkway and should have known that the 

pulley was unguarded as it was readily apparent (Tr. 74-80). 

Regarding the first large return idler pulley citation (No. 

367203), Inspector Smith indicated that it has greater tension than 

the other idler pulleys because it is at a point where .the belt 

changes direction. He recalled a scraper at that location and the 

purpose of the guard requirement would be the same as the other 

scraper at the second large return idler pulley. The gravity of any 

injury would be the same and the opera.tor should have known of the 

requirements for guarding (Tr. 81). 

814 
With regard to the head pulley citation (No. 367204), Inspector 

Smith stated that persons would basically be performing the same type 

of work around that location as that oescribed by0Inspector Worth 

with respect to the earlier head pulley belt citation, but he could 

not recall whether the pulley in this case had any grease fittings. 

He indicated that MSHA is very strict about guarding head pulleys 

unless they are "guarded by position," _that is, no one could contact 

a pinch point even by leaning over. Head pul~eys involve large areas 

in contact with a pulley which has tension applied, and they constitute 

dangerous pinch points, and there are greater chances for fatalities 

at those locations. The operator should have been aware of the guarding requirement and the hazard involved (Tr. 81-84). 

Inspector Smith testified that Citation Nos. 367205, 367206, 

367207, and 367208 (Exhs. G-6 through G-9) deal with four different 

belts, but that the situation at each of the locations cited was 

essentially the same and involved the use of adjustable scrapers. 

The belts were of the general configuration of that which involved 

Citation No. 367201 (Exh. R-4), and the danger presented in not 

guarding those belts was the fact that someone could slip while making adjustments or attempting to knock material off the scraper on 

the bottom part of the belt and could get caught in the pinch point. 

Although in this case he observed no one attempting to make adjustments while the belt was running, in his experience, people have 

attempted adjustments without turning off the belt and that is why 

guards ere required. The four citations were similar, and Citation 

No. 367208, being issued a week later, should have alerted the operator that a guard was required (Tr. 84-88). 

On cross-examination, Inspector Smith identified Exhibit R-5 as 

a flow chart which reasonably represents the transportation of materials at the plant in question, and the chart depicts the location 

of the belts which he cited. Generally, during an inspection, an 

inspector begins his inspection at the quarry and follows the flow 

.of materials along the belts as depicted in the exhibit. He also 

identified Exhibit G-6 as a magazine picture of the quarry and the 

No. 214 belt conveyor and primary crusher which appear to be similar 

to what he observed the day of his inspection. The No. 214 belt 

rises some 70 feet into the air, at a 30-degree angle, and the belt 

has a covered walkway alongside of it. The purpose of the walkway 

is to provide access to the belt, rather than a means of travel 

around the plant. He indicated that the crusher is a funnel-like 

affair, installed underground for a distance of some 60 feet, and 

trucks back up to discharge the material into it. There is a tailpiece at the bottom of the underground crusher, and the belt comes 

up an incline to the surface. He believed those belts were guarded 

as required (Tr. 89-102). 

With regard to Citation No. 367201, Inspe~tor Smith testified 

that the second large return idler pulley was located at a point where 

815 
a short stairway was installed to reach it, and it was above the walkway and one woutd have to climb stairs or a ladder to reach it. The 

primary purpose for this access stairway is to perform maintenance, 

and he identified a photograph of the stairway and location in question (Exhibit R-7), and the screen depicted in the photograph was 

installed to abate the citation. He identified the pinch point as 

being in the upper rightnand corner of the photograph, partially 

behind the girder, and the angle iron shown was there before the 

guard was installed. He could not recall seeing anyone on the stairway, and he was aware of the fact that 90 percent of the companies 

have a policy requiring that the belts be locked out before any work 

is performed on them, and he recalled seeing some safety signs posted 

in this regard (Tr. 102-107), 

.Inspector Smith identified a photograph, Exhibit R-8, as the 

location where he cited Citation Nos. 367203 and 367204, and the 

screens shown were installed to abate the citations. The screen at 

the bottom covers the first large return idler pulley, and the one 

on the bottom covers the head pulley. The stop cord is shown in the 

picture and is used in an emergency to stop the belt. If the cord 

were adjusted properly, the belt would stop if someone fell on the 

cord. He indicated that MSHA guarding policy has been generally 

upgraded since 1971 in terms of acceptance of acceptable guards in 

an effort to cut down on injuries and fatalities (Tr. 108-112). In 

explaining why on previous inspections at the plant citations were 

not issued for the guarding situations, Inspector Smith explained 

that inspectors were accepting barriers around walkways that provided access strictly for the belt, but this practice stopped 

because the barriers would be down and people stopped using them. 

Although there is a standard covering belt lock-outs, there have 

been too many cases where they have not been utilized (Tr. 129-

130). Inspector Smith identified Exhibit Nos. ·R-9, R-10, R-11, and 

R-12, as photographs of the locations where he issued Citation Nos. 

367205 through 367208 (Tr. 135-139). 

In response to questions from the bench, Inspector Smith testi-

. fied that anyone walking along the walkway.in the areas shown in 

Exhibit Nos. R-9 through R-12 could possibly come into contact with 

the pulley devices, if he slipped, intentionally attempted to knock 

material off the belt bottom, or tried to perform maintenance, and 

in each case, the belt would have to be running before an injury 

would be incurred. This is true even in those instances where handrails are installed because if someone slipped, they could miss the 

handrail. This would be true for Citation No. 367205 (Exh. R-9), 

but in Citation Nos. 367203 and 367204, a person would almost have 

to lean in while performing maintenance before he would slip in, and 

his purpose in issuing these citations was to prevent these events 

from happening. He was not concerned with pulleys which have only 

a minimum contact with the belt, and for idler rollers which have 

only minimal belt contacts, handrails and stop cords are acceptable 

as fulfilling the guarding requirements (Tr. 139-144). 

816 
Testimony and Evidence Adduced by ~he Respondent 

Charles D. Coppinger 2 respo1:i.dent' s_ regional operations manager, 

testified that he was plant manager at the Greencastle Plant at the 

time the inspection in question was conducted (Tr. 148). The plant 

was built sometime between 1966 and 1968, and operations began there 

in 1969 (Tr. 151). The plant is a cement operation located at the 

primary raw material site. Approximately 16 people work in the 

quarry, and this represents 10 percent of the total plant workforce 

(Tr. 152). He indicated that the last lost time accident at the 

plant was in 1975, and he identified Exhibit R-14 as the Model 22 

Safe Working Practices followed by cement plants, including the 

Greencastle Plant, and incladed therein is a requirement for locking 

out the equipment when maintenance is performed, and these practices 

are posted throughout the mine. The plant is totally automated and 

operated by one individual in a central control room by a computer. 

The plant has union and nonunion safety programs, employees have 

safety representatives, and unsafe conditions can be brought up at 

any time. The United Cement, Lime and Gypsum Workers International 

represents the wage-roll employees and has always.made it a practice 

to bring safety problems to management's attention, and the conditions are always corrected. OSHA also inspects the plant, and every 

piece of equipment where persons might contact it have been guarded, 

even before the present MSHA requirements. Every belt conveyor in 

the plant has a pull cord, and some have walkways on both sides 

which the company installed at great expense because the union 

believed the belts could be maintained better. He conceded that the 

plant was cited for guarding violations after l971, and that they 

were installed as required by MESA, and rarely did the abatement go 

for more than 1 day. The guards which were installed to abate the 

citations at issue in this proceeding were fabricated in the plant 

shop (Tr. 155-165). 

Mr. Coppinger stated that it has always been the intent of the 

respondent to comply fully with section 56.14-1, and it is company 

'policy to install a guard anywhere that it is needed, but this would 

not include areas where a person could come into contact with a belt 

by some extraordinary or deliberate effort, but would include areas 

where somebody could get hurt. Prior to the inspection in question, 

he did not believe that anyone was in danger along the belts in question, because no one is on the walkway except for maintenance purposes. The belts are out of the way and an elevator is used to get 

to the top of the raw mix silos, and he believed they were in compliance, and the union never brought the matter to his attention. 

The belts and guards which existed on the equipment have been that 

way for the life of the plant, and a few additional guards were 

installed where it was deemed necessary by management or if requested 

by the union (Tr. 165-169). 

On cross-·examination, Mr. Coppinger testified that he was aware 

of the fact that the areas cited were not guarded and he still does 

817 
not believe.that guards are needed. As a practical matter, the only 

way a person could be injured is to deliberately stick his hand into 

the pulleys. The only time anyone would go along the walkways would 

be while greasing the idler rollers and not the head or tail pufleys, 

and the belts are greased about three times a year. Although 

maintenance is performed on the belts, it is always performed while 

the belt is shut down. Belts are changed, but they are not running 

when this is done. Scrapers are adjusted with the belt off, and no 

areas of the belt require grease or oil on a daily basis. Belts 

which are out of alignment are adjusted by tapping idler rollers with 

a hammer while the belt is running, but the employee stands away from 

the belt while doing this, but he does walk along the walkway and 

this chore is accomplished once in a year or two. He conceded that 

employees do not always follow directions (Tr. 170-178). 

Don Foxx, quarry foreman, testified·that he has worked for the 

respondent for 33 years and is familiar with the plant belt system 

and the guarding requirements. He accompanied the inspectors during 

the inspections in question, and indicated that at several locations 

along the inspection route, idler rollers were not guarded except for 

a pull cord, and th~ inspectors raised no questions about those locations. Regarding Citation No. 367201, he indicated that it concerned 

a return roller located up a stairway some 15 feet off the ground, 

with handrails on it. The crusher operator would haye occasion to 

go up that stairway to make sure the belt was running properly, and 

if he were to work on the belt, he would not leave the crusher operating. He identified the crusher (Exhibit R-7), and prior to the 

installation of the screen guard, he had no reason to know that it 

was required and no inspector has ever told him that it was (Tr. 188-

195). Someone would have to reach up under the truss to get at the 

pinch point, and he did not believe that someone could slip and fall 

into it, but someone could intentionally stick a hand in if they 

were silly enough to do it; Regarding Exhibit R-8, Citation Nos. 

367203 and 367204, someone would have to reach in to get at the 

pinch point and would almost have to stand on his toes to do it. 

·The belt is about a foot inside of the guards which are installed 

at the belt frame. All of the screens were installed by the morning 

or evening of the day the citations were issued (Tr. 195-200). 

On cross-examination, Mr. Foxx reiterated that with respect to 

the No. 214 belt citations (Exhs. R-7 and R-8), a person would have 

to go out of his way to accidentally get caught in the rollers and 

that one would have to deliberately stick his hand into the roller. 

The belt would be down if it were being worked on. A person would 

be pinched more on a bend pulley than on an idler pulley. He is 

responsible for the No. 214 belt, and he shuts it down when clean-· 

ing of the walls is required during the rainy sea.son, and this has 

occurred about three times a year. Maintenance men would have no 

occasion to be on the walkways, and no more than one man, a greaser, 

would be on the walkway (Tr. 200-206). 

818 
James M. Bennett, plant maintenance coordinator, maintains the 

history of all maintenance performed on the equipment and he schedules 

the maintenance work. He accompanied the inspectors during their · 

inspections and indicated that the screens depicted in Exhibits R-9 

through R-12 were added subsequent to the inspection, and he did not 

object to their installation. However, prior to the inspection, he 

did not know that guards were required at those locations. The 

structural steel bracing and handrailing depicted in the photographs 

were present prior to the citations and he b~lieved they would protect 

a person from contacting the pinch points which were later guarded by 

screening. Regarding the idler pulleys on the Nos. 215 and 305 belts, 

he indicated. they were located below a "knee-high11 level in relation 

to the catwalks (Exhs. R-10 and R-11); the handrails were in place 

and he believed they would preve~t someone from coming in contact with 

the pulleys and indicated that it would be almost impossible for anyone to get into the pulleys unless he did it deliberately (Tr. 208-

214). 

With regard to Citation No. 365010 concerning the No. 306 belt 

conveyor (Exhs. R-1 and R-2), Mr. Bennett indicated that the conveyor 

is movable and that the handrail which is depicted in photograph 

Exhibit R-1 is stationary. At the time of the inspection, there was 

an expanded metal guard which extended some 18 to 20 inches out and 

over the pulley from the belt housing, and that was essentially a 

manufacturer's guard. There was an additional guard bolted to the 

belt frame, but it did not cover the top of the belt. He believed 

these guards were a.dequate and did not know that the additional 

guarding which the inspector required to be installed was needed, 

and he indicated that someone could still reac.h around the guard 

that was installed if they wanted to (Tr. 217-220). 

On cross-examination, Mr. Bennett. stated that when the first 

citations were issued, it did not occur to him to check other plant 

areas for guarding problems, and he believed that plant employees 

always follow the 22 safety guidelines, and he is not aware of any 

MSHA publications which may be sent to the plant (Tr. 216). 

Mrs. Viola Lady is presently employed at the plant as a janitor, 

but previously worked as a laborer and truck driver, and h_er duties 

entailed work around the quarry and belt areas. She is a member of 

the union and served as safety committeeperson during 1977 and.1978. 

Safety meetings are held monthly and the employees have no hesitancy 

in bringing safety matters to her attention or to the attention of 

management, and management has never been reluctant to correct any 

safety concerns once it is brought to its attention, and serious 

safety matters are taken care of immediately. She accompanied the 

inspectors during their inspections, viewed each of the areas 

depicted in the photographic exhibits, and is familiar with the MSHA 

safety standard in issue. Prior to the inspection, she did not feel 

that there were places in the plant operation t_hat were not guarded 

819 
and she was.surprised by the issuance of the citations. She believed 

the locations cited were adequately guarded; no union people ever 

suggested that they were not, a:nd she could not readily tell the 

difference between the places that were required to be guarded from 

other places. The company has a very good safety attitude and 

everyone is safety conscious, and she did not believe the company 

failed in its responsibility to the employees or should have known 

about the guarding requirements in question (Tr. 225-232). 

On cross-examination, Mrs. Lady stated that prior to the inspec-: 

tion, she had never been on the walkways. New employees are 

instructed in equipment lock-out procedures and there are times when 

employees do not follow all company rules. Information concerning 

accidents are posted on bulletin boards and employees are instructed 

on safe working practices at the monthly safety meetings (Tr. 

233-235). 

Inspector Worth was called in rebuttal and testified that prior 

to his inspection, the No. 214 belt had been newly installed and problems were encountered in keeping it in line. Two·repairmen were at 

the belt location working on the carrier idlers while the belt was 

running and they were attempting to align the.belt. The walkway 

adjacent to the No. 214 belt goes to the top of the belt and there is 

a stairway for a person to walk back down, and· this is true of all 

the belts in question. In his view, although there is a structural 

steel framework next to all the walkways in front of most of the 

roller.pulleys, it would not prevent someone from getting his arm or 

leg through the framework. (Tr. 240-243) • 

In response to guestions from the bench, Inspector Worth stated 

maintenance may be performed on the carrier idlers on a running belt 

and no guards are required. However, handrails and stop cords are 

required in that situation. Performing such maintenance does present a hazard, but it is less than the hazard presented at the tail 

pulley location because the carrier idlers have no weight on them, 

·whereas the tail and head pulleys have tension at those points. He 

conceded that a loaded belt which is running presents a hazard to 

someone performing maintenance around it, but indicated that the 

handrail would afford protection and prevent a man from falling over 

onto the belt. In that situation, the only requirement for guarding 

is a handrail or stop cord (Tr. 244-246). 

On 'cross-examination, Inspector Worth stated that the respondent 

has a very good attitude regarding safety and that the violations 

were not intentional (Tr. 247). 

Inspector Smith testified that there was an MSHA policy change 

in 1975 concerning barriers along the entire leng.th of a belt walkway 

and that the ~hange was internal and was not disseminated or published in the Federal Register. The intent was to alert the industry 

820 
to keep their barriers up because accidents were continuing to occur. 

He concurred with Mr. Worth's testimony concerning the structural 

framework and the severity of the. injuries which would occur if someone fell through the framework (Tr. 249-252). 

Findings and Conclusions 

Fact of Violations 

Respondent is charged with eight alleged violations of the provisions of 30 CFR 56 .14-1, which reads as follows: "Mandatory. Gears; 

sprockets; chains; drive, head, tail, and takeup pulleys; flywheels; 

couplings; shafts; sawblades; fan inlets; and similar exposed moving 

machine parts which may be contacted by persons, and which may cause 

injury to persons, shall be guarded." 

Citation No. 365010 

The inspector issued thi"s citation because he believed the guard 

which had been installed did not extend far enough forward to protect 

a person from reaching around to the pinch point. The existing guard 

had previously been installed in 1973 after a citation was issued by 

another inspector during the course of a previous inspection under the 

Metal and Nonmetal Act, and that guard was installed to abate the 

citation (Exh. R-3). No one raised any question concerning the sufficiency of the guard untp the inspection conducted by Inspector 

Worth on March 29, 1978. He believed the guard was inadequate and 

issued Citation No. 365010, and, in so doing, he relied on the 

"30-inch or arm's length" MSHA policy which apparently required 

inspectors to cite.section 56.14-1 if the pinch point at a belt location was within 30 inches or an arm's length away from where a person 

reaching or falling on or near the belt could somehow become entangled 

in that pinch point. Although the existing guard which had been 

installed apparently satisfied the prior inspector, it obviously did 

not satisfy Inspector Worth since he believed it was inadequate. 

Petitioner argues that the existing guards on the 360 V conveyor 

feeder belt were inadequate, both at the head and tail pulley locations, and that the existing guards did not extend far enough from 

the pinch points to keep a person from getting caught. However, the 

citation simply describes an inadequate guard on the belt conveyor 

and does not specify any tail or head pulley as such. Respondent's 

Exhibit Nos. R-1 and R-2 are pictures of the two pulleys, and the 

inspector confirmed that one is the head pulley and the other the 

tail pulley. However, his testimony-r.;-limited to the head pulley 

~while one can speculate that he intended to cite both pulleys, 

that fact is not clear from the record presented. In any eveut, I 

find that the petitioner is bound by the citation as issued, and 

whiie it is arguable that the citation may be subject to dismissal on 

the ground of lack of specificity, the· parties· have not raised that 

issue. Consequently, I will limit my findings to the~ pulley. 

821 
Petitioner argues that the 30-inch "arm's length" standard 

applied by the inspector as the basis for the citation is an "interpretatio~" that has been in effect at least since 1976, although 

counsel has been unable to find such interpretation reduced to writing. If petitioner's counsel cannot·find it, I fail to understand 

how respondent is expected to comply with it when the evidence establishes that such "interpretation" was never communicated to the respondent. I find that respondent cannot be held accountable for any 

nebulous MSHA interpretative memo which is uncommunicated, and that 

respondent compliance·responsibility is limited to section 56.14-1. 

Thus, the question presented is whether petitioner has established 

a violation of that standard by a preponderance of the evidence. 

Respondent's defense to the citation is that the head pulley was 

guarded by a box-type guard installed by the manufacturer, as well as 

an additional guard extending 18 to 20 inches further out which had 

been installed to abate a previous citation issued by MESA under the 

Metal and Nonmetal Act for a violation of the very same standard in 

issue in this proceeding. In addition, respondent maintains that the 

pulley was further guarded by a handrail and pull cord. Petitioner's 

response to this defense is the assertion that the.fact that a prior 

inspector "erroneously" determined that the prior guard was adequate· 

does not relieve the respondent of its responsibility to comply with 

the standard as "properly" interpreted. Petitioner's theory in this 

regard is rejected. I fail to understand how one can conclude that 

the prior inspector's judgment as to the adequacy of the existing 

guard was erroneous since he abated the citation and the respondent 

relied on that judgment. In my view, such indiscriminate and arbitrary enforcement practices do little to enhance safety and do much 

to enhance and encourage endless litigation and possible harrassment 

of mine operators who, in good faith, are attempting to comply with 

the law. 

After ful1 consideration of the evidence presented, I find that 

the existing guard was adequate and was in full compliance with the 

cited standard. I find further that petitioner has failed to establish that a person working near or at the head pulley would likely 

come into contact with a pinch point which is protected by a guarding device of the type installed at the belt location in question. 

I further find that the inspector's interpretation and application 

of the standard in this instance was an arbitrary application and it 

is rejected. The citation is VACATED. 

Citation Nos. 367201, 367203, 367204 

These citations involve two idler pulleys and a head pulley on 

the No .. 214 VM stacker belt conveyor which were not guarded. Exhibit 

R-4 is a diagram of the conveyor device in question; Exhibit R-5 is 

a scJ:iematic "flow chart" indicating the role played by that belt conveyor in the plant manufacturing process; and Exhibit R-6 is a 

822 
picture of a similar such conveyor belt. Exhibits R-7 and R-8 are 

photogr~phs _of the three locations where the violations were cited. 

The conveyor belt in question rises some 70 to 100 feet into the 

air, at an approximate angle of 30 degrees, and it is a covered belt 

with an adjacent walkway. The purpose of the walkway is to provide 

access to the belt, rather than a means of normal and routine travel 

around the plant, and if one were to walk to the top of the belt, 

there would be no place to go but back down the walkway or down a 

stairway. 

The unguarded second large return idler pulley at the location 

of Citation No. 367201 was at a point where access could only be made 

by means of a short stairway installed for.that purpose above the 

walkway in order to perform maintenance as required. Inspector Smith 

was concerned that someone could reach into the pinch point from the 

walkway while attempting to adjust a scraper on the belt bottom or 

one could get their leg or foot caught in the pinch point if they 

slipped while on the walkway. He stated that the-purpose of the 

guarding requirement at that location served as a reminder for persons to shut the belt down before attempting any belt or scraper 

adjustments. With a guard installed, the belt would have to be shut 

down before it was removed and the adjustments made. 

The unguarded idler pulleys at the location of Citation Nos. 

367203 and 367204 concerned Inspector Smith because he believed someone would be exposed to the pinch points while adjusting the scaper 

on the first large return idler pulley (No. 367203) or greasing the 

head pulley (No. 367204). However, he could not recall whether the 

head pulley had any grease fittings. He conceded that a person 

would have to lean into the are.as while performing such chores before 

he could slip.in, and his purpose in issuing the citations was to 

prevent that from happening. An emergency stop cord was installed 

alongside the belt at the points in question, and assuming it was 

.properly adjusted, it would stop the belt if one fell against it. 

Respondent's evidence establishes that the walkways along the 

belts in question are not regularly used by the workforce as a regular means of travel around the plant. The walkways are there to 

facilitate ready access to the conveyor belt system for maintenance 

purposes. Scraper adjustments and belt maintenance are always performed while the belts are shut down. The person responsible for 

the belt in question indicated that the crusher operator would have 

occasion to climb the stairway by the idler pulley (No. 367201) to 

check the belt operation or to perform maintenance, but before doing 

so would shut the crusher down. As for the idler pulleys (Nos. 

367203 and 367204), he indicated that the belt is 19cated approximately a foot inside the belt frame and that someone would have to 

stand on their toes and deliberately reach in to get at the pinch 

points. 

823 
At paie 6 of its brief, petitioner asserts that all of the pinch 

points cited in this case were in places where they c~d have been 

contacted by workers during the ordinary course of their duties. I 

find that conclusion as to all of the locations cited by the inspectors in this case to be uns~orted by the evidence adduced by the 

petitioner in support of each citation. Citing pages 78 and 241 of 

the transcript, petitioner~ at page 3 of its brief, asserts that the 

inspectors saw people on the walkways during the inspection. By that 

statement, petitioner would have me believe that in all eight citations the inspectors observed people on all the walkways at the loca-· 

tions cited and they were all exposed to7hazard. A review of the 

transcript references relied'"on by the petitioner indicates to me that 

the inspector did not know ·.vhere anyone was walking at any given 

point in time. For example, at pages 78-79, the inspector testified 

as· follows: 

Q.59. Were there people generally, during your observation in this plant, walking along these walkways? 

A. Walkways in general. Not specific. 

Q.60. But from your observation, it appeared that 

people did use these walkways relatively frequently to 

get around? 

A. Yes. Upon it. 

JUDGE KOUTRAS: Wait a minute. Let's get clarification now. Generally, people use walkways to get around 

the plant. Her question is: At this specific location 

is that true? Did you observe anybody on. this walkway? 

WITNESS: At the time that~- I can't say that I 

observed anyone using them. I can't recall. 

JUDGE KOUTRAS: Okay. 

Q.61. However, people would have to use this walkway just to walk up to the head pulley and the other 

pulleys. 

At pages 241 and 242 of the transcript, the testimony of the 

inspector reflects th~ following: 

Q.4. At any point, did you see any people on any of 

the walkways that are in question here? 

A. On 214 belt it was my understanding just prior to 

our inspection they had installed a new belt. 

Q. 5. Uh-huh. 

824 
A. ·And they were having problems keeping it in line. 

Q•6. This was during your inspection that they were 

having these problems? 

tion 

belt 

true. 

A. Right. And they had two repairmen at this locaworking on the carrier idlers, trying to keep the 

or trying to get it lined up where it would run 

Q.7. Was the belt running 

A. Right. 

Q.8. -- while they were doing this? We've heard testimony that the walkway on the 214 belt didn't go anywhere 

except to the top of the belt. We haven't heard any testimony on the other walkways next to the other belts. Do any 

of them go to any destination or do they all go just to the 

top of the belt also? · 

A. You could go to the top of the belt on the other 

ones in question and take stairways down, get on another 

belt, and keep going on until you get into the mill area. 

The only conclusions that I can come to from the testimony cited 

are the fact that people generally walk around walkways at the plant, 

the inspector either did not see anyone or could not recall seeing 

anyone on any of the walkway locations cited on the day the citations 

issued, and that people have to use the walkway to get to the head 

pulley locations. As for the No. 214 belt, the inspector clearly 

stated that it was his understanding that just erior to his inspection, a new belt had been installed. He obviously did not see the 

installation, nor did he see people on the walkway while the belt 

was being installed. What he apparently saw were two men adjusting 

carrier idlers while walking along the belt. As for the use of the 

belt system walkways and stairways as a normal means o.f going from 

one plant location to another, it is clear to me that this simply is 

not the case. The inspector stated that one could walk up a belt 

walkway and then down some stairs, up another belt walkway and down 

more stairs, etc., etc. Petitioner would have me believe that the 

normal method for an employee to travel from point to point in the 

plant is to take a "roller coaster" route up and down belts and stairways. This may be true of a maintenance man who may go from belt to 

belt, but I am not convinced that it is the normal route that nonmaintenance personnel would take while traveling by 12.2! around the 

plant. 

With regard to the two men working on the No. 214 belt, petitioner would have me believe that they were exposed to a hazard 

simply because they were walking along the belt making adjustments 

825 
to the carrier idlers. There is absolutely no evidence that these 

men were attempting any maintenance work on the pulley or that they 

were required to be at that location •. As a matter of fact, the 

inspector himself conceded that it is permissible to perform maintenance on idler pulleys while the belt is running and that no idler 

guards are required in such a situation, notwithstanding the fact 

that a loaded moving belt presents a hazard at that location~ 

. . Respondent's testimony is that the belt walkways are not normally 

used for travel around the plant and that the only reason anyone would 

use them would be to perform maintenance work. Mr. Coppinger testified that the belts are always shut down when they are changed out or 

when maintenance is being performed, that there is a plant requirement 

for locking out the equipment when maintenance is being performed, and 

that the plant is totally automated and operated by computer. Quarry 

Foreman Foxx, a man with 33 years' experience at the plant and who is 

familiar with the belt system, indicated that while the crusher operator would have occasion to use a stairway to check on the No. 214 

belt, he would not leave the crusher operating and someone would have 

to deliberately reach in and over the belt truss to reach the pinch 

point. As for the large return idler pulley and head pulley on the 

No. 214 belt, he indicated that someone would have to stand on his 

toes to reach one pinch point and would have to reach in about a foot 

from the belt frame to reach another one. 

Plant Maintenance Coordinator Benett believed that plant 

employess always follow the safe work guidelines, and former Plant 

Union Safety Committee person Lady indicated that employees are 

instructed on lock-out procedures, and she believed the places cited 

were adequately guarded. 

Turning to the specific citations in question, I find that the 

testimony adduced by the respondent concerning its lock-out procedures and model safety practices which it has adopted and instituted 

.for its plant operation is uncontraverted by the petitioner. Although 

these factors may not serve as an absolute defense to the citations, 

those procedures and practices, when coupled with the fact that the 

head pulleys on the No. 214 stacker belt (Citation Nos. 367203 and 

367204) were located at a place where persons were not likely to come 

into contact with the pinch points in the normal course of their mine 

duties, convince me that those locations did not require guarding 

The first large head return idler pulley pinch point was located in an 

area which would literally require someone to stand on his toes or 

to climb up on the belt frame and deliberately reach into the pinch 

point. The head pulley was located at approximately waist level, some 

12 inches inside and behind the belt framework. Both locations were 

also guarded by a pull cord which would stop the belt if someone 

slipped and fell against the belt frame. One would have to deliberately reach in for a distance of over 2 feet o~ crawl into the opening to reach the pinch point. In such a situation, I am not convinced 

826 
that the standard requires guards at those locations, nor am I convinced that petitioner has established that in those locations the 

pinch points were situated in places where persons may come in contact with them in the normal course of their duties. Although not 

clearly stated, it seems that MSHA's position is that guards are 

required at every location on a mine site where there is a machine 

pinch point which conceivably could cause injury to anyone who 

deliberately and consciously seeks out that pinch point and places 

his hand in it. If that is the interpretation of section 56.14-1, 

then MSHA must come forward with some evidence that in their normal 

course of duties, miners are required to deliberately and consciously 

expose themselves to danger. With regard to Citation Nos. 367203 and 

367204, I find that petitioner has failed to establish by a preponderance of the evidence that the pinch point locations were at a 

place where miners would likely come in contact with them during the 

normal course of their duties. Acccordingly, the citations are 

VACATED. 

Part of the inspector's rationale for citing section 56.14-1 and 

requiring a guard at the No. 214 stacker belt large return idler 

pulley location was to "remind" one to shut the belt down before 

attempting any belt or scraper adjustments, the theory being that 

once a guard is installed, the belt would have to be shut down and the 

guard removed before any adjustments are made. While this seems to be 

a reasonable theory, the problem is that the standard cited is not 

intended to serve as a "reminder." Its purpose is to require guarding 

of specific and "similar" pieces of exposed moving machine parts. 

Since there are other mandatory standards which prohibit maintenance 

or repair.s on machinery while it is moving, cleaning of conveyor 

pulleys while they are in motion, and a requirement that, except for 

testing, guards be kept in place while machinery is being operated, 

,!·~·' 56.14-6, 56.14-29, 56.14-33, I fail to comprehend why an inspector has to rely on section 56.14-1 to serve as a "reminder" when 

vigorous enforcement of the other standards would seemingly be appropriate. If the problem lies with the language of the standard, then 

.I believe the Secretary should take steps to republish it with clear 

and understandable langauge which can stand on its own, rather than 

putting the inspector in the position of trying to find the next best 

standard to apply in a given situation. 

Notwithstanding my comments concerning the inspector's interpretation of section 56.14-1 when he cited the return idler pulley which 

is the subject of Citation No. 367201, I find that the location of 

the pulley and the pulley pinch point was such that a guard was 

required under the cited section. Although the pulley mechanism was 

located under a structural steel frame, the photograph ·(Exhibit R-7) 

clearly shows that it is adjacent to a walkway and stairway, and was 

exposed on both sides. Absent the screen guard which is depicted in 

the photograph, and which was installed after the citation, I believe 

the pulley location is such that someone simply casually walking along 

the stairway or walkway coul.d easily fall into the pulley if he were 

827 
to stumble or trip, and I do not believe that the stop cord or steel 

framework on the belt would prevent him from becoming entangled in 

the pulley. In this instance, anyone walking by that location would 

be exposed to a danger, and since there is a walkway and stairway 

there, I believe that one may assume that they are there for a 

purpose and that someone will be walking the area at any given time 

and would be exposed to a hazard. This is unlike the previous two 

citations where I found that someone would have to deliberately go 

out of his way to reach a pinch point by either climbing up and 

through the belt framework. In the circumstances, I find that petitioner has established a violation as cited in Citation No. 367201 

and it is AFFIRMED. 

Citation Nos. 367205, 367206, 367207, 367208 

The inspector issued these citations because of his concern that 

someone could slip and fall into the pinch points while attempting to 

make adjustments to the belt scrapers located at the bottom parts of 

the belts or while attempting to clean materials off the scrapers at 

those locations. Although he personally observed no one performing 

these chores or walking the belts during his inspection, he relied on 

his prior experience with instances where persons attempted to make 

belt adjustments without shutting down a belt and this practice 

impressed him with the fact that section 56. ll~"-1 required guards at 

the locations cited. The fact that the respondent followed specific 

safety rules and had a policy of shutting or locking out the belts 

while those maintenance functions are performed apparently did not 

impress him. As a matter of fact, based on th'e evidence and testimony 

presented in this proceeding, I can venture a guess that th~ inspector 

either did not know about the policy, or if he did, he probably would 

have cited the violations anyway, notwithstanding the fact that he 

conceded that no hazard existed if the belts were shut down. 

Petitioner points to the fact that the four citations involve 

identical pinch points at four different belt locations containing 

·adjacent walkways which led to other plant areas and which could be 

used for more than just maintenance work. Petitioner asserts that 

someone walking on the adjacent walkways or adjusting the scrapers 

located near each pinch point would be exposed to a hazard if he 

were to slip and catch his clothing or tools in the belt mechanism. 

Respondent takes the position that the cited pinch point locations were protected by the structural steel belt framework, pull 

cords installed between the walkway and the belt, and guardrails or 

handrails. Respondent also maintains that the walkways are not used 

as normal travelways by employees, are used only for purposes of · 

providing access to the equipment by maintenance .personnel, and that 

when maintenance is performed the equipment is locked out. 

828 
I find that the idler pulley location cited in Citation No. 

367205 was not located at a place where a person casually walking 

by woul~ likely reach the pinch ppint if he were to trip and fall 

on the walkway. Since I cannot conclude that petitioner has established that this walkway was one normally used by miners to get 

around the plant, the likelihood of anyone being on the walkway 

regularly and routinely while going about his duties is somewhat 

remote. Assu.ming that someone was on the walkway and stumbled or 

fell, from the photograph (Exhibit R-9), it would appear that the 

· pulley location is some distance from the walkway and one would 

have to climb over the handrail, step over the opening between the 

walkway and belt frame, and then reach into the pulley area. A 

maintenance ma.n would encounter the same difficulties in reaching 

the equipment. In these circumstances, I find that petitioner has 

failed to establish a violation and the citation is VACATED. 

With respect to the large idler pulley on the Nos. 305, 307, 

and 215 belts, Citation Nos. 367206, 367207, and 367208, I find that 

they were located in areas which were required to be guarded. The 

pulleys were at approximately knee-high level adjacent to a walkway, 

and from the photographs (Exhibits R-10, R-ll, and R-12), it would 

appear that someone walking along the walkway could get his legs or 

a·rms caught in the pulley if he were to fall or slip. Although the 

belt framework does provide some protection, the openings are large 

enough to allow someone to become entangled in the pulleys. Although 

respondent has established that the walkways are not normally used 

as a regular means of travel about the plant, that fact weighs on 

the gravity of the situation presented, and I do not accept it as 

a defense to the citation. This also applies to the lock-out and 

safety procedures which respondent has established, that is, the 

fact that the equipment is locked out and the maintenance men follow 

the company safety rules, may not, in my view, serve as an absolute 

defense to the guarding requirements of section 56.14-1. Those facts 

may be considered in mitigation or in connection with the seriousness 

of the situation presented. The same would apply to the structural 

·steel belt framework which respondent maintains provided sufficient 

guarding. In my view, the purpose of the framework is.to provide 

structural and stress support for the belt conveyor system and I am 

not convinced that it was intended to serve as a primary guarding 

device to protect people on the walkway. The fact that it affords 

some protection may be considered again as part of the gravity issue, 

but not as an absolute defense to the citation. Under the circumstances, I find that the petitioner has established the violations 

as cited in Citations 367206, 367207, and 367208, and the citations 

are AFFIRMED. 

Gravity 

· I believe that the question of gravity must be determined on the 

basis of the conditions or practices which existed at the time the 

citations in question issued. General or speculative conclusions 

829 
as to the h~zards involved with respect to unguarded belt locations 

simply is not sufficient to justify a substantial civil penalty 

assessment, absent a showing of gross negligence or a total disregard 

for the safety and welfare of the workforce. Respondent asserts that 

petitioner has failed to establish that the machine parts in question 

were exposed or moving at the time of the citations and that this is 

an absolute defense to the alleged violations. Respondent's arguments 

in this regard are rejected. However, I find that petitioner has not 

established that men were required to work or were actually working 

in or near.any of the unguarded moving belt locations cited in 

Citation Nos. 367201, 367206, 367207, 367208, and absent such a showing, I cannot cinclude that the violations were serious, and that 

fact is reflected in the civil penalties assessed by me with regard 

to those four citations. 

Good ·Faith Compliance 

The parties stipulated that respondent exercised maximum good 

faith in achieving compliance once the conditions were cited (Tr. 238-

239). In addition, the testimony adduced reflects that respondent 

took immediate steps to correct the conditions cited, and that in each 

instance where the citation has been affirmed (Nos. 367201, 367206, 

367207, 367208), respondent exercised rapid compliance and that fact 

is reflected in the civil penalties assessed by me with regard to 

those citations. 

~ory of Prior Violations 

I find that respondent has no prior history of violations, and 

this has been considered by me in assessing the penalties which have 

been levied in this case. 

Size of Business and Effect of Civil Penalties on t~e Respondent's 

Ability to Remain in Business 

The evidence adduced with respect to the size and scope of 

·respondent's quarry and cement operation at the Greencastle Quarry 

and Mill supports a finding that respondent has a medium-sized 

operation. Further, respondent has not advanced any argument that 

reasonable and appropriate civil penalties for the citations which 

have been affirmed will adversely affect its ability to remain in 

business. Accordingly, I conclude that the penalties assessed will 

not adversely affect the respondent in this regard. 

Negligence 

With regard to Citation No. 367208 issued on April 6, 1978, I 

find that the respondent failed to exercise reasona~le care to prevent the violation since the earlier citations issued on MarGh 30, 

1978, should have alerted the respondent as to MSHA's enforcement 

policy concerning the application of the g~arding requirements of 

830 
section 56.14-1. Accordingly, as to that citation I find that 

respondent's failure to comply resulted from ordinary negligence. 

With respect to the remaining citations which have been affirmed·, I 

find that in view of the somewhat confusing language of the guarding 

standards previously discussed, including some of the internal MSHA 

guidelines communicated to the inspectors but not to the operator, 

that the respondent in this case took reasonable precautions to 

prevent the violations and that in the circumstances, it could not 

reasonably have known that physical guards were required by section 

56.14-1 at the locations cited. Accordingly, I cannot conclude that 

the citations which have been affirmed resulted from respondent's 

Iiegl igence. 

Additional Issues Raised by the Respondent 

Estoppel 

Part of the respondent's defense to the citations issued in this 

case is the assertion that MSHA had not previously cited any guarding 

violations during previous inspections. Although this may touch on 

the question of negligence if it established that an inspector specifically advises an operator that a guard is not required at a particular location, I do not believe that the fact that an inspector 

failed to cite a violation while on the mine property at any given 

time may serve as a defense to the citation. This defense is one 

that is often invoked by a mine operator as a defense to a citation 

and it is a defense that can be invoked for practically every citation. However, as correctly pointed out by the petitioner at page 5 

of its brief, such a defense has been consistently rejected. I con~ 

elude that petitioner's position on this issue is correct and respondent's assertion to the contrary is rejected. 

"Significant and Substantial" Findings 

Respondent takes issue. with the "significant and substantial" 

findings made by the inspectors on the face of the citations issued 

in this case. As far as I am concerned, the fact that an inspector 

chooses to mark the "significant and substantial" box on the face of 

a section 104(a) citation does not establish that conclusion as a 

matter of fact. I can find nothing in section 104(a) that requires 

an inspector to make such findings when he issues a section 104(a) 

citation. It seems to me that if an inspector believes that the 

conditions or practices constitute significant and substantial hazards, he should issue an unwarrantable citation under section 

104(d)(l). ·In any event, I conclude that in the case of a section 

104(a) citation, the question of an alleged "significant and substantial" hazard should be treated as part of the gravity issue 

and that is what I have done in this case. 

831 
Clarity of Section 56.14-1 

Respondent has advanced the argument that in order to establish 

a violation of section 56.14-1; petitioner must establish that the 

unguarded belt pulley parts cited were similar to gears, sprockets, 

etc., that they were exposed, and that they were moving. As to the 

similarity of the pulleys in question to the other enumerated parts 

described in the standard, I find that the petitioner has established that they were similar. Although the standard is not a model 

of clarity, I conclude that it sufficiently describes the types of 

parts intended to be covered and respondent has not established anything to the contrary. As for being exposed, I conclude that since 

the pulleys were not guarded, they were exposed within the meaning 

of.the standard. With respect to the question as to whether they 

were ·moving at the time of the citations, I find that this fact 

need not be established to prove a violation. Since the equipment 

in question concerns belt lines used to move materials, logic dictates that at some point in time the belts will, in fact, be _!!loving 

and I conclude that this is all that is required.·· Under the circumstances, respondent's arguments that these factors may serve as an 

absolute defense to the citations are REJECTED. 

Having disposed of the individual citations which are in issue 

in this proceeding, I feel compelled to make some comments and 

observations which cut across all of the citations issued by the 

inspectors in this case.· It has been most difficult for me to comprehend from the record adduced in this proceeding precisely what 

MSHA's interpretive and enforcement policies are with respect to the 

application of section 56.14-1. The standard seemingly provides for. 

guards at certain belt locations where exposed_machine parts may be 

contacted by persons. A literal application of that language would 

require guards at all belt locations containing any of the machine 

parts listed in the standard or containing any pinch points or 

exposed parts of any kind. The problem is that other mandatory and 

-advisory standards under the guarding and methods and procedures provisions of the safety standards set forth in Patt 56 governing sand, 

gravel, and crushed stone operations deal with exceptions which 

allow for contradictory and self-defeating application by industry 

and Government enforcement personnel in the field. That situation is 

aggravated by the promulgation of uncommunicated MSHA internal memoranda and policies advising its inspector force as to interpretation, but seemingly leaving those being regulated in the dark. 

Examples 0£ what I believe are some of the somewhat contradictory 

application of the machine guarding requirements are the following: 

In citation 365010 the inspector obviously sought to 

protect a person who would deliberately reach around the 

installed guard and stick his hand into the pinch point. 

The guard which had been installed on the belt in 1973 as 

a result of a prior MESA inspector was apparently deemed 

832 
adequate.by MSHA until the March 1978 inspection which 

resulted in the citation. In issuing the citation, the 

inspector believed the guard should have extended further 

forward to protect one from reaching around it. In such a 

situation, advisor>: standard 56.14-3 would have been more 

appropriate, and the inspector so stated, but since it is 

advisory, he did the next best thing and cited 56.14-1, 

which contains the somewhat loose and ambiguous language 

"which may be contacted * * * ." It seems to me that if the 

Secretary desires to protect someone who would foolishly 

and deliberately reach around an existing guard and stick 

his hand into a belt pinch point, then he should take steps 

to promulgate the advisory standard as a mandatory standard 

so that there is consistent and even-handed enforcement. 

In issuing citation 365010, the inspector relied on a 

"30 inch, arm's length" internal MSHA policy directive 

which apparently had not been communicated to the operator. 

Further, although the existing guard was installed as a 

result of a prior 1973 citation under the very same section 

cited in 1978, the inspector could not state with any degree 

of certainty whether another inspector would again cite the 

operator if he believed the guard needed to be further 

extended. This leaves an operator in a somewhat precarious 

position of not kno~ing what is expected of him from inspection to inspection. 

In citation 367201, the inspector believed the purpose 

of section 56.14-1 is to "remind" persons to shut down the 

equipment before attempting to make belt or scraper adjustments. Since mandatory standards 56.14-29, 56.14-33, and 

56.14-35 all seem to require the shut down of equipment 

before lubrication, cleaning, or maintenance is performed, 

and 56.14-6 requires that the guards be kept securely in 

place while the equipment is being operated except for 

testing,_ I fail to understand why an inspector has to 

resort to section 56.14-1 to achieve what seems to be provided for these other mandatory standards. If the answer 

lies in the fact that the Secretary wishes to guard against 

foolish and deliberate acts of self-mutilation then he 

should promulgate a safety standard to cover that situation, or as a minimum insure that the interpretations and 

applications of pertinent standards are communicated to 

the industry and consistently enforced.· 

In citation 367204, the inspector was concerned over 

the possibility of someone leaning into a belt area while 

attempting to grease a moving belt, thereby exposing himself to the pinch point. Mandatory standard 56.14-35 prohibits .the lubrication of machinery while it is in motion 

833 
unless it is equipped with extended grease fittings or 

cups. Here, the inspector did not know whether such 

grease· fittings were present·, but I venture a guess that 

if they were, he would still have cited section 56.14-1. 

Thus, in this situation, an operator who greases a moving 

belt by means of a grease fitting extending into a walkway 

adjacent to the moving belt, in full compliance with section 56.14-35, would still be subject to a citation under 

section 56.14-1.on the theory that the person performing 

the greasing chores might in some way stand on his toes 

or crawl into the pinch point area of the belt which is 

located a foot or so from the edge of the belt. I have 

some difficulty in comprehending such interpretive and 

enforcement theories, particularly in situations where 

the belt in this case was "protected" by a stop-cord 

which MSHA accepts as an adequate "guarding device" for 

moving belt lines, and which would.stop the belt if 

someone fell against the cord. 

In presenting the rebuttal testimony of the inspectors, it seems obvious that petitioner sought to stress 

the fact that two repairmen were exposed to the hazardous conditions cited by the inspector. The problem with 

this is that the repairmen were apparently performing 

these chores in complete compliance with other applicable 

standards. MSHA's theory simply begs the question and is 

somewhat confusing and contradictory. For example, MSHA 

does not require guards along the entire length of a belt 

line on the theory that belt rollers and idlers do not 

present the same type of pinch point hazard which is 

present at the belt or tail or head where there is 

greater tension on the belt. Thus, in the case of a man 

walking along a loaded, moving belt, tapping and adjusting roller idlers, MSHA accepts a stop-cord or hand rail 

as adequate devices to prevent that man from slipping on 

the walkway and falling through the rail opening against 

the loaded belt and getting caught between the idler roller 

and belt. In response to that precise hypothetical setting, Inspector Worth indicated that stop-cords and handrails are acceptable protective devices, notwithstanding 

the recognized hazard presented. Although he indicated 

that the handrail would prevent the man from falling 

against the belt in that situation, he obviously did not 

consider it to ba ad~te protection at the belt pulley 

location in citation 367201. It seems to me that a pinch 

point present at a belt tail or head where the tension is 

such as to prevent any belt movement is no different from 

a hazard point of view than a loaded belt moving at high 

speed where the load of the moving materials over a belt 

. idler or roller does not allow for belt movement, thereby 

834 
creating a pinch point. Yet the two situations seem to 

be dealt with differently in terms of what is required 

under section 56.14-1. 

During the course of these proceedings, the inspectors alluded to certain MSHA policies concerning applications of the guarding standards. One such policy is the 

"30 inch, or arm length" rule. Another is the "guarding 

by location" rule, and yet another is the policy concerning barriers or handrails which was alluded to by · 

Inspector Smith. The problem with these "rules of interpretation" is that no one seems to know about them except 

the inspector who is issuing citations. It seems to me 

that there should be some better way to promulgate and 

enforce guarding standards which are consistent, direct, 

and understandable, not only to the inspector, but to 

industry people who are expected, and I might add on the 

basis of the record here, willing to comply, and who may 

be subjected to plant closures and civil penalties for 

failing to do so. · 

During the course of these as well as other guarding 

violation proceedings, MSHA's inspectors seem to be relying on generalized and stereotyped conclusions that persons walking or working along a walkway parallel to a 

moving belt are ipso facto placed in a hazardous position since they may inadvertently slip and fall into a 

pinch point at the tail or head pulley, thereby incurring serious or fatal injuries. That is a real concern 

that I share with the inspectors, and from the testimony 

that I have heard in this case, it is a concern shared by 

industry people as well. However, problems arise when an 

inspector attempts to apply these generalized precepts to 

a specific work-environment situation at any given operation without any real ~valuation of all of the prevailing 

facts and circumstances. 

While I accept the fact that a person shoveling around 

an unguarded belt tail pulley may catch his shovel in the 

pinch point, I fail to understand how the inspector can 

conclude that is the case if the evidence shows that no 

such shoveling ever takes place at that location. While I 

accept the fact that a person reaching in to grease a tail 

pulley may become entangled in a pulley pinch point which 

is unguarded, I fail to understand how an inspector can 

reach that conclusion in a given case if he does not know 

whether there is a grease extension present which allows 

for greasing from a safe distance without the need for a 

guard. And, while I share an inspector's concern for the 

protection of a fool who would deliberately place his hand 

835 
into a pinch point, I believe that the only rational way 

to prevent.that from happening is to promulgate a "fool 

safe" safety standard stating that precise.proposition, 

rather than attempting to apply standards which are fraught 

with nebulous exceptions and language that no reasonable 

person can understand. 

ORDER 

On the basis of the foregoing findings and conclusions, the 

following citations are VACATED and the petition for assessment of 

civil penalties, insofar as those citations are concerned, is 

DISMISSED: 

Citation No. 

365010 

367203 

367204 

367205 

Date 

03/29/78 

03/30/78 

03/30/78 

03/30/78 

]0 CFR Section 

56.14-1 

56.14-1 

56.14-1 

56.14-:-1 

On the basis of the foregoing findings and conclusions, the following citations are AFFIRMED, and civil penalties are assessed as 

follows: 

Citation No. Date 30 CFR Section Assessment 

36 7201 03/30/78 56.14-1 $75 

367206 03/30/78. 56.14-1 75 

367207 03/30/78 56 .14-1 75 

367208 04/06/78 56.14-1 90 

Respondent IS ORDERED to pay the .civil penalties assessed in this 

proceeding, as indicated,above, in the total amount of $315 within 

thirty (30) days of the date of this decision. 

/~4~£ti Geo'tge A./foutras /~ /~. -~ 

Administrative Law Judge 

Distribution: 

Ms. Ann Rosenthal, Trial Attorney, Mine Safety and Health 

Administration, U.S~ Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 

Michael T. Heenan, Esquire, Kilcullen, Smith & Heenan, 

1800 M Street, NW., Washington, DC 20036 (Certified Mail) 

Standard Distribution 

836 
FEDERAL MINE SAFETY Ai"'<!D HEAtTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE I.AW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

July 3, 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (HSHA), 

Petitioner 

Docket No. DENV 78-574-PM 

A.O. No. 02-00151-05001 

v. 

San Manuel Mine 

MAGMA COPPER COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

Marshall P. Salzman, Trial Attorney, Department of 

Labor, Office of the Regional Solic.itor, 

San Francisco, California, for the petitioner; 

N. Douglas Grimwood, Esq., Phoenix, 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 on September 25, 

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 

14 alleged mine safety violations issued pursuant to the Act and 

implementing safety standards. Respondent filed a timely answer in 

the proceeding and requested a hearing regarding the proposed civil 

penalties initially assessed for the alleged violations. A hearing 

was held in Phoenix, Arizona, on March 8, 1979. The parties filed 

posthearing briefs, and the arguments presented therein have been 

considered by me in the course of this decision. 

Issues 

The issues presented in this proceeding are (1) whether respondent has violated the provisions of the Act and implementing regulations as allegeJ in the petition for assessment of civil penalties, 

and, if so,. (2) the appropriate civil penalties that should be 

assessed for each proven citation, based upon the criteria set forth 

837 
in section 110( i) of the Act. Additional issues raised by the parties 

are discussed in the course of this decision. 

In determining the amount of a civil penalty assessment, section 

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

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

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

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

attempting to achieve rapid compliance after notification of the 

violation. 

A£plicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164, 

effective March 9, 1978, 30 u.s.c. § 801 !:! ~· 

2. Section llO(a) of the Act, 30 u.s.c. § 820(a). 

3. The rules and procedures concerning mine health and safety 

hearings, 29 CFR 2700.1 ~ ~. 

DISCUSSION 

Stieulations 

The parties stipulated that the respondent is a large mine oper-

· ator, has no history of previous violations; and that any civil penalties assessed by me in this proceeding will not adversely affect 

respondent's ability to remain in business. They also stipulated 

that the inspections referred to in the citations issued· in this 

proceeding did, in fact, occur on the dates indicated and that the 

respondent received the citations (Tr. 4). 

Withdrawal of Citation and Settlement 

Petitioner's motion to withdraw Citation No. 371163, April 13, 

1978, 30 CFR 57.15-3, was granted from the bench and this alleged 

violation is dismissed (Tr. 5). With respect to Citation Nos. 

376625 through 376628, all issued on May 15, 1978, for violations of 30 CFR 57.4-23, petitioner moved to consolidate these into 

one violation and indicated that the parties have reached a proposed 

settlement in the amount of $140 and submitted same for my approval. 

Arguments were heard on the record, and the motion and proposed 

settlement were approved (Tr. 192-196) • 

. With respect to the remaining citations which are the subject 

of this proceeding, testimony and evid_ence was adduced by the parties 

838 
in support of their respective positions and a discussion of the 

citations and the evidence adduced follows below~ 

Citation No.:__1]1113, -April 18, 1978, 30 CFR 57.12-32, states as 

follows: 

Cover plates were not installed on electrical junction 

boxes on 2075 level in panel 27A Rse. Station (pony set) 

1fl3 and panel 27B, Rse. Station (pony set) 114. The boxes 

·were located adjacent the pony set ladderways where they 

could be easily contacted and contained energized circuits 

(wiring). The pony sets were used frequently during shifts. 

Section 57.12-32, provides:. "Mandatory. Inspection and C'-Over 

plates on electrical equipment and junction boxes shall be kept in 

place at all times except during testing or repairs." 

Petitioner's Testimony 

MSHA Inspector Warren C. Traweek testified that he inspected the 

mine in question during various stages in April and May of 1978. He 

described the mine as a multilevel underground operation primarily 

producing cooper, and the minerals are extracted by means of the 

"block caving" mining method. He confirmed that he issued the j unction box citation (No. 371113) during the course of his inspection 

and after discovering the cover plates missing. The junction boxes 

are used to control a system of block or light signals for controlling the haulage train (Tr. 5-9). 

Inspector Traweek indicated that the failure to install the cover 

plates can result in serious injury or even death to an employee if 

he should happen to come in contact with the energized circuits 

inside the junction boxes. Although the boxes were immediately adja-

.cent to the ladderway or passageway, and the area is frequently used 

_during the shift that the block is in operation, he believed that the 

chances of an accident causing an electrical shock to occur was 

unlikely_ since the wiring inside of the junction boxes was wellinsulated and welltaped. He believed the operator should have known 

about the condition because any time that a block is in operation, 

the area is traveled frequently by a supervisor who .is assigned to 

there and his duties would include visits into the pony sets on a 

regular basis. When he pointed out the infraction, the operator 

immediately called an electrician or possibly two electricians. When 

the electrician arrived, he did not have the particular size of junction box cover; however, the plates were installed when he returned 

to the mine a week later, but the inspector did not know when they 

were actually installed (Tr. 9-12). 

On cross-examination, Inspector Traweek stated that he did not 

notice whether the junction boxes were grounded_, and therefore did 

839 
not know whether that fact would have an effect on whether or not 

electricity could be conducted. Had the circuits been energized on 

April 18, 1978, which he believed they were, and had an employee. 

touched such wiring, he could have been injured or killed. Had there 

not been any exposed wiring, it is unlikely or improbable that an 

employee would come into contact with an energized circuit; however, 

it would not be impossible. The junction box was open, and the wires 

appeared to be well-insulated and well-taped, but he would not stick 

his finger in there to see if they were or not. The employee who 

was working in the area was standing on a wooden platform which was 

wet and the wetness of the area would possibly cancel out the insu1.adng effects of the wood (Tr. 12-17). 

Inspector Traweek indicated that the lack of junction box covers 

would cause the insulated wires to become worn over a period of time, 

but he conceded that this would happen anyway in an underground mine 

environment (Tr. 17-18). Although he terminated and abated the notice 

wh~n he returned to the mine on April 11, he does not know when the 

condition itself was abated earlier but believes it was accomplished 

rather quickly. He also indicated that the two junction boxes were 

physically located next to a vertical ladder, which would be the 

access way to the raise station. An individual climbing or stepping 

off the top of the ladder could contact the boxes with an elbow or an 

arm. On a given day, there would be at least two employees assigned 

to the panel and they would go up and down the ladderway numerous 

times during the day. In addition, their supervisor would probably 

be in the raise station from time to time (Tr •. 18-20). 

Respondent's Testimony 

Onofre Tafoya, general haulage foreman, described the junction 

box in question and indicated that it is used as a signaling device 

for the motorman. The boxe·s are grounded to a main feeder that runs 

the length of the whole panel, and they are connected to another metal 

.frame which is also grounded. The wires on the inside of the junction box are taped with rubber tape on the bottom, and with friction 

tape on the top. In the past, there have been p~oblems with keeping 

the covers on the junction boxes because some of the men take them 

off. The condition of the wires inside the junction box was good, 

and they were tucked back up inside the cavity of the box. The only 

thing wrong with them was that the covers were not on them. The 

wooden staging or wooden floor near the junction boxes was damp in 

order to keep the dust down, and the.floor is wet down when men work 

there (Tr. 20-23)~ 

On cross-examination, Mr. Tafoya indicated that the entire box 

is frame grounded and that he assumed that if someone· touched one of 

the live wires they would be shocked but not electrocuted, but he is 

not an electrician and this was his layman's opinion. The voltage on 

the box is 110, but he did not know the amperage (Tr. 24). 

840 
On redirect, he explained that the mine has experienced problems 

in keeping the cover plates on junction boxes generally and that the 

company has-conducted studies as to how to solve the problem, including locking the covers (Tr. 28). The·covers were put back on the 

junction box by the end of the shift in which the citation was issued 

(Tr. 29) • 

Robert L. Zerga, mine superintendent, testified he is an electrical engineer and was employed as superintendent at the time the 

citations issued. He testified with regard to the difficulties of 

maintaining covers on the boxes and stated that the mine had experienced serious problems with vandalism and tampering in that people 

like to remove the screws and take the box covers off. The foremen 

are instructed to be aware of missing junction box covers and a 

six-point check system whereby each man is responsible for locating 

and reporting unsafe conditions is also stressed. In the San Manuel 

Mine, there are approximately 1,800 draw points, and it is very 

difficult to catch anyone tampering with a junction box. Junction 

boxes can be located in various areas and it is extremely easy for 

a car-loader to tamper with one without anyone seeing him. He indicated that a wire that is fully insulated will not shock any one, 

even if he were standing on a wet surface (Tr. 30-32). 

On cross-examin?tion, Hr. Traweek stated that he did not know 

why anyone would-want to remove covers from junction boxes. Although 

one may not receive a shock from an insulated wire, if the insulation 

were worn and defective, a shock is possible and he estimated that 

100-300 junction box covers a year are replaced at the mine (Tr. 32-

36). 

Citation No. 371115, April 27, 1978, 30 CFR 57.3-22, states as 

follows: 

A slab of loose concrete was observed in the back of 

panel 7A between #14 and #15 loading stations (pony sets) 

on the 2375 level. Employees travel through the area 

frequently. A test using a scaling bar was conducted to 

make the determination. 

Section 57.3-22 provides: 

Mandato;rz. Miners shall examine and test the back, 

face, and rib of their working places at the beginning of 

each shift and frequently thereafter. Supervisors shall 

examine the ground conditions during daily visits to 

insure that proper testing and ground control practices 

are being followed. Loose ground shall be taken down or 

adequately supported before any other work is done. 

Ground conditions along haulageways and travelways shall 

be examined periodically and scaled or supported as 

necessary. 

841 
Inspector Traweek testified that he observed the slab of concrete 

described in the citation in the roof between the Nos. 14 and 15 loading stations, and it was 2 feet by 3 feet, but he did not know its 

thickness. It had moved a few inches· from its original position and 

the danger presented is that if the block was to fall or drop, individuals in the area could be injured or possibly killed. The chances 

of the slab falling was improbable, but unless the condition was 

corrected, it could deteriorate due to frequent blasting in the area 

which, in turn, caused ground vibration. 

Mr. Traweek believed the operator should have known of the condition because anytime the level or panel is active, employees·and 

supervisors, would be traveling throughout the drift or tunnel continuously. On a normal shift, two car-loaders and a supervisor would 

be working in the area. The concrete in and around the area was not 

in the best of condition, and he pointed out the condition to the 

operator's representative who was with him on the inspection. Since 

it was not the type of situation that the operator's representative 

could immediately correct himself, they left the area, and he did not 

know when the actual abatement was accomplished, but he believes 

abatement was achieved 2 or 3 days later by removing the block of 

concrete (Tr. 38-42). · 

On cross-examination, Inspector Traweek conceded that at the time 

he viewed the c'"'Ond'ition cited, the concrete block was not loose and 

he could not get it to move. However, sometime in the past when the 

block had broken and become displaced, it was loose and there had 

been movement. Had he known that it would take two men an hour to bar 

the piece of concrete down, he still would have issued the citation. 

Not all ground that is moved in a haulageway creates a hazard, but it 

does involve a judgment call (Tr. 42-L•5). 

On redirect, Mr. Traweek stated that the concrete was located 

in such an area that if it did fall, it could fall on a person. He 

visually observed that it had moved sometime in the past, but he did 

·not know when. Had he been able to move the concrete with a scaling 

bar, he may have issued an imminent danger order. He believed the 

concrete was loose at one time and might move again. The general area 

up and down the whole dip for quite a few feet was fairly bad (Tr. 45-

46) ~ 

On recross, Mr. Traweek testified that he is familiar with the 

phenomenon known as "keying," and stated that it occurs when loose 

material or concrete is keyed in with other pieces of rock or concrete so that it is not displaced totally and forms like a keystone 

in an arch held in place by natural forces (Tr. 47-48). 

In response to bench questions, Mr. Traweek stated that the 

ent{re drift tunnel is supported by concrete. He characterized the 

slab in question as loose in his notice because he believed that at 

842 
some prior time it had shifted, but at the time he tested it with the 

bar, it was firm, and by deterioration, he meant the concrete had 

been in one piece but was breaking up (Tr. 49). He observed the 

condition after it was abated, and the concrete had been removed and 

was laying up against the lefthand side of the rib. The cavity was 

then keyed to the other material and was safe (Tr. 51). 

Respondent's Testimonx 

Mr. Tafoya stated the haulageway tunnel is arch shaped and supported by 18-inch thick concrete with steel c~ps buried in it. Block. 

·caving causes ground movement and keying keeps broken ground in place. 

The areas are cleaned and scaled daily, and when informed of the 

concrete citation, he immediately phoned his haulage supervisor and 

told him to get it fixed promptly. Since he was interested in getting 

the notice abated before Mr. Traweek left the mine, he left for the 

surface of the mine, and after he arrived, he met the haulage foreman 

who told him that it was impossible to remove the piece of concrete. 

In order to remove the concrete, the foreman used a scaling bar as a 

long 5-foot chiesel and Mr. Tafoya used a doublejack, and while the 

foreman was holding the scaling bar, he hit it, and together they 

managed to chip away enough concrete in order to get the piece of concrete to go out one enq. Although he and the foreman worked feverishly for an hour to abate the condition before Mr. Traweek left the 

level, when he tried to locate Mr. Traweek, he had left. However, the 

condition was abated within an hour and a half after it was observed 

by the inspector (Tr. 53-58). 

Mr. Tafoya stated that the general area in which the piece of 

concrete was located was deteriorating, and they had to remove quite 

a few pieces of concrete by scaling and they had shored up with timber 

in other places, although the area from where the piece of concrete 

was removed was never shored up and the cavity from where it came from 

has remained the same and was as safe as it is now (Tr. 58-59). 

In response to question~ from the bench, Mr. Tafoya stated that 

·although Inspector Traweek gave them a day in which to abate the condition, that is, until 8 a.m. the following day, he was anxious to 

have the condition abated before Mr. Traweek left the area, and it is 

normally his practice to have citations abated as rapidly as possible. 

Although he had to pry down the piece of concrete with a chisel and a 

doublejack or sledgehammer, he did not feel that the concrete was 

going to fall out unless the ground movement was going to become 

severe, which it did not (Tr. 60-61). 

Citation No. 371116, May 9, 1978, 30 CFR 57.15-6, states as 

follows: 

·Protective clothing (gloves, etc.) was not provided 

or used during operations requiring contact with, or · 

hand immersion in, Houghton, Houghto-clean 221 solvent. 
Employees frequently contacted or inunersed hands in the 

solvent during regular cleaning operations~ Skin contact warning lables were attached to the solvent (manufacturer's) shipping/ storage barrels. 2075 level car 

ship. · 

Citation Nos~ 371117i 371118, and 371119, May 9, 1978, 30 CFR 57~15-6 

The conditions or practices described in these citations are 

identical to those cited in citation No. 371116, except for the fact 

that they allegedly occurred at different locations, namely, the 

2075 level locomotive shop, the 2375 level car shop, and the 2375 

level drill shop. 

Section 57.15-6 provides: 

Mandatory. Special protective equipment and special 

protective clothing shall be provided, maintained in a sanitary and reliable condition and used whenever (1) hazards 

of process or environment, (2) chemical hazards, (3) radiological hazard~, or (4) mechanical irritants are encountered 

in a manner capable of causing injury or impairment. 

Inspector Traweek testified that he is familiar with the solvent 

known as Houghto-Clean 221, which is a cleaning solvent for machinery 

and machinery parts, and that he observed the solvent at the 2075 car 

shop, the 2075 locomotive shop, the 2375 level car shop and the 

2375 level drill shop. He also observed employees who were working 

in the area engaged in activities w!J.ich required them to inunerse their 

hands in the solvent. These employees were working in maintenancetype shops such as overhaul, cleanup, repair, and underground--type 

shops and they would eventually have to wash parts in the solvent. 

None of the employees at the four locations were wearing protective 

equipment for their hands. According to the manufacturer's label, 

the danger of immersing one's hands in the solvent without gloves or 

·protective equipment is skin irritation. He identified a label taken 

from one of the solvent drums (Exh. P-1). In addition to the warning 

that appears on the label, Inspector Traweek reached the conclusion 

that the solvent could irritate one's hands from a complaint of skin 

irritation from an employee who worked in one of the shops and from 

information supplied to him by the respondent, which was in the form 

of a description of the solvent containing warnings "avoid skin and 

eye contact, may cause irritation on prolonged exposure. In the 

event of skin contact, wash thoroughly with soap and- water" (Exh. 

P-2, Tr. 63-72). 

Inspector Traweek testified that in the four. rooms which he 

inspected, three had no gloves or other protective equipment. In the 

2075 locomotive shop, the shop foreman or possibly the shop leadman, 

indicated that he had protective gloves, but when he asked to see the 

844 
gloves, he could produce only one glove that was dust-coated and had 

obviously not been used. He believed the respondent was aware of the 

conditions because of the manufacturer's label which was attached to 

each drum, the complaint of which it had knowledge, and .because of 

the literature that the company had supplied him with as far back as 

1975 and possibly earlier. He discussed the need for gloves with 

supervisory personnel, but their response was that the reason they 

did not have any gloves was because they have no need for any. He 

estimated that a number of employees are exposed to the solvent 

danger, but that only one employee at a time uses the solvent, and 

in different operations it would be necessary to clean the parts every 

day. He brought the condition to the attention of the safety engineer 

who was accompanying him on the inspection and when he went back to 

abate the notice, the gloves had been provided (Tr. 72-74). 

·on cross-examination, Mr. Traweek indicated that not all individuals are subject to skin irritation if exposed to the solvent. 

With regard to the person who complained about suffering skin irritation, he stated that the person had previously suffered welding flash 

burns which were irritated by exposure to the solvent. He asked 

employees about the use of gloves, and was .told that they were difficult to use because the men had to handle small machine parts. He 

did not talk to the person who complained, nor did he inquire about 

the availability of barrier creams. In addition to the four shops or 

areas previously mentioned, he stopped at a fifth place and gloves 

were provided in that location. In the course of his inspection of 

the rooms, no one in any of the rooms told him that they were in fact 

using protective cream nor did any management personnel ever tell him 

that such cream was being used, and he did not see any protective 

creams (Tr. 74-83). 

In response to questions from the bench, Inspector Traweek testified that al though in only one of the .four locations did he actually 

observe an employee with his hands immersed in the solvent, he did 

observe employees at the other locations engaged in activities that 

.would ultimately require use of the solvent. He did not take a sample 

of any of the solvent or subject it to any chemical analysis, and the 

respondent voluntarily produced information for him regarding the 

danger. involved subsequent to the issuance of his citation. He did 

not know when the conditions were actually abated, but it was possible 

that they were abated earlier than the time he had fixed for abatement. He believed the old advisory st~ndard, 57.15-6, requiring the 

use of gloves to be a better standard than the one cited (Tr. 84-90). 

Reseondent's Testimony 

Clifford O. Hamilton, maintenance planning foreman, testified 

that he is responsible for all plant cleaning solvents, oils, and 

lubricants, and that Houghto-Clean 221 was first used in 1975. Prior 

to that time Houghto-Clean 220 had been used with no complaints about 

845 
skin irritation. Complaints were received when Hougto-Clean 221 began 

being used, and after receiving complaints, he took samples from the 

drum in question and sent the~ to the chemical lab at the plant and 

contacted the manufacturer. Magma Copper's lab could find nothing 

that would cause the degree of burning that was claimed by the complaining employee, and the manufactuer of the solvent stated that he 

felt that it was safe and that it should not have caused any burning 

to the degree of removing hair. The manufacturer thought that it 

had been contaminated with something. Data Sheets received from the 

manufacturer (Exh. R-1) concerning Houghto-Clean 221 indicate that 

when it comes in contact with the skin one should "wash with soap 

and water," and that "local effects upon skin may have a defatting 

effect on sensitive individuals" (Tr. 92-96). 

The results of the Tests conducted on a sample of the solvent 

for a period of 16 hours showed no signs of skin irritation as a 

result of exposure. Gloves are stocked in the warehouse, and barrier 

creams have been available throughout the mine for as long as he has 

been employed there. Because of the citations, the respondent has 

made it mandatory that whenever the solvent is used, employees must 

wear gloves. However, employees complain about wearing gloves (Tr. 

96-101). 

On cross-examination, Mr. Hamilton stated that barrier creams 

are a warehouse item used throughout the ~ine, but he does not know 

whether any such creams were actually on hand in any of the four 

locations cited (Tr. 101-102). 

Citation No. 371120, May 9, 1978, 30 CFR 57.4-2, states as 

follows: 

The Houghton-Clean 221 solvent storage and use area 

in the 2075 level car shop was not provided with a sign 

warning against smoking or open flame. The solvent 

(manufacturer's) shipping/ storage barrels had combustible 

liquid warning labels attached. 

Section 57.4-2 provides: 

smoking and open flames shall 

in areas or places where fire 

"Mandatory. 

be posted so 

or explosion 

Signs warning against 

they can be readily seen 

hazards exist." 

InsEector Traweek testified that Houghto-Clean 221 was used in 

. the 2075 car shop area, and there was no sign in the immediate 

vicinity of the solvent warning. against smoking or open flame in and 

around where the solvent was being used. In his opinion, the solvent, 

if ignited, could cause a fire or explosion, and his conclusion is 

based initially on the manufacturer's warning label attached to each 

drum, which states "Caution. Combustible liquid." "keep away from 

light, heat, spark and open flame." In reaching his conclusion that 

the solvent could cause a fire or explosion if .ignited, he also relied 

on documents provided him by the respondent (Exh. P-2), which state 

846 
that the flash point (undiluted) is 190 degrees F~hrenheit. In addition, the research work in the National Fire Protection Code (Exh. 

P-6), led him to conclude that it is combustible (Tr. 109-113). 

Inspector Traweek stated that he did not know the exact number 

of people exposed to the solvent hazards, but it would most likely be 

one individual at a time, although it could possibly be two. He 

believed that the respondent should have been aware of the existence 

of a hazard due to the manufacturer's label. He further believed 

that the respondent should have been aware of the lack of a sign 

since the shop is generally used on a daily basis on a generally 

busy shift and there are supervisory personnel such as a leadman or 

a foreman in the shop. When he returned to the mine to abate the 

citation, approximately 2 o~ 3 days later, the signs were in place 

(Tr. 114). 

On cross-examination, Inspector Traweek testified that he issued 

the citation because he thought that the solvent was a combustible 

liquid under Class 3-a of the National Fire Protection Code. Class 

3b. combustibles have flash points above 200 degrees, and class 3a are 

between 140 and 200 degrees. He was accompanied on the inspection by 

Mr. Joe Questas, a mechanical foreman of some type, and by Mr. Ward 

Lucas, a safety engineer. He recalls a conversation with a man by the 

name of Meier, who was the foreman of another locomotive shop and who 

told him that solvent was used straight from tlle barrel without dilution. He recalls from his notes a conversation with Mr. Davis about 

the issue of protective clothing but he does not recall a- conversation 

with Mr. Davis about the fact that the solvent was used in a solution 

with water in the place cited (Tr. 114-119). · 

In response to questions from the bench, Inspector Traweek stated 

that he did not take a sample of the solvent nor did he subject it to 

testing because he relied on the word of one of the shop supervisory 

personnel, and ·the manufacturer's' label and letter that the product 

worked best undiluted. The solvent that he found in the area that he 

cited was not in a no-smoking posted zone. He did not observe anyone 

·smoking in the area. It is general practice in the mine to transfer 

thi.s particular solvent from 55-gallon drums into the cleaning bin 

itself, but he did not know the procedure that is followed in disposing of it (Tr. 121-124). 

Respondent's Testimonx 

William J. Brinkman, chief industrial hygienist, .defined the 

term "flash point" as the temperature at which a given liquid or 

solvent is warm enough so as to give off a sufficient concentration 

of vapors above its surface so as to support combustion if the vapors 

pass over an open flame. The fire hazard that is.posed by a liquid 

is created by the evaporation of the liquid, i.e., by the fumes that 

are given off by the evaporation. A sample of the solvent was taken 

847 
at the mine and he submitted it to Magma Copper's Technical Services 

Laboratory and they arrived at a flash point ·of 205 degrees Fahrenheit. 

The Houghton 221 solvent which is used at the mine is Class 3-b 

according to the standards of the National Fire Protection Agency 

(Tr. 125-129). 

On cross-examination, Mr. Brinkman testified that he did not 

know where the sample that was tested came from, but he submitted it 

on July 6, 1978, the same day it was delivered to him. Any given 

amount is guaranteed by the manufacturer not to be below 190 degrees, 

but between 190 and 200 or above (Tr. 129-130). 

Citation No. 376608, May 10, 1978, 30 CFR 57.11-12, 3tates as 

follows: "The chain guard was not secured in place across the 3-D 

shaft compartment opening on the first deck (work deck) below the 

main head sheave deck. The hazard observed was over 100 feet above 

the ground on the 3-D head frame." 

Section 57.11-12 provides: "Mandatory. Openings above, below, 

or near travelways through which men or-;aferials·may fall shall be 

protected by railings, barriers, or covers. Where it is impractical 

to install such protective device:;, adequate warning signals shall be 

installed." 

MSHA inspector Chester A. Pascoe testified that he issued the 

citation on the head frame which is used to support the head pulley 

or head sheaves over which the hoist rope travels down the shaft to 

be hooked to a hoisting device used for men and materials. He 

identified Exhibit P-7 as a photograph of such a typical head frame. 

He observed an opening into the shaft compartments off the work 

deck, and it was not protected by a railing, barrier, or cover since 

the safety chain that had been provided to span the opening to keep 

people fr.om falling down into it was down and buried in 2 to 3 inches 

of rope dressing and grease, etc., on the work deck floor. He con-

·sidered this area to be a travelway because one has to cross the 

opening to get to the far side of the head frame in order to perform 

maintenance and inspections, etc. The purpose of the chain is to 

prevent a person from accidentally walking or falling off into the 

shaft compartment which is over a 2, 000-foot drop and is similar· to 

an elevator shaft. The chain is fixed between the pipe rails around 

the shaft compartments. The likelihood of someone falling into the 

opening is very improbable since the area is not frequently traveled 

and those persons who do frequent the area come there. for a specific 

purpose. Maintenance and supervisory personnel usually travel through 

the area several times a year, and at any given time not more than 

one person is exposed to danger. The operator should have been aware 

of the condition since it is an obligati~n of a s~pervisor to inspect 

the work areas, and if this had been done, he· would have discovered 

848 
that the chain was down. When the condition was pointed out, a man 

was brought down immediately and the chain was dragged out of the 

grease and hung back up on the hook (Tr. 132-139). 

On cross-examination, Mr. Pascoe identified a reasonable sketch 

of the work deck area which he cited (Exh. R-2), and he indicated 

that people would have reason to be on the walkway of the A-frame to 

clean up, and on the day he was ther~ pipe and wood was lying on the 

walkway, and he observed people there who had come to abate another 

citation concerning the cleaning of head frames. In addition, a 

person or supervisor inspecting the head frame would also have reason 

to be there. 

In the normal course of business, mechanics are assigned to the 

deck, which is approximately 100 feet in height, to work on cages, 

skips, etc. While he was in the area, there were no employees working around the openings, and he could not state whether anyone was 

assigned to wOrk there on a regular basis. He did see foot prints on 

the rope dressing on the platform which indicated to him that people 

had been in the area. He did not believe that there would be any 

employees being transported up and down the hoisting compartment on 

a regular basis, and he did not kn.ow how frequently employees come up 

to the deck. He did not observe anyone performing any work in any 

place on the deck other than in connection wit~ another citation that 

he had previously issued. While the hoist compartment is not a walkway, the walkway where people have to travel is. Employees who are 

there can tie off their safety belts on the handrails. Maintenance 

people would have occasion to come up to the deck to maintain guides 

and the majority of the work could be done from the top of the skip 

(Tr. 139-146). 

In response to bench question!_, Mr. Pascoe stated that the chain 

was installed, but one end was uncoupled and dropped down and the 

chain is a railing barrier or cover since it is permanently connected 

on one end and hooked on the other, and it was simply unc0upled (Tr • 

. 147-148). 

Respondent's Testimonz 

Mr. Robert L. Zerga testified there are two means of access to 

the head frames, one up a hoist or elevator and the other up a 

ladderway. Persons employed as riggers would have occasion to use 

the deck. 

With respect to Exhibit R-2, he knows of no normal maintenance 

function that is performed at the far end of the grading. This is 

not the type of place to which an employee would stray, and there 

is nothing in the area of the platform that is normally inspected. 

Regarding cleanup of the deck, his basic policy is not to clean up 

849 
the area unless it is to be used for some specific purpose, and 

persons working on the frame decks must be hooked up by tag lines 

(Tr. 150-154). 

On cross-examination, Mr. Zerga stated that the only machinery 

on the platform in question is the skip compartment and skip guides, 

and there is nothing there that would normally be inspected. As far 

as any cleanup is concerned, the only things cleaned would be rope 

dressing or dust and dirt, and people would not go to the area to 

· clean those materials unless materials were brought to the area on 

the skip, and that would be cleaned as a basic thing (Tr. ·154-155). 

Citation No. 377966, Max 11, 1978, 30 CFR 57.12-20, states as 

follows: "The hoist systems office electrical control center was not 

provided with a 'like potential' (insulating mat). The control center 

was exposed to the elements (weather conditions)." 

Section 57.12-20 provides: 

Mandato~. Dry wooden. platforms, insu : .. ing mats, 

or other electrically nonconductive material shall be 

kept in place at all switchboards and power-control 

switches where shock hazards exist. However, metal 

plates on which a person normally would stand and which 

are kept at the same potential as the grounded, metal, 

non-current-carrying parts of the power switches to be 

operated may be used. 

MSHA inspector Clarence Ellis, testified he has been so employed 

for about 3 years nnd formerly worked for Magma Copper as an underground mine supervisor. He is not an electrician but has taken most 

of the MSHA electrical courses and is taking correspondence courses 

from the Beckley Mine Safety Academy. Three years ago he trained for 

about 3 months with an electrical inspector. He inspected the hoist 

systems electrical control center on May 1, 1978, and described a 

·typical load center as "a spot at any mining property where you would 

have a group of switches grouped in one spot." The location cited 

was basically a group of switches located outside at one spot in the 

open and the spot where an operator would stand to operate the 

switches was not provided with a wooden platform or insulating mat 

and a person would be standing on the earth when he touched the 

equipment. Such a situation presents an electrical shock hazard 

because the potential between the person touching the. switching gear 

and the gear itself would be different. Normally, the potential 

·should be the same. He defined the term "different potential" as 

follows: 

Potential on -- in electrical people -- when 

electrical people are using the term potential, potential 

means a difference in voltage bet'ween two ·(2) points. You 

850 
might have, say on this desk if it was made of metal and 

that desk was made of metal, you might have two hundred 

and twenty (220) volts on this desk and one ten (110) on 

that desk and you would definitely have a difference in 

potential between the two. If the two were connected to 

two (2) separate grounding systems and you contacted both 

of them at the same time, you would receive a shock at 

that point if there were unplanned currents on the equipment at that. time. 

Inspector Ellis indicated that unplanned currents, or a short, 

~ould be required to result in the shock condition he described, and 

the resulting injury from any shock would depend on the voltage and 

amperage involved. Most people standing on the bare earth and 

receiving a shock would probably die. However, he had no idea of the 

amperage involved in the switching gear in question but was told by a 

Mr. Lucas from the company's safety department that it ranged from a 

low of 110 volts to a high of 480 volts. The KVA, or kilovolt rating 

of the transformers supplying the power to.the load center would 

determine the actual amperage, but this can only be determined by a 

physical test. However, if one light bulb were burning in the building it is likely that at least one amp would be flowi~g through the 

switching gear. He doubted whether anyone cou~d survive one amp of 

current. He believed that an insulating mat placed in front-of the 

load center would insulate one from a shock hazard. However, the 

hazard would only be presented if the phase went to ground, and an 

insulating mat would insulate a person from the earth (Tr. 156-165). 

Jnspector Ellis testified that the chance of a shock hazard was 

small and that a hazard would only exist if the equipment malfunctioned 

at the precise time someone was touching it while standing on the 

earth without an insulation device. One person would be exposed to 

the hazard. He believed that the respondent should have been aware 

of the condition cited because it was located near a building where 

the mine superintendent and supervisors had offices and they would 

walk by the load center while going in and out of the building. An 

insulating mat was installed when the condition was pointed out (Tr. 

166-167). 

On cross-examination, Inspector Ellis testified that he did not 

determine whether there was in fact a difference in potential present 

but simply knew that there was such a difference in potential between 

the earth and the grounding system of the plant. When asked how he 

knew this he said--"It's just a matter of fact.*** I know it is." 

However, he had no knowledge of the plant grounding system, but indicated that the resistance to the ground anywhere on the property was 

25 ohms. He did not know the earth resistence and made no te-st to 

determine it (Tr. 168-170). 

851 
In response to questions from the bench, Inspector Ellis testified that he did not know the specific equipment supplied by the load 

center in question and did not go instde the office trailer house in 

question. The load center consisted of 7 or 8 switch boxes which he 

believed controlled more than the office. The switch boxes were of a 

square D-type, approximately 12 x 18 x 6 inches, with three fuses to 

each box. From his experience, someone touches every electrical 

switch box on mine property at least once a week. He did not recall 

·precisely when the condition was abated (Tr. 172-173). 

Respondent's Testimony 

Mine superintendent Robert Zerga, an electrical engineer, testified that he is familiar with the electrical system in question and 

he identified Exhibit R-3 as a schematic of the electrical control 

center in question. He discussed the different safety features 

installed on the center and stated there was no electrical energized 

circuit with which a person could accidentally come in contact. 

Everything that can be touched is grounded to earth by means of 

copper grounding going to the central grounding system. He stated 

t.hat in order for an electrical potential to occur, the ground wire 

would have to be lost and a current carrying conductor would have to 

come in contact with a metal enclosure. The system which was 

installed at the time of the citation is perfectly acceptable by the 

National Electrical Code, and he believed the citation issued because 

of a complete misinterpretation.of the standard by the inspector. He 

described the plant grounding system, and he stated that the potential hazard described by Inspector Ellis would not exist provided the 

grounding system was intact {Tr. 176-181). 

On cross-examination, Mr. Zerga testified that as long as the 

ground wire is intact, even though defective, it will function as a 

ground. The plant ground wire system is checked annually under 

Federal law and it was checked and found to be intact after the 

citation issued. He reiterated that two events would have to occur 

for a hazard to exist, namely, the loss of the ground and a short 

circuit, and this was a very small possibility (Tr. 181-182). 

In res~onse to bench question_!, Mr. Zerga testified that one 

would approach the power center and simply pull a switch to turn it 

off and the switch is insulated from the power conductor. The control 

center provides power for the trailer house for lighting, a heater, 

and a fan for cooling in the summer (Tr. 183). Inspector Ellis 

indice.ted that the power center was waterproofed and well-insulated 

(Tr. 190). 

852 
Findings and Conclusions 

Fact of Violation--Citation No. 371113, 30 CFR 57.12-32 

I find that the preponderance of the evidence adduced in this 

case supports a finding of a violation of section 57.12-32 as charged 

in the-citation. Although respondent's evidence indicates that mine 

employees are apparently tampering with the cover plates, that fact 

may not, in my view, serve as an absolute defense. The standard 

requires that cover plates be kept in place at all times except during testing or repairs, and respondent's evidence does not rebut. the 

fact that the cover plates cited were not so maintained. The citation is AFFIRMED. 

Gravity 

Petitioner conceded that since the wires inside the uncovered 

junction boxes were insulated and taped, the chances of any electrical 

shock occurring under the conditions as they existed at the time of 

the inspection were small. Respondent's evidence establishes that 

the junction boxes in question were grounded and that the wires were 

well~insulated and that an electrician was irrnnediately called and 

the covers were put back on th~ boxes by the end of the shift. While 

it is true that deterioration may occur if covers are left off the 

boxes over an extended period of time, there is no evidence as to how 

long the covers were off and there is no evidence that any of the 

wiring inside the boxes was in other than good condition and not wellinsulated. In the circumstances, I conclude that the conditions as 

cited were nonserious. 

Negligence 

From the evidence and testimony presented by the respondent, it 

would appear that there is a problem in the mine with employee tampering and vandalism connected with the removal of electrical junction 

'box covers. I fail to understand why an employee would want to jeopardize his safety and the well being of his fellow workers by engaging in such conduct. In any event, under the circumstances here 

presented, I find that the respondent did everything reasonable, short 

of stationing a supervisor at each junction box location, and petitioner has not established that the missing box covers should have 

been discovered earlier by supervisory personnel. Although the 

inspector testified that supervisors generall)'. are in. the area, he 

did not specifically establish by any credible evidence that the 

cover plates were missing early in the shift, or that any supervisor 

passed through the area and should have seen them. In the circumstances, I cannot conclude that the conditions cited resulted from 

any negligence on the part of the respondent. 

853 
Good Faith Compliance 

The record supports a finding that respondent exercised rapid 

abatement in achieving compliance and that fact is reflected in .the 

penalty assessed for this citation. 

Fact of Violation--Citation No. 371ll5, 30 CFR 57.3-22 

The citation charges that a slab of loose concrete was observed 

at one of the loading station areas of the mine and that a scaling 

bar was used to test and determine that the concrete was loose. Sec~ 

tion 57.3-22 requires examinations of the ground conditions to insure 

that proper testing and ground control practices are followed, that 

ioose ground be taken down or adequately supported, and that ground 

conditions along haulageways and travelways be periodically examined 

and scaled or supported as necessarry. In this case, the inspector 

admitted that the piece of concrete in question was not loose at the 

time he observed the condition and that he could not get it to move. 

He. indicated the chance of the concrete falling was improbable and 

respondent's testimony indicates that the concrete slab had keyed in 

with other materials and was thus stabilized and that it took two 

men an hour or so of working to punch the slab out. Under the circumstances, I fail to understand how the inspector concluded that 

the concrete was loose and that he determined this by testing. The 

evidence adduced establishes exactly the opposite. I find that petitioner has failed to establish a violation as charged on the face of 

the citation and Citation. No. 371ll5 is VACATED. 

Fact of Violations--Citation Nos. 371116 through 371119, 30 CFR 

57:15-6 

I find that the petitioner has established a violation of section 57 .15-6 as charged in the four citations. 'While the term 

"chemical hazards" may not be the best way to describe the hazards 

involved when employees use cleaning solvents without protective 

_gloves, I conclude it is broad enough to cover the conditions cited 

in this instance. Al though Safety Standard 5 7 .15-9, which provides 

for the wearing of protective gloves by employees handling materials 

which may cause injury, appears to be a better standard for application on the facts presented here, that standard is not mandatory 

but simply advisory. This is a reocurring problem that is best left 

to the scrutiny of the Secretary as part of his enforcement authority. 

I agree with the petitioner's arguments that substances strong enough 

to clean tools and machine parts will cause irritation and eventual 

harm to the naked skin and that the manufacturer's label and respondent's admi.ssi.ons that sensitive individuals would be susceptible to 

defatting of the skin or irritation, attest to that fact. The extent 

of such exposure, insofar as the degree of injury·incurred, is a 

matter connected with the gravity of the situation presented and may 

not serve as an absolute defense to the citations. In addition, 

854 
although respondent's evidence and testimony makes reference to the 

general availability of protective barrier creams and the fact that 

protective gloves are a normal warehouse stock item, respondent's 

evidence does not establish that these protective materials were, 

in fact, available at the locations cited and the inspector testified that he observed none on hand at the locations cited. All 

four citations are AFFIRMED. 

Gravity 

I find that the evidence adduced in support of the citations does 

not establish that the conditions cited posed any grave threat to 

the safety or health of any miners at the time of the citations. The 

inspector saw no one immersing his hands in the solvent, and while 

it would have been desirable to take a sample to determine by chemical 

analysis the actual chemical content of the solvent and the danger 

posed by its exposure to the skin, the inspector did not do so. At 

best, the evidence establishes that exposure to the solvent in question would cause "dishpan hands." Although it may be true that continued contact with the solvent over a period of time may result in 

greater har~, there is no evidence to establish the length of time 

the employees were exposed to the solvent, nor has there been any 

testing by MSHA of the solvent to determine how it may affect someone through continued and sustained exposure. Under the circumstances, I find that the conditions cited in the citations in question were nonserious. 

Negligence 

The evidence establishes, and I find, that the respondent failed 

to exercise reasonable care to prevent the practices cited which 

caused the violations. The testimony and evidence adduced establishes 

to my satisfaction that the respondent had received some early warning 

signs from at least one employee that the solvent in question was 

·causing some problems, and notwithstanding the fact that the solvent 

caused some irritation to a preexisting condition unrelated to the 

use of the solvent, the respondent should have taken steps to insure 

that barrier creams or gloves were provided and made available to 

employees at the particular shop locations in question. Under the 

circumstances, I conclude that respondent's failure.to exercise reasonable care in the circ~~stances constitutes ordinary negligence. 

Good Faith Compliance 

The record supports a finding that respondent achieved rapid compliance once the citations issued and this fact is reflected in the 

civil penalties assessed by me for these citations. 

855 
Fact of Violation--Citation No. 371120, 30 CFR 57.4-2 

It is c_lear from the evidence presented that respondent failed to 

post the required sign warning against smoking or open flame. Section 57.4-2 requries the conspicuous posting of such signs in places 

or areas where there are fire or explosion hazards. The critical 

question presented, therefore, is whether the petitioner has estab-

' lished that the Houghto-·c1ean 221 solvent presented a fire or explosion hazard. In order to answer that question in the affirmative, 

.there must be some evidence that the solvent in question was, in fact, 

combustible on the day the citation issued. Petitioner re.lies on 

several 1975 letters and the 1975 manufacturer's specifications in 

support O"fi'ts conclusion thatt:he solvent flashpoint and its use in 

an undiluted fashion on the day the citation issued renders it combustible. The fact that the solvent is generally used in undiluted 

form cannot serve as a basis for establishing that it was so used on 

May 9, 1978, when the citation issued. .In addition, the fact that 

the 1975 specifications refer to the undiluted flashpoint as being 

190 degrees Fahrenheit cannot serve as a basis for establishing that 

this was the case in 1978 at the time the citation issued. 

In this case, the inspector relied on the 1975 letters and 

specifications regarding the solvent flashpoint-and' a label cautioning that the solvent was combustible and should be kept away from 

heat, spark, or open flame. However, he failed to take a sample of 

the solvent to determine its flashpoint or whether it was, in fact, 

combustible or being used in diluted form. Although the inspector 

recalled that nomeone had told him that the solvent was used in 

undiluted form and that this was the general practice, no credible 

testimony was produced by the Petitioner to support such a conclusion. I simply fail to understand why no one took any samples of the 

solvent to determine its physical properties on the day the citation 

issued. In my view, reliance on speculative information 3 years 

prior to the event in question, and reliance on self-serving statements by both parties with respect to whether the solvent in ques-

.tion was, in fact, combustible or hazardous, simply is not sufficient 

to establish that question. Since the petitioner has the burden of 

proof in this proceeding, it is incumbent on an inspector to at least. 

establish that the solvent in question was combustible. Based on the 

evidence adduced by the petitioner in support of this citation, I 

cannot conclude that petitioner has established this fact by a preponderance of any credible evidence. Under the circumstances, I find 

that the violation has not been established and the citation is 

VACATED. 

Fact of Violation--Citation No. 376608, 30 CFR 57.11-12 

The evidence adduced establishes that the chain guard which was 

installed at the work deck of the head frame in question was not 

hooked across the opening, and respondent does .not dispute this fact. 

856 
Petitioner maintains that the "passage" or area cited by the inspector, as depicted in the sketch on Exhibit R-2, was regularly used and 

designated for persons to go from one place to another, even though 

travel was admittedly infrequent.· Petitioner also maintains that the 

frequency of travel is relevant only to the penalty and not to the 

existence of the citation. 

Respondent maintains that the petitioner has not established that 

the area cited, some. 100 feet above the groun9 on a platform, was a 

. travelway within the meaning of the cited standard or the definition 

of travelway as set forth in section 57.2. Respondent also points to 

the fact that the inspector observed no one performing ma1ntenance on 

the platform, did not know whether employees were assigned there on 

a regular basis, and had no idea how frequently employees came up to 

the deck. Further, respondent maintains that it has established that: 

the only maintenance performed at the cited location is the changing 

of hoist guides and scrolls and that when this occurs employees are 

required to be hooked up with safety lines, that no normal maintenance 

is performed at either end of the platform cited, it is not the type 

of place where an employee would go to take a break, and that 

employees would not go on that platform any more often that most 

people would go to the top of the roof of their homes. 

The term "travelway" is defined by section 57.2 as "a passage, 

walk or way regularly used and designated for persons to go from one 

place to another. 11 Since the cited standard uses the word 11 travelway,11 petitioner must establish that the area cited was, in fact, a 

travelway within the meaning of the definition. After careful consideration of the evidence adduced and the arguments advanced by the 

parties, I conclude and find that the respondent, on the facts presented here, has the better part of the argument and petitioner has 

not established that the work platform some 100 feet above the ground 

and which is used infrequently, is a travelway. Here, Inspector 

Pascoe admitted that maintenance personnel went to the platform 

"several times a year" and the likelihood of anyone falling through 

.the opening cited was improbable since the area is not frequently 

traveled. Further, he saw no one working there, did not know whether 

employees were assigned there on a regular basis, did not believe 

that employees were transpc"·ted up and down the hoisting device on a 

regular basis, and indicated that the majority of any maintenance 

work on the platform could be performed from the top of the skip. 

Under the circumstances, I fail to understand how he could conclude 

that the work platform was a travelway regularly used and designated 

for persons to go from one place to another. I believe the intent 

of the standard is to protect miners, who on a regular and frequent 

basis, use designated travelways for movement to and from their 

regular duty stations or who use such travelways on a regular basis 

while moving in and about the mine. The facts on which this citation was issued suggest the inspector sought to protect someone 

working on the platform from falling through t~e unchained opening. 

857 
Even so, the standard cited does not lend itself to the factual 

setting which prevailed on the day the citation issued. The standard 

required railings, barriers, or covers, and I fail to.understand how 

a hooked chain can be considered as such. In the circumstances, it 

would appear that the standard is intended to apply to a working 

place rather than to a travelway, notwithstanding petitioner's 

assertion at page 6 of its brief that the use of a chain establishes 

an inference that an opening some 100 feet in the air at the edge 

of a platform is a travelway. 

In view of the foregoing, I find that petitioner has failed to 

establish a violation of the cited standard. If the Secretary desires 

to afford protection to persons working on elevated platforms, he 

should promulgate a safety stand~rd covering such situations rather 

than·attempting to rely on a loosely worded and vague standard. It 

seems to me that the inclusion of the term "working place" as part of 

section 57.11-2 would cure the problem that I have with language 

which I believe simply does not fit the facts presented. The citation 

is VACATED. 

Fact of Violation--Citation No. 377966, 30 CFR 57.12-20 

The standard cited requires that dry wooden platforms, insula~ng 

mats, or other nonconductive materials be kept in place at power control switches where there is a shock hazard. Based on the preponderance of the evidence adduced, I find that petitioner has established 

a violation of the cited standard, and I agree with the arguments 

advanced by counsel on page 6 of his brief in support of the citation. Respondent's testimony and arguments in support of the citation go to the question of gravity rather than to the existence of a 

violation. Although the inspector who issued the citation failed to 

make a detailed evaluation of all of the prevailing conditions, i.e., 

voltage, amperage, grounding system in. use, etc., these factors -;eTgh 

on the seriousness of the violation rather than on the question of 

whether there was .a violation. 

The standard cited is intended to guard against shock hazards 

and ~~hile respondent's testimony established the extreme unlikelihood 

of an accident occurring because of the grounding system and other 

protective measures taken to prevent such an occurr~nce, the fact is 

that respondent concedes that a shock hazard would exist in the event 

of an unplanned surge of current or in the event of a loss in the 

grounding system. Further, I am not convinced that respondent has 

established that the absence of the required insulating material 

would make no difference if those events were to occur. I find that 

the petitioner has established through credible evidence and testimony 

that the use of the required insulating materials placed at the 

power control center location would, in fact, provided the required 

protection afforded by section 57.12-20. The citation is AFFIRMEO. 

858 
Gravity 

Although electrical shock ha~ards are serious as a general rule, 

on the facts and evidence adduced in this case, I cannot conclude that 

the conditions cited constituted a serious violation. The gravity of 

the particular condition cited must, in my view_, be weighed on all of 

the conditions which prevailed at the time of the citation, including 

a realistic appraisal of the potential for an accident or hazard 

occurring. Here, petitioner concedes that the respondent has pre-

· sented convincing evidence that there was little chance of the hazard described by the inspector occurring. The grounding system was 

intact and operational, and the other safeguards described by respondent's witnesses were in place and in the circumstances, I find that 

the condition cited was nonserious. 

Negligence 

I find that on the facts presented, respondent should have known 

of the potential hazard in the event of a loss of the grounding system 

and possible change in the current-carrying capacity of the system in 

question. Failure to provide the proper insulating material for. persons who are required to approach and use the power center, par;;icularly at its location outdoors, was a potential hazard of which I 

believe the respondent should have been aware. In the circumstances, 

I find that the respondent failed to exercise reasonable care to prevent 

the violation and that this amounts to ordinary negligence. 

Good Faith Compliance 

The record reflects that the respondent provided the insulation 

mat as soon as the infraction was cited and this demonstrates rapid 

good faith compliance which I have considered in assessing the penalty for this citation. 

Size of Business and Effect of Penalties Assessed on ResEondent's 

-Ability EORemarn-in Business 

The parties stipulated that respondent is a large mine operator 

and that a.ny civil penalties assessed by me for the proven citations 

will not adversely affect its ability to remain in business. This 

is accepted and incorporated as my findings on these issues and the 

findings in this regard are reflected in the civil penalti~s assessed 

by me in this proceeding. 

History of Prior Violations 

The parties stipulated that respondent has no prior history of 

citations and I accept this stipulation as my finding on this issue 

and "this is reflected in the civil penalties assessed by me in this 

proceeding. 

859 
Dismissal of Citation 

Petitioner withdrew its petition for assessment of civil penalty 

with respect to Citation No. 371163, April 13, 1978, 30 CFR 57.15-3, 

and the citation was dismissed from the bench. 

Citation Nos. 376625 through 376628, issued on May 15 and 16; 

1978, all cited violations of 30-CFR 57 .4-23, for failure tp maintain 

or inspect several fire hoses which were located at four different 

mine areas. The inspection tags attached to the hoses contained 

notations that they were last inspected in 1974 and 1975. 

Section 57 .4-23 provides: "Mandatorz. 

which is provided on the mine property shall 

read{ly accessible, plainly marked, properly 

periodically. Records shall be kept of such 

Settlement 

Firefighting equipment 

be strategically located, 

maintained, and inspected 

inspections." 

On motion by the petitioner, Citation Nos. 376625 through 376628, 

for infractions of 30 CFR 57.4-23 were consolidated into one violation and petitioner's motion for approval of a settlement in the 

amount of $140 for the violation was approved by me from the bench 

after arguments in support of the motion were heard on the record. 

Petitioner pointed out that the citations were issued because the 

fire extinguishers were not being inspected periodically as required 

by the standard. The standards for such inspections as set forth by 

the National Fire Protection Association, as interpreted by MSHA with 

respect to section 57.4-23 were at odd-s with the interpretation placed 

on that standard by the respondent. However, an agreement was reached 

as to the proper interpretation, and petitioner asserted that what 

should have been cited was a lack of a "procedure" for inspecting such 

fire extinguishers, and that theoretically, some 200 fire extinguishers 

could have been cited but that could prove to be "overkill" (Tr • 

. 191-194). None of the extinguishers were defective, and the thrust 

of the citations was the fact that the inspection tags failed to 

reflect the frequency of inspections. 

Conclusion 

On the basis of the foregoing findings and conclusions, and 

after full consideration of the criteria.stated in section llO(i) 

of the Act, respondent is assessed the following civil penalties 

for the citations which have been established: 

Citation No. 

371113 

371116 

371117 

Date 

04/18/78 

05/09/78 

05/09/78. 

30 CFR Section 

860 

57.12-32 

57.15-6 

57.15-6 

Assessment 

$100 

75 

75 
371118• 

371119 

377966 

05/09/78 

05/09/78 

05/11/78 

57.15-6 

57 .15-·6 

57.20-20 

75 

75 

125 

Citation Nos. 371115, 371120, and 376608 are VACATED, and the 

petition for assessment of civil penalty insofar as those citations 

are concerned, is DISMISSED. Citation No. 37ll63 is likewise DISMISSED on motion by the petitioner. 

Consolidation of Citation Nos. 376625 through 376628, all charging a violation of 30 CFR 57.4-23, and all issued on May 16, 1978, is 

APPROVED, and the settlement proposed by the parties in this regard, 

whereby respondent agrees to pay a civil penalty in the amount of 

$140, is APPROVED pursuant to 29 CFR 2700.27(d). 

ORDER 

Respondent IS ORDERED to pay the penalties assessed in this proceeding, including the settlement approved, as indicated above, in 

the total amount of $665 within thirty (30) days of the date of this 

decision. 

Distribution: 

f!/~ ti,!/~ ~d:,~:JtKou't(~~~ Administrative Law Judge 

Marshall P. Salzman, Attorney, U.S. Department of Labor, Office 

of the Solicitor, 3247 Federal Building, 300 North Los·Angeles 

Street, Los Angeles, CA 90012 (Certified Mail) 

N. Douglas Grimwood, Esq., Twitty, Siev"~ight & Mills, 

1905 Townehouse Tower, 100 West Clarendon, Phoenix, AZ 85013 

(Certified Mail) 

Standard Distribution 

861 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

July 3, 1979 

SECRETARY OF LABOR, Application for Temporary 

on behalf of PERRY R. BISHOP, Reinstatement 

Applicant 

v. Docket No. KENT 79-161-D 

MOUNTAIN TOP FUEL, INC., No. 4 Surface Mine 

Appearances: 

Before: 

Respondent 

DECISION AND ORDER 

Thomas P. Piliero, Esq., Office of the Solicitor, 

U.S. Department of Labor for Applicant 

Herman W. Lester, Esq., Combs and Lester, P.S.C., 

Pikeville, Kentucky, for Respondent 

James A. Broderick, Chief Administrative Law Judge 

On June 18, 1979, the Applicant filed an application for temporary 

reinstatement of complainant Perry R. Bishop to the position with Respon 

dent from which he was terminated. The application was supported by a 

finding of the Secretary that the complaint was not frivolously brought. 

On the basis of the Application and the Secretarial finding, I 

issued an order on June 19, 1979, that Complainant Perry R. Bishop be 

reinstated to the position from which he was terminated. immediately upon 

receipt of the order by Respondent. 

On June 22, 1979, Respondent filed a response to the Secretarial 

finding and a motion to dismiss the application or to assign the action 

for immediate hearing. The Response averred that the complaint was 

frivolously brought. 

On June 29, 1979, the case was called for hearing before me in 

Washington, D. C., pursuant to notice issued on June 25, 1979. The sole 

issue at the hearing was whether the Secretary's.finding that the complaint was not frivolously brought was justified. 

Respondent renewed its motion to dismiss and after hearing argument, 

I denied the motion. 

David Childers and Larry Adkins testified on behalf of Respondent. 

Perry R. Bishop testified on behalf of Applicant. Charles O. Webb, a 

special investigator for the Mine Safety and Health Administration, was 

called as a rebuttal witness for Respondent. 

862 
Much of the testimony on behalf of both Respondent and Applicant 

was concerned with the merits of the case, i.e., whether complainant's 

discharge was justified or was the result of activity protected under 

the Act. The term "frivolous" is defined as: "1. Unworthy of serious 

attention; insignificant; trivial • • • • 2. Marked by flippancy; 

silly or gay • • • • " 1./ There is no evidence in the record which 

would support a finding that the complaint here was frivolous in any of 

the meanings of that term. 

I therefore upheld from the bench the Secretary's finding that the 

complaint was not frivolously brought, and I hereby confirm that finding. 

On the basis of the testimony at the hearing and the contentions of 

the parties, I issued an order from the bench renewing my order of 

temporary reinstatement and I confirm that order herein. 

Respondent is hereby ORDERED to temporarily reinstate Perry R. 

Bishop effective June 22, 1979, to the position from which he was terminated or to a comparable position at the same rate of pay and with the 

same or equivalent work duties as were assigned to him immediately prior 

to his termination. 

This order shall remain in effect pending further order of the Commission or Commission Administrative Law Judge in this case. 

i £l I . './! C:U·~ ,,4/._;-' 1-?;?d-.e."Fla(__,_ 

James A. Broderick 

Chief Administrative Law Judge 

1./ The American Heritage Dictionary of the English Language (New 

College ed. 1969), 528. 

Distribution: By certified mail. 

Mr. Larry G. Adkins, President, Mountain Top Fuel, Inc., Route 2, Box 

258G, Pikeville, KY 41501 

Mr. Perry R. Bishop, Route 4, Box 955, Pikeville, KY 41501 

Herman W. Lester, Esq., Attorney for Mountain Top Fuel, Inc., Drawer 551, 

Pikeville, KY 41501 

Thomas P. Piliero, Trial Attorney, Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

863 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SEWELL COAL COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

July 6, 1979 

Application for Review 

Docket No. HOPE 79-274 

Order No. 0637263 

February 21, 1979 

Sewell No. 4 Mine 

DECISION 

Appearances: Gary w. Callaghan, Esq., Lebanon, Virginia, for 

Applicant; 

David L. Baskin, Esq., Trial Attorney, Office of 

the Solicitor, U.S. Department of Labor, for 

Respondent. 

Before: Chief Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

Applicant seeks review of an order of withdrawal issued on 

February 21, 1979, under section 104(b) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 814(b), because of the refusal 

of Applicant to permit Respondent to inspect and copy ce-rtain 

records. Both parties requested an expedited proceeding. Pursuant 

to notice, a prehearing conference was held in Washington, D.C., on 

March 29, 1979. At the conference, the parties stipulated to the 

facts and issues before me, and a briefing schedule was agreed upon. 

Briefs were filed by both parties on April 16, 1979, and a reply 

brief was filed by Respondent on April 26, 1979. Applicant did not 

file a reply brief. 

Based on the stipulations of the parties, I adopt the following 

as my: 

FINDINGS OF FACT 

1. Applicant, Sewell Coal Company, was, during the month of 

February 1979, and prior thereto, the operator of a coal mine in 

Nicholas County, West Virginia, known as the Sewell No. 4 Mine, 

I.D. No. 46-01477. 

864 
• 

2. Sewell Coal Company is subject to the provisions of the Federal Mine Safety and Health Act of 1977 with respect to the operation of the subject mine. 

3. I have jurisdiction of the parties and subject matter of this 

proceeding. 

4. The mandatory safety standards involved in this proceeding 

are contained in Part 50 of 30 CFR, particularly, 30 CFR 50.41. 

5. On February 13 and 14, 1979, Federal mine inspector Ronnie 

Bowman, a duly authorized representative of the Secretary of Labor, 

began an inspection of foremen's records, accident, injury and illness records, and medical and compensation records at the subject 

mine. These records were contained in individual personnel files 

which also contained other data. The inspection was conducted in 

order to ascertain Applicant's compliance during 1975, 1976, and 

1977, with the accident, illness, and injury reporting requirements 

in effect during those years, and to verify MSHA's existing data 

base respecting mine accidents, injuries, and illnesses. 

6. On February 16, 1979, Inspector Bowman returned to the mine 

and continued to review the medical and compensation records along 

with the safety director of the mine. When the inspector discovered 

what he considered to be two instances of failure to report iujuries 

in 1977, he mentioned this fact to the safety director. The safety 

director then telephoned a company official, and after a discussion 

with him, told the inspector that he would not be permitted to continue to inspect the files. 

7. On February 21, 1979, the inspector returned to the mine 

office and was again denied access to the p~rsonnel files. The 

inspector issued a 104(a) citation under 30 CFR 50.41 and when the 

citation was not abated, issued a 104(b) closure order. 

ISSUES 

1. Whether MHSA may, under 30 CFR Part 50, without obtaining 

a valid search warrant, inspect Applicant's personnel files? These 

files contain medical and other information related to accidents, 

inJuries, and illnesses reportable under Part 50 or to compliance 

with Part 50. They also contain medical and other information 

unrelated to accidents, injuries, and illnesses reportable under 

Part 50, or to compliance with Part 50 • 

2. Whether MSHA may, under 30 CFR Part 50, copy from these 

files, information relevant and necessary to the issue of whether 

Applicant has complied with the injury and illness reporting 

requirements of Part 50? 

865 
3. Whether the inspection of the personnel files described 

above violates any provision of the Privacy Act? 

STATUTORY PROVISIONS 

Section 103(a) of the Act provides: 

Authorized representatives of the Secretary or the 

Secretary of Health, Education, and Welfare shall make frequent inspections and investigations in coal or other mines 

each year for the purpose of (1) obtaining, utilizing, and 

disseminating information relating to health and safety conditions, the causes of accidents, and the causes of diseases 

and physical impairments originating in such mines, (2) 

gathering information with respect to mandatory health or 

safety standards, (3) determining whether an imminent danger 

exists, and (4) determining whether there is compliance with 

the mandatory health or safety standards or with any citation, order; or decision issued under this title or other 

requirements of this Act. In carrying out the requirements 

of this subsection, no advance notice of an inspection shall 

be provided to any person, except that in carrying.out the 

requirements of clauses (1) and (2) of this subsection, the 

Secretary of Health, Education, and Welfare may give advance 

notice of inspections. * * * For the purpose of making any 

inspection or investigation under this Act, the Secretary, 

or the Secretary of Health, Education, and Welfare, with 

respect to fulfilling his responsibilites under this Act, 

·or any authorized representative of the Secretary or the 

Secretary of Health, Education, and Welfare, shall have a 

right of entry to, upon, or through any coal or other mine. 

Section 103(h) provides: 

In addition to such records as are specifically required 

by this Act, every operator of a coal or other mine shall 

establish and maintain such records, make such reports, and 

provide such information, as the Secretary or the Secretary 

of Health, Education, and Welfare may reasonably require 

from time to time to enable him to perform his functions 

under this Act. The Secretary or the Secretary of Health, 

Education, and Welfare is authorized to compile, analyze, 

and publish, either in summary or detailed form, such 

reports or information so obtained. Except to the extent 

otherwise specifically provided by this Act, all records, 

information, reports, findings, citations·, notices, orders, 

or decisions required or issued pursuant to or under this 

Act may be published from time to time, may be released to 

any interested person, and shall be made available for 

public inspection. 

866 

• 
Section llO(d) provides: 

Any operator who willfully violates a mandatory health 

or safety standard, or knowingly violates or fails or 

refuses to comply with any order issued under section 104 

and section 107, or any order incorporated in a final decision issued under this title, except an order incorporated 

in a decision under subsection (a) or section 105(c), shall, 

upon conviction, be punished by a fine of not more than 

$25,000, or by imprisonment for not more than one year, or 

by both, except that if the conviction is for a violation 

committed after the first conviction of such operator 

under this Act, punishment shall be by a fine of not more 

than $50,000, or by imprisonment for not more than 

five years, or both. 

REGULATION 

30 CFR 50.41 provides: 

Upon request by MESA, an operator shall allow MESA to 

inspect and copy information related to an accident, injury 

or illnesses which MESA considers relevant and necessary to 

verify a report of investigation required by §50.11 of this 

Part or relevant and necessary to a determination of compliance with the reporting requirements of this Part. 

DISCUSSION AND CONCLUSIONS OF LAW 

NONCONSENSUAL WARRANTLESS INSPECTION 

Section 103(a) of the Act directs authorized representatives of 

the Secretary to "make frequent inspections and investigations in 

coal or other mines." It further provides: 

For the purpose of making any inspection or 

investigation under this Act, the Secretary * * * or 

any authorized representative of the Secretary * * * 

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

coal or other mine. 

It is clear from the legislative history that Congress intended 

this language to give a right of entry without the necessity for 

obtaining a search warrant: 

Section 104(a) authorizes the Secretary * * * to 

enter upon or through any mine for the purpose of making 

any inspection or investigation under this Act. This is 

intended to be an absolute right of entry without need to 

obtain a warrant * * *• Safety conditions in the mining 

867 
industry have been pervasively regulated by Federal and 

State law. The Committee intends to grant a broad rightof-entry to the Secretaries * * * to make inspections and 

investigations of all mines under this Act without first 

obtaining a warrant * * *• The Committee notes that 

despite the progress made in improving the working conditions of the nation's miners, ***mining continues to 

be one of the nation's most hazardous occupations. 

Indeed, in view of the notorious ease with which many 

safety or. health hazards may be concealed if advance 

warning of inspection is obtained, a warrant requirement 

would seriously undercut this Act's objectives. l/ 

See also in this connection Marshall v •. Donofrio, 465 F. Supp 838 

(E.D. Penn. 1978), in which the court held that warrantless inspections of coal mines are not prohibited under the rule of Marshall v. 

Barlow's, Inc., 436 U.S. 307 (1978). 

There is little doubt that nonconsensual inspections of mines 

without search warrants are authorized by the Act, and Respondent 

concedes as much. 

DOES THE RIGHT TO INSPECT WITHOUT WARRANT INCLUDE THE OFFICES 

OF THE MINE OPERATOR? 

The statutory authorization for inspection and investigation 

refers to "mines." A "coal or other mine" is defined in section 

3(h)(l) of the Act as 

(A) an area of land from which minerals are extracted 

* * *, (B) private ways and roads appurtenant to such 

area, and (C) lands, excavations, underground passageways, 

shafts, slopes, tunnels and workings, structures, facilities, equipment, machines, tools, or other property***, 

used in, or to be used in, or resulting from, the work of 

extracting such minerals * * *· 

In a broad sense, mine offices which contain employee health 

records, would seem to be included in "structures * * *, or other 

property * * * used in * * * the work of extracting minerals." This 

construction conforms to that which the Court of Appeals for the 

Sixth Circuit made concerning similar language in the 1969 Coal Mine 

Safety Act: 

Even in the absence of warrants, the investigators had 

a right to enter the six company facilities which were 

1/ Senate Committee Report No. 95-181, 95th Cong., 1st Sess., 27 

(1977), reprinted in Legislative History of the Federal Mine Safety 

and Health Act of 1977, p •. 615. 

868 
searched. Section 813(b)(l) pro~ides a 'right of entry to, 

upon, or through any coal mine' for the purpose of making 

any inspection or investigation mandated by the Act. The 

term 'coal mine' is broadly defined in Section 802(h) to 

include 'all structures * * * placed upon * * * or above 

the surfa~[of land] used in, or to be used in, or 

resulting from the work of extracting*** coal.' All 

six offices, including the company's general office, were 

situated in close proximity to working mines and were 

instrumental in the administration of ongoing mine operations. They were, therefore, part of coal mine premises 

within the meaning of the Act and subject to entry by representatives of the Secretary at reasonable times •. 

United States v. Consolidation Coal Co., 560 F.2d 214, 219 (6th Cir. 

1977), vacated and remanded, 436 U.S. 942, 98 S. Ct. 2481 (1978), 

reinstated, 579Fo2d 1011 (1978). 

The above-quoted language is dicta, since a warrant was issued 

in the Consolidation case. However, in this construction, the court 

relies on the "premise that the nature of the Act entitles it to 

expansive interpretation." Such an interpretation persuades me that 

an inspector may, without a warrant, enter mine offices where records 

are kept. 

DOES THE RIGHT TO INSPECT WITHOUT WARRANT INCLUDE THE RIGHT 

TO SEARCH THE RECORDS KEPT BY THE MINE OPERATOR? 

In addition to the authorization for inspections and investigations given by section 103(a) of the Act, section 103(h) requires 

a mine operator to 

[E]stablish and maintain such records, make such 

reports, and provide such information as the Secretary 

* * *may reasonably require * * *· The Secretary 

* * * is authorized to compile, analyze, and publish 

* * * such reports or information * * *• 

Applicant states that it will produce all records required to be 

kept by statute upon request of the inspector and admits that production of such records is required without the need for a warrant. The 

difficult question presented, however, is whether the Secretary may, 

without a warrant, examine additional records and documents which are 

not required to be kept by statute and which may contain information 

other than that related and necessary to comply with Part 50 of the 

regulations. Two Federal courts in dicta have answered this question 

in the negative under the 1969 Act. In the case of The Youghiogheny 

and Ohio Coal Company v. Morton, 364 F. Supp. 45 (S.D. Ohio, 1973), 

a three-judge court, in upholding the constitutionality of warrant-. 

less searches of coal mines, stated: 

869 
.The governmental interest in promoting safety, it 

might be concluded, far outweighs any interest the mine 

operators may have in privacy. 

* * * * * * * 

The mine operator, though, does have a general expectation of privacy in his offices on the mining property. There 

is, however, no expectation of privacy in the maps, books, 

and records which are maintained for and in compliance with 

the Mine Safety Act. These must, of course, be produced 

upon demand to the federal inspector when he makes his 

unannounced entry. But the Act does not authorize these 

inspectors to rummage in any wholesale way or to initiate 

a general search of the mine operator's offices for such 

records. 

Id. at 51 note 5. 

In the Consolidation Coal Co. case, supra, the court stated at 

page 217: 

The Government advances three alternative rationales 

for reversing the district court's orders: 1) the searches 

were constitutionally permissible without warrants under 

Section 813(a)(4) which authorizes frequent inspections 

and investigations in coal mines * * * for the purpose of 

* * * determining whether or not there is compliance with 

the mandatory health or safety standards or with any 

notice, order, or decision issued under [the Act]. 

* * * * * * * 

We reject out of hand the Government's first contention. The Youghiogheny decision stands for the proposition that only inspections of the underground portions or 

'active workings' of coal mines may be performed without 

search warrants under Section 813(a) and (b). It expressly 

excludes from the purview of its holding warrantless 

searches of offices on the mining property * * *· In addition nothing in the Act authorizes the wholesale seizure 

of records which took place here. Even where a statute 

requires records to be maintained and authorizes onpremises inspection of them in the normal course, no 

precedent sanctions direct access to the records without 

demand in the absence of a search warrant. 

'It is, however, implicit * * * that the right to 

inspect does not carry with it the right, without warrant 

in the absence of arrest, to reach that which is to be 

870 
inspected by a resort to self-help in the face of the 

owner's protest.' Hughes v. Johnson, 305 F.2d 67, 69 

(9th Cir. 1962). 

In In re Surface Minin Regulation Liti ation, 456 F. Supp 1301, 

(D.D.C. 1978 , the court examined a regulation promulgated pursuant 

to the Surface Mining Control and Reclamation Act of 1977, which 

authorized warrantless searches of surface coal mining operations 

including the premises in which records required to be maintained 

were located. The Secretary of the Interior limited the scope of the 

regulation by a directive to inspectors to obtain warrants before 

entering any building on the premises. As thus limited, the regulation was upheld because coal mining is a prevasively regulated 

industry. 

In the case of C.A.B. v. United Airlines, 399 F. Supp 1324 

(N.D. Ill. 1975), aff'd 524 F.2d 394 (7th Cir. 1976), the courts 

considered a grant of authority to the Civil Aeronautics Board under 

the Federal Aviation Act to have access to "all documents, papers and 

correspondence, now or hereafter existing, and kept or required to be 

kept." Following the rule of construction that "a court should not 

construe a statute in such a manner as to raise a serious constitutional issue," the courts interpreted the statute so as to authorize 

access only to .documents required to be kept or documents related to 

the required records. 

These cases show a strong judicial reluctance to read into a 

statute an authorization for a warrantless search of records not 

specifically required to be kept by law. A serious constitutional 

question would be raised by a statute purporting to authorize inspection of all documents in a company's possession without a warrant. 

See~·~·' United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 

32 L.Ed.2d 87 (1972); Colonnade Catering Corp v. United States, 

397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970); Camara v. Municipal, 

Court 387 U.S. 523, 87 S.Ct. 1727 18 L.Ed.2d 930 (1967); See v. 

City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.E.2d 943 (1967); 

see also FTC v. American Tobacco Co., 264 U.S. 298, 44 S.Ct. 336, 

68 L.Ed. 696 (1924); U.S v. Morton Salt Co, 338 U.S. 632, 70 S.Ct. 

357, 94 L.Ed. 401 (1950). 

Although I am not empowered to pass on the constitutionality 

of the Act or a provision of the Act which created the Commission, 

Weinberger v. Salfi, 422 U.S. 749 (1975); Johnson v Robinson, 415 

U.S. 361 (1974), I am obliged to construe the Act. A cardinal rule 

of construction requires me to construe it, if possible, so as to 

avoid conflict with the Constitution. NLRB v. Mansion Home Center 

Management Corp., 473 F. 2d 471 (8th Cir:-1°973). U.S. v. Biswell, 

supra., Colonnade Catering Corp. v. U.S., supra. With this rule 

in mind, I turn again to the language of the statute and to the 

legislative history. 

871 
Inspections and investigations are authorized "for the purpose 

of (1) obtaining, utilizing, and disseminating information relating 

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

diseases and physical impairments originating in the [the] mines, 

(2) gathering information with respect to mandatory health or safety 

standards * * *·" This language does not specifically authorize 

searching records in a mine office, but neither does it exclude it. 

The Senate Committee Report relates the absence of a warrant requirement to "the not·orious ease with which many safety or health hazards 

may be concealed if advance warning of an inspection is obtained." 

This reasoning obviously applies much more directly to the areas 

where mining is being performed than to the records in the office. 

Mining is a pervasively regulated industry because~of health and 

safety hazards in the work place which distinguish it from most other 

industries. For these reasons, it is treated differently from most 

other industries in being subjected to warrantless inspections. But 

I cannot perceive any substantial differences in the records and 

files maintained in the mining industry and those maintained in any 

other industry that would justify treating the former differently 

under the fourth amendment. Nor does the requirement of a warrant or 

other legal process before inspecting personnel files maintained by 

Respondent appear to be so burdensome that it would affect the health 

and safety of the workers. The relationship of the activity of keeping records to employment safety and health is indirect at most. It 

is pos~ible, of course, for a mine operator to conceal or destroy or 

falsify records, if he is aware of an impending inspection. The 

danger of such an occurrence, however, is not comparable to the danger 

referred to in the Senate Committee Report that safety or health 

hazards may be concealed if advance warning of an inspection is 

obtained. Nor is the danger of tampering with records unique to mining or any other pervasively regulated industry. I conclude that 

there is not the same urgency for warrantless inspections of mine 

office records as for other mine work areas. Therefore, following 

the rule of construction referred to earlier, and guided by the language in the Youghiogheny and Consolidation cases, I conclude that 

the Mine Safety and Health Act does not authorize wholesale warrantless, nonconsensual searches of files and records in a mine office. 

MAY THE SECRETARY BY RULE AUTHORIZE WARRANTLESS, NONCONSENSUAL 

SEARCHES OF MINE RECORDS? 

Section 101 of the Act (in language adapted from section 101 of 

the Coal Mine Safety Act of 1969) empowers the Secretary to develop 

and promulgate by rule improved mandatory health or safety standards 

for the protection of life and prevention of injuries. Pursuant to 

this authority, Part 50 of Title 30 was published for public comment 

on October 17, 1977, and became effective January 1, 1978. The 

question of warrantless inspections of records is not addressed in 

the preamble to the proposed rules or in ~he preamble to the final 

872 
rules. The latter document discusses objections to Proposed Rule 50.41 

on the ground that it invades employees' rights to privacy. It also 

states that "without inspection of records beyond those required to be 

kept it is impossible to verify the required records." It is clear, 

however, that since a statute may not constitutionally authorize warrantless searches of company files and records, a fortiori, a regulation 

promulgated by the Secretary may not do so. 

Part 50 does not explicitly authorize warrantless inspection. To 

so construe it would raise a serious constitutional question under the 

fourth amendment. I interpret the regulations so as to avoid this 

constitutional conflict. 

Therefore, I conclude that 30 CFR 50.41 does not authorize the 

Secretary to inspect without a warrant Applicant's personnel files 

containing medical and other information, some related and some unrelated to accidents, injuries, and illnesses reportable under Part 50, or 

to compliance with Part 50. It follows that the regulation does not 

empower the Secretary to copy f-rom these records without a warrant, 

information relevant and necessary to the issue of whether Applicant has 

complied with the injury and illness reporting requirements of Part 50. 

PRIVACY ACT 

In view of my conclusions stated in the section immediately above, 

I need not consider the issue raised by Applicant at the prehearing 

conference that nonconsensual access to its records by the Government 

would violate the Privacy Act, 5 U.S.C. § 552a. And I note that Applicant did not argue this issue in its brief. Since the Privacy Act 

refers to maintenance and disclosure of records by Federal Government 

agencies, it does not appear to be at all relevant to the issues before 

me. 

ORDER 

Based on the above findings of fact and conclusions of law, I 

conclude-that Order No. 0637263 and Citation No. 0637262 were inv~lidly 

issued and they are hereby VACATED. 

,· ,!/ JJ ;;, . ·_, ,. ·/ c] .... HL<.A' ~')vo <le.-1,U:+c 

} James A. Broderick 

Chief Administrative Law Judge 

873 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

JUL 1 2 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KENNY RICHARDSON, 

Respondent 

Docket No. BARB 78-600-P 

Sinclair Mine; 

Peabody Coal Company 

Drakesboro, Kentucky 

DECISION 

Appearances: J. Philip Smith, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

Rees Kinney, Esq., Sam Jarvis, Esq., Jarvis, Payton 

and Kinney, Greenville, Kentucky, for Respondent. 

Before: Administrative Law Judge Michels 

This matter is before me for hearing and decision upon the petition for assessment of civil penalty filed against Kenny Richardson, 

pursuant to section llO(c) of the Federal Mine Safety and Health Act 

of 1977, 30 u.s.c. § 820(c) (the Act), charging Mr. Richardson with 

acting as an agent for a corporate operator, Peabody Coal Company, 

and knowingly authorizing, ordering, or carrying out stated corporate 

violations of mandatory standards. ]_/ 

The standards allegedly violated are 30 CFR 77.404(a), which 

requires that machinery and equipment be maintained in a safe operating condition or otherwise removed from service inunediately and 

30 CFR 77.405(a) which prohibits men from working on or from a piece 

1/ A hearing was held on this matter on March 21 and 22, 1979, in 

Evansville, Indiana. Petitioner and Respondent appeared through 

counsel. The parties have filed posthearing briefs and proposed findings and conclusions and reply briefs. Such proposed findings not 

adopted or specifically rejected herein are rejected as inunaterial or 

not supported by fact. 

The record consists of two volumes of transcript. In referring 

to the pages in the first volume, the citation will be as follows 

(Tr.); in referring to the second volume, the reference will be 

(Tr •. II). 

874 
of mobile equipment in a raised position until it has been blocked in 

place securely. The equipment involved was a Model 1260 Bucyrus-Erie 

dragline which developed a crack in the lower chord or tube of the 

boom. In the process of repairing the machine, the boom collapsed 

and a welder fell to his death and others were injured. Following 

the accident, MSHA conducted an inquiry and thereafter charged the 

operator with three violations of mandatory standards, the two 

referred to above and one other not in issue in this proceeding. 2/ 

Peabody did not contest the charges and the penalties assessed were 

paid for the two violations which have been alleged herein (Petitioner's Exh. No. 39). Thereafter, this action was brought which 

alleges in effect that Kenny Richardson is individually liable under 

.the Act for the asserted violations of mandatory standards • 

. The parties are in agreement that these charges involving conditions which occurred under the Federal Coal Mine Health and Safety 

Act of 1969 were properly brought under the Federal Mine Safety and 

Health Act of 1977 (Tr. 17-19). 

Findings of Fact 

The Peabody Coal Company is a Delaware corporation and the operator of the Sinclair Mine which is located near Drakesboro, Kentucky. 

This mine is a surface strip coal mine which employs approximately · 

353 men. The daily production of the mine is about 15,000 tons (Petitioner's Exhibit Nos. 2, 3, 39; Tr. 64-67). 

Kenny Richardson, whose full name is James Kenneth Richardson, is 

45 years old. He lives at 22 Circle Drive, Greenville, Kentucky, and 

is presently employed by the Peabody Coal C9mpany's Sinclair Mine at 

Drakesboro, Kentucky. He has been e~ployed at· the Sinclair Mine since 

January 4, 1964. His present position is day shift master mechanic 

which he has held since June of 1974. The duty of a master mechanic 

is to be a supervisor of repair work on the stripping equipment (Tr. 

II, 26-28). Mr. Richardson was the day shift master mechanic in 

charge of the 1260 dragline on Tuesday, August 2, 1977, and also on 

the days immediately preceding that date. 

A dragline is a type of excavating equipment which casts a ropehung bucket a considerable distance, collects the dug material by 

pulling the bucket towards itself on the ground with a second rope, 

elevates the bucket, and dumps the material on a spoil bank, in a 

hopper or on a pile (see Dictionary of Mining, Mineral and Related 

Terms, Department of the Interior, 1968, p. 346). The Bucyrus-Erie 

1260 dragline used at the Sinclair Mine is such a machine. It is 

2/ The operator was also charged with violating 30 CFR 77.1713(c) 

for failing to keep an accurate record of the examination conducted 

during each shift (Petitioner's Exhibit No. 10; Tr. 77). 

875 
pictorially shown in Petitioner's Exhibit Nos. 17-21. The boom or 

beam of the 1260 dragline is approximately 225 feet long and weighs 

approximately 200,000 pounds. It is of triangular construction with 

two 12-inch diameter tubes or 11 chords 11 at the top and one single 

12-inch diameter chord at the bottom forming a triangle with the 

V part of the triangle at the bottom. The three chords which form 

the triangle are each 12 inches in diameter. The walls of the upper 

chords are 1 inch in thickness, whereas that of the lower chord is 

one-half inch in thickness. The outside circumference of the lower 

chord is 38 inches. The three chords are tied together with lacing 

tubes approximately 6 inches in diameter which form cross-bracing to 

reinforce the three main chords (Tr. 91-94, 240-241; Tr. II, ll2-ll3, 

132). 

In its normal working position,-the boom is held stationary at 

a 30-degree angle off the horizontal. The cables of the boom can 

be dismantled and the boom can be laid on the ground if necessary 

(Tr. 91-92, 240). The 1260 dragline can be moved by the operator 

under its own power without assis.tance from any other machine (Tr. 

99). 

This machine is equipped with a pressurized system to indicate 

a crack in the boom. Originally, nitrogen gas was put into the tubes 

under pressure. Prior to the accident on August 3, 1977, nitrogen was 

replaced with a compressed air system. There are gauges inside the 

house of the machine which show the pressure and if a crack develops 

in a tube the pressure will go down and be visible to the. operator of 

the machine or the oiler (Tr. 233). The pressure in the tube had gone 

down prior to Monday before the accident, i.e., prior to August 1, 

1977, and the pressure system was turned off-(~r. 130-131, 233-234, 

264). Edward Yevincy, company-wide master mechanic, had observed 

that the pressure gauge had gone down ·indicating a crack in the boom 

"a week maybe 10 days" before the accident (Tr. II, 187). 

In 1968, Bucyrus-Erie recommended that the 1260 dragline be 

equipped with a "modified intermediate boom suspension system, 11 also 

called the "change-over kit, 11 a modification designed to support the 

boom from mast to boom support point. This system was not installed 

on the Sinclair Mine 1260 dragline and the reason is unknown (Petitioner's Exh. No. 38; Tr. 104). It was installed oh the 1260 dragline 

used at Peabody's River Queen Mine, 6 miles away (Tr. II, 243-244). 

The 1260 dragline at Peabody's Black Mesa Mine also had the modified 

system installed (Tr. II, 266). 

The modified intermediate boom suspension system would have been 

acceptable to MSHA in lieu of a block for repairing the boom (Tr. 104, 

338). Mr. Richardson denied ·any knowledge of the suspension system. 

He testified that in his discussions with Bucyrus-Erie representatives 

about the cracks on the 1260 dragline he was never advised of the 

876 
modified system (Tr. II, 55). However, Wayne Bowling, director of 

all heavy equipment for Peabody, was awar~, prioi to the accident, 

that the 1260 dragline at the Sinclair Mine did n.ot have such system 

(Tr. II, 247). The modified system was installed on the Sincla{r 

1260 dragline after the accident (Tr. II, 57-58). 

Sometime before August 1, 1977, a crack developed in the lower 

chord of the boom. The pressure in the tube had dropped a week or 

10 days bef6re indicating the crack had developed over a period of 

time (Tr. II, 187). Mr. Richardson testified he was first advised 

as to the crack 2 or 3 days before the accident (Tr. II, 231). He 

was told by Bob Coppage that the crack was getting worse on August 1, 

1977, at about 2:30 p.m. (Tr. II, 31, 64). He examined the machine 

at that time. The crack was visible. He looked at it from the catwalk and could see approximately one-third of the crack or about 

10 inches (Tr. II, 65, 66). Mr. Richardson told Bob Coppage that 

it needed repair (Tr. II, 66). 

Mr. Richardson, after completing his inspection, did.not consider the machine to be unsafe and he gave instructions that it continue to operate, that is, continue its normal coal digging. The 

machine continued to operate for about 15 or 20 minutes of 

Mr. Richardson's shift (Tr. II, 67, 100, 152). The machine was 

also operated into the second shift for a shor·t period of time (Tr. 

II, 130). When Mr. Richardson looked at the crack, he could detect 

·"just a little movement" although it was hard to see well (Tr. II, 

137). The area of the break was partly obscured by the cross-lacing 

tubes (Tr. II, 66). · 

Mr. Yevincy had noticed the crack a week or so prior to the 

accident and had notified the supervisor, the assistant supervisor, 

and the master mechanic at the time who was Gail Lee. Mr. Yevincy, 

on August 2, had also noticed that the crack was "moving a little" 

(Tr. II, 172). 

Cracks had developed at the same point on the chord on the 1260 

dragline before. The boom had been repaired a dozen times. On 

July 19, 1977, there had been a crack repaired by Mr. Yevincy (Tr. 

II, 124, 172-173; Respondent Exh. No. 1). Mr. Richardson talked with 

Bucyrus-Erie in July 1977 and was promised instructions for repair. 

He received certain specifications and instructions on the Saturday 

prior to the accident. He had also received in June of 1977, information on field repairs (Tr. II, 39-40, 43, 51; Respondent Exh. 

Nos. 2, 3). • 

The i~structions received by Mr. Richardson from Bucyrus-Erie 

for field repairs were admitted into the record as Respondent's 

Exhibit No. 3. The following is the full text of the instructions 

for effecting repairs on the boom, except for the welding procedures: 

877 
FIELD REPAIRS 

A. SUPPORTING THE BOOM DURING REPAIRS 

. In most cases the boom can and should be repaired while it 

is supported on the machine in its working position. 

Several methods can be used for access to the area to be 

repaired. 

1. By using an auxiliary crane the welder can be suspended 

in a basket. 

2. Special temporary ladders and platforms can be fabricated. If you require assistance in making these, 

contact th.e Service Department at South Milwaukee 

prior to making the repair. 

3. Occasionally the machine to be repaired is in a mine 

which also has rotary drills. It is possible, depending on the machine location, to position the boom over 

the mast of the drill so that the repair work can be 

done from the mast of the drill. 

If a section of main chord must be replaced or if numerous 

cracks are to be repaired, it may be necessary to lower the 

boom. In this case, the following method of supporting the 

boom should be followed: 

1. As a general rule, use a minimum of four cribs. One 

under boom point, one under lower apex and one each 

above and below the chord which is to· be removed or 

repaired. These cribs must be placed at a panel point. 

2. When placing cribs: their height should be such that 

the boom chords are as straight as possible and so 

that no stress remains in the chord due to its dead 

weight. 

3. Both sides of the boom must be supported even thoug~ 

only one side is to be repaired. 

After inspecting the crack on August 2, 1977, Mr. Richardson discussed the method of repair with the second sij.ft master mechanic, 

Gail Lee, and the day shift machine operator, George Barnett. They 

considered the possibility of swinging the boom up toward the spoil 

to make a better work area. There was no discussion of blocking the 

boom (Tr. II, 68-69, 96-98, 135). Mr. Richardson testified that he 

did not instruct the second shift mechanics; rather, he stated that 

he had advised them (Tr. II, 152). He testified further that while 

878 
the proced~re for repair was discussed, he did not set it up (Tr .. II, 

99). Mr. Richardson described his participation in the discussion of 

the repairs as follows: 

A.. I told [Gail] that as soon as he got his people 

over there to shut the machine down, go to work.on it, 

get a good safe working area at the vicinity that he 

was going to work on the boom, make sure that they had 

their safety belts and everything in good order, and 

repair it, put the gussets on, and to talk it over with 

his crew and see which position that they would rather 

have the machine in; and I advised him to do that. 

(Tr. II , 9 7) .. 

After observing the crack, Mr. Richardson recognized that innnediate repairs were necessary.. He told Bob Coppage "that we needed 

to make some repairs pretty quick" (Tr. II, 66, 201).. In response 

to.the question of whether he felt that the machine should be shut 

down for repairs, Mr. Richardson answered "As soon as I got the 

available equipment to help over" (Tr. II, 67). 

Mr. Richardson was fully familiar with the requirements of the 

law and the regulations relating to mining and specifically to mandatory standards 30 CFR 77.404(a) and 77.405(ai (Tr. II, 77-80, 162-

163). 

The repairs, while discussed on the first .shift, were actually 

begun on the third shift which ran from midnight to 8 a.m. Master 

mechanic Mr. Barber was in charge on this shift (Tr. 150-151). The 

method used in the past was to take a ladder and secure it to get 

down to the point of the crack and to use safety belts (Tr. II, 

61). The repair on this occasion was approached in the same manner 

except that a platform for the welder to stand on was attached to 

the boom (Tr. II, 63). The intended method of repair was to first 

bevel 6 inches on the side of the lower chord and then to weld the 

opening solid. After welding the bevel, a gusset plate was to be 

welded to the chord for reinforcement (Tr. 95-97). 

In this instance, the beveling was started approximately 

4-1/2 inches above the 9 inches which were still intact of the 

38-inch circumference of the chord. Roger Tapp, one of the welders, 

proceeded to cut the chord and when about 9 inches had been beveled, 

only 4-1/2 inches of solid wall remained.. The lower chord was weakened to the ·point that it broke. The excess in the load placed on 

the two upper tubes by the weight of the boom pulling down caused 

the upper chords to bend upward. As the boom bent upward and back 

toward the machine, suspension cables running from the mast to the 

point of the boom went slack allowing the auxiliary support cables 

to go slack causing the boom to fall to the ground.. At the point of 

879 
the crack, the boom fell approximately 100 feet to the ground (Tr. 

95-97, Petitioner's Exh. Nos. 17-35). The testimony and other evidence indicates that the lower chord, with a circumference pf 

38 inches, was cracked for approximately all but 9 inches (Tr. 94, 

159-161, 217, 250, Petitioner's Exh. Nos. 15-15, 36). 

As a result of the accident, the welder, Roger Tapp, fell to 

the ground and was killed instantly and other miners suffered some 

injuries (Tr. 85-86; Respondent Exh. No. 6). 

During the repair work, the boom of the dragline was not blocked 

or otherwise secured in place, but was worked on while in its normal 

raised position for digging operations (Tr. 97, 270, 277). If the 

machine had been equipped with the modified intermediate boom suspension system, it would not have been necessary to block the boom, 

according to the testimony of MSHA personnel (Tr. 104, 338). Also, 

it would not be necessary to block the boom for welding on handrail 

steps or other work not involving the structure of the boom (Tr. 

227-228). 

The record fails to reveal the reason why the 1260 dragline at 

the Sinclair Mine was not equipped with the modified intermediate 

boom suspension system. The literature which Mr. Richardson received 

from Bucyrus-Erie does not mention such a system. There is no evidence that the lack of a suspension system on the Sinclair Mine's 

dragline was a matter of common knowledge at the mine. Only Wayne 

Bowling testified he was aware that this machine did not have this 

system (Tr. II, 247). The record does not show that he communicated 

this information to the Respondent or any other persons at the mine. 

Mr. Bowling asserts that he did not know whe.ther the boom would have 

been prevented from falling had it be_en so equipped (Tr. II, 254). 

The 1260 dragline at Sinclair without the modified intermediate 

boom suspension system was unsafe to operate with a crack in the 

chord. Inspector James Utley testified that it was unsafe because 

flexing of the boom through the continued use of the machine would 

enlarge the crack to the point where the chord would no longer hold. 

He testified, however, with full knowledge of the ultimate result 

and also with knowledge that there was no modified suspension system 

on the machine (Tr. 168). David Whitcomb, a holder .of a Bachelor of 

Science degree in mechanical engineering and an authorized representative of the Secretary, likewise testified that the machine was 

unsafe with the crack in the chord because the crack would increase 

and the boom would eventually fall (Tr• 26 7). 

Witnesses for the Respondent and the Respondent himself testified to the effect that the machine in their opinion was safe and 

that there had been no reason to foresee an accident. This testimony 

is that of Wayne T. Bowling, director of all heavy equipment (Tr. 

235-249, 256-259); Ed Yevincy, company wide master mechanic (Tr. 

880 
176-177); George Wallace Barnett, day shift operator for Peabody 

(Tr. II, 201-202); and Mr. Richardson, the Respondent (Tr. II, 95, 

267). . 

On the question of the safety of the machine, I accept the 

testimony of the authorized representatives of the Secretary over the 

Respondent's witnesses because the ultimate breaking of the chord 

demonstrates that the machine was unsafe. I accordingly find that 

jt was unsafe to continue to operate the machi~e. 

For reasons explained in the discussion, as to the first alleged 

violation Kenny Richardson knew or should have known that the 1260 

dragline was unsafe. As to the second alleged violation, he did not 

know or have reason to know that the boom of the 1260 dragline should 

have been blocked while men were working on it with the boom in a 

raised position. 

Discussion 

The charge in the petition is that the corporate operator, 

Peabody Coal Company, violated mandatory safety standards 30 CFR 

77.404(a) and 77.405(a) and that Respondent "acting as an agent of 

the corporate operator within the meaning and scope of section 3(e) 

of the Act, knowingly authorized, ordered, or carried out each of 

the aforesaid corporate violations." The petition seeks a penalty 

of $500 for each of the two alleged violations. 

The issues on the merits are (a) whether the corporate operator, Peabody, violated the standards cited, (b) if so, whether 

Respondent is its agent, and (c) whether Respondent knowingly, 

authorized, ordered, or carried out these violations. If a violation 

is found, there is a further issue as to the amount of the penalty 

to be assessed. 3/ 

3/ · Respondent has also raised a constitutional issue in this proceeding. He contends that section llO(c) of the Act violates certain of 

his rights guaranteed by the Constitution of the United States. 

Specifically, he argues that he is subjected to a penalty solely 

because his employer does business in the corporate form rather than 

as a partnership or some other business form and that this violates . 

his constitutional right to equal protection of the law. Respondent 

previously appealed this case on such constitutional issue to the 

United States Court of Appeals for the Sixth Circuit. This petition 

was dismissed as premature by the court in an order issued April 25, 

1979. The Respondent has preserved this issue. My ruling is the 

same as that in my prior order of November 28, 1978, in which I 

rejected this contention as a ground for dismissal. 

881 
The initial question is whether Peabody Coal Company violated 

the standards cited. Peabody was not named as a party-respondent 

.irt this proceeding and it made no appearance. Prior to the hearing, 

Peabody, apparently in settlement of charges relating to the alleged 

violati6ns of 30 CFR 77.404(a) ~nd 77.405(•), paid penalties of 

respectively $2,050 and $750 as shown on a computer printout (Petitioner's Exh. No. 39; Tr. 360-362). 

Respondent in his brief has not raised, at least directly, any 

issue as to the liability of Peabody, but MSHA lists this is an issue 

presented. MSHA contends it has shown in this proceeding that Peabody 

has violated the cited standards and it relies for its position on the 

decision of the Board of Mine Operations Appeals in Everett L. Pritt, 

8 IBM.A 216 (1977) • .MSHA also is apparently attempting to rely on the 

payment by Peabody of civil penalties as a basis for its position. 

In its posthearing brief, MSHA states "The corporate operator disposed 

of its case at the MSHA Assessment Office level, and the assessment 

imposed by that office is deemed to be the final order of the Commission pursuant to 30 CFR 100.6(c)." As to this latter argument, it is 

my view that the mere payment of penalties under assessment procedur~s 

set up by the Secretary is not an admission of guilt by the operator. 

MSHA conceded as much on the record by stating that it did not claim 

that the payment of the civil penalties by Peabody was an admission 

of liability on its part (Tr. 23-24). 

The issue, therefore, is narrowed to whether there is a showing 

on this record of violations of the cited standards by Peabody. The 

corporate operator, as noted, was not present at the hearing and it 

had no opportunity in this proceeding to be heard on the alleged violations. The Board of Mine Operations Appeals ~eld in Everett L. 

Pritt, supra, that in spite of an operator's absence, the operator 

could be found liable for the purposes ·of section 109(c) of the 1969 

Act. This section is comparable to section llO(c) of the 1977 Act. 

Therein the Board stated, ov~rruling the administrative law judge, 

that the clause "whenever a corporate operator violates a mandatory 

health or safety standard * * *" establishes merely a prima facie 

case under section 109(c) of the 1969 Act. According to the Board, 

MESA (now MSHA) must establish that the corporate operator violated 

the standard at issue "but such may be established in a section 

109(c) proceeding in the absence of the operator as a party." Board 

Member Schellenberg dissented, observing that the Board's decision 

could result in a finding of liability on the part of the agent, 

though the corporation could be found to be not liable. 

The Board cites two other cases decided by administrative law 

judges in which it asserts that its theory of the law has been followed. However, in those cases the judges made no finding, at least 

directly, of liability on the part of the corporate operator. In 

MESA v. Ronald Corl, Docket No. PITT 75-445-P (April 23, 1976), cited 

by the Board, the judge appears not to have dealt at all with the 

882 
issue of corporate operator liability. The second case cited by the 

Board is MESA v. Daniel Hensler, Docket No. VINC 75-374-P (March 31, 

· 1976). In that case, Judge Luoma found only that "the testimony 

presented in the instant case within my opinion constitutes a prima 

facie showing of liability against the operator in a case where the 

operator is a party." [Emphasis added.) 

In my view, the Board was wrong in its decision in the Pritt 

case. I agree with Board Member Schellenberg in his dissent, not 

only for the reasons he stated but because there is no way the condition precedent, so clearly set forth in the section, can be met where 

the corporate operator has not had an opportunity to be heard. 4/ 

Nevertheless, the precedent of the Board appears to be binding unless 

and until overruled-by the Review Commission. The Board decision 

requires a prima facie showing of liability of the corporate operator 

as a condition precedent. I will therefore consider the evidence 

against the corporate operator in terms of the Board's theory as set 

out in the Pritt case. 

There is another matter of a threshold nature and that is whether 

Mr. Richardson is an agent of the corporate operator, Peabody Coal 

Company. I find that he is. "Agent" is defined in Section 3(e) of 

the Act as "any person charged with responsibility for the operation 

of all or a part of a coal or other mine or the supervision of the 

miners in a ·coal or other mine." Mr. Richardson is and was a master 

mechanic on the day shift for the Peabody Coal Company. He was in 

charge of the 1260 dragline on the first shift and thus fits the 

definition of an "agent." He had general supervisory authority over 

the 1260 dragline involved in the alleged violations even though 

other master mechanics were in charge on the later shift. Thus, I 

find that Mr. Richardson was an agent for the corporate operator, 

Peabody Coal Company. See the Hensler. case, supra, decided by the 

Board of Mine Operations Appeals, in which Daniel Hensler, the Respondent, was a section foreman. 

4/ It seems to me that the general solution in light of the language 

of section llO(c) is to name both the corporate operator and the 

individual in a joint action. In any such action, the corporate 

operator should not be permitted to settle the proceeding unless it 

admits to the alleged violations. Cf. United States v. Consolidation 

Coal Company and Donald Kidd, 504 F:Zd 1303 (6th Cir. 1974). In that 

case the charge under the criminal subsection of the Act involved both 

the corporate operator and the individual. Even the Board of Mine 

Operations Appeals in the Everett L. Pritt case, 8 IBMA 216 (1977), 

while authorizing a separate trial against the individual, stated 

that it would be fairer and simpler to join related sections 109(a) 

and (c) proceedings (now llO(a) and llO(c)). 

883 
Alleged Violation of 30 CFR 77.404laJ 

The first allegation against Mr. Richardson concerns the standard 

30 CFR 77.404{a) which provides: "Mobile and stationary machinery 

and equiptl!ent shall be maintained in safe operating condition and 

machinery or equipment in unsafe condition shall be removed from 

service inunediately." 

The charge as set. out in the notice of violation dated August 4> 

1977 (Petitioner's Exh. No. 4)> is as follows: "Mobile equipment in 

unsafe condition was not removed from service immediately> in that> 

a crack in the lower chord of the boom of the Bucyrus-Erie 1260 dragline was known to exist and not removed from service." 

The evidence received in this proceeding is sufficient in my view 

to establish a prima facie .case against Peabody Coal Company. The 

equipment, the 1260 Bucyrus-Erie dragline> had not been fitted with 

the modified intermediate boom suspension system and therefore was 

vulnerable to a collapse of the boom such as that which occurred on 

August 3, 1977. Under the circumstances, cracks in the chords of the 

boom made it highly unsafe. Two witnesses for the Petitioner, both 

authorized representatives of the Secretary, testified that the boom 

was unsafe. Their testimony, it appears, was based on their knowledge 

1that the machine was not equipped with the modified intermediate boom 

suspension system (Tr. 168, 273)w Both witnesses testified to the 

effect that the boom flexes and that each time a load is picked up and 

then dropped there would be a flexing which would tend to widen the 

crack until eventually the chord would be severed. Correspondence 

from Bucyrus-Erie (a letter to Mr. William Craft, dated September 22, 

1977> Petitioner's Exh. No. 38), leaves no doubt that the machine in 

its condition was unsafe. The letter states: "[t]he crack should have 

been repaired immediately when it was detected." 

Other testimony which will be reviewed in more detail below is 

to the effect that the equipment was not unsafe at the time on 

August 2> 1977> that Mr. Richardson was in charge. Mr. Richardson 

claimed in his testimony tha.t the machine was safe and that it was 

the cutt.ing into the new metal that made it unsafe. Other witnesses 

/asserted that the machine was safe in their opinion> even though the 

lower chord had a crack in it of two-thirds its diameter. These 

witnesses were Wayne T. Bowling, director of all heavy equipment for 

Peabody> Ed Yevincy, oiler and machine operator for Peabody, and 

George Wallace Barnett, also an operator of the 1260 dragline for 

Peabody. Mr. Bowling knew that the 1260 dragline at Sinclair was not 

equipped with the modified suspension system although he claimed he 

did not know whether the system would have prevented the boom from 

falling. As to these latter witnesses, I construe their testimony 

to mean that, based on the condition as they understood it at the 

time,·they did not believe it to be unsafe. The fact as now known 

that the broken chord was on a machine not equipped with the modified 

884 
intermediate boom suspension system and that it was vulnerable to 

collapse leaves no basis for their contentions that it was safe. The 

crack was extending further because of the flexing of the boom and 

"it was only a matter of time until the chord would break and the 

boom would fall, subjecting miners in the area to the hazard. 

Accordingly, L find that the machine was unsafe to ·operate and 

pursuant to 30 CFR 77.404(a) should have been removed from service 

immediately. It was not removed, however, but continued to operate 

even after personnel had become aware that the crack was enlarging. 

Therefore, the evidence establishes a prima facie case against the 

corporate operator, Peabody Coal Company, for a violation of mandatory 

standard 30 CFR 77.404(a)~ 

'The Respondent is an individual and is charged under section 

llO(c) of the Act as an agent of Peabody Coal Company "who knowingly 

authorized, ordered, or carried out such violation." Mr. Richardson 

testified that he had specifically instructed the miners t6 continue 

to operate the machine for the remainder of the day shift, a period 

of 15 to 20 minutes (Tr. II, 152). Thus, he authorized or ordered 

such violation and the only issue remaining is whether he did so 

"knowingly. 11 Mr. Richardson admitted during his. testimony that he 

was familiar with the two mandatory standards charged in this 

proceeding. 

The word "knowingly," as used in civil and criminal statutes, is 

not a term of precise definition. The courts have given various 

shades of meaning to the word, depending upon the context· in.which it 

was considered. See 51 C.J,.S. Knowingly (1969), and cases cited 

thereunder. There is no legislative history under either section 

109(c) of the 1969 Act or section llO(c) of·th~ 1977 Act which provides guidance in construing the meaning of this term. Moreover, 

neither the Board of Mine Operations Appeals nor the Commission has 

interpreted the meaning of the word "knowingly" in section 109(c) 

of the 1969 Act. The Commi&sion has not yet construed the meaning of 

the word in the 1977 Act. 

Respondent urges the test applied by Administrative Law Judge 

Schweitzer in MSHA v. Harvel, Docket No. DENV 77-40-P (November 16, 

1978), in whic'ii'"1ie states as follows: 

"Knowingly," for the purpose of its application to 

this case regarding se.ction 109(c), means done "intentionally" or "consciously," with knowledge of the facts .. 

It requires more than that the act was done by way of 

oversight or inadvertence or was an accident, but it does 

not require that the act was willful, involving reckless 

disregard of the law. 

MSHA argues that the word should have the same meaning as that under 

contract law, that is, knowing or having reason to know. 

885 
The only court case treating the question appears to be United 

States v. Consolidation Coal Company c:ind Donald Kidd, 504 F.2d 1330, 

1335 (6th Cir. 1974). There, the court in construing a criminal 

provision of the Act stated to the effect that "willfully" means 

something more than "knowingly" and that even "willfully" need not 

connote bad purpose, either to disobey or disregard the law or an 

evil motive. 

In support of its position that "knowingly" means knowing or 

having reason to know, MSHA cites two other cases decided by administrative law judges which bear on this question, namely, Secretary of 

Labor v. Cowin and Company, Inc., Docket Nos. HOPE 76-210-P through 

HOPE 76-213-P (Judge Broderick, September 14, 1978), and MSHA v. 

A. w. Garrett et al., Docket Nos •. NORT 76X400-P, etc. (Judge Steffey, 

June 30, 1977), as well as the United States District Court case, 

United States v. Sweetbriar, 92 F. Supp. 777, 780 (D.C.W.D.s.c. 

1950). 

In the Sweetbriar case, the court held: 

.[T]he term "knowingly" as used in the Act [the Walsh-Healey 

Public Contracts Act], does not have any meaning of bad 

faith or evil purpose or criminal intent. Its meaning is 

rather that used in contract law, where it means knowing or 

having reason to know. A person has reason to know when he 

has such information as would lead a person exercising 

reasonable care to acquire knowledge of the fact in question 

or to infer its existence. 

92 F. Supp. 777 at 780. 

In my view, the meaning given to the term "knowingly" by the 

court in Sweetbriar, even though the court was considering a wholly 

different statute, is one wld.ch should be applied to the same term in 

section llO(c) of the Mine Act. If a showing of actual knowledge 

that the condition was unsafe was required, it would be applying an 

extremely strict standard to this civil statute. This does not appear 

to be the intent of Congress., Accordingly, I will construe the term 

to mean knowing or having reason to know. Such construction would be 

in accordance with the Congressional purpose to foster safety in the 

work place. 

Applying such a standard, Mr. Richardson, as to the first.alleged 

violation, i.e., not removing unsafe equipment from service immediately, either-knew or had reason to know that the equipment was unsafe 

under the Sweetbriar reasoning; i.e., he knew or had reason to know 

when he had such information as would leave a person exercising reasonable care to acquire knowledge of the facts in question or to 

infer its existence. My reasoning will be developed in the paragraphs 

which follow. 

886 
Preliminarily, it should be considered that the 1260 dragline at 

the Sinclair Mine was not equipped with the modified intermediate 

.boom suspension system. Had the machine been so equipped, there 

would not have been violat·ions of either standard as alleged. MSHA 

officials concede that had the machine been equipped with the modified system, there would have been no need for blocking the boom. 

Additionally, the manufacturer in its letter of September 29, 1977, 

observed that such suspension system properly maintained and ·adjusted 

would have supported the boom when the lower chord was severed. It 

follows that had the machine been so equipped, it could have been 

safely operated for at least the periods at issue in this proceeding. 

In Mr. Richardson's favor is the lack of any evidence that 

eithe~ he or any of his peers on the job site had knowledge that the 

12~0 dragline lacked the modified intermediate boom suspension system. 

Mr. Richardson testified, and there is no proof to the contrary, that 

he was without knowledge of the modified suspension system. He 

denied having any information of this system from the manufacturer, 

and the literature in evidence sent to him by Bucyrus-Erie does not 

mention the modification. Other witnesses who worked with him considerad the machine to be safe, i.e., Ed Yevincy, oiler and machine 

operator, and George Wallace Barnett, also a machine operator. This 

testimony is illogical unless it is considered as their view prior to 

the accident and without their knowledge of the machine's lack of the 

supporting modified intermediate boom suspension system which would 

have prevented collapse. One witness, Wayne T. Bowling, director 

of all heavy equipment for Peabody, did know that the Sinclair Mine 

1260 dragline had not been equipped with the modified system. It is 

something of a mystery why this information was not communicated to 

the management of the Sinclair Mine, or to the master mechanics but 

there is no evidence that it was. Apparently, Mr. Bowling did not 

know that such equipment was necessary·to prevent the boom from 

falling when a chord is severed, although he should have known this. 

Furthermore, Mr. Richardson had seen this boom crack a number of 

times and either had directed or seen others direct repairs. In none 

of those instances had the boom been blocked and the repairs had 

always been conducted safely. 

In spite of those factors, Mr. Richardson at least had reason to 

believe that this 1260 dragline was unsafe. Even though he had no 

knowledge about the modified intermediate boom suspension system and 

the safety protection such would have provided, he did have considerable direct knowledge about a potentially dangerous situation. He 

either knew or had the responsibility for knowing as much as 10 days 

before the accident that a crack had developed in the boom. 

Ed Yevincy testified that the pressure gauge had gone down a week or 

maybe 10 days before. The pressure gauge rs an important part of the 

safety equipment placed on the 1260 dragline. The very purpose of 

this gauge is to give a warning of a developing'hazard. The manufacturer in its· letter of September 29, 1977, refers to it as a "crack 

887 
detection and warning system." There is no clear evidence that 

Mr. Richardson personally knew of this lack of pressure until 

August 2, but he had the responsibility for operating this machine 

and should have known that the pressure was down. 

More than that, Mr. Richardson knew 2 or 3 days before the accident that a crack had developed and he was told by Bob Coppage on 

Monday, August 1, that the crack had extended. It not until August 2 

at 2 p.m. that Mr .• Richardson decided to examirte the crack. At that 

time it was described as "getting worse." Mr. Richardson personally 

examined the crack, although from some distance, and he determined 

that it needed quick attention. Even though he could not see the 

entire crack, he was able to observe about a third of it, which indi-

. cated or should have indicated to him a very serious condition. 

Both Mr. Richardson's actions and his testimony .suggest that he knew 

it.was serious. Directly after observing the condition, he began 

discussions with other personnel about the method of repair. He told 

Bob Coppage that "we needed to make some repairs pretty quick" (Tr. 

II, 66). While he te.stified that he did not believe the machine to 

be unsafe, he did indicate in response to a question that it should 

be shut down for repairs "[a]s soon as I got the available equipment 

to help over" (Tr. II, 67). 

Considering the evidence described above, there is no doubt that 

Mr. Richardson knew that he was faced with a very bad crack. It is 

also clear and his actions show that he knew it had to be repaireQ 

without delay. It follows that he must have known that at some point 

a complete break in the chord was possible as long as the machine 

continued to operate. Even if it is accepted, as it must be on the 

basis of this record, that Mr. Richardson was unaware of the lack of 

the modified intermediate boom suspension system, there is also no 

evidence that he knew one way or the other what would happen if the 

chord broke completely through. It was the kind of situation which 

would raise a person's suspicion, particularly a mechanic with considerable experience, that something bad was happening which could 

well endanger personnel in the area. Mr. Richardson clearly had "such 

information as would lead a person exercising reasonable care to 

acquire knowledge of the facts in question or to infer its existence," 

that is, the hazardous and unsafe nature of the broken chord. United 

States v. Sweetbriar, supra. It is not enough, it seems to me, that 

Mr. Richardson had allowed the machine to operate with a cracked 

chord in the past. This means only that the miners were lucky it 

did not break in the past, not that it was safe or that it should 

have been considered as safe. 

Mr. Richardson was faced with a situation which had the obvious 

manifestations of a hazard, that is, a serious crack and one that was 

spFe~ding under use. Mr. Richardson recognized the seriousness of it 

by actions and words and should.have known that he was dealing with a 

hazard to the miners. In spite of this~ he spe~ifically directed that 

the 1260 dragline continue to operate until the end of the shift. 

888 
Respqndent argues in its brief that "immediate" does not mean 

the present instant but "a reasonable time in view of the particular 

facts and circumstances of the cas.e under consideration." I reject 

this interpretation of the word "immediate." Although only 15 or 

20 minutes were involved after Mr. Richardson had made his inspection and directed the continued operation of the machine, that was 

sufficient time for the chord to sever and the boom to collapse. 

The exact time in which the chord would have become completely 

severed under us~ was· unpredictable. According"ly, when the hazard was 

·discovered the machine should have been taken out of use immed,iately, 

that is, at the exact time of the discovery. 

Furthermore, the hazard was something that existed not only for 

the few minutes mentioned, but, in fact, for perhaps a week or more. 

The pressure in the gauge was lost a week or 10 days prior to the 

accident. Mr. Richardson ·knew at least by August 1 that the lower 

chord was cracked and that the crack was expanding. The machine coBstituted a hazard even at that earlier time and Mr. Richardson either 

knew or should have known this. 

Accordingly, for the reasons stated above, I find that 

Mr. Richardson knew or should have known that the 1260 dragline was 

unsafe and should have removed it from service immediately. 

In summary, the evidence establishes a prima facie violation 

of 30 CFR 77.404(a) by the corporate operator, Peabody Coal Company, 

and that Respondent, Kenny Richardson, as the agent of such corporation, knowingly authorized, ordered, or carried out such violation. 

Alleged Violation of 30 CFR 77.405(a) 

The second allegation against Mr. Richardson concerns the standard 30 CFR 77.405(a) which reads in part as follows: "Men shall not 

work on or from a piece of mobile equipment in a raised position 

until it has been blocked in place securely." 

The charge as stated in the notice of violation dated August 4, 

1977 (Petitioner's Exh. No. 7), reads as follows: "Men shall not be 

required to work on or from a piece of mobile equipment in a raised 

position until it has been blocked in place securely." 

The evidence, I believe, is sufficient to establish against 

Peabody Coal Company a violation of this standard. 5/ 

Respondent contended or at least seemed to contend during the 

course of the hearing, that the standard was not applicable to this 

5/ The discussion in the opinion above, with respect to the condition precedent of a violation by a corporate operator, is equally 

applicable to the alleged violation of this mandatory standard. 

889 
particular machine, the 1260 dragline. Respondent appeared to argue 

that because of the huge nature of the machine the alternatives men-

_tioned by MSHA other than the modified intermediate boom suspension 

system were not really practical. These alternatives included lowering the boom to the ground or lowering it part way over a spoil 

pile. Both of these alternatives, as shown on the record, would create 

some difficulties. Nevertheless, I believe the record is clear that 

the boom could have been so blocked. The manufacturer· in its instructions on field repairs recommends supporting the boom during repairs, 

in at least some circumstances,- that is, where a section of the main 

chord must be replaced or numerous cracks are to be repaired. This 

demonstrates quite clearly that the boom can be supported and, of 

course, there was no other option but to do so in this-case where the 

machine was not equipped with the.modified intermediate boom suspension system. The point may be moot for the future, however, since 

the machine is now equipped with the modified system and in most, if 

not in all instances of repair, it may no longer be necessary to 

support the boom. 

Respondent also argued that the 1260 dragline was not "mobile" 

equipment. The machine is large and cumbersome and apparently 

moves very slowly over the ground. However, it is operated and 

moved under its own power. In my .view, it comes within the definition of the term "mobile" as used in the standard. 

Accordingly, I find that the evidence establishes a prima 

facie case of a violation of the standard 30 CFR 77.405(a) by the 

corporate operator, Peabody Coal Company. 

The remaining question is whether or not Respondent, as agent 

of the corporate operator, "knowingly.authorized, ordered, or 

carried out such violation." 

A principal argument of the Respondent is that he had no duty, 

authority or responsibility for the implementation of the repairs •. 

He claims that such was the responsibility of other master mechanics, 

including Gail Lee of the second shift, and M~ c. Barber, master 

mechanic of the third shift when the accident occurred. Also, 

Respondent denies that he instructed anyone to make the repairs and 

argues that there is lack of any direct evidence to the effect that 

he authorized, ordered, or carried out the repair procedures 

(Respondent's Brief, pp. 22-23). He maintains that he was home in 

bed when the accident occurred and cannot be held accountable for the 

repair activity. 

The record shows that there are eight master mechanics at the 

Sinclair Mine working on three shifts. Each is in charge of certain 

machines during their respective shifts. Kenny Richardson, during the 

day shift, had the responsibility for three machines including the 

1260 draglin:e. According to. some of the testimony, the day shift 

890 
master mechanics have no greater authority than the master mechanics 

on other shifts. However, the evidence shows they do have charge of 

.ordering parts since parts are more readily available during the 

daytime. Furthermore, the daytime master mechanics, even if they do 

·not specifically direct the repair work to be done on other shifts, 

wield significant influence over the method of such repairs. Wayne T. 

Bowling, companywide master mechanic, expressed it as follows: 

Q. What is the--you've made a distinction between the 

day shift master mechanics. Now what is the basis for that 

distinction if they have similar powers and authority? 

A. What is it? They are out at the times when we 

have the parts. In the daytime they do most of the setting 

~p when there's a better class of people in the daytime for 

repairs, welders. We have more-experienced people on days 

a lot of times and that's the distinction we make. 

And they know where the parts are and they do their 

ordering before they turn in to their supply people what 

they need and the supply people in the daytime what it 

would take to keep the night shift--to help them out and 

to get the material down there. 

And then they go discuss it with them in the afternoon and they take over where they left off. 

(Tr. II, 241) • 

Mr. Richardson's testimony on his own authority drew a distinction between instructing other master mechanics, and advising them. 

He generally testified that while he advised on the repairs, he did 

not instruct the other master mechanics. At one point, however, he 

testified that he did instruct them about the repairs to be made, but 

he did not instruct them as to how to do the repairs (Tr. II, 128). 

Other witnesses testified, generally, that the daytime master 

mechanic made the decision on repairs. George Wallace Barnett, day 

shift operator, stated that materials and parts are ordered on the 

day shift and that as far as he knew, the master mechanic on the day 

shift makes the decision on the repairs to be made (Tr. II, 207). 

Gene Porter, the third shift oiler, testified that he supposed 

Mr. Richardson was the lead master mechanic at the mine (Tr. II, 225). 

John Cooper, day shift welder, testified he was told by the superintendent that Kenny Richardson was the lead master mechanic at the 

Sinclair Mine (Tr. II, 314). Wayne Bowling testified that 

Mr. Richardson was the "lead master mechanic" over this particular 

machine (Tr. II, 250). Kenny Richardson, at the investigational 

hearing conducted after the accident, according to the testimony of a 

891 
witness, admitted that he had set up the work procedures for the 

repair of the boom (Tr. 305). Also, it was Mr. Richardson who contacted Bucyrus-Erie for instructions and assistance. 

The evidence outlined above establishes that, at the very least, 

Mr. Richardson shared the authority for setting up the procedures to 

repair the boom. He seems to argue because others shared the responsibility that he cannot be held liable. It seems to me that if 

Mr. Richardson had some responsibility along with others, the mere 

fact that the others are not charged in this proceeding would not 

relieve Mr. Richardson of his responsibility. Furthermore, the evidence is sufficient to show that Mr. Richardson was involved to a 

greater extent than merely sharing the responsibility with other 

master mechanics. While he claims that he only instructed the other 

mechanics in how to go about the repair, it is evident ftom the record 

that this instruction, in light of the superior authority held by the 

daytime mechanics, amounted to a virtual direction. It would be 

unlikely that other mechanics would countermand his instructions and 

the facts show that they did not do so in this case. 

In the discussions and instructions concerning preparing for the 

repair work, no serious consideration, if any, was given to the 

matter of supporting the boom. Mr. Richardson gave instructions or 

advice on the general manner of preparing for the repair, along with 

certain safety precautions, but he failed to direct or authorize 

supporting of the boom. 

The final question under this alleged violation is whether 

Mr. Richardson knowingly authorized, ordered;or carried out the violation. His knowledge or reason to know is much less clear than with 

the previously considered violation. In the prior violation the 

physical evidence was there for him to see; however, this situation 

is considerably different. · In the first place, it was not a common 

practice to support the boom during repair work. Most of the evidence 

suggests that it was not considered necessary in the trade to support 

the boom, though this was probably based on the fact that other 

similar machines are equipped so as not to collapse. Specifically, 

it had been Mr. Richardson's prior experience that the boom could be 

repaired while in its raised position. 

The manufacturer's instructions which Mr. Richardson had 

received prior to the accident indicate certain circumstances where 

the boom should be supported, but it does not state that this is 

necessary for safety or otherwise. In fact, the instructions state 

specifically that in most cases the boom can and should be repaired 

while supported on the machine in its working position. It is only 

in certain circumstances, such as where a main chord must be replaced 

or if numerous cracks are to be repaired, that lowering the boom "may 

be necessary." 

892 
The problem, in part, may have been that other 1260 draglines 

were equipped with the modified intermediate boom suspension system 

which, with the machine so equipped, would have supported the boom 

when the lower chord was severed. The issue here, however, is not 

whether Mr. Richardson had reason to believe the machine or the procedure was unsafe, as with the prior citation. It is solely whether 

he knew or should have known the boom was required to be blocked and 

authorized or ordered the repair without such blocking. It seems to 

me, considering especially that blocking would not have been necessary with the modified suspension system, that the situation was 

sufficiently confusing and ambiguous as to preclude a finding of 

knowledge on Mr. Richardson's part. 

Accordingly, for the above-stated reasons, I find that Respondent 

did not know or.have reason to know that the boom of the 1260 dragline 

should have been supported or blocked while men were working on it 

with the boom in a raised position. 

Mr. Richardson's position is.distinguishable from that of the 

operator. The operator is held to a standard of strict liability in 

a situation of this .nature, whereas for the individual to be liable, 

he must have "knowingly" participated in the violation. Moreover, 

the operator in fact had knowledge of the lack of the modified suspension system on the machine because its employee, Mr. Wayne Bowling, 

was aware of this deficiency. Mr. Richardson had no such knowledge. 

Assessment of Civil Penalty 

Pursuant to section llO(c) of ·the Act, a person found in violation "shall be subject to the same civil penalties, fines, and 

imprisonment that may be imposed upon a person under subsections (a) 

and (d)." Subsection (a) is here applicable and it provides that a 

violation shall· be assessed· a civil penalty by the Secretary which 

penalty shall not be more than $10,000 for each violation. Under subsection (i) of section 110, the Commission in assessing civil penalties shall consider (a) the operator's history of previous violations; 

(b) the appropriateness of such penalty to the size of the business 

of the operator charged; (c) whether the operator was negligent; 

(d) the effect of the operator's ability to continue in business; 

(e) the gravity of the violation; and (f) the demonstrated good faith 

of the person charged in attempting to achieve rapid compliance after 

notification of the violation. The Board of Mine Operations Appeals 

held in Daniel Hensler, 5 IBMA 115 (1975), that only two of these 

criteria are inapplicable, namely, (b) and (d). I will hereafter consider the others. 

There is no history of previous violations on the part of 

Mr. Richardson (Tr. 12). Since Respondent did not personally participate in the abatement of the violation, no weight is given one way 

or the other to good faith abatement (Tr. 14-15). The violatio,n was 

893 
grave in that the collapse could have occurred at any time and up to 

eleven men were exposed to the hazard of the boom falling (Tr. 180). 

·Mr. Richardson was more than ordinarily negligent in that he knew or 

should have known of the unsafe condition of the machine over which 

he had responsibility. 

The Secretary has recommended a penalty of $500 for each violation. In light of all the circumstances discussed in this decision, 

I believe that such a penalty is appropriate and so assess that 

amount for the knowing authorization, ordering,or carrying out a 

violation of the mandatory standard 30 CFR 77.404(a). 

Conclusions 

1. The.Respondent, Kenny Richardson, is subject to Lne jurisdiction of the Federal Mine Safety and Health Act of 1977. 

2. For the reasons stated above, Respondent knew or should have 

known that the 1260 dragline was unsafe and by failing to remove it 

from service immediately, knowingly authorized, ordered,or carried out 

a violation of 30 .CFR 77.404(a). 

3. For the reasons stated above, Respondent did not know or 

have reason to know that the boom of the 1260 dragline should have 

been blocked or supported while men were working on the boom in a 

raised position, and accordingly did not knowingly authorize,order, 

or carry out, as charged, a violation of mandatory standard 30 CFR 

77 .405(a). 

ORDER 

It is ORDERED that Respondent, Kenny Richardson, pay the penalty assessed herein in the sum of $500 within 30 days of the date 

of service of this decision upon him. 

Distribution: 

~/)M)~~·~ Franklin P. Michels 

Administrative Law .Judge 

J. Philip Smith, Esq., MSHA Trials Branch, Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., 

Arlington, VA 22203 

Rees Kinney, Esq., and Sam Jarvis, Esq., Jarvis, Payton & 

Kinney, O'Bryan Court Building, P.O. Box 569, Greenville, 

KY 42.345 (Certified Mail) 

894 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION . OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

July 13, 1979 

HILO COAST PROCESSING COMPANY, 

Applicant 

Applications for Review 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMI.NISTRATION (MSHA), 

Respondent 

Docket No. DENV 79-50-M 

Citation No. 373631; 10/6/78 

Docket No. DENV 79-51-M 

Citation No. 373632; 10/6/78 

Docket No. DENV 79-52-M 

Citation No. 373633; 10/6/78 

Docket No. DENV 79-213-M 

Citation No. 373655; 12/21/78 

Docket No. DENV 79-296-M 

Order No. 374481; 1/26/79 

Docket No. DENV 79-297-M 

Order No. 374482; 1/26/79 

Do eke t No • DENV 7 9-2 9 8-M 

Order No. 374483; 1/26/79 

Docket.No. DENV 79-299-M 

Order No. 374460; 1/26/79 

HCPC Quarries & Mill 

DECISION 

Appearances: Hugh Shearer, Esq., Goodsill, Anderson & Quinn, 

Honolulu, Hawaii, for Applicant; · 

Marshall Salzman, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Respondent. 

Before: Judge Charles c. Moore, Jr. 

While there are eight docket numbers listed above, there are 

actually only four violations alleged. This is because four citations were issued, three involving noise, one involving dust. 

Thereafter, because the Applicant had made no attempt to abate the 

895 
violations because it was challenging jurisdiction, the orders were 

issued with respect to each of the citations. It was stipulated at 

the trial in Honolulu, that there was no attempt on the part of management to abate the violations and accordingly it is obvious that 

if the citations were valid, the orders were equally valid.· It was 

for this reason that I recently denied a motion by the Applicant for 

temporary relief with respect to the orders. 

I will deal with the dust violation first. In the first place, 

there is no doubt that this particular company is in dire financial 

straits. It cannot afford to go to any great expense and still hope 

to remain in business. The evidence clearly establishes that fact. 

The evidence also establishes as a fact that a dust problem 

exists at the Hilo Mine only 20 percent of the time. The rest of the 

time, 80 percent of the time, there is too much water and mud. The 

miners use and are forced to use and are penalized if they do not use, 

respirators during the dusty season. In my opinion, that is sufficient compliance with the dust standard. I therefore rule invalid 

and vacate the citation·that was issue1 in this case. 

The other three citations involved in these cases concern the 

noise .standard. The noise standard under the metai and nonmetal regulations is entirely different from that involved in coal mine regulations. The coal mine regulations, and this includes surface mines as 

well as the surface areas of underground coal mines, would allow an 

operator to provide one engaged in moving gravel from one place to 

another with a front-end loader, to wear ear protection as a primary 

method of controlling the noise. The metal and nonmetal standards, 

however, do not allow ear protection (ear muffs) as a primary protection, but only after a certain amount of money is spent in trying to 

reduce the noise in general. Under the Occupational Safety and Health 

Administration, a number of rulings have been made regarding the noise 

standard, which is identical to the metal and nonmetal standard, and a 

number of court decisions have been involved, but regardless of decisions, the fact remains that it is a question of judgment as to how 

much money an operator should be required to spend, in his financial 

condition,to reduce noise before resorting to either ear plugs or ear 

muffs. · 

The noise standard applicable to sand and gravel pits, and that 

is what was involved in the instant cases, appears in 30 CFR 56.5-50 

and consists of slightly more than one-half of a page of the Code of 

Federal Regulations. A crucial subsection is subsection (b) which 

states: 

When employees' exposure exceeds that listed in the 

above table, feasible administrative or engineering controls shall be utilized. If such controls fail to reduce 

exposure to within permissible levels, personal protection 

896 
equipment shall be provided and used to reduce sound levels 

to within the levels of the table. 

The courts have ruled that feasibility includes economic feasibility, 

as well as technical possibility, but there has been no ruling which 

has been brought to my attention delineating how these feasibility 

requirements are to be judged. 

The published standards refer to "sound level dBA slow response" 

followed by various numbers from 90 to 115 with time periods for 

allowable duration associated with each. 

While the noise standard enforced by the Occupational Safety and 

Health Administration was promulgated by the Department of Labor, the 

noise standards for coal mines and noncoal mines were originally 

promulgated by the Department of the Interior. I must assume that 

when the Department of the Interior used the phrase "dBA" in the noncoal regulations, it meant the same as the same term means under the 

coal mine regulations. 30 CFR 70.500(a) states: "'dBA' means noise 

level in decibels, as measured with the A-weighted network of a standard sound level meter using slow response." 

The inspector stated that our normal voices at the hearing were 

producing 60 to 70 decibels. If he yelled, it would be 90 decibels. 

·inspector High stated that a decibel is 2 times 10 to the minus 5 

Newtons per meter (Tr. 157). He changed this to a.Newton per meter 

squared, but did not know what was meant by the term "Newton." He 

therefore did not know how to describe a decibel since it was in 

terms of Newtons. It is obviously, however, a pressure produced on 

the eardrum which could be described in terms of pounds or ounces 

per square inch. 

Rather than being a measure of loudness, the decibel is a measure of the pressure on the eardrum created by a sound. The scale 

of decibels, however, is not a straight line scale, but is based on 

the logarithm (to the base 10) of the ratio between two different 

powers or forces. Normal pressure waves, including sound waves, are 

subject to the inverse square law of physics so that when the d_istance between the measuring device and the source is doubled, the 

pressure at the receiver is halved. When the decibel system of measuring is used, however, doubling the distance to a. sound source 

reduces the sound pressure level by 6 decibels. For example, if a 

sound level meter 40 feet from a noise source is showing 90 decibels, 

and the meter is removed another 40 feet from the source, the decibel 

reading should be 84. A straight line nonlogarith'mic measuring system 

would show a reduction of 50 percent when the distance is doubled. 1/ 

This lack of a straight line measuring system leads me to suspect -

1/ In the decibel system, 0 is barely audible, 10 is 10 times 0, 20 

is 100 times 0, 30 is 1,000 times O, etc. 

897 
the validity of the decibel averaging method set out in the regulations. Averaging was not directly· invo_l ved in any of the instant 

cases, however. 

The three noise violations involved concern the operator of the 

wagon· d·rill, the operator of the crushing plant, and a bulldozer operator. There was no serious challenge to the all~gation that these 

operators were, if they had not been wearing ea+ muffs, being exposed 

to sound levels in excess of that allowed by the health and safety 

·standards. The defense is that the measures suggested by the· insp~ctor to reduce the noise levels ·would cost more than the inspector 

estimated, that in the company's financial condition it could not 

afford to make the recommended changes and that the workers were 

being protected by ear muffs~ MSHA's position, on the other hand, 

is that the company should make feasible changes in the equipment and 

spend a reasonable amount of money in making those changes to reduce 

the noise level and then, if the efforts expended did not amount to a 

sufficient reduction in noise level to comply with the standard, ear 

muffs could be used for the personnel protection of the operators. 

Citation No. 373631 refers to the D8 bulldozer and I do not think 

it necessary to detail the specific recommendations that the inspector had for reducing the noise level. In general, it involved adding 

such things as a rubber floorboard under the operator, acoustical 

rubber tire material over the operator's head, an additional barrier 

between the operator and the front of the machine, and a muffler. It 

was his estimate that the changes he recommended would cost about 

$1,200, but would not bring the sound level reading below 90 decibels. 

Accordingly, the operator would still have to wear ear muffs for some 

part of his shift. While it is not altogether clear, and was not 

stated specifically with respect to each of the three noise violations, 

the general philosophy that emerges is one of trying to get the operator to reduce the noise level either by muff.ling or changing machine 

operators sufficiently often, but if that do.es not work, then ear muffs 

will be allowed. That is, they will be allowed in the sense of abating 

the citation and not issuing a withdrawal order. There was no testimony that if prior to the issuance of a citation, the operator of the 

mine had attempted to reduce the noise level unsuccessfully that a 

citation would not have been issued in the first place. If there have 

been any criteria established for the use of the inspector in determining whether or not to issue a citation when an operator's attempt 

to reduce the noise level has been unsuccessful, or to determine when 

to abate the citation and allow the use of personal ear protection, or 

for his use in deciding when to terminate a withdrawal order, those 

criteria were not presented during the case and have not been brought 

to my attention in the briefs. Nor can I find any such criteria in 

the regulations. It thus appears to be a matter of personal judgment 

on the part of the inspector. 

In cases where it is conceded that the measures taken to muffle 

the noise of the particular operation involved will not actually 

898 
reduce the sound level below 90 decibels, it results in a guessing 

game on the part of the mine operator if he wishes to avoid a cita-. 

tion. And, it is not even definite that he can avoid a citation if he 

guesses correctly. First, if there is a machine which is known to be 

out of compliance and which the operator cannot think of any feasible 

way to muffle into compliance, he must guess how much money and effo·rt 

must go into an unsuccessful noise reduction program before an inspector, who will arrive unannounced at some future date, will decide that 

his efforts were sufficient and that it was reasonable for him to 

resort to ear muffs. While it is not exactly clear that he would 

avoid the citation by guessing correctly as to the personal opinion of 

this yet unknown inspector, it is clear that if he guesses wrong, a 

citation will be issued and, of course, regardless of whether an order 

of withdrawal is eventually issued, a penalty assessment will be made. 

I am aware of the fact that the Occupational Safety and Health 

Review Commission has affirmed some citations where the required measures to reduce the noise level would not result in compliance with 

the standard and that such decisions have been affirmed on review. 

In RMI Company v. Secretary of Labor Et Al., 594 F.2d 566 (6th Cir. 

1979), the court upheld the Review Commission, but stated at 

page 571 

Given the fact that the employees will still be 

required to wear personal protective equipment for the 

remaining time they spend in the vicinity of .the chipping guns, we probably would not have reached the same result 

as did the OSHRC were we considering this case as an initial 

proposition. 

The court went on, however, to give the type of deference usually 

accorded to an adliiinistrative agency and affirmed that part of the 

Commission's decision. I question whether agencies such as the 

Occupational Review Commission and our own Mine Review Commission 

should be given the type of deference which courts accord to enforcement agencies, such as the Federal Trade Commission and their enforcement policies. The two review commissions are not enforcement agencies 

nor are they regulatory agencies. They perform the same function as 

courts do and their interpretation of regulations should be given no 

more deference by a reviewing court than that reviewing court would 

give to a lower court's interpretation of regulations. But since the 

deference was given in the RMI case, the result is that the court's 

decision is not a decision interpreting the regulations. It is merely 

a decision refusing to disturb, because of the deference, the review 

commission's interpretation of the regulations. Certainly, our Mine 

Review Commission is not bound to accept the Occupational Review Commission's interpretation even though the rules being interpreted may 

be similar or identical. · 

Furthermore, there are fundamental differences in the enforcement provisions between mine health and safety and occupational 

899 
health and safety. For one thing, a civil penalty is mandatory if a 

citation against a mine operator is valid. And I cannot affirm a citation which will result in a civil penalty against a company in dire 

financial straits because the company failed to guess properly what 

the inspector would require before agreeing that the use of _ear muffs 

would be appropriate. The citation involved here is VACACTED. 

Citation No •. 373632 involves the pneumatic wagon drill and it is 

admitted that there is no feasible way to bring this machine into compliance except by the use of ear muffs. The ruling here is the same 

as in the previous violation. It might be reasonable to require the 

company to spend $1,200 or even more to reduce the noise level, but it 

is completely unreasonable to issue a citation which will result iri a 

civil penalty because the operator wa·s unable to correctly guess the 

extent of noise reduction efforts that the inspector would require. 

The citation is VACATED. 

Citation No. 373633 involves the operator of the jaw crusher 

which crushes the basalt into smaller pieces. It was the opinion of 

the inspector that a booth could be constructed from plywood at a cost 

of about $1,000 or maybe under that, which would bring the sound level 

below the 90-decibel limit so that an operator could stay at the controls for 8 hours without being required to wear ear muffs. He later 

testified (Tr. 53) that even if it cost $2,400 it would nevertheless 

be feasible to spend that amount of money to bring the crusher into 

the noise compliance regulation. It was the Applicant's position that 

an experimental modification would cost $2,000 and that it would not 

bring the machine into total compliance (see Applicant's Exh. No. 1). 

When Applicant's witness, Mr. Bryce Robinson, testified, however, he 

stated that he did believe that a compartment woul~ bring the jaw 

crusher noise level down below 90 decibels. His estimation, as stated 

in the transcript at page 82, is $20,000, but he referred to Applicant's Exhibit No. 1 and seemed to be testifying in support thereof. 

My own handwritten notes, however, do show that he said $20,000, 

rather than $2,000. 

As to the dividing line between economic feasibility and nonfeasibility, the inspector testified at Tr. 55-56 as follows: 

Q. Okay. Is there a point same controls, ·same 

results, same company -- that it becomes, in your mind, 

economically infeasible? 

A. Yes, it certainly is. 

Q. Okay. Can you estimate at what point? 

A. I believe that after I'd inspected -- I'd worked 

there with the people, we'd tried a few things where we 

were actually trying to accomplish something -- I believe 

900 
that as far as reducing noise percentages -~ and when it 

dropped below a certain point, that's all they could have 

done, that's all that we technologically know about in 

1979, then I would abate the citations. 

Q. Same controls, same results -- what if these, 

instead of costing $1,200.00 cost $20,000.00? 

A. I would not consider it feasible. 

Q. What if they cost $10,000.00? 

A. Well, I don't know where the point to stop would 

be. 

Q. Then, is the substance of your testlmony ~- it 

would be on a case by case basis, discussing it with the 

company, where that line of economic feasibility is? 

A. Working with the company. 

Q. Okay. There is a line of demarcation, but you 

can't state, at this point, exactly what it is? 

A. No, I can't state. After we both tried, then 

I would say we would abate. 

Q. And would that be true -- just as true -- for 

the drill and the crusher? 

A. Either one of the 3 machines. 

The entire emphasis is on how to abate a violation, rather than 

how to avoid one and that is where I think the big problem is with 

regard to MSHA's enforcement of the noise standard. If a machine is 

out of compliance with the noise standard and ear muffs are not worn, 

I think a citation would be justified. W'nere ear muffs are worn, however, and no harm is coming to a miner's ears, MSHA has to work out 

some system of advising the mine operator of its desires prior to the 

issuance of a citation •. That is true because even though with respect 

to the jaw crusher, it may have been possible to reduce the noise 

below 90 decibels, it was still a guessing game as to what extent and 

how much money should be spent toward that goal by this particular 

mine operator. The jaw crusher citation is accordingly, VACATED. 

ORDER 

It is therefore ORDERED that .all four citations involved in these 

cases be VACATED and that all four withdrawal orde·rs that were based 

on the vacated citations be likewise VACATED. 

901 
It is FURTHER ORDERED that these cases are DISMISSED. 

Issued: July 13, 1979 

Distribution 

~ Charles c. Moore, c 

Jr. 

??74~ Administrative Law Judge 

Hugh Shearer, Esq., Goodsill, Anderson & Quinn, Castle & Cooke 

Building, Financial Plaza of the Pacific, P.O. Box 3196, 

Honolulu, HI 96801 (Certified Mail) 

Marshall Salzman, Esq., Office of the Solicitor, U.S. Department 

of Labor, 450 Golden Gate Avenue, Box 36017, Room 10404 Federal 

Building, San Francisco, CA 94102 (Certified Mail) 

Mr. Carl Damaso, President, International Longshoremen & Warehousemen Union, 451 Atkinson Drive, Honolulu, HI 96814 

(Certified Mail) · 

Administrator for Metal and Non-Metal Mine Safety and Health, 

U.S. Department of Labor 

Standard Distribution 

902 
FEDERAL MH;tE SAFETY AND HEALTH REVIEW COl\'iMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRG'INIA 22203 

Jul:r 18, _1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATIO}i' (MSHA), 

Petitioner 

v. 

LEECO, INC., 

Respondent 

Docket No. BARB 78-453-P 

Assessment Control 

No. 15-08799-02021V 

Mine No. 18 

DECISION 

Appearances: Eddie Jenkins, Esq., Office of the Solicitor, 

Department of Labor, for Petitioner; 

A. Douglas Reece, Esq., Manchester, Kentucky, 

for Respondent. 

Before: Administrative Law Judge Steffey 

Pursuant to written notice dated September 1, 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. 

Issues 

The Petition for Assessment of Civil Penalty_in Docket No. BARB 

78-453-P was filed on June 13, 1978, and raises the issues of whether 

respondent violated 30 CFR 75.200 and, if· so, what civil penalty should 

be assessed, based on the six criteria set forth in section llO(i) of 

the Act. 

Occurrence of Violation 

The violation of section 75. 200 alleged by MSIIA' s Petition for Assessment of Civil Penalty is based/on Order No. 1 UM (7-12) issued June 2, 

1977. That order states that respondent was not in compliance with its 

roof-control plan because the.No. 3 supply roadway in the 002 Section was 

from 17 to 21 feet wide for a d::bl;tance of 1,000 feet, whereas the roofcontrol plan provides that the supply roadway may not exceed 16 feet in 

width. The roof-control plan provides for respondent to support its roof 

by a combination of roof bolts and timbers (Tr. 84; 87). Page 14 of the 

roof-control plan requires the installation of two rows of timbers on 4-

foot centers down the right side of the entry and one row of timbers on 

4-foot centers down the left side of the entry (Exh. M-2). The row of 

timbers next to the rib on each side of the entry is erected 3 feet from 

the rib, whereas the second row. of timbers on the right side is erected 

4 feet from the first row of timbers (Tr. 11). The result of erecting 
two rows of timbers 3 feet from each. rib and a third row of timbers 4 

· feet from the first row on the right side is to narrow the entry to 16 

feet, that is, the 26-foot entry is narrowed to a 16-foot roadway by 

timbers which occupy a total width of 10 feet of the entry (Tr. 29). 

The roof over the roadway is, of course, required to. be supported by 

three rows of roof bolts which are installed on 4-foot centers (Exh. 

M-2, p. 14; Tr. 21). 

The inspector's testimony supports a ,finding that the roadway was 

excessively wide because from 250 to 300 timbers had been knocked down 

along the roadway for a distance of 1,000 feet and had not been reset 

(Tr. 11; 45). Respondent's witnesses largely corroborate·d the inspector's testimony with respect to the fact that timbers had been knocked 

down by the battery-powered tractor when it hauled men and supplies along 

the haulageway. The operator of the tractor stated that he had knocked 

down timbers along the roadway becaμse the floor of the mine was uneven 

and wet'. The slippery and uneven floor caused the tractor to fishtail 

so that the trailer pulled by the tractor would slide from one side of 

the roadway to the other and would knock down timbers on both sides of 

the roadway (Tr. 52). Whereas. the inspector estimat~d that the number 

of timbers which. had been knocked down and not reset was between 250 

and 300, the operator of the tractor estimated the ntimber of timbers 

that had been knocked down to be between 100 and 200 (Tr. 11; 34; 41; 

53). . 

Although respondent's witnesses agreed that a considerable number 

of posts had been knocked down and not reset (Tr. 55; 64), they all disagreed with the inspector's claim that they were following the roofcontrol plan shown on page 16 of the plan. All three of respondent's 

witnesses testified that they were following the roof-control plan shown 

on page 14 of the plan (Tr. 70-71; 79-80). The violation cited in the 

inspector's order is not affected by a determination of which plan was 

being followed because regardless of whether resp·ondent was following the 

plan shown on page_l6 or the plan shown. on page 14, the roadway was required to be no more than 16 feet wide and the knocked-down timbers 

rendered the roadway at least as wide as the 17 to 21 feet set forth in 

the inspector's order (Tr. 30-35). 

The basic difference between the plan shown on page 16 and the plan 

shown on page 14 is that all of the timbers are required to be set on the 

right side of the entry under the plan on page 16, whereas under the plan 

on page 14, one row of timbers is required to be installed on the ieft 

side and two rows of timbers are required to be set on the right side. 

Under both plans, the roadway is required to be narrowed down to a width 

of no more than 16 feet. There are two other prinfary differences between the two plans. First, the plan on page 16 provides for the entries 

to be no more than 28 feet wide, whereas the plan on page 14 provides for 

the entries to be no more than 26 feet wide. Second, the plan on page 16 

provides for both timbers and roof bolts to be 4 feet from both ribs and 

from each other, whereas the plan on page 14 provides for the first row 

of timbers on each side of the entry to be 3 feet from the ribs (Exh. 

M-2). 

904 
The inspector stated that respondent was prohibited from having an 

entry wider than 26 feet and he stated that the timbers were required to 

be within 3 feet of the ribs (Tr. 11; 29). Thus, the inspector was at 

a.11 times discussing the provisions of the plan on page 14 while claiming that respondent was following the plan on page 16 of the roof-· 

control plan (Tr. 22-24). Therefore, I ~in~ that the testimony of respondent's witnesses to the effect that they were following the plan 

shown on page 14 of the roof-control plan is more credible than that of 

the inspector. 

I find that the testimony of all witnesses indicates that the violation of section 75.200 alleged in the inspector's order occurred. 

Gravity. Even though a large number of timbers had been knocked 

down along the roadway, the roof over the roadway was well supported by 

bolts. The timbers which had been knocked down and not reset were near 

the .ribs over a portion of the entry which was not traveled by the 

tractor and trailer hauling men and supplies. The only time that a 

person could be hit by a rock falling from the area where posts had 

been knocked down would be at a time when the trailer might slip sideways and be momentarily under an expanse of roof near a rib where a 

post had been dislodged. Respondent's witnesses stated that the roof 

in the 1,000-foot area cited in the lnspector's order appeared to be in 

good condition (Tr. 51; 57; 62-63; 83). 

Although the inspector stated that about 50 percent of the places 

he tested sounded loose and drunnny, he said that that was not an abnormal 

condition for a slate roof (Tr. 13). While the inspector estimated that 

a total of about 250 posts had been knocked down·in an area where 750 

posts were required to be set, he stated that at none of the 4-foot 

intervals were there ever more than two posts missing at any one place 

(Tr. 3~). During each shift the tractor passed over the ·roadway no 

more than three times, that is, one trip in with the miners at the beginning of a shift, one trip to deliver supplies to the section during a 

shift, and one trip out of the mine with miners at the end of the shift 

(Tr. 47; 56). Consequently, the evidence supports a finding that the violation was only moderately serious in the circumstanes described by the 

inspector and respondent's witnesses. 

Negligence. The operator of the tractor which was used to haul 

supplies and men along the roadway stated that it was his duty as tractor 

driver to reinstall any timbers which he knocked down along the roadway. 

He stated, however, that he did not stop and reset timbers when he was 

in the process of hauling supplies to ~he face because the supplies were 

needed to enable the mine to continue to produce coal on an uninterrupted 

basis. The operator of the tractor stated that he reset timbers only 

when it happened to be convenient for him to do so (Tr. 55; 57-58). 

Respondent's safety inspector testified that he was in the same 

1,000-foot area cited in the inspector's order on May 31, 1977, just 2 

days prior to June 2, 1977, when the inspector's order was written. On 

May 31, 1977, respondent's safety inspector saw about 80 to 100 posts 

905 
knocked down. Some of them were within the 1,000-foot area cited in the 

·inspector's order. Respondent's safety inspector said that he instructed 

the section foreman on Hay 31, 1977, to take some men to the area where 

the posts had been knocked down and replace them (Tr. 64; 69). Despite 

the fact that approximately 100 posts had been reinstalled on May 31, respondent 1 s tractor operator said that he saw from 100 to 200 posts down 

on June 2 when the order was written (Tr. 53; 55). 

I find that respondent was grossly negligent in allowing such a 

large number of posts to be knocked down and not reset within a period 

of only 2 days. 

Good Faith Effort To Achieve Rapid Compliance. The inspector testified that respondent replaced all of the knocked-down timbers within a 

period of about 3-1/2 hours (Tr. 16). Therefore, I find that respondent 

demonstrated a good faith effort to.achieve rapid compliance. 

Size of Operator's Business. Respondent's No. 18 Mine produces 

about 350 tons of coal per day from the Hazard No. 4 coal seam which is 

from 28 to 34 inches thick (Tr. 8). The No. 18 Mine has three coalproducing sections and all of them use Wilcox continuous-mining machines 

equipped with continuous-belt haulage systems. Respondent operates three 

underground coal mines in addition to the No. 18 Mine. The production 

from all four mines amounts to approximately 800 tons of coal per day 

(Tr. 68). Exhibit M:-3 shows that respondent is controlled by "Kaneb 

Services", but there is nothing in the record to show how large a company "Kaneb Services" may be. The former Board of Mine Operations Appeals held in Old Ben Coal Co., 4 IBMA 198 (1975), that it is error for 

a judge to go outside the record and consult reference books for the 

purpose of making findings as to an operator's size. Based on the evidence in this record, I find that respondent operates a.medium-sized 

business. 

Effect of Penalties on Operator's Ability To Continue in Business. 

Counsel for respondent did not present any evidence at the hearing with 

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

IBMA 226. (1973), and in Associated Drilling, Inc., 3 IBMA 164 (1975), 

the former Board of Mine Operations Appeals held that when a respondent 

fails to present any evidence concerning its financial condition, a judge 

may presume that payment of penalties would not cause respondent to discontinue in business. In the absence of any specific evidence to the 

contrary, I find that payment of penalties will not cause respondent to 

discontinue in business. 

History of Previous Violations. Exhibit M-3 shows that 37 previous 

violations of section 75.200 have occurred at respondent's No. 18 Mine 

since November 1975. Three of the violations occurred in 1975, 21 violations occurred in 1976, and 13 violations had occurred in 1977 by May 5, 

1977. Roof falls still are the primary cause of injury and death in 

underground coal mines. I consider violations of section 75.200 to be a 

matter which should receive respondent's utmost attention. The statistics 

do not indicate that respondent is making progress in being able to reduce 

906 
the number of violations of section 75.200 which are occurring at its 

·No. 18 Mine. Therefore, I shall increase by 20 percent any penalty 

assessed under the other critetia because of respondent's unfavorable 

history or previous violations of section 75.200. 

Assessment of Penalty 

The findings hereinbefore made show that respondent is a mediumsized operator. Any penalty assessed for the violation of section 

75.200 cited in Order No. 1 HM should, therefore, be in a medium range 

of magnitude. As previously shown, the violation was only moderately 

serious because the roof of the supply roadway showed no signs of falling and was considered to be in relatively good condition. Nevertheless, the knocking down of about 250 posts along a 1,000-foot roadway 

would have a deteriorating effect on the .roof, particularly when it is 

considered that the timbers were being knocked down by the hundreds 

within a period of only a few days. Consequently, a penalty of $750 

'should be assessed under the criterion of the gravity of the violation. 

The largest portion of the penalty should be attributable to the 

fact that the violation involved a high degree of negligence. A large 

number of posts had been knocked down on May 31 and an even larger 

number had been knocked down and not replaced within a further period of 

only 2 days. The tractor operator was supposed to reset the timbers, 

but he was not doing so. In such circumstances, the penalty should be 

increased by $3,000 under the criterion of negligence to a total of 

$3,750. 

·As indicated above, respondent's unfavorable history of previous 

violations requires that the penalty of $3,750 be increased by 20 percent, or $750, to $4,500. If a large-sized company or operator had 

been involved, I would have assessed a larger penalty than $4,500~ It has 

been my practice to decrease the penalty assessab'le under the other 

criteria when the operator shows an outstanding effort to achieve rapid 

compliance. The evidence does not show that respondent's abatement of 

the violation was other than a normal abatement. Therefore, the penalty will not be decreased nor increased under the criterion o~ good 

faith effort to achieve rapid compliance. 

Conclusions 

(1) On the basis of all the evidence of record and the foregoing 

findings of fact, respondent is assessed a civil penalty of $4,500.00 

for the violation of section 75.200 cited in Order No. 1 HM (7-12) dated 

June 2, 1977. 

(2) Respondent was the operator of the No. 18 Mine at all pertinent 

times and as such is subject to the provisions of the Act and to the 

health and safety standards promulgated thereunder. 

WHEREFORE, it is ordered: 

907 
For the. violation of section 75.200 described in paragraph (1) 

above, Leeco, Inc., is assessed a civil penalty of $4,500.00 which it 

shall pay within 30 days from the date of this decision. 

@~~+JO.~~ Richard C. Steffey P tJ r 

Administrative Law Judge 

Distribution: 

Eddie Jenkins, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

A. Douglas Reece, Esq., P.O. Box 432, Manchester, KY 40962 

(Certified Mail) 

908 
FEDERAL MINE SAFETY AND HEALTH REVH::w CO~ii1MOSSION . OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

July 18, 1979 

SECRETARY OF LABOR,· Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SCOTIA COAL COMPANY, 

Responaent 

Docket No. BARB 78-401-P 

A.C. No. 15-03746-02049V 

Upper. Taggart Mine 

DECISION 

Appearances: 

Before: 

Eddie Jenkins, Esq., Department of Labor, for 

Petitioner; 

Richard c. Ward, Esq., Hazard, Kentucky, for 

Respondent. 

Administrative Law Judge Steffey 

Pursuant to written notice dated September 1, 1978, a hearing in 

the above-entitled proceeding was held on November 15, 1978, in . 

Pikeville, Kentucky, under section 105(d) of the Federal Mine Safety 

and Health Act of 1977. 

MSHA's Petition for Assessment of Civil Penalty in Docket No. 

BARB 78-401-P was filed on May 12, 1978, and seeks assessment of a 

civil penalty for an alleged violation of 30 CFR 75.1725. 

Issues 

. The issues raised by the Petition for Assessment of Civil Penalty 

are whether a violation of section 75.1725 occurred and, if so, what 

civil penalty should be assessed, based on the six criteria set forth 

in section llO(i) of the Act. 

Findings of Fact 

1. Ronald E. Suttles, .a Federal coal mine inspector, was in the 

process of making a complete inspection of respondent's Upper Taggart 

Mine when he received a complaint regarding a shuttle car in the One 

Right Section of respondent's mine. Inspector Suttl~" •»1=mt to the One 

• 

909 
Right Section on Monday, April 19, 1976, to determine whether there 

was any validity to the complaint.· The inspector asked Joe Pratt, the 

operator of the B-29 shuttle car, to maneuver the car so that Inspector 

Suttles could determine whether it was in safe operating condition. 

Inspector Suttles concluded that the wheels on one side pf the shuttle 

car would not turn properly. He considered that the shuttle car 

created a hazard to any miners near the car because ~he shutttle car 

had to be backed up s~veral times when the operator of the car needed 

to receive coal from the continuous mining machine, go around corners, 

or dump coal at the belt feeder (Tr. 6-12). 

2. Despite the fact that the B-29 car was not in safe operating· 

condition on April 19, 1976, Inspector Suttles did not write a notice 

of violation or order of w~thdrawal with respect to--ul'e unsafe car. 

Inspector Suttles stated that new management had just taken over the 

operation of the Upper Taggart Mine. The inspector had been getting 

good cooperation from the new management and accepted management's 

assurances that the car would be fixed without the necessity of the 

inspector's writing an order or notice of violation with respect to 

the car (Tr. 13). 

3. Inspector Suttles stated that when he returned to the mine 

on April 20, 1976, he saw the B-29 shuttle car being operated. 

Inspector Suttles was "pretty sure" that the same operator, Joe Pratt, 

was driving the shuttle car. Mr. Pratt told Inspector Suttles that 

the car had not been repaired (Tr. 15-16). Inspector Suttles then 

issued at 9:55 a.m. unwarrantable failure Order No. 2 RDS under section 104(c)(2) of the Federal Coal Mine Health and Safety Act of 1969. 

Order No. 2 RDS cited respondent for a violation of section 75.1725 

because the B-29 shuttle car (6SC) being used in the One Right Section 

was not being maintained in a safe operating condition in that the 

steering was bad and the operator could not safely steer the car 

through crosscuts (Exh. M-1). Section 75.1725 requires mobile equipment to be maintained in safe operating condition, or requires, in 

the alternative, that unsafe equipment be removed from service 

immediately. 

4. James Bentley, respondent's safety inspector, testified that 

when he and Inspector Suttles came to the face area of the One Right 

Section on April 20, 1976, the miners were in the process of opening 

a new section of the mine off of the old section in which they had 

been working. Mr. Bentley said the B-29 car had been repaired on the 

11 p.m.-to-7 a.m. shift on April 20 and that the car had not been 

moved on the day shift of April 20 because there was not sufficient 

room between the place where the belt feeder was located and the 

working face for two shuttle cars to be operated. Mr.· Bentley said 

tha~ new parts had been installed on the B-29 shuttle car and that 

the old parts were still lying .beside the car. The old parts had to 

be picked up so that the car could be moved. Mr. Bentley said that 

910 
the operator of the B-29 car got up on it and moved it a few feet 

but that there was not enough room for it to be operated very much 

(Tr. 32..:40; 42). 

5. Timothy Maggard, a repairman who normally works on the 

3 p.m.-to-11 p.m. shift, testified that the B-29 car broke down on 

his shift on April 19, 1976, at about 8: 30 p .m •. Mr. Maggard made a 

temporary repair of the B-29 car on April 19 so that the car could be 

used up to the end of· the production shift whieh ended at 11 p.m. 

Mr. Maggard said that the steering mechanism on the B-29 car was so 

bad that he decided that it needed to be completely rebuilt. Although 

Mr. Maggard had already worked his full 8-hour shift by 11 p.m.; he 

continued to work overtime on the next shift (11 p.m.-to-7 a.m.) so 

that the B-29 car would be in good operating condition for the beginning of the next production shift which was due to start at 7 a.m. 

Mr. Maggard had completed the repair of the B-29 car by 5 a.m. on 

April 20. He was due to report back to the mine to work his regular 

shift which began at 3 p.m. that same day. Therefore, Mr. Maggard 

obtained the promise of the other repairmen on the 11 p.m.-to-7 a.m. 

shift that they would take the old parts to the end of the track for 

him and he went home to get some sleep before reporting back to the 

mine at 3 p.m. Before Mr. Maggard left for home, however, he dr~ve 

the B-29 car around the block in each direction to make sure that all 

wheels were turning properly when the machine was maneuvered around 

corners (Tr. 46-49; 53-56; 59). 

6. When Mr. Maggard returned to the mine to work his regular 

shift commencing at 3 p.m. on April 20, 1976, he found that a red tag 

had been placed on the B-29 car indicating that the car was the 

subject of a withdrawal order. Mr. Maggard first checked the car's 

steering by jacking it up. He turned the car's steering wheel in one 

direction and checked the wheels on both sides of the car to make 

certain that they turned. He then turned the steering wheel in the 

opposite direction and found that the wheels all turned properly in 

that direction also. Mr. Maggard thereafter drove the car around the 

block and could find nothing wrong with it. Therefore, he parked the 

car where he found it with the red tag still on it. He then reported 

to the maintenance foreman that he could find nothing wrong with the 

B-29 car. When Mr. Maggard reported for work on his regular shift on 

April 21, 1976, he found that the red tag had been removed from the 

B-29 car and that it was being used (Tr. 49-50; 56-57). 

7. Richard Combs, who was general mine foreman at the Upper 

Taggart Mine on April 19 and 20, 1976, testified that the time sheets 

in the company's files show that Mr. Maggard worked a regular 8-hour 

shift on April 19 and worked 8 hours of overtime on the 11 p.m.-to7 a.m. shift on April 20 (Tr. 62-66; Exhs. A and B). 

8. In his rebuttal testimony, Inspector Suttles first stated 

that there was more room for us·e of the B-29 car on April 20, 1976, 

911 
than the company's witnesses had described. Inspector Suttles conceded, however, that his memory of the conditions in the One Right 

Section on April 20 was not distinct and that the continuous-mining 

machine might have been involved in cleaning up the mine floor for 

commencement of mining operations in a different direction. If that 

were true, respondent's claim that there was insufficient room for 

operation of two shuttle cars was probably correct. Inspector 

Suttles stated that he was not entirely certain about what the miners 

were doing on the 20th, but he was certain that there was sufficient 

space for both shuttle cars to be used on the 21st (Tr._68-70). 

Nonoccurrence of Violation 

I find that the preponderance of the evidence supports a conclusion that no violation of section 75.1725 occurred on April 20, 

1976. There is no doubt but that the steering on the B-29 shuttle car 

was defective on April 19, 1976, as both Inspector Suttles and the 

repairman, Mr. Maggard, agreed that the steering on the B-29 shuttle 

car was in bad condition on April 19, 1976, when Inspector Suttles 

asked that it be repaired. If Inspector Suttles had cited the B-29 

shuttle car for a violation of section 75.1725 on April 19, 1976, 

there is no reason to believe that respondent's management would have 

contested the citation. 

If the inspector had been more certain of what he actually saw 

on April 20 when he came back to check the condition of the B-29 car, 

it is possible that I could have found 'in his favor, but his admission 

that he could not recall for certain what the miners were doing on the 

20th, as opposed to the 21st, makes it impossible to find in his 

favor~ Mr. Maggard's demeanor at the hearing was that of a truthful 

witness and his testimony is consistent througqout. Both his direct 

testimony and his cross-examination show that he specifically recalled 

the rebuilding of the steering system on the B-29 shuttle car. The 

fact that he personally drove the car after it was repaired is a very 

convincing reason to believe that he had satisfactorily repaired the 

B-29 shuttle car before Inspector Suttles ever issued Order Now 2 RDS 

citing the car for a violation of section 75.1725. Additionally, 

Mr~ Maggard jacked up the car to test the steering on the 20th after 

the order was issued and Mr. Maggard again drove the car after the 

order was issued without finding anything wrong with it. The fact 

that nothing was done to the B-29 car between the time the inspector 

issued his order and the next day when it was found to be in proper 

operating condtion, is strong and convincing evidence that nothing was 

wrong with the steering on the B-29 car at the time the inspector's 

order was written. 

At transcript page 41 Mr. Bentley referred to the fact that both 

the inspector and respondent's management were under a lot of pressure 

at the time the inspector issued his order on April 20, 1976. As I 

have indicated in Finding No. 1, supra, Inspector Suttles had received 

912 
a complaint to the effect that the B-29 shuttle car was being operated 

in an unsafe condition. Even though he found that the B-29 shuttle 

car was unsafe on April 19, the inspector did not write an order or 

notice citing management for the violation at the time the violation 

was observed. It appears that the inspector's failure to cite a 

violation on the 19th may have been the subject of criticism. Therefore, when he returned to the mine on April 20, he was under pressure 

to cite the company for the violation which did exist the previous day 

but which did not exist on' April 20 when he actually wrote his order 

of withdrawal. .. 

The inspector's order is dated April 20, 1976, so there is no 

question before me as to whether the inspector could have backdated 

his order to cite respondent on tpe 20th for a violation which he 

observed en the 19th. The finding of a violation can be sustained 

only if the testimony shows that the B-29 shuttle car was defective 

on the 20th. The preponderance of the evidence shows that the car 

had been repaired between 11 p.m. on the 19th and the time that the 

inspector saw the car on the 20th. Since the car was not in an 

unsafe condition on the 20th, no violation of section 75.1725 existed 

when Order No. 2 RDS was written. 

Ultimate Findings and Conclusions 

(1) The Petition for Assessment of Civil Penalty filed in 

Docket No. BARB 78-401-P should be dismissed because of MSHA's failure 

to prove that a violation of section 75.1725 occurred as alleged in 

Order No. 2 RDS (6-206) dated April 20, 1976. 

(2) Scotia Coal Company was the operator of the Upper Taggart 

Mine at all pertinent times and as such is subject to the provisions 

of the Act and to the health and safety standards promulgated 

thereunder. 

WHEREFORE, it is ordered: 

The Petition for Assessment of Civil Penalty filed May 12, 1978, 

in Docket No. BARB 78-401-P is dismissed for the reason stated in 

paragraph (1) above. 

Distribution: 

Richard 

~C.Jl~ C. Steffey~ Administrative Law Judge 

Eddie Jenkins, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Richard C. Ward, Esq.,.Attorney for Scotia Coal Company, 

P.O. Drawer 1017, Hazard, KY 41701 (Certified Mail) 

913 
FEDERAL MINE SAflETY AND HEALTH REVIE\!tl corllMISSION . OFFICE OF ADIVliWSTRATIVE LAW JUDGl:S 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

JUL 1 8 1979 

AI..ABAMA BY-PRODUCTS CORPORATION, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFE TY AND HEAL TH 

ADMINISTRATION (MSRA), 

Respondent 

and 

UNITED MINE WORKERS OF AMERICA 

(UMWA), 

Respondent 

Application for Review 

Docket No. BARB 78-601 

Mary Lee No. 1 Mine 

DECISION 

Appearances: James Birchall, Esq., for Applicant; 

Terry Price and George D. Palmer, Esqs., Office 

of the Solicitor, U.S. Department of Labor) for 

Respondent. 

Before: Judge Lasher 

I. Statement of the Case 

Applicant seeks review of Order No. 239581, dated July 5, 1978, 

issued by MSHA inspector William J. Vann and which alleges a violation of 30 CFR 75.200. The order was issued pursuant to section 

104(b)(l) of the Federal Mine Safety and Health Act of 1977, 1/ 

citing Applicant with failure to comply with its roof control-plan 

"in that the controls of the continuous miner had moved 6 feet beyond 

the last row of permanent roof support in the crosscut between Nos. 1 

and 2 right aircourses on the 507 5 section." MSHA and UMWA both filed 

timely answers to the application. UMWA did not appear at the hearing 

and was dropped as a party. Both Applicdnt and MSHA were represented 

by counsel at the hearing which was held in Birmingham, Alabama, on 

February 1, 1979. 

1/ 83 Stat. 742, 30 u.s.c. § 801 et seq. 

914 
II. Findings of Fact and Discussion 

Applicant admits that .the violation charged by Inspector Vann did 

occur. 2/ By its application, Applicant seeks to have the section 

104(b)(l) order reviewed for the sole purpose of challenging the prerequisite finding that the violation was "caused by an unwarrantable 

failure" of the operator to comply with the mandatory safety standard 

cited. By express agreement of the parties, the validity of the 

underlying 104(d) (1) citation is not in issue. Neither par.ty takes 

the position that MSHA must establish, as part of a prima facie case 

of violation, that the violation is "of such nature as could significantly and substantially contribute to the cause and effect of a 

coal or other mine safety or health hazard." See UMWA v. Kleppe, 

532 F.2d .1403 (1976). 

Inspector Vann testified that he arrived at the section at 

approximately 7:55 a.m. on July 5, 1978, in the company of Steve 

Freeman, the assistant mine foreman, and that he arrived at the· 

violation site at 8:05 a.m. The continuous miner was not being 

operated when he arrived at the violation site because it had 

pulled a cable and pinched a lead which cut off the main breaker 

deenergizing the continuous miner. He indicated that the head of 

the cutter was approximately 20 feet beyond the last row of roof 

supports and that it was approximately 6 feet from the last r~w of 

roof supports to the controls of the continuous miner (Tr. 56, 57). 

The continuous miner was situated between the No. lA aircourse and 

the No. 2 aircourse on the left side of the crosscut. When Inspector Vann arrived, the continuous miner operator, Chuck Chism, and 

his helper, Drew McElrath, were setting timbers in the area. Chism 

told Inspector Vann that he did not realize he was. out from under 

roof supports until he crawled out from under the canopy of the continuous miner (Tr. 66, 79), presumably after the main breaker had 

cut off and deenergized the machine. The continuous miner helper, 

McElrath, told Inspector Vann that he was busy setting timbers and 

had removed a cable at the time (Tr. 69), presumably in explanation 

of his failure to signal Chism that he was going under unsupported 

roof. 3/ 

2/ The provision of the roof control plan (Exh. M-4) violated 

(appearing on page 11 thereof), requires that the "operating controls positioned on the * * * continuous mining machines shall not 

advance inby the last row of permanent roof support." 

It is a well established principle of mine safety law that a 

violation of the provisions of an approved control plan constitutes 

a violation of 30 CFR 75.200. Affinity Mining Company v. MESA et al., 

6 IBMA 100 (1976). 

3/ McElrath was not Chism's permanent helper. The helper's job had 

been filled by Chism himself until approximately 4 weeks prior to 

July 5, 1978, when Chism was promoted to operator of the continuous 

915 
Jimmy Hyche, day shift mine foreman for Applicant, testified that 

the duties of a continuous miner helpe·r include watching for the operator of the continuous miner, setting timbers, keeping the cable 

attached to the miner out of the.way of the miner, and directing the 

operator where to proceed in situations when the operator can see 

for himself. When he arrived at the violation site on July 5, 1978, 

Mr. Hyche indicated that .Chism, Inspector Vann, an~ Chism's helper, 

McElrath, were present. According to Hyche, Inspector Vann ~sked Chism 

if Leo Blake, the section foreman, had instructed him to cut coal from 

under the roof beyond the law row of roof supports. Chism's reply was 

that Blake had not done so. Chism also told Hyche that he "couldn't 

see. Hyche indicated .that the distance from the law row of permanent 

roof support to the cutter head was approximately 24 feet and that the 

distance from the last row of.roof supports to the controls of the continuous miner was only 3 feet. Hyche said that one reason Chism coul~ 

not see the last row of roof supports and proceeded beyond it was 

because the canopy on the continuous-miner extends over the operator's 

head, obstructing his vision. 

Clarence Key, who had operated the continuous miner in question 

prior to the time Chism replaced him on it, testified that Section 

Foreman Blake was "above average" as a section foreman and that Blake 

had always instructed him not to go beyond roof supports. Key also 

testified that Chism had been his helper and was a good one. 

Section foreman Leo Blake, testifying on behalf of Applicant, 

indicated that it would take the continuous miner only 30 seconds to 

move out from under unsupported roof if the continuous miner was not 

actually cutting coal. He testified that he had instructed the 

miners under his supervision "hundreds of times" in connection with 

not working under unsupported roof. He also indicated that the helper 

(McElrath) was apparently pulling curtains down instead of doing his 

j.'.)b. 

Based on the pleadings and stipulations of the parties, I find 

preliminarily that the violation did occur as alleged in the withdrawal order, that for purposes of this proceeding, the underlying 

104(d)(l) citation and order were properly issued, and that the violation cited in the subject order did not constitute an imminent 

danger but was, at the same time, "of such nature as could significantly and substantially contribute to the cause and effect of a 

mine hazard." 

fn. 3 (continued) 

miner. On July 5, 1978, the helper's job had not been permanently 

filled; McElrath had been employed as a miner for approximately 

3 years and had attended numerous.safety meetings and performed many 

different jobs. His classification on July 5, 1918, was "timber 

helper," and he was a fulltime employee. 

916 
The parties have thus narrowed the issues to one: Whether the 

violation of the roof control plan re~ulted from an unwarrantable 

failure of the Applicant to comply with its provisions. 

Following the Kleppe decision, supra, the Interior Board of Mine 

Operations Appeals, in Zeigler Coal Company, 7 IBMA 280 (1977) at 295-

296, determined that an inspector should find a violation of a safety 

standard was caused by unwarrantable failure to cemply with such standard where he finds any of the following circumstances: 

[T]hat the operator involved has failed to abate the conditions or practices constituting such violation, conditions 

or practices the oeprator knew or should have known existed 

or which it had failed to abate because of a lack of due 

diligence, or because of· indifference or lack of reasonable 

care. 

The Board went on to hold that the inspector's judgment in determining "unwarrantable failure" must be based upon a thorough investigation and must be reasonable. 

As I divine it, MSHA's theory of unwarrantable failure is that 

the violation was visible and that it should have been detected in the 

pre-dayshift examination since the violation allegedly occurred on 

the prior shift. However, after carefully considering the record, 

and, in particular, the transcript references pointed to by MSHA (Tr. 

13, 21, 22, 26, 27, 51, 52, 56, 100)~ I am unable to find or infer as 

MSHA seems to urge, that the continuous miner moved beyond the last 

row of permanent roof supports during the shift prior to the one on 

which it was observed by Inspector Vann. Although there were two eyewitnesses, neither of them, the continuous miner operator, Chism, nor 

his helper, McElrath, were called by MSHA to testify when the violation occurred. Furthermore, based on Inspector Vann's own account of 

his conversation with Chism and McElrath at the time he issued the 

order, it appears more likely that the violation occurred shortly 

before the inspector arrived on the scene (Tr. 51, 52, 65, 67, 69, 70, 

77). Also, had the violation occurred on the prior shift, it would 

have been written up in the fireboss book (Tr. 20, 46). 

According to the inspector, Chism told him that he was not 

aware that he was under unsupported roof until he climbed from underneath the canopy of the machine. There is evidence that the canopy 

obstructs the vision of the continuous miner operator, and that the 

helper, McElrath--whose function in part was to tell Chism when he 

was near unsupported roof (Tr. 101)--was only temporarily assigned to 

Chism (Tr. 101-104). 

The testimony of Applicant's witnesses, Hyche, Key, and Blake, 

that the violation occurred in onl"y a few·minutes .(Tr. 42, 106) is far 

more convincing than the testimony of the inspector which is not based 

917 
on direct knowledge, is inferential and in important respects, 

hypothetical in nature (Tr. 84), 4/ and, which in turn, is the 

only support for MSHA's somewhat contrived theory that the violation occurred on the prior shift. 

The more persuasive evidence in this proceeding leads me to conclude that this was an inadvertent violation which occurred shortly 

before the inspector arrived on the scene despite genuine efforts 

on the part of the mine operator to avoid such (Tr. 41, 46, 110-115). 

I thus find that the violation in question was not caused by the 

unwarrantable failure of the Applicant to comply with the safety 

· standard in question, and that there is merit in the application for 

review. 

ORDER 

All proposed findings of fact and conclusions of law submitted by 

the parties not expressly incorporated in this decision are rejected. 

Order of Withdrawal No. 239581, dated July 5, 1978, is VACATED. 

i)'~~t~"/ ~~¢'-- Michael A. Lasher, Jr., Judge 

Distribution: 

James Birchall, Esq., Cabaniss, Johnston, Gardner, Dumas & 

O'Neal, 19th Floor, First National Southern Building, · 

Birmingham, AL 35203 (Certified Mail) 

Terry Price and George D. Palmer, Esqs., Office of the Solicitor, 

u.s. Department of Labor, 1929 s. ·9:th Ave., Birmingham, AL 

35205 (Certified Mail) 

4/ I am unable to find evidentiary support for the key hypothetical 

question, i.e., how many carloads of coal would be required to move 

a block of-coal 50 inches high, 4 feet deep, and 10 feet wide (Tr. 

21, 22, 84). Thus, the transcript reference given by MSHA for the 

"10-feet wide" figure appears on page 13: 

"Q. What is the approximate width of the front end of the 

miner? 

"A. The cutter head? 

"Q. Right. 

"A. Approximately ten foot." 

I am unable to find from this testimony that a 10-foot wide area of 

coal was removed. 

Although not clearly stated, MSHA's theory apparently is that 

10 carloads of coal would have been required to remove such a block 

of coal (Tr. 22), and that since only two carload·s were removed the 

morning of the violation (Tr. 52), the rest would necessarily have 

had to have been removed on the prior shift the evening before. 

918 
FEDERAL MINE SAFETY AND HEALTH REVIE\\I COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 .WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

July 23, 1979 

EASTERN ASSOCIATED COAL COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

. . . 

Application for Review 

Docket No. MORG 77~ 

Federal No. 1 Mine 

DECISION 

This proceeding was brought by E~stern Associated Coal Corporation under section 105(a) of the Federal Coal Mine Health and Safety 

Act of 1969, 30 U.S.C. § 801 et seq., 1/ to vacate an order of withdrawal issued by two Federal mine inspectors pursuant to section 

104(a) of the Act. 

The parties submitted prehearing statements pursuant to a notice 

of hearing and a prehearing conference was held on April 11, 1978, in 

Pittsburgh, Pennsylvania. 

The hearing was held on July 11 and 12, 1978, in Pittsburgh, 

Pennsylvania. Both sides were represented by counsel, who have submitted their proposed findings and conclusions and briefs following 

receipt of the transcript. The final brief was filed on M~rch 7, 

1979. 

Having considered the evidence and the contentions of the 

parties, I find that the preponderance of the reliable, probative, 

and substantial evidence establishes the following: 

1/ In 1977 Congress passed the Federal Mine Safety and Health Amendments Act of 1977 (P.L. 95-164, 91 Stat. 1290), which supersedes 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. 

919 
FINDINGS OF FACT 

1. At all pertinent times, Applicant, Eastern Associated Coal 

Corporation, operated an underground coal mine known as the.Federal 

No. 1 Mine, in Marion County,. West Virginia, which produced coal for 

sales in or affecting interstate commerce. 

2. Federal mine inspectors David E. Workman and William H. Reid 

arrived at the s 11rface refuse area of the Federal No. 1 Mine during 

the afternoon shift on August 29, 1977. The inspectors were accompanied by Foreman Robert Sabo. 

3. 'The inspectors were sent to the mine by their supervisor in 

response to an anonymous safety complaint about the air brakes on a 

Euclid dump truck used in the refuse area. 

4. When the inspectors and Mr. Sabo arrived at the refuse site, 

they observed the Euclid truck approaching them. Mr. Mark Merica, the 

truck operator, stopped the truck and the inspectors asked him if he 

had any problems with the brakes on the truck. Mr. Merica told them 

that when the truck was loaded he had difficulty keeping it under 

control. 

5. Mr. Merica told the inspectors that there was air leaking 

from the right rear wheel brake. He had complained about the condition to a mechanic who inspected the brakes. The mechanic told 

Mr. Merica that no leak existed, but made some adjustments to the 

brakes. Mr. Merica had also entered his observation regarding the 

brakes in a weekly log maintained by the company. · He told the inspectors that when the truck was loaded, he could not stop or hold it on 

some of the grades in the refuse area. 

6. The truck is normally driven on designated roads in the 

refuse area. These roadways vary from flat plateaus to inclines of 

about 14 percent. There are curves along some of these roads. At 

various places, if the truck went out of control, it could run off the 

roadway severely injuring or killing the driver. The truck is driven 

on all three shifts to transport slate and other mine r.efuse from the 

mine to the refuse area. 

7. Pressure•for the truck's air brakes is maintained by a compressor. An air pressure gauge keeps the operator informed of the 

pressure in the system. The normal pressure is 120 pounds per square 

inch (psi), and in normal operation, the pressure drops about 10 to 

20 psi when the brakes are applied. The footbrake and the handbrake 

are part of a single pneumatic system. A rupture at any point in the 

system would render the entire braking system inoperative. There is 

an emergency brake on the truck, but it could not independently stop 

or hold the truck. 

920 
8. With the truck parked, Mr. Merico applied the brakes while 

the inspectors observed. They heard a hiss caused by air escaping 

from the right rear wheel, and saw the air pressure gauge drop from 

120 to 70 psi when the brakes were applied. Mr. Merico told the 

inspectors that the truck could not be safely controlled if the 

pressure dropped belo~ 90 psi. 

9. Inspector Workman decided to test the brakes to determine 

whether an imminent danger existed. He had conducted similar tests 

of braking systems on mobile equipment in underground mines. He had 

previous experience driving large trucks equipped with air brakes, 

although he had not operated a Euclid dump truck before. At the 

inspector's request, Mr. Merico loaded the truck and then instructed 

Inspector Workman in the operation of the truck. 

10. Accompanied by Mr. Merico, Inspector Workman first tested 

the brakes three times by driving up a slight incline in second gear. 

He testified that the truck was sliding as if he. were driving on a 

road covered with ice.. After these tests, he believed the brakes 

were inadequate but had not decided whether an imminent danger 

existed. 

11. Inspect) · Workman then drove the truck to an adjacent area 

where the grade w;: , 14 p~cent. He drove up the grade and stopped 

with the front wheels of the truck over the top o~ the incline. He 

determined that it was a safe area to conduct a test because it was 

straight, the downward incline leveled off after about 25 feet, and 

below there was a sufficient level area for the truck to stop without 

adequate brakes. 

12. Inspector Workman backed down the hill and felt the truck 

pulling backwards despite his application of the brakes. The truck 

was in Jear at this time. He asked Mr. Merico if he had any problem 

holding the truck in this type of terrain and Mr. Merico suggested 

that if he put the truck in neutral and let the truck drift a little, 

it would be impossible to stop the truck. Inspector Workman asked 

Mr. Merico if there would be a hazard in following this testing procedure. He was told that if a problem arose, he could put the truck 

back in gear and would then be able to better control the truck. 

Mr. Merico also told the inspector, at this point, that he was 

required in normal operations to back the truck do~an incline. 

13. Inspector Workman followed the procedure Mr. Merico suggested. He steadily applied the brakes and then pumped them when the 

rear wheels reached the bottom of the incline. The .truck would not 

stop until it came to the flat plateau at the bottom of the incline. 

The air pressure gauge dropped to 70 psi during.the test. 

14. Inspector Workman repeated this test two times with 

Inspector Reid, Mr. Sabo, and Mr. Merico in the cab of the truck. The 

921 
cab of the Euclid· truck was large .enough to safely accomodate the four 

men. 

15. Both inspectors were satisfied, after these tests, that the 

brakes were very dangerous. Mr. Sabo agreed that the br.akes were 

unable to stop the truck and that the truck should be parked until the 

brakes could be repaired. I find that the brakes on the Euclid truck 

were unable to safely stop or hold the truck on inclines that were 

regularly used during normal use of the truck. Although it would have 

been a better practice for the inspector to have the truck driver operate the truck while he accompanied him, I find that the inspector exercised reasonable care in choosing a test site and test procedures to 

de.termine whether an imminent danger existed, in light of the inspector's experience and the fact that the regular driver accompanied the 

inspector and instructed him in.the operation of the truck. 

16. Following the tests, the inspectors issued an order of withdrawal pursuant to section 104(a) of the Act. The truck was taken out 

of service and the brake diaphragm was replaced. The cause of the 

brake problem was the fact that the diaphragm was cracked around the 

outer rim. 

17. Mr. Daniel Bainbridge, a mining engineer for the Applicant, 

testified that the leak responsible for the hissing noise heard by 

the inspectors was caused by a small leak in the diaphragm. This type 

of leak would cause a loss of air pressure when the brakes were 

applied. 

18. There is, according to Mr. Bainbridge, no test to determine 

when this kind of a leak will completely rupture, although it is more 

likely that a diaphragm would rupture if the diaphragm were cracked 

and leaking. Age, lack of lubrication and an unattended leak could 

all contribute to a rupture of a diaphragm. 

19. I find that the leak in the brake diaphragm of the Euclid 

truck was an unsafe eondition. I further find that there was a substantial risk that t'he diaphragm on the truck would completely rupture, rendering the braking system inoperative and very dangerous to 

the operator. 

20. There was a serious risk that the driver of the Euclid truck 

would lose contro, over the truck because of a rupture in the diaphragm. 

Considering the terrain of the refuse site, I find that the condition 

cited constituted an imminent danger to the operators of the Euclid 

truck. 

DISCUSSION 

The controlling issue is whether the condition of the brake 

dia~hragm cited by Inspectors Workman and Reid constituted an imminent 

922 
danger within the meaning of sections·l04(a) and 3(j) of the Act. 

Section 104(a) provides: 

If, upon any inspection of a coal mine, an authorized 

representative of the Secretary finds that an imminent 

. danger exists, such representative shall detennine 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. 

Section 3(j) states: "'imminent danger' means the existence of 

any condition or practice in a coal mine which could reasonably be 

expected to cause death or serious physical hann before such condition or practice can be abated." 

In Consolidation Coal Company, v. MSHA, Docket No. MORG 78-335 

(decided February 28, 1979), I reviewed the evolving administrative, 

judicial, and legislative construction of the tenn "imminent danger" 

and concluded that an imminent danger order would be valid where a 

substantial possibility of immediate serious harm existed. _/ 

In the Consolidation Coal Company decision, supra, I stated: 

The Interior Board of Mine Operations Appeals, in a 

decision affirmed by the Seventh C~rcuit Court of Appeals, 

construed "imminent danger" as being a situation in which 

"a reasonable man would estimate that, if normal operations 

designed to extract coal in the disputed area should proceed, it is at least just as probable as not that the 

feared accident or disaster would occur before elimination 

of the danger." Freeman Coal Mining Company, 2 IBMA 197, 

212 (1973), aff'd sub nom Freeman Coal Mining Company v. 

Interior Board of Fne()perations Appeals, 504 F .2d 741, 

745 (7th Cir. 1974). 

The Fourth Circuit Court of Appeals stated in a case 

involving an imminent danger order: "The Secretary determined and we think correctly, that 'an imminent danger 

exists when the condition or practice observed could reasonably be expected to cause death or serious physical harm 

tQ a miner if normal mining operations were permitted to 

proceed in the area before t~e dangerous condition is eliminated.'" Eastern Associated Coal Corporatio"n v. Interior 

Board of Mine Operations Appeals, 491 F.2d 277, 278 (4th 

Cir. 1974), aff'g Eastern Associated Coal Corporation, 
2 IBMA 128, 136 (1973). See also: Old Ben Coal Corporation v. Interior Board of~ne-QPerations Appeals, 523 

F.2d 25 (7th Cir. 1975). 

Absent legislative history or a decision of the 

Commission to the contrary, it would appear reasonable to 

apply the test developed by the Interior Board. The statutory language concerning "imminent danger" in the 1977 Act 

is the same as the language in the 1969 Act; however, the 

1977 legislative history clearly indicates that Congress 

did not intend that the part of the Board's requirement 

enunciated in Freeman, supra, that "it is at least as probable as not that the feared accident or disaster would 

occur before elimination of the danger," be followed by the 

Commission in interpreting the current Act. 

Consolidated Coal Company v. MSHA, supra at p. 6. 

This conclusion is based on the legislative history of the 1977 

Act. The 1977 Senate Committee Report rejected a construction of 

"inuninent danger" that would require a finding by a Federal mine 

safety inspector. that it would be as likely as not that a serious 

injury or death would result before a condition might be abated. 

The Senate Committee Report states: 

The Committee disavows any notion that imminent danger 

can be defined in terms of a percentage of probability that 

an accident will happen; rather the concept of imminent 

danger requires an examination of the potential of the risk 

to cause serious physical harm at any time. It is the Committee's view that the authority under this section is 

·essential to the protection of miners and should be construed expansively by inspectors and the Commission. * * * 

S. Rep. No. 95-181, 95th Cong. 1st. Sess. (1977), reprinted in 

LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH ACT OF 1977 

at 626 (1978). 

The Applicant contends that the inspectors failed to make a 

reasonable determination that the brakes on the Euclid truck could 

not be reasonably expected to cause death or serious physical harm 

before the condition could have been abated. It also contends that 

the inspectors failed to use reasonable testing procedures. However, it is clear from a preponderance of the evidence that the 

condition of th~ air brakes on the Euclid truck was unsafe. 

924 
The three witnesses present when the inspection was conducted 

(Inspectors Reid and Workman and Mr. Merica) 2/ all testified that 

there was air leaking from the right rear wheel and that· the brakes 

were not adequate to stop or hold the truck on a roadway that was 

regularly used. Ml;". Merica, the truck operator, had been concerned 

about the truck's braking capacity for about 3 weeks prior to the 

inspection because he had trouble controlling the truck when it was 

loaded. About 1 week before the inspection, he noticed that the wheel 

was leaking. The cause of this leak was a cracked diaphragm. According to Applicant's witness, Mr. Bainbridge, it would be impossible 

to predict when the cracked and leaking diaphragm would rupture completely, although this could happen at any time. 

I conclude that it was reasonable for the inspectors to order the 

truck out of service until the diaphragm could be replaced because . 

there was a substantial possibility of serious injury or death should 

the truck be continued in use. This condition satisfied the Act's 

definition of "imminent danger". 

Although the Applicant offered evidence that Inspector Workman's 

"pumping" of the brakes was improper and the brakes should have been 

applied by steady pressure, this point applies to only part of his 

tests and does not rebut the other numerous facts that show the brakes 

were inadequate, including the fact that the ps.i went down to 70 when 

the truck driver applied the brakes, that everyone heard the hissing 

noise, the foreman (who witnessed the tests) agreed that the brakes 

could not hold properly, the diaphragm was cracked, and· the inspector 

also found the brakes inadequate when he applied steady pressure. 

CONCLUSIONS OF LAW 

1. The undersigned Judge has jurisdiction over the parties and 

the subject matter of this proceeding. 

2. At all pertinent times, Applicant's Federal No. 1 Mine was 

subject to the provisions of the Act. 

3. The Secretary proved, by a preponderance of the evidence, 

that the condition of the Euclid Truek's braking system in the mine~s. 

refuse area on August 29, 1977, constituted an "imminent danger" 

within the meaning of the Act. 

All proposed findings and conclusions inconsistent with the above 

are hereby rejected. 

~/ The fourth person present, Foreman Sabo, was not called as a 

witness. 

925 
ORDER 

WHEREFORE, IT IS ORDERED that the Application for Review is 

DENIED and the subject withdrawal order is AFFIRMED. 

Ct ! • -~ ./) • ,..., "\ . / Jlr ,I// _r ·~ . ..-1 . .J-·.,,....;::: . 'It .!.- ,;·' 

{,/ .. -(..{~ .• ~::: . . ·f./C.._.4-'> .~._. / .,.._. . .y(! ~·· ~ ... ,.. 

WILLIAM FAUVER, JUDGE 

Distribution: 

Mr •. Robert c. Brady, Eastern Associated Coal Corporation, 

1728 Koppers Building, Pittsburgh, PA 15219 (Certified Mail) 

Lawrence w. Moon, Jr., Esq., Trial Attorney, Office of the 

Solicitor, Mine Safety and Health Administration, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

HarLison Combs, Esq., United Mine Workers of America, 

900 15th St., NW., Washington, DC 20004 (Certified Mail) 

926 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

July 25, 1979 

EASTERN ASSOCIATED COAL CO'MPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Application for Review 

Docket No. MORG 77-74 

Federal No. 1 Mine 

AMENDMENT T.O DECISION 

The Decision entered on July 23, 1979 in the subject proceeding is 

AMENDED as follows: the docket number in the caption is changed from 

MORG 77-79 to MORT 77-74. 

WILLIAM FAUVER, JUDGE' 

Distribution: 

Mr. Robert C· Brady, Eastern Associated Coal Corporation, 1728 

Koppers Building, Pittsburgh, PA 15219 (Certified Mail) 

Lawrence W. Moon, Jr., Esq., Trial Attorney, Office of the 

Solicitor, Mine Safety and Health Administration, U.S. Department 

of Labor, 401.5 Wilson Boulevard, Arlington, VA 22203 

Harrison Combs, Esq., United Mine Workers of America, 900 15th 

Street, N.W., Washington, D.C. 20004 (Certified Mail) 

927 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD . 

ARLINGTON, VIRGINIA 22203 

July 24, 1979 

SECRETARY· OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. HOPE 77-238-P 

A.O. No. 46-01884-0004 

v. 

No. 9 Mine 

WILLIAMS COAL CO., 

Respondent 

DECISION 

Appearances: John H. O'Donnell; Trial Attorney, u.s. Department 

of Labor, Arlington, Virginia, for the petitioner. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a petition for assessment of civil penalty filed by the petitioner on April 27, 1977, pursuant to section 

109(a) of the Federal Coal Mine Health and Safety Act of 1969, now 

the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), 

charging the respondent with three violations of certain ciandatory 

health and safety standards. The case was delayed because of certain 

difficulties encountered by the petitioner in achieving service of 

the petition on the respondent. On June 20, 1978, service was made 

by leaving a copy at the residence of the respondent after personal 

service was refused. Subsequently, on August 8, 1978, Chief Judge 

Broderick issued a show-cause order requiririg the respondent to state 

why the case should not be summarily disposed of because of the failure by the respondent to file an answer to the petition as required 

by the appropriate procedural regulations. On August 28,° 1978, 

Mr •. Cecil Williams, Point Pleasant, West Virginia, filed a response 

to Judge Broderick's order on behalf of the respondent wherein he 

states the following: "The Williams Coal Co. Inc., .is no longer in 

business. The Corporation has been closed out and out of business 

since 1972. There is no assets and I am not personally going to pay 

the penaltys [sic]." 

By notice issued by me on April 13, 1979, a hearing was scheduled in Charleston, West Virginia, for June 7, 1979. The certified 

letter mailed to the respondent was returned by the post office as 

928 
"unclaimed." ·Subsequently, by notice dated May 9, 1979, the hearing 

site was changed to Arlington, Virginia, and the certified notice 

mailed to the respondent was also returned by the post office with 

a notation "out of ·business." A hearing was convened in Arlington 

on June 7, 1979, and petitioner appeared but respondent did not. 

DISCUSSION 

It seems obvious to me in this case that the respondent has no 

interest in pursuing the matter further and he has apparently taken 

the position that since the company is out of business further efforts 

on his part would be fruitless.· In view of the failure of the respondent to appear at the hearing after several attempts to serve him with 

notice thereof I will treat this matter as a default proceeding to be 

disposed of in accordance with the Commission's summary disposition 

rules, which state in pertinent part as follows at 29 CFR 2700.26(c): 

Where the respondent fails to appear at the hearing, 

the Judge shall have the authority to conclude that the 

respondent has waived its right to a hearing and contest 

of the proposed penalties and may find the respondent in 

default. Where the Judge determines to hold respondent in 

default, the Judge shall enter a summary order imposing the 

proposed penalties as final and directing·that such penalties be paid. 

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 that should be assessed against the respondent for the alleg~d 

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

Act. 

In determining the amount of a civil penalty assessment, section 

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

(1) the operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, (3) 

whether the operator was negligent, (4) the effect on the operator's 

ability to continue in business, (5) the gravity of the violation, 

and (6) the demonstrated good faith of the operator in attempting to 

achieve rapid compliance after notification of the violation. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164, 

effective March 9, 1978, 30 u.s.c. § 801 !:!_~· 

929 
2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. Commission rules, 29 CFR 2700.l !:!. ~· 

DISCUSSION 

The .citations issued in this proceeding were all issued by MSHA 

coal mine inspector George M. Pritt on July 29, 1971, and the conditions cited by the. inspector are set forth in the following violations: 

No. 1 GMP July 29, 1971, 30 CFR 70.272 

This notice states that a required· report and a report and certification concerning the conditions relative to dust control which 

exist in the active workings of the mine had not been received by 

MSHA's district office for the year 1971. Section 70.272 requires 

that such reports be initially submitted on or before June 30, 1970, 

and annually thereafter on the anniversary ·date of each initial · 

report. 

No. 2 GMP July 29, 1971, 30 CFR 75.1702~1 

This notice charges that a program to insure that persons do 

not carry smoking materials, matches, or lighters underground had 

not been submitted for approval to the Bureau of Mines. However, 

it also states that "the program was submitted to an office in 

Pittsburgh by mistake." The section cite9 requires such programs 

to be submitted to the coal mine safety district manager on or 

before May 30, 1970. 

No. 3 GMP July 29, 1971, 30 CFR 75.1713(c) 

This notice charges that a report showing arrangements made to 

provide 24-hour emergency transportation and medical assistance 

for injured miners had not been submitted to the district manager. 

However,.it also states that "due to a misunderstanding this report 

was sent to an office in Pittsburgh." 

Findings and Conclusions 

Fact of Violations 

In support of its case, petitioner introduced copies of the 

notices of violations and the abatements served on the respondent 

during the ·course of the mine inspection (Tr. 6,7; Exhs. 2-7). I 

find that the petitioner has established the violations as alleged 

in the petition.for assessment of civil penalties filed in this 

proceeding. 

930 
Size of Business and Effect of Penalty Assessments on the Respondent's 

Ability to Remain in Business 

Petitioner's Exhibit G-8 reflects that as of 1971 respondent's 

daily coal production was 300 tons and that the mine emP.loyed 18 nonunion miners. I find that this supports a finding that respondent 

was a small mine operator. As for the penalty assessments made by 

me in this case, since it appears that respondent is no longer in the 

coal mining business, the penalties assessed have no effect on respondent's ability to remain in business and that issue is moot. From 

the information supplied by the petitioner during the course of the 

hearing, the former mine operator is now in the business of selling 

automobiles in the State of Ohio (Tr.5). 

History of Prior Violations 

Petitioner's Exhibit G-1, a computer printout of respondent's 

history of violations, reflects that for the period January 1, 1970, 

through July 29, 1971, respondent had a total of 25 paid violations 

for which it paid a total of $1,275 in assessments. None of the 

prioz violations were for the standards cited in this proceeding. 

In the circumstances, I conclude that respondent's prior history is 

insignificant and that fact is reflected in the penalties assessed 

by me in this matter. 

Negligence 

With regard to notice 1 GMP, citing a violation of 30 CFR 70.272, 

I conclude that respondent's failure to submit that report, absent 

any explanation, constitutes ordinary negligen~e. As for the remaining two violations concerning programs for smoking materials and 

emergency transportation arrangements; it would appear from the record 

that respondent had established such programs but simply filed the 

required reports with the wrong Government office through a mistake 

and misunderstanding (Tr. 10-11; Exhs. G-4, G-6). Under the circumstances, as to Notice Nos. 2 GMP and 3 GMP, I cannot conclude that 

respondent was negligent and find that he was not. 

Good Faith Compliance 

The record supports a finding that respondent abated the violations in good faith and petitioner agreed that this was the case 

(Tr. 8). I have taken this into account in assessing the penalties 

in this case. 

Gravity 

I cannot conclude that the conditions cited in the three violations constituted any real threat to the safety or health of the 

931 
miners. The violations all concern reporting requirements for 

programs which the operator apparently had established but simply 

had not· repo.rted on. 

Penalty Assessments 

In view of the foregoing findings and conclusions, ·r believe that 

the following civil penalty assessments are appropriate: 

Citation No. 

1 GMP 

2 GMP 

3 GMP 

Date 

7 /29/71 

7 /29/71 

7 /29/71 

ORDER 

30 CFR Section 

70.272 

75.1702-1 

75.1713 (c) 

Assessment 

$ 25 

15 

15 

Respondent is ordered to pay the civil penalties assessed in this 

matter within thirty (30) days of the date of this decision and order. 

h.K!.l{~ Administrative Law Judge 

Distribution: 

John H. O'Donnell, Trial Attorney, u.s. Department of Labor, 

Office of the Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 

Mr. Cecil Williams, c/o Riverside Volkswagen Company, 195 Upper 

River Road, Gallipolis, OH 45131 (Certified Mail) 

932 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON aoULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

W. R. GRACE AND CO., 

Respondent 

July 25, 1979 

Civil Penalty Proceeding 

Docket No. DENV 79-407-PM 

A.O. No. 24-00165-05001 

Zonolite Mine 

ORDER OF DISMISSAL 

• 

The Regional Solicitor, Denver, Colorado moves to withdraw and nol 

pros the captioned petition for a penalty assessment because of the · 

"uncertainties of litigation." This vague and unparticularized reason 

would, if accepted, Justify the dismissal of almost any case. For this 

reason, I•believe the motion should be denied. Because of the Solicitor's 

obvious lack of zeal for vigorous enforcement, 1/ however,· I find a 

further waste of the taxpayers' money in pursuirrg this $30.00 penalty is 

unwarranted. 

Accordingly, it is ORDERED that the motion to dismiss the captioned 

petition be, and hereby is, GRANTED. 

1./ This violation is just one of 109 violations charged against respondent 

in this and six other dockets. In the other cases the Solicitor has 

moved for approval of a reduction in the penalties that amounts to 

almost two-thirds the amount originally assessed. It is a small wonder 

that the operators continue to regard civil penalties as a "cheap nuisance". 

Even more disturbing is the fact that after a year in office the Commission 

has issued no decision setting guidelines for the assessment of meaningful 

penalties •. In.fact, if I read the Commission's new rules correctly, the 

Commission has effectively repealed section llO(k) of the Ac~, 30 U.S.C. 

§ 820(k). 

933 
FEDERAL MINE SAFETY AND HEP,lTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

July 25, 1979 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMIN~STRATION (MSHA), Docket No. BARB 79-76-P 

Pe ti ti oner· Assessment Control 

v. 

BOYLE AIRE COAL COMPANY, 

Respondent 

No. 15-06809-03001 

No. 1 Tipple 

DECISION APPROVING SETTLEMENT 

Appearances: Eddie Jenkins, Esq., Office of the Solicitor, 

Department of Labor, for Petitioner; 

Elvin Smith, Corbin, Kentucky, for Respondent. 

Before: Administrative Law Judge Steffey 

When the hearing was convened on June 27, 1979, in the above-entitled 

proceeding, counsel for MSHA and respondent's representative asked that I 

approve a settlement agreement reached by the parties. Under the settlement agreement, respondent would pay the full amount of the penalties proposed by the Assessment Office. 

MSHA's Petition for Assessment of Civil Penalty seeks assessment of 

civil penalties for alleged violations of 30 CFR 77.1607(cc) and 30 CFR 

77.1713(c). The Assessment Office proposed that a penalty of $84 be assessed for the alleged violation of section 77.1607(cc) and that a penalty of $60 be assessed for the alleged violation of section 77.1713(c). 

The data in the official file show that respondent processes only about 

100 tons of coal per day and is, therefore, a small operator. In the 

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

will not cause respondent to discontinue in business. The record contains no evidence to show that respondent has a history of previous violations. Respondent made a good faith effort to achieve l~pid compliance. 

Section 77.1607(cc) requires that unguarded conveyors with walkways 

be equipped with stop devices or cords along their full length. Citation 

No. 126422 alleged that respondent's conveyor was not equipped with the 

required stop devices. Respondent's answer to the Petition for Assessment of Civil Penalty states that only one person walks along the conveyor and that he does so only, to grease the belt rollers and heac! drive 

at 10-day intervals of operation. Such greasing can be done only when 

the belt is motionless and the key to the power center is kept by the 

tipple operator. Moreover, respondent's answer states that the tipple. 

operator's seat is located in a position which makes it impossible for 

anyone to walk past him so as to pass along the walkway beside the conveyor belt. If a hearing had been held, it is likely that respondent's 

evidence would have shown that there was a low degree of gravity and 

934 
MSHA v. Boyle.Aire, Docket No. BARB 79-76-P (Contd.) 

negligence associated with the alleged violation of section 77.1607(cc). 

Therefore, respondent's agreement to pey the penalty of $84 proposed by 

the Assessment Office should be approved. 

Section 77.1713(c) requires that an entry be made in an approved 

book of the results of the daily inspection of surface facilities. Citation No. 126423 alleges that the daily record book was not being kept up 

to date. Respondent's answer to MSHA's Petition claims that respondent 

was making the entries in an approved book, but was making the entries 

at the end of the shift instead of at the beginning of the shift as required by the inspector. If a hearing had been held, it is likely that 

respondent's evidence would have shown that the violation was nonserious 

and that it involved a low degree of negligence, if any. Therefore, respondent's agreement to pay the penalty of $60 proposed by the Assessment 

Office for the alleged violation of section 77.1713(c) should be approved. 

WHEREFORE, it is ordered: 

·(A) The parties' request for approval of the settlement agreemerit 

is granted and the settlement is approved. 

(B) In accordance with the settlement agreement, respondent is ordered to pay, within 30 days from the date of this decision, a civil penalty of $84 for the violation of section 77 .1607(·cc) alleged in Citation 

No. 126422 dated April 7, 1978, and a penalty of $60 for the violation of 

section 77.1713(c) alleged in Citation No. 126423 dated April 7, 1978. 

Although it was not stated on the record at the hearing, it appears that 

respondent may already have submitted a check to 'the Assessment Office 

in payment of the penalties which are ordered to be paid in this paragraph. If respondent has already submitted a check for payment of the 

penalties involved in this proceeding, respondent may, of course, ignore 

this order to pay. 

Distribution: 

(J?~J_,nA...-0 (J. rt J';;.2/J_bJ_., ii~h;-~<l"c·. Steffey -//JJT 

Administrative Law Judge 

Eddie Jenkins, Trial Attorney, Office of the Solicitor, U.S. 

·Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Boyle Aire Coal Company, Attention: Elvin Smith, Partner, Route 1, 

Box 497, Corbin, KY 40701 (Certified Mail) 

935 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

July 26, 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

FREEMAN UNITED COAL MINING 

COMPANY, 

·Respondent 

Docket No. VINC 78-49-P 

A.O. No. ll-00599-2011V 

Orient No. 6 Mine 

DECISION 

Appearances: Leo J. McGinn, Esq., and Sidney Salkin, Esq., Office 

of the Solicitor, U.S. Department of Labor, for 

Petitioner; 

Before: 

Harry M. Coven, Esq., Gould & Ratner, Chicago, 

Illinois, for Respondent. 

Judge Cook 

I. Procedural Background 

On December 29, 1977, a petition was filed for assessmerit of 

civil penalty against Freeman United Coal Mining Company pursuant to 

section 109(a) of the Federal Coal Mine Health and Safety Act of 1969, 

30 u.s.c. § 819(a) (1970), for an alleged violation of the mandatory 

safety standard embodied in 30 CF.R 75.400. An answer was filed on 

January 16, 1978. 

A notice of hearing was issued on July 14, 1978. The hearing 

was held on September 26 and September 27, 1978, in Chicago, Illinois. 

Rep~esentatives of both parties were present and participated. 

At the hearing on September 26~ 1978, the parti.ds submitted proposed settlement agreements as to all or part of the alleged violations in the following companion cases: Docket Nos. VINC 78-394-P, 

VINc· 78-392-P, VINC 78-393-P, VINC 78-396-P, VINC 78-397-P. Settlement proposals were not submitted in either the present case or in 

Docket No. VINC 78-395-P. It was proposed that therecord be consolidated as to all cases, but the Respondent preferred to maintain 

separate transcripts of the proceedings in both the present case and 

936 
Docket Nos.· VINC 78~394-P and VINC 78-395-P. The record of the 

September 26_, 1978, settlement negotiations was consolidated with the 

separate records of the remaining ~ontested cases. 

A schedule for the submission of post-hearing briefs was agreed 

upon at the conclusion of the hearing, but a delay in the receipt of ' 

transcripts and other problems experienced by counsel forced a revision of the briefing •chedules. Under the revjsed schedule, briefs 

.were due on or before Februa,ry 6, 1979, and reply briefs were due 

on or before February 19, 1979. Respondent filed its post-hearing 

brief on February 6, 1979. Petitioner filed no post-hearing brief. 

No reply briefs were filed. 

II. Violation Charged 

Order No. 6-0179 (1 LDC), Novem}?er 1, 1976, 30 CFR 75.400 

III. Evidence Contained in the Record 

(A) Stipulations were entered into by the parties during the 

course of the hearing, and are set forth in the findings of fact, 

infra. 

(B) Witnesses 

MSHA called as its witness Lonnie Connor, an MSHA inspector. 

Freeman called as its witness Richard Gale Dawson, the chief 

belt maintenance foreman at the Orient No. 6 Mine at the time of the 

hearing, and shift mine manager on November 1, 1976. 

(C) Exhibits 

(1) MSHA introduced the following exhibits into evidence: 

(a) M-1 is a copy of Order No. 6-0179 (1 LDC), 

November 1, 1976, 30 CFR 75.400. 

'(b) M-2 is a termination of M-1. 

(c) M-3 is a 5 page document containing copies of 

Inspector Conner's notes. 

(2) Freeman introduced the following exhibits into evidence: 

(a) Exhibits 0-1-A through 0-1-F are copies of 

preshift reports. 

(b) 0-2 is a map of .the Respondent 1 s. Orient No. 6 

Mine. 

937 
(3) Exhibit 3 is a computer printout listing paid assessments 

for violations cited at the Orient No. 6 Mine. 

(4) The exhibits listed below, although not pertaining to the 

mine which is the subject matter of the above-captioned proceeding, 

were ordered filed with the exhibits in the above-captioned case 

during the proceedings on September 26, 1978. These exhibits, pertaining to the companion cases listed in Part I, supra, are set forth 

as follows: 

(a) Exhibit 1 is a computer printout listing paid 

assessments for violations cited at Respondent's Orient 

No. 3 Mine 

(b) Exhibit 2 is a compter printout listing paid 

assessments for violations cited at Respondent's Orient 

No. 4 Mine. 

IV. Issues 

Two basic issues are involved in the assessment of a civil penalty: (1) did a violation of the Act occur, and (2) what amount 

should be assessed as a penalty if a violation is found to have 

occurred? In determining the amount of civil penalty that should be 

assessed for a violation, the law requires that six factors be considered: (1) history of previous violations; (2) appropriateness of 

the penalty to the size of the operator's business; (3) whether the 

operator was negligent; (4) effect of the pena1ty on the operator's 

ability to continue in business; (5) gravity of the violation; and 

.(6) the operator's good faith in attempting rapid abatement of the 

violation. 

V. Opinion and Findings of Fact 

A. Stipulations 

1. During the settlement proceedings on September 26, 1978, the 

parties entered into the following stipulations: 

(a) The Orient No. 6 Mine produces approximately 

1,159,797 tons of coal per year (Tr. 5, 11-September 26, 

1978, Docket Nos. VINC 78-392-P, et al). 

(b) The Freeman United Coal Mining Company produces 

approximately 6,221,752 tons of coal per year (Tr. 5, 

11-September 26, 1978, Docket Nos. 78-392-P, et al). 

2. During the course of the hearing, the parties entered into 

the following stipulations: 

938 
(a) · Two shafts had been drilled (Tr. 95). 

(b) As indicated in the core report, the material 

from those shafts contained a high degree of rock and 

other materials of that type, such as shale (Tr. 95). 

(c) The material from the shafts was stockpiled 

underground (Tr. 95). 

(d) In addition to the coal which the belt hauled 

from the production areas, some material from the shafts 

was placed on the belt to be disposed of outside the 

mine (Tr • 9 5) • 

(e) The 18th north belt is a 36 inch wide belt 

(Tr. 98). 

(f) The belt is a rope suspended conveyor using 

polyvinyl chloride belting material (Tr. 98). 

(g) The belting material is a "scandura conveyor 

belting" with a U.S.B.M. approval No. 28-1, which 

specifies that this material is fire resistant and 

will not support combustion (Tr. 98). · 

(h) Fire protection is provided along the conveyor 

with a two inch water line provided with fire hose outlets as required, and a "fire sensing direction [sic] 

system" along the entire belt line (Tr. 98). -

(i) At every drive assembly there are provided 

300 feet of fire hose~ carbon dioxide fire extinguishers, 

and numerous sacks of rock dust (Tr. 98). 

(j) In accordance with the Code of Federal 

Regulations, this conveyor line is contained and 

isolated from the intake and return escapeways 

(Tr. 98-99). 

(k) There was not present in this belt entry any 

high voltage electric wires (Tr. 98-99). 

B. Occurrence of Violation 

MSHA inspector Lonnie Connor conducted a regular health and 

safety inspection at Respondent's Orient No. 6 Mine on November 1, 

1976 (Tr. 6). He issued the subject order of withdrawal at 6:20 p.m., 

citing the Respondent for a violation of the mandatory safety standard 

embodied in 30 CFR 75.400 (Tr. 16, Exh. M-1). The order of withdrawal 

states: 

939 
Coal and coal dust have accumulated alongside and 

under the 18th north-east conveyor belt from a point 

100 feet outby the 1st section tail pulley to the tail 

pulley of the 3rd section of belt, a distance of 

3,700 feet. The accumulations range from 2 to· 18 inches 

in depth) and the bottom rif the belt and the return 

rollers were rubbing the accumulations for 700 feet. 

The belt was :recorded dirty on the preshift examiner's 

book (Exh. M-1). 

The 18th north east conveyor belt is approximately 6,000 feet 

long (Tr. 49), and consists of three sections (Tr. ll, 49). It is 

a 36 inch belt (Tr. 30~ 98), but had worn down to a 31-32 inch width 

at points (Tr. 47). Tlle inspector walked the west side of the belt 

line in its entirety (Tr. 10, 30-31). The only places on the east 

side of the belt that he specifically checked were the drives and 

tail pieces (Tr. 31). • 

There was a 24 inch high accumulation ·of coal dust around the 

tailpiece of the firs~ section (Tr. 11). According to the inspector, 

belt shovelers had shov.eled coal dust away from the tail pulley 

itself and had piled i~ along side the ribs of the entry (Tr. 11). 

The second section of the drive had coal dust accumulations 

packed both in and under the drive, and around the rollers of the 

drive (Tr. 11). The inspector testified that the dust was packed 

around the bottom rollers of the drive for 3 tq 4, and possibly 

5 inches, although he admitted that he did not measure it (Tr. 12). 

He did not check the rollers for heat, and did not notice any heat 

source in the area (Tr. 12, 17). He described the accumulations as 

"damp and wet" at that location (Tr. 12). 

Proceeding in from the· second section drive, he found accumulations of various depths all along the second section of belt (Tr. 13, 

27). These accumulations extended from the head to the tailpiece 

(Tr. 32). For a distance of 650 feet, they measured 18 inches deep 

or more in spots (Tr. 32). The remainder measured 2 to 4 inches in 

depth (Tr. 32). The bottom rollers of the belt were rubbing the 

accumulations (Tr. 13). Generally speaking, the accumulations were 

dry, but there were some wet areas along the beltline (Tr. 35). The 

second section tailpiece was also packed with accumulated coal dust 

(Tr. 13). The tailpiece. was described as "dirty" (Tr. 27). 

The third section of the belt had accumulations of coal and coal 

dust aroun4 it. The third section drive also had some coal dust 

around it. Coal dust had been shoveled out from around the tailpiece 

and had been stacked around it (Tr. 28). · 

The accumulations were located mostly on the west side of the 

belt (Tr. 13). The measurements were made with a tape measure 

940 
(Tr. 13). Although the inspector did not recall how many measurements he had taken, he stated that the measurements were interspersed 

along the beltline (Tr. 13). 

The accumulations consisted of lumps of coal with some rock in 

it (Tr. 14). The pieces of coal were large (Tr. 43). The rock that 

was intermixed with the coal along the west side of the belt was 

large rock that had been cut as part of the mining cycle (Tr. 43). 

This was described as normal because "[t]here is no pure coal. It all 

has rock intermixed with it***" (Tr. 43-44). The inspector further 

testified that the amount of rock observed in the accumulation was 

insufficient to render the accumulation inert "as a whole" (Tr. 45). · 

The coal dust was not float coal dust, but a-fine coal dust that 

could pass through a 100 mesh screen (Tr. 14). 

The inspector testified that coal was being run at the time (Tr. 

17), although he did not know how much coal had been mined on that 

shift (Tr. 46). Although the belt was running, the inspector did not 

recall whether anything was being carried on the belt (Tr. 47). 

The inspector had checked the preshift examiner's books prior to 

going underground (Tr. 14). He testified that two recordings in the 

preshift examiners books stated that the belt was dirty (Tr. 16). 

The preshift examination conducted between 5 and 8 a.m. on November 1, 

1977, recorded the belt as dirty from the first section tail to the 

second section tail (Exh. 0-1-C, Tr. 15). According to the inspector, 

Mr. Tom Gentry, the mine manager, had recorded in the book that he did 

not have the necessary people to correct the condition (Tr.· 16). 

The inspector testified that a written cleanup plan was in effect 

at the mine on November 1, 1977, and that he had. seen it on a previous 

occasion (Tr. 17). He did not recall the Respondent as having any 

provisions in the cleanup μlan for cleaning the conveyor belt system 

(Tr. 18). However, he was aware that the Respondent had a practice of 

assigning belt shovelers as needed to the different areas that needed 

cleaning (Tr. 18). He testified that the practice at the Orient No. 6 

Mine was to do very little shoveling (Tr. 48). Although they usually 

patrol the belt "maybe once a shift," they mostly station themselves 

at tne drive or tailpiece and cleanup spills caused by the failure of 

the belts to stop in sequence (Tr. 48). 

According to the inspector, a great deal of spillage occurs along 

this belt because it had worn, reducing the width to 31 or 32 inches 

at points (Tr. 47). Due to this narrowness, the belt should be 

cleaned by assigning people to continuously work on it (Tr. 47). He 

stated that one man could handle 6,000 to 7,000 feet of belt in the· 

absence of the spillage problem, but that it would require 2 or 3 men 

on each shift to keep this particular belt clean (Tr. 49). The 

inspector saw one man shoveling, and he was located in the middle of 

the second section of the belt (Tr. 19). 

941 
Mr. Richard Gale Dawson, the Respondent's shift mine manager on 

November 1, 1976 (Tr. 73-74), testified that he walks each belt line 

weekly, and that he had probably walked the 18th north east belt line 

more than 50 times as of November 1, 1976 (Tr. 86). His experience, 

both as a belt foreman and from walking the belt, indicated that it 

would require 2 men to properly clean it (Tr. 86). Two ~en would 

be sufficient, in the absence of a personal communication from the 

belt examiner that the belt was especially dirty (Tr. 87). According 

to Mr. Dawson, the-examiner makes an entry in the preshift report 

anytime the belt .needs cleaning, but this 'does not necessarily indicate that a hazard exists (Tr. 87). If it is of such a nature as to 

present a hazard, the examiner normally informs Mr. Dawson (Tr. 87). 

He testified that on November 1, 1976, no one told him anything 

regarding the nature and extent of the accumulation cited by the 

inspector (Tr. 87). 

The preshift mine examiner's report for October 31, 1976, covering the shift examination from 9 p.m. to 12 midnight (Exh. 0-1-A) 

contains a notation covering the second section of belt showing a 

dirty tail (Tr. 78). According to Mr. Dawson, this notation indicated a spill at th~ transfer point involving approximately 12 feet 

(Tr. 78). He stated that a belt cleaner had been assigned to clean 

this section of belt (Tr. 78). 

The preshift mine examiner's report for November 1, 1976, covernor th 

This 

ing the 5 a.m. to 8 a.m. examination (Exh. 0-1-C) states: "18 

belt dirty from 3177 to second belt ·drive west side" (Tr. 81). 

covers a distance of 750 feet (Tr. 81-82). No.one was assigned to 

clean the a~ea (Tr. 110). 

The northeast section of the mine did not operate between 8 a.m. 

and 4 p.m. on November 1, 1976, and no coal was produced on this 

section during ~hat 8 hour time period (Tr. 82-83). 

During the preshift examination conducted between 1 p.m. and 

4 p.m. on November 1, 1976, the examiner recorded a dirty belt in 

the first section of tail and the second section of tail (Exh. 0-1-D, 

Tr. 84). According to Mr. Dawson, the entry indicated that approximately 2,200 feet of belt was involved (Tr. 85). However, he was 

unable to state why the belt was reported dirtier in Exhibit 0-1-D 

than in Exhibit 0-1-C because the belt had not been in operation 

during the intervening shift (Tr. 85). Mr. Dawson testified that the 

entry in Exhibit 0-1-D caused him to assign additional personnel to 

clean the belt (Tr. 85-86). 

In des·cribing the accumulations, Mr. Dawson stated that some of 

them had been shoveled from the second section drive and thrown along 

side the rib (Tr. 89). He described the drive area as being extensively wet, as standing in water (Tr. 89). The material between the 

drives was characterized as damp (Tr. 103). 

942 
He characterized the material along the west side of the drive 

as primarily refuse material from two shafts being drilled approximately 700 feet from the belt tail, (Tr. 89, 90, 99), although he 

admit.ted seeing some large chunks of coal and some small particles 

of coal (Tr. 99). The drilling process had produced refuse consisting 

primarily of shale,_ with some limestone and a small amount of lime 

rock (Tr. 91). He stated that such material would be wet (Tr. 91). 

The parties stipulated that in addition to the coal which the belt 

hauled from the production areas, some materia·l from the shafts was 

·placed on the belt to be disposed of outside the mine (Tr. 95). 

In Old Ben Coal Company, 8 IBMA 98, 84 I.D. 459, 1977-1978" 

OSHD par. 22,088 (1977), motion for reconsideration denied, 8 IBMA 

196, 1977-1978 OSHD par. 22,328 (1977), the Board of Mine Operations 

Appeals (Board) 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 accumulation o.f 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 

(3) that the operator failed to clean up such 

accumulation, or failed to undertake to clean it up, 

within a reasonable time after discovery, or, within 

a reasonable time after discovery should have been 

made. 

8 IBMA at 114-115. 

For the reasons set forth below, I find that accumulations of 

combustible material were present in the mine's active workings, as 

described in the subject order of withdrawal. 

There is a conflict in the testimony as to the composition of 

the material along the 18th notheast conveyor belt. The testimony 

of Mr. Dawson characterizes the material as primarily shale, limestone and lime rock, while the testimony of Inspector Conner 

characterizes it as coal and coal dust. Having had the opportunity 

to assess the credibility of the witnesses, I conclude that the 

inspector's testimony correctly identifies the composition of the 

material. The inspector recalled the sinking of the two shafts, 

that some of the material had oeen stockpiled in crosscuts, and he 

943 
believed that some of it had been loaded out (Tr. 39~40). He was 

aware that some of the material from the shafts was included in the 

areas observed along the belt line, and was able to give a detailed 

description of its color (Tr. 40). The fact that he was aware of 

the presence of this material during the course of the inspection, 

and that he was able to identify it, indicates that he correctly 

identified the accumulation as principally coal and coal dust. 

Although the accumulations were described as damp to wet in 

certain areas, there is no indication that the accumulations were 

sufficiently wet in all areas to prevent combustion under any 

circumstances. In fact, the inspector stated that most of the 

material was dry (Tr. 35). · 

Accordingly, it is found that accumulations of combustible 

materials existed in the mines active workings, as described in 

the subject order of withdrawal (Exh. M-1). 

The preshift examiner's reports contain references to accumulations along the 18th northeast conveyor belt, but they do not contain 

entries indicating that the accumulations were as extensive as those 

reported by the inspector. However, the discrepancy between Exhibits 

0-1-C and 0-1-D as to the extent of the accumulations reveals that 

the reports are a less than accurate indicator of the duration of 

their existence. Exhibit 0-1-C is the entry which preceded Exhibit 

0-1-D, and the former entry records a less extensive accumulation 

problem than does the latter. Yet, the belt was neither in operation 

nor was any coal produced during the intervening time period. In 

light of this dtscrepancy, I accept the inspector's estimate that the 

accumulations existed for a number of shifts (Tr. 22). An individual 

conducting a proper preshift or onshift examination should have discovered the accumulation's presence. Accordingly, it is found that 

the Respondent knew or should have known of their existence. 

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. 

944 
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 view that the 

maintenance of a regular cleanup program, which would 

incorporate from one cleanup after two or three production 

shifts to several cleanups per production shift, depending 

upon the volume of production involved, might well satisfy 

the requirements of the standard. On the other hand, where 

an operator encounters roof falls, or other out-of-the 

ordinary spills, we beli~ve 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 most crucial of .all the obligations imposed by 

the Act upon a coal mine operator to protect the safety of 

the miners. 

8 IBMA at 111. 

The extent of the accumulation and the opinion of the inspector, 

coupled with the testimony regarding the usual cleanup procedure for 

the mine, indicate that the accumulation existed for more than a 

reasonable time. The fact that some of the accumulations had been 

piled along the ribs, coupled with the fact that only one belt 

shoveler was working on the accumulations when the inspector walked 

the belt, indicate that the Respondent was not securing effective 

removal of the accumulation at the time the order was issued. Two 

or three shovelers should have been assigned. to continuous cleanup 

duties along the belt. Although Mr. Dawson's experience indicated 

the need for 2 shovelers to maintain the area in an acceptable condition, (Tr. 87), he did not always assign 2 shovelers to the subject 

be 1 t ( Tr • 86) • 

Although the entry in the preshift report for the examination 

conducted between 5 a.m. and 8 a.m. on November 1, 1976, (Exh. 0-1-C) 

revealed an accumulations problem along the subject belt, no one was 

assigned to clean the belt on the November 1, 1976, 8 a.m. to 4 p.m. 

shift (Tr. 110). The mine manager is supposed to ab-ate items 

reported by the examiners (Tr. 111). The entry in the preshift 

report for the examination conducted between 1 p.m. and 4 p.m., on 

November 1, 1976 (Exh. 0-1-D) indicated to Mr. Dawson that 2 shovelers 

were required to alleviate the problem. Even though he may have 

assigned an additional shoveler to the belt, the fact remains that 

only one belt shoveler was working in the area at the time the order 

was issued. In the words of Inspector Connor: "Tb.at one man that I 

saw shoveling on the belt could not have cleaned the accumula~ions in 

a week of shoveling" (Tr. 22). 

945 
In view of the facts as set forth above, it is found that MSHA 

has both established a prima facie case for a violation of 30 CFR 

. 75.400 and preponderated over the rebutting evidence adduced by the 

Respondent. Zeigler Coal Co., 4 IBMA 88, 82 I.D. 111, 1974-1975 

OSHD par. 19,478 (1975). Accordingly, it is found that the violation 

occurred as alleged. 

C. Gravity 

The violation was observed by the inspector during a production 

shift (Tr. 114), although no coal had been produced (Tr. 115). The 

belt was running (Tr. 12), but the inspector could not recall anything being carried on it (Tr. 47). 

Some rollers were surrounded completely by accumulations 

(Tr. 12), but the inspector did-not know how many rollers were turning in the accumulation (Tr. 38). He did not recall whether any 

rollers were broken (Tr. 38). He did not check the rollers for heat, 

(Tr. 12, 17), and did not notice any heat source in the area (Tr. 12). 

According to the inspector, the mine is gassy, liberating in 

excess of 600,000 cubic feet of methane in 24 hours (Tr. 7). However, 

there was no methane present in the belt entry (Tr. 37). The explosive range for methane is 5 to 15 percent, with 9 percent as the 

optimum (Tr. 27). The belt entry was isolated, as far as the inspector could ascertain (Tr. 37). Mr. Dawson described the belt as 

isolated (Tr. 97). 

The inspector classified the violation as a serious one (Tr. 20). 

In his opinion, serious physical harm could have befallen a miner 

because if a mine fire were to occur or if an explosion were to occur 

the accumulations could possibly propagate and extend an explosion 

(Tr. 20). 

The most probable ignition sources were described as friction 

or electicity (Tr. 37-38). Friction could have been caused by the 

rollers rubbing rock and coal (Tr. 20, 38-39). The drive was classified as a possible ignition source because the drive bearings could 

overheat and cause combustion (Tr. 21). However, there was no indication that overheating of the drive bearings was likely to occur. 

The inspector did not recall seeing any cables or electrical wiring 

in contact with the coal dust (Tr. 39). 

If an ignition had occurred, some smoke would have reached the 

face area (Tr. 21), but the majority of it would have entered the 

return air course (Tr. 22). 

Most of the accumulations were dry (Tr. 35). There were some 

wet areas, as set forth in Part V (B), supra. 

946 
The inspector observed a small amount of rock dust underneath 

the accumulations (Tr. 36). 

The belting material was a "scandura conveyor belting" with a 

U.S.B.M. approval No. 28-1, which specifies that this material is 

fire resistant and will not support combustion (Tr. 98). ·Fire protection was provided along the conveyor with a two inch wat~·r line 

provided with fire hose outlets as required, an~ a fire sensing 

system along the entire belt line (Tr. 98). Three hundred feet of 

fire hose, carbon dioxide fire extinguishers and numerous sacks of 

rock dust were provided at every drive assembly (Tr. 98). In 

accordance with the Code of Federal Regulations, the conveyor line 

was contained and isolated from the intake and return escapeways 

·Tr. 98-99). No high voltage electric wires were present in the 

subject belt entry (Tr. 98~99). 

Accordingly, on the facts as set forth above, it is found that 

the violation was serious. 

D. Negligence of the Operator 

It is found, as set forth in Part V (B), supra, that the 

Respondent knew or should have known of the violation. Of particular 

significance are the following findings~ 

The Respondent did not assign individuals to clean the subject 

belt during the 8 a.m. to 4 p.m. shift on November 1, 1976, even 

though the entry in the preshift report (Exh. 0-1-C) indicated that 

the belt ~as dirty. As mentioned in Part V (B), supra, the entry 

in Exhibit 0-1-D reveals a more extensive accumulation problem than 

does the entry in Exhibit 0-1-C, even though the belt was not in 

operation and no cleaning occurred during the intervening shift. 

These facts indicate that either the area was not subjected to a 

proper preshift examination or that the examiner failed to accurately 

record his observations in the preshift reports. However, the actual 

or constructive knowledge of a preshift examiner is imputed to the 

operator. Pocahontas Fuel Company, 8 IBMA 136, 84 I.D. 488, 1977-1978 

OSHD par. 22,218 (1977) aff'd sub nom. Pocahontas Fuel Company v. · 

Andrus, 590 F.2d 95 (4th Cir. 1979-Y:--

In view of the foregoing, it is found that the Respondent demonstrated considerably more than ordinary negligence. 

E. Good Faith in Securing Rapid Abatement 

The order of withdrawal was issued at 6:20 p.m. on November 1, 

1976 (Exh. M-1). Mr. Dawson proceeded immediately to the 18th north 

east·conveyor belt area after learning of the closure order (Tr. 87). 

Mr. Dawson walked the beltline, -and thereupon a~signed a crew to 

947 
remove the accumulations by telling the face foreman that he wanted 

more individuals to shovel (Tr. 88). The order was terminated at 

7:45 p.m. on· November 2, 1976. 

Accordingly, it is found that the Respondent demonstrated good 

faith in securing rapid·abatement of the violation. 

F. History of Previous Violations 

The history of previous violations at the Respondent's Orient 

No. 6 Mine during the 24 months prior to October 28, 1976, is 

embodied in the following chart: 

Violations 

of 30 CFR 

Year 1 

10/30/74-10/29/75 

All Sections 190 

Section 75.400 32 

Year 2 

10/30/75-10/28/76 

169 

28 

(Note: All figures are approximations) 

Totals 

359 

60 

The operator had paid assessments for approximately 359 violations of all regulations falling under 30 CFR within the 24 months 

preceeding the violation of October 29, 1976. Approximately 190 of 

those violations occurred between October 30, 1974 and October 29, 

1975, while 169 occurred between October 30, 1975 and October 28, 

1976. 

The operator had paid assessments for approximately 60 violations of 30 CFR 75.400 during the 24 months preceeding October 29, 

1976. Approximately 32 of those occurred between October 30, 1974 

and October 29, 1975, while approximately 28 occurred between 

October 30, 1975 and October 28, 1976. 

G. Appropriateness of Penalty to Operator's Size 

The Freeman United Coal Mining Company produces approximately 

6,221,752 tons of coal per year. (Stipulations embodied in transcript 

of the September 26, 1978 settlement proceedings, PP• 5, 11, Docket 

Nos. VINC 78-392-P, et al). The Orient No. 6 Mine produces approximately 1,159,797 tons of coal per year. (Stipulation embodied in 

transcript of the September 26, 1978 settlement proceedings, pp. 5, 

11, Docket Nos. VINC 78-392-P, et al). 

H. Effect on Operator's Ability to Continue in Business 

Counsel for the Respondent concedes in his post-hearing brief 

that assessment of the maximum penalty would have no effect on the 

Respondent's ability to continue in business (Respondent's PostHearing Brief, p. 23). Furthermore, the Interior Board of Mine 

948 
Operations Appeals has held that evidence relating to the issue as to 

.whether a civil penalty will affect the operator's ability to remain 

in business is within the operator's control, resulting in a rebuttable presumption that the operator's ability to continue in business 

will not be affected by the assessment of a civil penalty. Hall Coal 

Company, 1 IBMA 175, 79 I.D. 668, 1971-1973 OSHD par. 15,380 (1972). 

Therefore, I find that penalties otherwise properly assessed in this 

proceeding will not impair the operator's ability to continue in 

business. 

VI. Conclusions of Law 

1. Freeman United Coal Mining Company and its Orient No. 6 Mine 

have been subject to the provisions of the Federal Coal Mine He~lth 

and Safety Act of 1969 and the Federal Mine Safety and Health Act of 

1977 during the respective periods involved in these proceedings. 

2. Under the Acts, this Adminis.trative Law Judge has jurisdiction over the subject matter of, and the parties to this proceeding. 

3. The violation charged in Order No.-6-0179 (1 LDC), 

November 1, 1976, 30 CFR 75.400 is found to have occurred. 

4. All of the conclusions of law set forth in Part V of this 

decision are reaffirmed and incorported herein. 

VII. Proposed Findings of Fact and Conclusions of Law 

Freeman United Coal Mining Company submitted a post-hearing 

brief. MSHA submitted no post-hearing brief. ·such brief, insofar as 

it can be considered to have contained.proposed findings and conclusions, has been considered fully, and except to the extent that such 

findings and conclusions have been expressly or impliedly affirmed in 

this decision, they are rejected on the ground that they are, in 

whole or in part, contrary to the facts and law or because they are 

immaterial to the decision in this case. 

VIII. Penalty Assessed 

Upon consideration of the entire record in this case and the 

foregoing findings of fact and conclusions of law, I find that the 

assessment of a penalty is warranted as follows: 

Order No. Date 30 CFR Standard Penalty 

6-0179 (1 LDC) ll/01/76 75.400 $ 3,000 

949 
ORDER 

The Respondent is ORDERED to pay civil penalty in the amount of 

$3,000 as assessed in this proceeding within 30 days of the date. 

of this decision. 

Issued: July 26, 1979 

Distribution: 

Leo J. McGinn, Esq., MSHA,.Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

Sidney Salkin, Esq., Office of the Solicitor, Room 14480 

Gateway Building, 3535 Market Street, Philadelphia, PA 19104 

(Certified Mail) 

Harry M. Coven, Esq., Gould & Ratner, 300.West Washington 

Street, Chicago, IL 60606 (Certified Mail) 

Administrator for Coal Mine Safety and Health, U.S. Department 

of Labor 

Standard Distribution 

950 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

July 26, 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. PITT 78-419-P 

A/O No. 36-00818-02012V 

v. 

Foster No. 65 Mine 

LEECHBURG MINING COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION APPROVING SETTLEMENT 

AND 

ORDERING PAYMENTC>F CIVIL PENALTY 

Michael V. Durkin, Esq., Joseph Walsh, Esq., and 

Anna Wolgast, Esq, Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

Henry Mee. Ingram, Esq., and R. ijenry Moore, Esq., 

Rose, Schmidt, Dixon, Hasley, Whyte & Hardesty, 

Pittsburgh, Pennsylvania, for Respondent. 

Judge Cook 

On July 31, 1978, the Mine Safety and Health Administration 

(MSHA) filed a petition for assessment of civil penalty.against 

Leechburg Mining Company (Leechburg). This petition was filed pursuant to section llO(a) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 820(a) (1977). An answer was filed on August 18, 

1978. A prehearing order was issued. 

Subsequent thereto, various notices of hearing were issued. When 

the hearing convened on December 5, 1978, in Pittsburgh, Pennsylvania, 

MSHA proposed the receipt into evidence of certain documents in order 

to establish its prima facie case in the absence of the issuing MSHA 

inspector. Leechburg interposed objections, both to the receipt of 

the documents into evidence and to a continuance, on various grounds. 

Instead, Leechburg moved for dismissal of the proceeding with prejudice. As grounds therefor, Leechburg cited MSHA's failure to comply 

with Leechburg's prehearing interrogatories, requests for admissions 

and requests for production of documents. The motion was denied, 

upon the premise that MSHA would comply with the requests for admissions and for production of documents within 15 days and on 

December 6, 1978, the hearing was continued until February 15, 1979. 

951 
On February 15, 1979, MSHA filed a motion for approval of settlement. An order was issued on February 16, 1979, cancelling the hearing and continuing the proceeding indefinitely pending consideration of the request for approval of settlement. 

An order was issued on March 6, 1979, denying the motion for 

approval of settlement. Subsequent thereto, MSHA filed a second 

motion wherein it requested both app~oval of a settlement and dismissal of the proceeding. 

Information as to the six statutory criteria contained in section 110 of the Act has been submitted. This information has provided a full disclosure of the nature of the settlement and the basis 

for the original determination. Thus, the parties have complied with 

the i~tent of the law that settlement be a matter of public record • 

. M$HA's motion sets forth the following justifications for the 

proposed settlement: 

Comes now the Mine Safety and Health Administration 

(MSHA), by and through its undersigned attorney, and 

moves the Administrative Law Judge (Judge) to approve 

the settlement to which the parties have agreed, as 

expressed in this second motion, and to dismiss the 

Petition for .Assessment of Civil Penalty. 

The alleged violation in this case and the settlement .are 

identified as follows: 

Number: Date: 30 CFR: Assessment Settlement 

7-0029 9/09/77 75.1403 $1,650 $ 250 

1. On or about February 15, 1979, the original motion to 

approve settlement was filed. On March 6, 1979, the 

Judge issued a decision disapproving the proposed settlement. Since then the parties have reviewed the entire 

·matter in light of the Judge's disapproval. They believe -

that their proposed settlement is an appropriate disposition of the case. Therefore, this second motion proposes 

a settlement of the one alleged violation in the case for 

$250, i.e., the same amount proposed in the original 

motion. 

2. In the original motion, due to a typographical error, 

for which MSHA apologizes, the amount of the proposed 

assessment was stated as $650 instead of the· correct 

$1650. However, during the negotiations which resulted 

in the proposed settlement, the Office of the Solicitor 

952 
was aware of the correct proposed assessment. It was 

determined that the proposed assessment was much too high 

and the ·proper penalty was agreed _to be $250. 

3. After correcting the proposed assessment, MSHA now 

adopts the original motion and its attachments in support 

of this motion to approve settlement. (A copy of that 

motion is attached). In addition, brief comments on the 

six criteria will be included here. 

4. Gravity was sufficiently covered in the original 

motion. 

5. Negligence was sufficiently covered -in the original 

motion. 

. 6. The Respondent is a small to medium size operator 

as the tonnage figures in the original motion indicate. 

7. The Respondent demonstrated good faith in achieving 

abatement after notification of the alleged violation. 

8. Attached hereto and made a part hereof is a computer 

printout from MSHA's Office of Assessments. It reflects 

that in the two years immediately preceding the subject 

alleged violation, Respondent paid penalties for 

107 violations. Two of the penalties were for violations 

of the mandatory standard here in question - one in 1975 

and one in 1976. The penalties paid for these were $58 

and $78, respectively. 

9. Payment of the agreed penalty will have no effect on 

Respondent's ability to continue in business. The parties 

have agreed that the Judge should take official notice of 

the financial information introduced before him in 

Leechburg Mining Co., PITT 78-420 (decision pending), for 

a somewhat detailed view of Respondent's financial condition. In order to facilitate such consideration, attached 

hereto and made a part hereof are pages 15 through 34 of 

the transcript of that proceeding and two exhibits from 

that proceeding, the Respondent's Financial Statement and 

1977 Federal tax return. 

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. 

Those portions of the February 15,. 1979, mQtion, incorporated by 

reference into the above-quoted passage, state the following: 

953 
* * * * * * * 

2. In support of said settlement MSHA submits the order 

of assessment including the narrative finding's of the 

assessment office, the order of withdrawal, th~ order of 

termination, and the inspector's statements, and the 

notice of safeguard. · · 

3. As set. fotth in the narrative findings of the assessment office, the annual company production is 169,761 tons. 

The annual production for the Foster #65 Mine is the same. 

4. As set forth in the narrative findings of the assessment office, the.history of violation includes 111 viola-· 

tions during the 24-months prior to the violation at issue. 

5. The order of withdrawat was issued on September 9, 

1977. The condition or practice cited in the order reads 

as follows. "The clearance face along.the track haulage 

road was obstructed with loose rock, mud, steel rails, and 

cement blocks a.t various locations beginning at the 4 right 

section and extending outby to the quarter mains overcast, 

a distance of approximately 3200 feet. The clearance space 

measured from one to 16 inches from the fu~therest [sic] 

projection of the normal traffic at· these locations.-

Issued in refeience to notice to provide safe guard 

No. 1 WDW issued 2-18-72. 

6. The notice to provide safeguard reads as follows: 

"The clearance space and shelter holes along all track 

haulage entry at this mine shall be cleared of loose rock 

and other loose materials, crosscuts used as shelter holes 

shall be cleared of loose rock and other loose materials 

for a depth of at least 15 feet." In its narrative findings the assessment office concluded that the violation 

resulted from the operator's negligence. The daily examination should have revealed this condition. The testimony 

of the inspector would support this conclusion. In its 

narrative findings, the office of assessment did not make 

an express finding of gravity. In a discussion with the 

inspector, the inspector stated that the entry was not 

used regularly. The entry was used only by one supply car 

each day, and by the examiner who made the ·daily inspection. The inspector stated that approximately five percent of the 3200 feet contained obstructions. He stated 

that there were perhaps four or five cement blocks in the 

entire area. He said that there were three qr four rails 

in this area. He said that most of the obstructions 

consisted of loose rock fallen from the roof. This rock 

resulted from sloughing. The sloughing debris measured 

from eight to ten inches in depth. These obstructions 

954 
presented a tripping hazard to anyone walking in the area. 

He staied that there was no other hazard presented by the 

violation. 

In accordance with the wishes of the parties, official notite is 

hereby taken of the financial information introduce.d in Leechburg 

Mining Company, Docket No. PITT 78-420-P (June 27, 1979). 5 U.S.C. 

§ 556(e) (1976). In that decision, the evidence adduce~ by Leechburg 

as to the company's financial condition was analyzed as follows: 

The Respondent is subject to a maximum aggregate penalty 

assessment of $60,000 for the six subject violations. 

The Respondent, through the testimony of company president Harold Dunmire, contends that a $60,000 penalty 

would jeoparize the Respondent's survival, considering 

the Respondents other financial obligations (Tr. 435-36). 

The Respondent anticipates difficulty in raising $60,000 

within 30 days because the·company's current financial 

posture renders doubtful the provision of the requisite 

monies by a lending institution (Tr. 445-46). 

In addition to the testimony of company president Harold 

Dunmire, the Re'spondent offered a copy of the Respondent's 

tax return for the year ending June 30, 1978, and financial 

statements for the year ending June 30, 19q8, in support of 

its position. The Respondent did not call an expert witness 

to assist in interpreting the tax return and the financial 

statements. Bearing in mind the limitations imposed by 

the lack of expert testimony, the following picture of the 

Respondent's financial condition was established by the 

evidence. 

Leechburg Mining Company is owned by a small group of 

shareholders and is not part of a larger business entity 

(Tr. 437, 440). Eighty-two percent of the company's stock 

is held by the Mellon Bank on behalf of the Hick's es~ate 

(Tr. 438). The Bank administers the trust for the estate 

(Tr. 439). The beneficial interest in the trust is held 

by Lewis and Harry Hicks, the heirs of the Hick's estate 

(Tr •. 438-39). 

The company has approximately 80 employees (Tr. 432). It 

operates only one mine, the Foster No. 65 Mine (Tr. 440). 

The mine has two sections operating (Tr. 432). The 

company's coal production was lower during the year ending 

June 30, 1978 than during the year ending June 30, 1977, 

because of the United Mine Worker's strike in 1978 (Tr. 

432-33). The company produces approximately 900 to 

1,000 tons of coal per day (Tr. 441). It is sold to Penelec 

at a price of $26.60. per ton, F.O.B. (Tr.·433, 441). The 

955 
contract with Penelec expires on April 22, 1979. The 

company anticipates receiving a reduced price per ton 

after April 22 because the current prevailing market rate 

for coal is $22 to $25 per ton (Tr. 441). 

The company has large obligations based on a settlement 

agreement with the Pennsylvania Department of Environmental 

Resources for reclamation of 130 acres of refuse area 

(Tr. 434). This reclamation is proceeding at the present 

time (Tr. 434)". It costs $20,000 to $25,000 per month, and 

is projected to cost $1.3 million upon completion in 1981 

(Tr. 435, 441-3, Exh. OX-13). According to Mr. Dunmire, 

the company lacks sufficient assets to fund this liability 

~nd must pay for it on a day-to-day, month-to-month basis 

out of net operating revenues (Tr. 434-35). 

At a recent board of directors meeting, one director proposed closing the company, ~rimarily in consideration of 

the obligations to the Pennsylvania Department of Environmental Resources (Tr. 436). It was decided at that time 

to continue in business as long as sufficient revenue 

could be generated (Tr. 436). 

Leechburg's U.S. Corporation Income Tax Return for the year 

ending June 30, 1978, shows a $257,236 loss for' tax purposes (Exh. 

OX-15). The $257,236 loss was computed as follows: 

Gross Income 

Gross receipts or Gross Sales 

Less: Cost of Goods Sold 

Gross Profit 

Interest 

Gross Rents 

Gross Royalties 

Other Income 

Total Income 

Deductions 

Compensation to Officers 

Salaries & wages (not deducted elsewhere) 

Rents 

Taxes 

Interest 

Depreciation 

Depletion 

Pension, Profit Sharing, etc. plans 

Other Deductions 

Total Deductions 

Taxable Income 

956 

$3,883,699 

3,534,850 

348,849 

55,735 

5,810 

5,082 

4,086 

419,562 

79,605 

9,901 

690 

157,349 

2,785 

241,857 

662 

73,107 

110,842 

676,798 

(257,236) 
Tax 

Refunded. 25 J 714 

The financial statement for the year ending June 30, 1978 

(Exh. OX-13), reveals the following information: 

Balance Sheet 

Assets 

Total current assets 

Mortgage Receivable 

Annuity Contract 

Fixed Asset-At Cost 

· Liabilities 

Total current Liabilities 

Deferred Compensation 

Committments and Contingencies 

(note c) 

Stockholders Equity 

Capital stock par value 

$5 per share20, 000 shares authorized 

& issued 

Capital contributed in 

excess of par value 

Retained Earnings 

Statement of Earnings 

and Retained Earnings 

Revenues 

Costs and Expenses 

(Loss) earnings before income 

taxes 

Income Taxes 

(Loss) Earnings for Year 

Retained earnings-beginning 

of year 

·cash dividends paid 

Retained earnings-end of year 

(Loss) Earnings per share 

·957 

June 30, 1978 

1,760,592 

10,932 

. 72,000 

1,948,592 

3,792,116 

649,903 

72,000 

100,000 

38,675 

2,931,538 

3,070,213 

3, 79·2, 116 

1978 

3,954,413 

4,217,634 

(263,221) 

(1, 708) 

(261,513) 

3,193,051 

·2,931,538 

($13.08) 

June 30, 1977 

2,002,797 

12, 777 

72,000 

1,762,846 

3,850,420 

446,694 

72,000 

100,000 

38,675 

3,193,051 

3,331,726 

3,850,420 

1977 

5,484,939 

4,790,494 

694,445 

88,243 

606,202 

2,686,849 

(100,000) 

3,193,051 

$30.31 
Statement of Changes in 

Financial Position 1978 1977 

Working capital at beginning 

of year 1,556,103 971,440 

Working capital at end of year 1,110,689 1,556,103 

(Decrease) Increase in working 

capital (445,414) 584,663 

Cost of Operations (Years ended 

June 30) 1978 1977 

3,737,349 4,335,249 

Fixed Assets & Accumulated Depletion & Depreciation 

Balance 

July 1, 1977 Additions Deductions 

Balance 

June 30, 1978 

Fixed Assets 

Accumulated 

Depletion & 

Depreciation 

4,659,000 

2,896,154 

433,546 24,263 

246,365 22,828 

The land reclamation expenses are not c·overed in the 

financial statements (Tr. 443). Reclamation expenses 

currently run between $20,000 to $25,000 per month 

(Tr. 435). This translates into yearly expenses 

ranging between $240,000 and $300,000. 

5,068,283 

3,119,691 

The financial statement (Exh. OX-13) reveals assets 

valued at $3,792,116 for the year ending June 30, 1978, 

a $58,308 decline from.the $3,850,420 figure for the 

year ending June 30, 1977. Total current liabilities 

increased from $446,694 to $649,903 during the same 

time period, while retained earnings declined from 

$3,331,726 to $3,070,213 (Exh. OX-13). 

Revenues declined from $5,484,939 in the year ending 

June 30, 1977 to $3,954,413 in the year ending June 30, 

1978 (Exh. OX-13), while costs and expenses failed to 

decline at the same .rate (Exh. OX-13). This resulted 

in a $261,513 loss for the year ending June 30, 1978, 

as opposed to the $606,202 profit for the year ending 

June 30, 1977. 

It is impossible to determine, on the basis of the 

information supplied, whether the loss experienced in 

the year ending June 30, 1978, is attributable to such 

958 
unforeseen and nonrecurring activities as the 1978 

United ·Mine Workers' strike (Tr. 432-3), or whether it 

indicates long term financial problems. The Respondent 

offered no evidence, other than the deleterious effects 

of the strike, which would have explained the decline 

in revenues reflected in the financial statements, a 

decline responsible for the loss experienced during·the 

year ending June 30, 1978. It appears, however, that 

Respondent's f~nancial posture, when viewed in light of 

total assets and retained earnings, is sufficiently 

secure to w{thstand the assessment of moderately 

appropriate civil penalties. 

PiTT 78-420-P at pp. 35-39. 

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 

th•t 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 $250 assessed in 

this proceeding. 

Issued: July 26, 1979 

Distribution: 

Michael V. Durkin, Esq., Joseph Walsh, Esq., & Anna Wolgast, 1 Esq., MSHA, Office of the Solicitor, U.S. Department of Labor, 

4015 Wilson Blvd., Arlington, VA 22203 

Henry McC. Ingram, Esq., R. Henry Moore, Esq., Rose, Schmidt, 

Dixon, Hasley, Whyte & Hardesty, 900 Oliver Building, 

Pitts.burgh, PA 15222 (Certified Mail) 

Administrator for Coal Mine Safety and Health; U.S. Department 

of Labor 

Standard Distribution 

959 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMlNISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGIN IA 22203 

July 27, 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

DECISION 

Docket No. VINC 79-108-P 

A.O. No. 33-01172-03010 

Meigs No; 1 Mine 

Appearances: Linda Leasure, Attorney, Office of the Solicitor, 

U.S. Department of Labor, Cleveland, Ohio, for the 

Petitioner; David M. Cohen, Esquire, Lancaster, Ohio, 

for the_ Respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding is one of twelve docketed cases scheduled for 

hearings on the merits at Columbus, Ohio, June 19, 1979. A petition for 

assessment of civil penalty was filed in this case by the petitioner 

pursuant to section llO(a) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. 820(a) on January 4, 1979, seeking civil penalty assessments 

for two alleged violations of the Act and implementing mine safety and 

health standards. Respondent filed timely answers contesting the citations, 

and pursuant to notice, the parties appeared at the time and place for 

the hearing. During a prehearing conference on the record, the parties 

informed me that they had reached a tentative settlement with respect to 

this docket. They requested an opportunity to be heard with respect to 

the proposed settlement and that I approve same pursuant to Commission 

Rule 29 CFR 2700.27(d). 

The parties were afforded an opportunity to present arguments in 

support of the proppsed settlement. The citations, initial assessments, 

and the proposed settlement amounts are as follows: 

Citation No. 

279508 

279522 

Date 

7 /11/78 

7 /18/78 

30 CFR Section 

75.1722 (b) 

75.200 

960 

Assessment 

$530 

$445 

Settlement 

$265 

$325 
Discussion 

In support of its recommendation concerning the proposed civil 

penalty of $265 for the guarding citation, petitioner's counsel pointed 

out that the cited belt pulley area was ·protected with a guard of sorts, 

namely chicken wire over mo~- of the exposed area. In addition, the 

condition was abated rapidly in approximately an hour and.twenty-five 

minutes. The respondent believed the exist ~g guard was adequate 

but was willing to settle the matter. 

With regard to the roof control plan citation, section 75.200, 

respondent argued that the roof bolter was .coming in to bolt· the area 

cited at the time the inspector cited the violation. Petitioner · 

stated that the condition was abated promptly, that the pertinent roof 

~ontrol plan provisions were explained to the working crew by the 

operator, and that the petitioner was satisfied with the proposed 

settlement after taking into account the question of negligence and 

gravity of the situation presented (Tr. 4-13). 

ORDER 

After due consideration of this matter, I find that the proposed 

settlement should be approved~ Accordingly, pursuant to 29 CFR 2700.27(d), 

respondent is ordered to pay civil penalties totaling $590.00 in 

satisfaction of the cited violations within thirty days of the date 

of this decision. Upon receipt of payment, this matter is dismissed. 

j ,;'J ~v~-- 11:pv,17 tf >f h' -~ ?eorge 1Af.. Koutr s-· A./~~ Admin±6trative Law Judge 

Distribution: 

David M. Cohen, Esq., American Electric Power Service Corporation, 

P.O. Box 700, Lancaster, OH 43130 (Certified Mail) 

Linda Leasure, Esq., U.S. Department of Labor, Office of the Solicitor, 

881 Federal Office Building, 1240 E. Ninth Street, Cleveland, OH 

44199 (Certified Mail) 

961 
·FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRG tNIA 22203 

July 27, 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

Docket No. VINC 79-113-P 

A.O. No. 33-02308-03011 

Raccoon No. 3 Mine 

DECISION, 

Appe~rances: Linda Leasure, Attorney, Office of the Solicitor, 

U.S. Department of Labor, Cleveland, Ohio, for the 

Petitioner; David M. Cohen, Esquire, Lancaster, Ohio, 

for the-Respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding is one of twelve docketed cqses scheduled for 

hearings on the merits at Columbus, Ohio, June 19, 1979. A petition for 

assessment of civil penalty was filed in this case by the petitioner 

pursuant to section llO(a) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. 820(a) on January 4, 1979, seeking civil penalty assessments 

for two alleged violations of the Act and implementing mine safety and 

health standards. Respondent filed timely answers contesting the citations, 

and pursuant to notice, the parties appeared at the time and place for 

the hearing. During a prehearing conference on the record, the parties 

informed me that they had reached a tentative settlement with respect to 

this docket. They requested an opportunity to be heard with respect to 

the proposed settlement and that I approve same pursuant to Commission 

Rule 29 CFR 2700.27(d). 

The parties were afforded an opportunity to present arguments in 

support of the proposed settlement. The citations, initial assessments, 

and the proposed settlement amounts are as follows: 

Citation No. 

279979 

277702 

Date 

8/17/78 

8/18/78 

30 CFR Section 

75.202 

75.606 

962 

Assessment 

$345 

$106 

Settlement 

$225 

$106 
Discussion 

With regard to citation no. 277-702, respondent agreed to pay the 

penalty which_was initially assessed for the cited violation. With 

regard to the proposed reduction for citation no. 279979, respondent 

pointed out that the cited overhanging rib conditions were 52 inches 

high and because of relatively low coal, the chances of someone being 

under the rib and being injured was minimal. Further, there is no 

evidence that the ribs were loose and the inspector did not measure 

the extent of the overhanging ribs. In additio~, since the ribs had 

to be sheared down to abate the citation, this was indicative of the 

fact that the ribs were not loose. Petitione_r concurred in respondent's 

assessment of the gravity presented, although recognizing that a 

crushing hazard to a machine operator was present (Tr. 36-40). 

In addition to the evidence and arguments presented as to the 

specific circumstances surrpunding the citations, petitioner presented 

information concerning the size ~nd scope of respondent's mining 

operations at the Raccoon No. 3 Mine and evidence concerning the 

prior history of violations at that mine (Tr. 35, Exhibit P-1). 

ORDER 

After due consideration of this matter, I find that the proposed 

settlement should be approved. Accordingly, pursuant to 29 CFR 

2700.27(d), respondent is ordered to pay civil penalties totaling 

$331.00 in satisfaction of the cited violations within thirty days 

of the date of this decision. Upon receipt of payment, this matter is 

dismissed. 

Ill /J.J/ i _ ___. /l1

{ ?.efur·ge~{ 1

10 

Koutras t( -t,~ ~ 

·Administrative Law Judge 

Distribution: 

David M. Cohen, Esq., American Electric Power Service Corporation, 

P.O. Box 700, Lancaster, OH 43130 (Certified Mail) 

Linda Leasure, Esq., U.S. Department of Labor, Office of the 

Solicitor, 881 Federal Office Building, 1240 E. Ninth Street, 

Cleveland, OH 44199 (Certified Mail) 

963 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

July 27, 1979 

SECRETARY OF LABOR, Civil Penalty P.roceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v .• 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

.. 

. Docket No. VINC.79-l49-P 

A.O. No. 33-01173-03012 

Meigs No. 2 Mine 

DECISION 

Appearances: Linda Leasure, Attorney, Office. of the Solicitor, 

U.S. Department of Labor, Cleveland, Ohio, for the 

Petitioner; David M. Cohen, Esquire, Lancaster, Ohio, 

for the ·Respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding is one of twelve docketed cases scheduled for 

hearings on the merits at Columbus, Ohio, June 19, 1979. A petition for 

assessment of civil penalty was filed in this case by the petitioner 

pursuant to section llO(a) of the Federal Mine Safety and. Health Act of 

1977, 30 U.S.C. 820(a) on January 22, 1979, seeking civil penalty assessments 

for three alleged violations of the Act and implementing mine safety and 

health standards.· Respondent filed timely answers contesting the citations, 

and pursuant to notice, the parties appeared at the time and place for 

the hearing. During a prehearing conference on the record, the parties 

informed me that they had reached a tentative settlement with respect to 

this docket. They requested an opportunity to be heard with respect to 

the proposed settlement and that I approve same pursuant to Commission 

Rule 29 CFR 2700.27(d). 

The parties were afforded an opportunity to present arguments in 

support of the proposed settlement. The citations, initial assessments, 

and the proposed settlement amounts are as follows: 

Citation No. 

279170 

279171 

279172 

Date 

8/15/78 

8/15/78 

8/15/78 

30 CFR Section 

75.400 

75.301-1 

75.301-4(b)(l) 

964 

Assessment 

$225 

$295 

$255 

Settlement 

$130 

$295 

$255 
Discussion 

Regarding citations 279171 and 279172, respondent agreed to pay 

in full the penalties initially assessed for those citations. With 

regard to citation 279170, concerning an alleged accumulation of oil 

and grease on and around a cutting machine motor, petitioner asserted 

that while the respondent was negligent in allowing the condition 

to occur and that it could result in a probable mine fire., the 

condition was promptly abated and the respondent exercised good 

faith in this regard (Tr. 24-29). 

ORDER 

After due consideration of this matter, I find that the proposed 

settlement should be approved. Accordingly, pursuant _to 29 CFR 

2700.27(d), respondent is ordered to pay civil penalties totaling 

$680.00 in satisfaction of the cited violations within thirty days 

of the date of this decision. Upon receipt of payment, the matter is 

dismissed. 

) £ / / ---- :((1.fi/1 j 1.- ~_,// ,/~ Grorge r.A. lotft:ras-·-L~~ Administrative Law Judge 

Distribution: 

David M. Cohen, Esq., American Electric Power Service Corporation, 

P.O. Box 700, Lancaster, OH 43130 (Certified Mail) 

Linda Leasure, Esq. , U.S. Department of Labor~ O.ffice of the Solicitor, 

881 Federal Office Building, i240 E •. Ninth Street, Cleveland, OH 

44199, (Certified Mail) · 

965 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION· 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULcVARD 

ARLINGTON, VIRGINIA 22203 

July 27, 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding. 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

Docket No. VINC 79-140-P 

A.O. No. 33-02308-03008 

Raccoon No. 3 Mine 

DECISION 

Appearances: Linda Leasure, Attorney, Office of the Solicitor, 

U.S. Department of 'Labor, Cleveland, Ohio, for the 

Petitioner; David M. Cohen, Esquire, Lancaster, Ohio, 

for the Respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding is one of twelve docketed cases scheduled for 

hearings on the merits at Columbus, Ohio, June 19, 1979. A petition for 

assessment of civil penalty was file'd in this case by the petitioner 

pursuant to section llO(a) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. 820(a) on January 18, 1979, seeking civil penalty assessments 

for two alleged violations of the Act and implementing mine safety and 

health standards. Respondent filed timely answers contesting the citations, 

and pursuant to notice, the parties appeared at the time and place for 

the hearing. During a prehearing conference on the record, the parties 

informed me that they had reached a tentative settlement with respect to 

this docket. They requested an opportunity to be peard with respect to 

the proposed settlement and that I approve same pursuant to Commission 

Rule 29 CFR 2700.27(d). 

The parties were afforded an opportunity to present arguments in 

support of the proposed settlement. The citations, initial assessments, 

and the proposed settlement amounts are as follows: 

Citation No. 

279804 

279807 

Date 

7/11/78 

7/12/78 

30 CFR Section 

75.301-1 

75.301 

Discussion 

Assessment 

$560 

$530 

Settlement 

$325 

$305 

In support of the proposed settlement for these violations, the 

petitioner pointed out that the conditions cited were similar violations 

966 
related to ·ventilation, and that one deals with a possible explosion 

or fire hazard, and the other involves possible exposure.to respirable 

dust. The proposed reduction of the initial penalty takes into account 

the fact that while more than one employee would be exposed to th~ fire 

hazard, only one would be exposed to the dust hazard. The emphasis 

placed on the number of employees exposed to the hazards by the 

assessment office was exagerated. Further, after consulting with the 

inspector, who was present in the courtroom, petitioner asserted that 

he believed the conditions cited resulted from a problem with adjusting 

and repairing the line curtains and that they were isolated events. 

Further, the prior history for prior violations of the same standards 

show very few for the year 1978 (Tr. 45-49). 

In addition to the evidence and arguments presented as to the 

specific circumstances surrounding the citations, petitioner presented 

information concerning the size and scope of respondent's mining 

operations at the Raccoon No. 3 Mine and evidence concerning the prior 

history of violations at that mine (Tr. 35, Exhibit P-1). 

ORDER 

After due consideration of this matter, I find that the proposed 

settlement should be approved. Accordingly, pursuant to 29 CFR. 2700.27(d), 

respondent is ordered to pay civil penalties totaling $630.00 in 

satisfaction of the cited violations within thirty days of the date of 

this decision. Upon receipt of payment, this matter is dismissed. 

Ad ? 

/f.1 // .. 

-;t~(/l f/ tf, -~~ {:;:;:; r--ceorge~. Koutras 

' Administrative Law Judge 

Distribution: 

David M. Cohen, Esq., American Electric Power Service Corporation, 

o. Box 700, Lancaster, OH 43130 (Certified Mail) 

Linda Leasure, Trial Attorney, Office of the Regional Solicitor, 

U.S. Department of Labor, 881 Federal Office Building, 1240 

E. Ninth Street, Cleveland, OH 44199 (Certified Mail) 

' 

967 
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. 

KAISER CEMENT AND GYPSUM 

CORPORATION, 

Respondent 

July 27, 1979 

. . • 

·Civil Penalty Proceeding 

Docket No. DENV 79-244-PM 

A.O. No. 04-04075-05001 

Permaneμte Cement Plant 

DECISION 

Appearances: Donald F. Rectorr Attorney, Office of the Regional 

Solicitor, U.S. Department of Labor, San Francisco, 

California~ for the petitioner; Coraltha o. Lewis, 

Esquire, Oakland, California, for the respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a petition for assessment of civil 

penalty filed by the petitioner on January 26, 1979, pursuant to 

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

30 U.S.C. 82'0(a), seeking civil penalty assessments in the amount 

of $60.00 for an alleged violation of 30 CFR 56.14-6, and $8.00 

for an alleged violation of 30 CFR 56.11-1. The violations· were 

cited in Citations 374802 and 374803 issued by an MSHA mine 

inspector on March 23 and 28, 1978. · 

Respondent filed an answer to the petition on February 26, 

1979, contesting the citations and requesting a hearing. A 

hearing was scheduled for San Francisco, California, on June 27, 

1979, and the parties subsequently filed a joint motion ~o approve 

a proposed settlement and disposition of the matter. 

Discussion 

With regard to Citation No. 374803, petitioner moves to dismiss 

the citation on the grounds that it cannot establish a violatiqn 

of the cited standard. The motion is granted and. the petition for 

assessment of civil penalty with respect to that citation was dismissed. 

968 
As for Citation No. 374802, the parties stated that respondent wishes 

to withdraw its contest and to pay the civil penalty initially 

assessed at.$60.00 for a violatio"!-1 of 30CFR 56.14-6. In support 

of the joint motion, the parties assert that the proposed settlement 

is reasonable and that the proposed disposition of the matter is in 

the public interest and will further the intent and purpose of the 

Act. 

After review of· the proposed settlement presented by the 

·parties, I find that the proposed disposition of this case is 

consistent with the Act and it is approved. 

Order 

Citation No. 374803 is dismissed. Respondent is ordered to 

pay a civil penalty in the amount of $60.00 in satisfaction of 

Citation No. 374802 within thirty (30) days of the date of this 

decision and order. Upon receipt of payment by the petitioner, 

the matter is dismissed. 

L.Y/ /%',· . / 7 /:/ ' , --··· .. ! 

~·; t(;r--Z-£<_· vr / /c~vv-tz:~ (.9eorge _A'. Koutras · 

·Administrative Law Judge 

Distribution: 

Coraltha 0. Lewis, Counsel, Kaiser Cement & Gypsum Corporation, 

Kaiser Building, 300 Lakeside Drive, Oakland, CA 94666 

(Certified Mail) 

Donald F. Rector and Marshall P. Salzman, Esqs., U.S. Department 

of Labor, Office of the Solicitor, 450 Golden Gate Avenue, 

P.O. Box 36017, Room 10404 Federal Building, San Francisco, 

CA 94102 (Certified Mail) 

969 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINlSTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINfA 22203 

SECRETARY OF LABOR, 

MINE SAFETY .AND HEALTH 

ADMINISTRATION (MSHA), · Petitioner 

v. 

CO-OP MINING CO., 

Respondent 

July 27; 1979 

: Civil Penalty Proceedings 

ORDER 

Docket No. DENV 79-128-P 

A.O. No. 042-00081-03001 

Docket No. DENV 79-129-P 

. A.O. No. 42-0081-03002 

Co-Op Mine 

The enclosed Decision and Order in the captioned dockets 

is referred to the Connnission pursuant to Rule 29 CFR 2700.5. 

/:; 

. ,//") !/// /.----- - /1.>1VJ.e f!,J:.:-v-~,C·~ eorg~>A. Koutras 

Administrative Law Judge 

970 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

July 27, 1979 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY ANO HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CO-OP MINING CO., 

Respondent 

Docket No. DENV 79-128-P 

A.O. No. 42-00081-03001 

Docket No. DENV 79-129-P 

A.O. No. 42-00081-03002 

Co-Op Mine 

DECISION AND ORDER 

DISMISSING PROCEEDINGS 

Appearances: Carl E. Kingston, Esq., Salt Lake City, Utah, 

for the respondent. 

Before: Judge Koutras 

Synopsis of the Cases 

The Arlington, Virginia Solicitor's Office, on behalf of MSHA, 

filed petitions for assessment of civil penalties against the respondent. Respondent filed timely answers and requested a hearing in 

Salt Lake City. A hearing was scheduled for Salt Lake on Thursday, 

July 19, 1979, and the parties were so advised more than ninety (90) 

days in advance. 

Approximately 3 weeks in advance of the scheduled hearings, 

the parties began settlement negotiations which apparently were finalized sometime during the period July 11-13, 1979 (Tr. 15, 26). I was 

never informed of any such negotiations or possible settlement, nor 

was I ever informed of the Denver Regional Solicitor's involvement 

in the cases until 2 days in advance of the hearing. 

On Friday July 13, 1979, while I was on travel status in Idaho 

conducting hearings, the Denver Regional Solicitor's Office telephoned 

my office and informed my law clerk that the parties had tentatively 

agreed to a settlement and that the Solicitor required an additional 

2 or 3 weeks to submit it to me and that he did not intend to appear 

at the hearing. On Tuesday, July 17, 1979, my secretary informed me 

personally for the first time by telephone while I was in Helena, 

Montana, conducting a hearing, that she was contacted by telephone by 

971 
the Denver Regional Solicitor's Office who informed her that the 

parties had reached a settlement and did not intend to appear at the 

scheduled hearing. 

On Tuesday, July 17, 1979, at my direction, my secretary cont:,,:ted counsel for the parties and l.nformed them that they were 

~~r~cted by me to appear at the scheduled hearing and would have an 

opportunity at that time to present arguments concerning the proposed 

settlements. Counsel for the parties advised her that they had agreed 

among themselves not to appear at the hearing and to so inform me. 

On Wednesday evening July 18, a day before the hearing, and while 

in Salt Lake City, I telephoned respondent's counsel at his office in 

Salt Lake from my motel for the purpose of confirming that he had 

received my previous directive to· appear as communicated to him by my 

Secretary. He confirmed that he had and also confirmed that he and 

counsel from the Denver.Regional Solicitor's Office had agreed not to 

attend the hearing. I again directed him to enter an appearance and 

he indicated that he would, notwithstanding his agreement with petitioner's counsel not to appear. 

When the hearing was convened on July 19, the Denver Regional 

Solicitor failed to appear. Respondent's counsel also failed to 

appear, and when contacted by me by telephone to ascertain why he had 

not appeared after advising me that he would, he informed me that 

after conferring with the Denver Regional Solicitor's Office the 

evening of July 18, he decided not to appear.· He was again directed 

to appear and he did. The cases were subsequently dismissed for lack 

of prosecution pursuant to Commission Rule 2700.26(d)(3). 

BACKGROUND 

These proceedings concern petitions for assessment of civil penalties filed by the petitioner against the respondent on December 6, 

1978, pursuant to section llO(a) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 820(a), seeking civil penalty assessments for three alleged violations in Docket No. DENV 79-128-P, and 

five alleged violations in Docket No. DENV 79-129-P. The petitions 

were signed by MSHA counsel Edward H. Fitch, of the Arlington, 

Virginia, Office of the Solicitor. Mr. Fitch has been counsel of 

record in these proceedings until July 17, 1979, at ·which time I was 

notified for the first time that the Denver Regional Solicitor was 

handling the cases. 

Respondent filed timely answers to the petitions, interposed 

several defenses, and requested that any hearings held in the cases 

be conducted in Salt Lake City, Utah. By notice issued April 13, 

1979, the parties were advised that hearings would be conducted in 

Salt Lake City commencing at 9:30 a.m., Thursday, July 19, 1979. A 

second notice issued on June 26~ 1979, advised the parties of the 

precise hearing location in ~alt Lake City, Utah. 

972 
On Tuesday, July 17, 1979, while in Helena, Montana, to preside at 

a hearing, I received a telephone call from my secretary who informed 

me that the Denver Regional Solicitor's Office attorney, James Abrams, 

had called my office on Friday afternoon, July 13, 1979, and informed 

my law clerk that he and counsel for the respondent. had reached a 

settlement with respect to the. citations in issue. Reportedly, 

Mr. Abrams informed my office that, in view of a shortage of secretarial help in his-office, he required an additional 3 weeks in which 

to prepare and submit the settlement for my review and approval. He 

further advised my office that in view of the settlement agreement, 

he saw no need to personally appear at the hearing scheduled for 

Salt Lake City, Utah, Thursday July 19, 1979. It should be noted 

that although the original and amended notices of hearings were issued 

on April 13 and June 26, 1979, the Denver Regional Solicitor's Office 

has failed to enter an appearance in the matter, and I first learned 

.that Mr. Abrams was counsel for.MSHA on July 17, 1979. 

At my direction, my secretary called Mr. Abrams in Denver and 

counsel for the respondent in Salt Lake City on July 17, 1979, and 

informed them that they were directed to appear at the hearing pursuant to the aforementioned notices of hearing and that they would 

have an opportunity at that time to present oral arguments on the 

record with respect to the settlement. My sec~etary informed the 

parties that I had been out of the off ice during the preceding week 

in connection with hearings in Spokane, Washington, Wallace, Idaho, 

and Helena, Montana, and that I planned to travel to Salt Lake City 

at the conclusion of the Helena hearing, and would not be returning 

to Arlington until the following week. 

Late in the afternoon on Tuesday, July 17, 1979, my secretary 

telephoned me again and advised me that she had called the parties and 

advised 'them that I expecte.d them to appear at the scheduled hearings 

pursuant to the notices which were issued. She informed me that 

Mr. Abrams advised her that he did not intend to appear at the hearing 

and he requested that I call him to discuss the matter. I instructed 

my secretary to call Mr. Abrams again and to inform him that I again 

directed him to appear at the scheduled hearing. 

Upon my arrival in Salt Lake City on the evening of Wednesday, 

July 18, I telephoned counsel for the respondent at his office in Salt 

Lake to confirm that he had received my instruction to appear at the 

scheduled hearing. He confirmed that he had but indicated that in a 

conversation with Mr. Abrams, Mr. Abrams informed him that he had no 

intention of appearing at the hearing. I again directed respondent's 

counsel to appear, and my attempts to contact Mr. Abrams at his office 

in Denver by telephone were not successful. 

At 7:30 a.m., Thursday morning, July 19,. 1979, I received a telephone call from my secretary who informed me that Mr. Abrams had again 

973 
informed her. that he did not intend to appear at the hearing because 

the Denver Regional Solicitor wouid not authorize travel in the case 

of a proreeding where the parties had agreed to a settlement. 

The hearings in these dockets were convened at 9:30 a.m., 

Thursday, July 19, 1979, at the designated hearing site in Salt Lake 

City, pursuant to the notices duly issued and Berved on the parties. 

The parties failed to appear at the designated hour. I thereupon 

contacted respondent's counsel at his office and inquired ~s to why he 

had not appeared and whether he intended to do so,. His initial. 

response was that he did not intend to appear because he and 

Mr. Abrams had agreed not to. When reminded of his assurance to me 

the previous evening that he would appear, and after being advised 

that I considered the agreement by counsel for the parties not to 

appear as bordering on a flagrant disregard and contempt of the jurisdiction and authority of the Commission and the presiding judge 

which could lead to a possible disciplinary action or a default, 

counsel indicated that he would appear and he did. 

Issues Presented 

1. Whether the intentional and flagrant refusal of the Denver 

Regional Solicitor's Office to appear at the hearing under the facts 

presented in these proceedings constitutes a lack of prosecution warranting dismissal of the cases pursuant to Commission Rule 

2700.26(d)(3), which states as follows: "If the Secretary fails to 

appear at a hearing, the Judge may summarily dismiss the case for 

want of prosecution." 

2. Whether the conduct of MSHA Denver Regional Counsel Abrams, 

and respondent's Counsel Kingston, in mutually agreeing not to appear 

at the hearing pursuant to the notices, orders, and directives issued 

to and served upon them, constitutes ;a flagrant disregard for the 

authority and jurisdiction of the Commission and one of its judges 

amounting to unethical or unprofessional conduct warranting disciplinary proceedings pursuant to Commission Rule 2700.5. 

3. Whether the Denver Regional Solicitor's Office engaged in 

unethical or unprofessional conduct by eliciting from a partyrespondent, during the course of a proposed settlement, an agreement 

not to appear before the judge at a scheduled hearing. 

4. Whether the agreement by counsel, not to appear at the hearing after being directed and ordered to do so, constitutes contempt 

for the duly constituted authority and jurisdiction of the judge, and 

whether such conduct constitutes unethical and unprofessional conduct 

warranting disciplinary proceedings pursuant to Rule 2700.5. 

974 
DISCUSSION 

Dismissal for Want of Prosecution 

I believe that it is clear from the facts presented in these proceedings that the Denver Regional Solicitor's Office deliberately and 

flagrantly decided not to appear at the hearing. Further, it is also 

clear to me that the Solicitor's Office may have exercised the influence of that office in convincing and instructing respondent's counsel 

that he too should not appear, and elicited an agreement from counsel 

not to appear. In the circumstances I believe it is clear that 

Commission rule 2700.26 (d)(3) is controlling and that the· cases 

should be dismissed for lack of prosecution, notwithstanding the 

settlement agreement entered into by the parties, the particulars of 

which were uncommunicated to the judge in advance of the scheduled 

hearings. 

On the facts presented here, the parties began settlement negotiations some 3 weeks prior to the scheduled hearings; yet as of 

2 days prior to the hearing, the judge was left completely in the 

dark, both as to the details of the proposed settlement and the fact 

that the Denver Regional Solicitor was involved in the cases. 

Surprisingly, respondent's counsel believed that the Regional Solicitor and the judge worked for the same agence (Tr. 17). Further, 

the Regional Solicitor apparently believes that a telephone call to 

the judge's clerk or secretary, informing them that the case has been 

settled and that the parties do not intend to appear before the judge 

who is on his way to the hearing site is sufficient to constitute 

proper and timely notice to the judge with respect to a proposed 

settlement. As far as I am concerned, the Regional Solicitor is free 

to continue the handling of cases under his jurisdiction in such a 

haphazard fashion, and I am free to ignore him and continue dismissing 

cases in similar circumstances. 

On the facts presented in these proceedings, the Regional Solicitor apparently believed that upon completion of the hearing in Helena, 

Montana, on July 17, 1979, that I should have proceeded back to 

Arlington, waited 2 or 3 weeks for his settlement motion, and then 

proceed to act on it. Assuming that I disapproved one or all of the 

citations, the Solicitor would have me docket the case for hearing a 

second time and travel back to Salt Lake City for the hearings. The 

Solicitor overlooks the fact that in these dockets the next stop on 

my hearing schedule was Salt Lake, counsel for the respondent was in 

Salt Lake, the official court reporter was in Salt Lake, and that the 

efforts expended in such arrangements were in preparation for the 

hearing. The Solicitor also overlooks the fact that the parties were 

given an opportunity to support the proposed settlement on the record 

at the hearing and that the parties had 90 days' advance notice of the 

hea~ing. In my view, 90 days is ample time for the parties to reach 

a proposed settlement, and I do not believe it is unreasonable for a 

judge to ask the Solicitor to send an attorney ·to Salt Lake from 

975 
Denver to present his case, when in fact, the judge, opposing counsel, 

and court reporter are in Salt Lake. As a matter of fact, out of the 

four cases o·n my hearing docket for th_e week of July 16th, three were 

scheduled for Salt Lake, and one was scheduled for Helena, and the 

Denver Regional Solicitor assigned three different attorneys to handle 

those four cases. Further, in one of those cases, MSHA·v. Coastal 

States Energy Company, Docket No. DENV 79-88-P, Denver Regional 

Attorney James H. Barkley advised my office by telephone call of 

June 21, 1979, that ihe parties had reached a ~ettlement in the 

matter. Mr. Barkley had not previously entered his appearance and he 

was advised that he should do so and also file a mqtion and jus~ification for the proposed settlement. He subsequently entered his 

appearance in writing on July 2, 1979, and on July 6, 1979, the parties filed their proposed settlement fdr my consideration. Under 

those circumstances, the ~earing scheduled for Salt Lake City on 

.July 20, 1979, was cancelled an? the parties were so informed. 

Failure of the Denver Solicitor to Enter an Appearance 

Commission Rule 2700.ll(a) requires that all initial pleadings 

be filed with the Commission and that once a judge is assigned to the 

case all further documents shall be filed with the judge. Every person filing such documents is required to state his address and business telephone number and to advise the Commission of any changes 

therein, 2700.ll(b). Further, the successors of such person is 

required to inform the Commission of their interest in the matter and 

to state their address and business telephone number. 

The petitions for assessment of civil penalties initially filed 

by Arlington Counsel Fitch on behalf of MSHA complied with Commission 

Rule 2700.ll(b). However, by failing to enter his appearance in this 

matter, the Denver Regional Solicitor, as Mr. Fitch's successor, 

failed to comply with this rule. 

Possible Disciplinary Action 

It is obvious from the course of events which have transpired,and 

the facts presented in these cases, that the Denver Regional Solicitor's Office is of the view that it can control the judge's hearing 

docket and decide for itself whether or not to appear at a hearing 

pursuant to notice based solely on an ex parte settlement entered 

into and approved by the Regional Solicitor. It is further obvious 

from the record presented here that the Regional Solicitor believes 

that he can not only instruct his owrt attorneys not to appear at a 

hearing but may also exercise the power and influence of his office 

to convince a respondent's attorney that he too should ignore a 

judge's directives and not appear at a hearing. While I recognize 

the.fact that the Denver Regional Solicitor's Office has discretion 

as to how to run the prosecutorial functions of his office and the 

attorneys assigned to him, I do not re~ognize ~ny authority in his 

976 
office to dictate the manner in which a Commission judge conducts 

his official busiriess in connecti9n with hearing~ over which the 

judge has authority and jurisdiction, particularly in the circumstances presented· in these proceedings where the parties have had 

more than 3 months notice, and the judge is attempting to conduct 

his docket in an orderly, judicious, timely, expeditious, and I might 

add, economical manner, without any undue and unwarranted interference 

by a prosecutor's office who mistakenly believes that it can control 

the judg~'s trial docket. 

Although I am not particularly concerned over the fact that the 

Regional Solicitor, as a matter of policy, has apparently taken the 

position that his attorneys should not appear at a hearing in a case 

where the parties agree to settle a case, I am concerned that he can 

purport to exert his authority over a party respondent during settle-

· ment negotiations to convince or persuade that party to disregard a 

notice, order, or directive issued by a Commission Judge in connection with the conduct of hearings that are properly before the judge. 

That is precisely what has transpired in these cases. On the one hand, 

respondent's counsel is placed in the precarious position of going 

against an agreement entered into with the Solicitor not to appear before 

the judge, thus leaving himself open to possible retribution in future 

cases in which he and the Solicitor may be involved in. On the other 

hand, counsel is placed in the position of finding himself in a contempt posture by a flagrant disregard of a judge's notices, orders, 

or directives in matters properly and legally within his jurisdiction 

and authority. Such a situation simply cannot be tolerated or permitted 

to continue, and I believe that the Commission should carefully consider such a situation. 

Findings and Conclusions 

The following findings of material and relevant facts are, in my 

view, supportive of the disposition made by me in this matter. 

1. The notices of hearings in these proceedings were issued 

and served on the parties more than ninety (90) days in advance of 

the scheduled hearings. ~~~~ 

·2. Settlement negotiations were begun by the parties approximately 3 weeks in advance· of the date of the hearings, and I 

was never informed of those negotiations or the fact that the cases 

may be settled until 2 days before the hearings while on travel 

status in Montana (Tr. 26). 

3. The parties agreed among themselves that as a result of a 

settlement agreement reached by them on Friday, July 13, that they 

would not appear at the hearings pursuant to the notices issued by 

me in this regard. 

977 
4. I was away from my office in Arlington, Virginia, on official 

travel status during the period July 8 through July 20, 1979, for the 

purpose of conduct:ing hearings in Spokane, Washington, Wallace, 

Idaho, Helena, Montana, and Salt Lake City, Utah. 

5. On Tuesday, July 17, 1979, while in Helena, Montana, for the 

purpose of conducting a hearing, I was personally informed for the 

first time, by a telephone call from my secretary that (1) the Denver 

Regional Solicitor's Office, namely, Attorney James Abram~ was 

handling the cases, and (2) that Mr. Abrams inaicated that he would 

not appear at the scheduled hearings. 

6. At my direction, my secretary telephoned counsel for the 

parties on. Tuesday, July 17, 1979, and informed them that they were 

directed and expected by me to appear at the scheduled hearings 

pursuant to the previously issued notices of hearings. The parties 

were also informed that due to the fact that I was in travel status 

and had not recieved any information concerning the proposed settlement prior to July 17, 1979, that it would be impossible for me to 

act on any settlement proposals prior to the date of the scheduled 

hearings. Further, the parties were informed that they would have a 

full opportunity to present the proposed settlement to me on 

July 19, 1979. 

7. The Denver Regional Solicitor's Office advised and instructed 

respondent's counsel that the Regional Solicitor had approved the 

proposed settlement negotiated by counseJ., .. and that in view of this, 

Mr. Abrams would not appear at the hearing, and that respondent's 

counsel need not appear (Tr. 30). 

8. After being notified by my office on July 17, 1979, that they 

were expected to appear at the hearing pursuant to the notices, 

counsel for the parties again agreed among themselves that they would 

not appear (Tr. 30). 

9. On Wednesday, July 18, 1979, respondent's counsel was directed by me personally by telephone to appear at the scheduled hearing 

and he assured me that he would, notwithstanding his agreement with 

the Denver Regional Solicitor's Office that counsel would not 

appear (Tr. 29). 

10. On July 19, 1979, counsel for the parties failed to appear 

at 9:30 a.m. at the designated hearing site. 

11. At approximately 9:40 a.m. on July 19, 1979, respondent's 

counsel was contacted by telephone by me and he informed me that 

after consulting with the Denver Regional Solicitor's Office the previous evening,and that morning,he would not appear. He also informed 

me ~hat the Denver Regional Solicitor's Office would not appear pursuant to the agreement made by the parties, and requested him not to 

appear (Tr. 30). · -

978 
12. At my direction, and after being informed of the possible 

consequences for failing to appear pursuant to notice, namely, the 

default and disciplinary rules of the Commission, respondent's 

counsel appeared at the hearing under protest and was given an opportunity to make a statement concerning the matter (Tr. 12-36). 

13. Denver is approximately an hour's distance by air from 

Salt Lake City, the requested and designated hearing site, and the 

official court reporter and respondent's counsel are located in 

Salt Lake City and were readily available for the hearing. 

14. By letter dated July 18, 1979, addressed to me and received 

by my office on July 19, 1979, the day of the hearing, signed by 

Mr. Abrams for Associate Regional. Solicitor Henry C. Mahlman, he 

state~ as follows: · 

This will confirm my july 13, 1979 notification to 

Ms. Mary Linda Ponticelli of a proposed settlement in the 

above captioned action. This further confirms my July 17, 

1979 notice to your secretary of our inablility to participate in a hearing given the pendency of the parties' proposed settlement. 

As I understood your secretary, you preferred not to 

discuss this matter with either me or respondent's counsel. 

I mentioned to your secretary, given no opportunity to 

visit with you, that travel to Salt Lake City, Utah by this 

office and the transporting of a witness could not be rightly 

authorized in the face of a proposed settlement agreement. 

The purpose of my contact was to advise you, in a timely 

fashion, of my intentions prior to your· departure for Salt 

Lake City, Utah from Montana and. the retaining of a court 

reporter. We hope to have such agreement before you in 

the next few weeks. 

15. A copy of a letter dated July 13, 1979, from respondent's 

counsel Kingston to Mr. Abrams, and received in my office on 

July 18, 1979, a day before the hearing states as follows: 

This letter will confirm the settlement w~ich we 

reached regarding the above. My client has agreed to pay 

the following penalties in the listed amounts, thus avoiding 

the necessity of formally hearing the matter in Salt Lake 

City on July 19, 1979. 

Citation No. 

00245741 

00245773 

00245776 

979 

Amount 

$ 50.00 

100.00 

110.00 
00246309 

00246310 

00246311 

00246497 

00246498 

85.00 

75.00 

75.00 

50.00 

.95.00 

16. By letter dated July 18, 1979, and received by my office on 

July 24, 1979, respondent's counsel advised, in pertinent part, as 

follows: 

This will confirm my conversation with your 

secretary on July 17, 1979, wherein I advised her that 

I had agreed with the Office of the Solicitor to a 

settlement of the above captioned case and therefore 

did not plan to attend the h~aring scheduled in 

·salt Lake City.on July 19, 1979. I understand that the 

Solici~or's Office will no~ appear either. 

17. As of this date, the Denver Regional Solicitor's Office 

has yet to file any written notices of his appearance in this case 

as require_d by Commission Rules 29 CFR 2700.11 (a) and (b). 

18. As of this date, there is not presently pending before me 

any motion with respect to the proposed settlement negotiated as 

between the parties. 

19. At no time have the parties ftled any motions or requests 

with me that the scheduled hearings be continued for any reason. 

20. After receiving more than three (3) months' written notice of 

the scheduled hearings, and after receiving subsequent oral notices, 

orders, and directives that they were to appear, the parties took it 

upon themselves by mutual agreement' "both during and after their 

settlement negotiations, not to appear, in flagrant and contemptuous 

disregard for the authority and jurisdiction of the presiding judge. 

21. Contrary to Mr. Mahlman's assertion in his letter (signed 

by Mr. Abrams) that he considered the July 17, 1979, phone call to my 

secretary as a timely effort to preclude my traveling to Salt Lake 

City, I do not consider that to be timely or relevant, nor do I accept 

his so-called policy determination that precludes travel by his attorneys when the parties, without regard or any consideration for the 

presiding judge, decide among themselves not to enter an appearance. 

22. The Denver Regional Solicitor's Office has arbitrarily and 

steadfastly refused to enter an appearance at the scheduled hearing 

on the ground that the Regional Solicitor, as a matter of policy, has 

refused travel authorization for his attorneys in cases in which he 

has approved a settlement as between the parties. However, in ~ 

instucting respondent's counsel that he too should not appear at the 

980 
hearing, the Regional Solicitor's Office, as lustification for this 

position, advised respondent's counsel that "in light of .the fact that 

they had not.at that late date arranged for someone to appear in 

Salt Lake City" respondent should not make an appearance (Tr. 30). 

Conclusion 

The foregoing discussion and findings clearly indicate to me that 

the Denver Regional Solicitor's Office never intended to enter an 

·appearance in this matter. Accordingly, I conclude that the cases are 

ripe for dismissal pursuant to Commission Rule 29 CFR 2700~26(d)(3), 

for want of prosecution. Although I considered the possibility.of 

dismissing the dockets for an additional reason, namely, the failure 

of the petitioner to comply with my prehearing orders and directives 

to enter an appearance (29 CFR 2700.26(d)(l) and (2)), which would 

require an issuance of a show-cause order, I believe that this would 

be a fruitless gesture on my part, particularly in light of the 

Regional Solicitor's rigid position as shown by the facts and circumstances presented in these proceedings. 

ORDER 

IT IS ORDERED THAT: 

1. These dockets are DISMISSED for want of prosecution. 

2. In view of the circumstances surrounding the petitioner's 

and respondent's apparent flagrant disregard for the authority and 

jurisdiction of the Commission and one of its judge's, the matter is 

• referred to the Commission pursuant to Rule 29 CFR 2700.5, Secretary 

of Labor v. James Oliver and Wayne Seal, Docket No. NORT 78-415, 

March 27, 1979. 

IT IS FURTHER ORDERED THAT: 

1. Respondent's motion, made at the hearing, that I disqualify 

myself from these proceedings for bias and prejudice is DENIED, 

without prejudice to respondent reasserting such a motion in the 

event these decisions are appealed and remanded. 

2. Respondent's motion, made at the hearing, that I reconsider 

my dismissal of these dockets and entertain and consider the settlement entered into by the parties is DENIED. 

~~ 

~?P.~;;ti--~ A. Ko~~"'{.; Administrative Law Judge 

981 
FEDERAL· MINE SAFETY AND HEALTK REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

JUL 3 1 1979 

SECRETARY OF L.AaOR, Civil Pena"lty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. NORT 79-26-P 

A.c. No. 44-02853-03001 

v. 

No.· 39 Mine 

LAMBERT COAL COMPANY, 

Respondent Docket No. NORT 79-36-P 

A.c. No. 44-01656-03002 

Appearances: 

Before: 

Docket No. VA 79-26 

A.c. No. 44-01656-03004 

No. 14 Mine 

DECISION 

Leo J. McGinn, Esq., Office of the Solicitor, 

Department of Labor, for Petitioner; 

William Rogers McCall, Esq., Bristol, Virginia, 

for Respondent. 

Administrative Law Judge Michels 

These are civil penalty proceedings brought pursuant to .section 

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

§ 820(a). Separate petitions for the assessment of civil penalties 

were filed in each of the above-captioned dockets alleging a total 

of 17 violations of 30 CFR 75.1710-1. A hearing was held in Abingdon, 

Virginia, on June 19, 1979, at which both parties were represented by· 

counsel. 

At the hearing, pursuant to 29 CFR 2700.15(b), counsel for 

Petitioner moved to withdraw the petitions for civil penalty assessments. As grounds for this action, counsel stated: 

Each of these docket numbers involved in this proceeding consist solely of allegations, regulations under 

75.1710. In each instance they are related to the 

Number 39 Mine and the Number 14 Mine of the Lambert Coal 

Company. After investigating the circumstances surrounding the petitions for the.assessment of civil penalties, 

982 

• 
the Solicitor's Office moved to withdraw the .citations 

involved for this reason; we are unable to sustain a violation in any of these instances of that mandatory standard. The reason for this. in each instance--first of all, 

each violation was terminated by the fact that MSHA recognized that the mining height had gone below the minimum 

mining height.required under the statute at that time. 

And that there was an undulating bottom in each of the 

mines. Now, it further discovered that a petition for 

modification had been filed with respect to the mines in 

question by Lambert Coal Company on February 20, 1976. 

And on April 13th and 14th, 1976, MSHA reported and admitted that the subject mines had a minimum mining height of 

thirty-eight inches, and therefore, the Number 14, 39 and 

40 Mines of the Lambert Coal Company were not subject to 

the requirements of 30 CFR 75.1710. As the result of the 

large number of petitions for modification and the change 

in the regulations which had been in the change over from 

the Department .of Interior to the Department of Labor, a 

decision was not rendered in this case, unfortunately, 

until the 26th of October, 1978. In the meantime petitions had been filed against the company.· After checking with MSHA's District, there was an agreement that the 

mining heights did not sustain a violation of this regulation. Each was determined in the petition for modification. Based upon this information, with the knowledge 

and consent of our client, I wish to withdraw the petitions for assessment of civil penalties. 

(Tr. 4-6). 

Respondent did not object to Petitioner's proposed action. 

Thereupon, a ruling was issued from the bench granting ap~roval for 

Petitioner to withdraw its petitions in these cases (Tr. 7). The 

proceeding were then dismissed. I hereby AFFIRM that ruling. 

Distribution: 

if~(?~ Franklin P. Michels 

Administrative Law Judge 

Leo J. McGinn, Esq., MSHA Trials Branch, Office of the Solicitor, 

U .s. Department of Labor, 4015 Wilson Blvd .• , Arlington, VA 

22203 

William Rogers McCall, Esq., 317 Reynolds Arcade, Bristol, VA 

24201 (Certified Mail) 

983 .,, U. S. GOVERNMENT PRINTING OFFICE : 1979 281-729/3306