Index February 1980 

Commission Decisions 

2-07-80 

2-25-80 

2-25-80 

Arch Mineral Corporation, MSHA v. 

Island Creek Coal Co., MSHA v. 

Van Mulvehill Coal Co., Inc., MSHA v. 

Administrative Law Judge Decisions 

2-04-80 

2-04-80 

2-05-80 

2-06-80 

2-06-80 

2-06-80 

2-08-80 

2-08-80 

2-08-80 

2-08-80 

2-08-80 

2-11-80 

2-11-80 

2-11-80 

2-12-80 

2-12-80 

2-12-80 

2-12-80 

2-13-80 

2-13-80 

2-13-80 

2-14-80 

2-14-80 

2-14-80 

2-14-80 

2-14-80 

2-15-80 

2-19-80 

2-19-80 

2-20-80 

2-20-80 

2-21-80 

2-22-80 

2-25-80 

2-25-80 

2-25-80 

2-26-80 

2-26-80 

2-26-80 

2-28-80 

White Pine Copper v. MSHA 

Clinchfield Coal Co., MSHA v. 

Charles W. Miller & MSHA v. Old Ben Coal Co. 

Pikeville Coal Co., MSHA v. 

Pikeville Coal Co., MSHA v. 

Pikeville Coal Co. v. MSHA 

The Pittsburg & Midway Coal Mining Co., MSHA 

Kerr-McGee Coal Corp., MSHA v. 

David Cabrera, Inc., MSHA v. 

David Cabrera, Inc., MSHA v. 

Southern Ohio Coal Co., MSHA v. 

Climax Molybdenum Co., MSHA v. 

Pontiki Coal Corp., MSHA v. 

Pontiki Coal Corp. v. MSHA 

Sewell Coal Co., MSHA v. 

Conrock Company v. MSHA 

North American Coal Corp. et al, MSHA v. 

Alabama By-Products Corp., MSHA v. 

General Portland Inc., MSHA v. 

Buckeye Coal Mining Co., Inc., MSHA v. 

Steve Shapiro v. Bishop Coal Co. 

H & H Coal Co., MSHA v. 

Golden R Coal Co., MSHA v. 

The Hoke Co., Inc., MSHA v. 

Southwestern Illinois Coal Corp., MSHA v. 

Alabama By-Products Corp. v. MSHA 

Stoudt's Ferry Preparation Co., MSHA v. 

Climax Molybdenum Co. v. MSHA 

Consolidation Coal Co. v. MSHA 

Homestake Mining Co., MSHA v. 

Pilot Coal Co., MSBA ex rel Billy G. Kilgore 

Coaltrain Corp. , MSHA v. 

Acme Concrete Co. , MSHA v. 

Island Creek Coal Co., MSHA v. 

Harman Mining Corp., MSHA v. 

Climax Molybdenum Co. v. MSHA 

Local Union #6594, District 17 v. FMV Coal 

Itmann Coal Co. v. MSHA & UMWA 

Amherst Coal Co., MSHA v. 

Consolidation Coal Co., MSHA v. 

WEST 79-58 

KENT 79-129 

LAKE 79-223-RM 

NORT 78-337-P 

LAKE 79-282-D 

KENT 79-105 

KENT 79-165 

PIKE 79-66 

BARB 79-307-P 

DENV 79-461-P 

SE 79-2-M 

SE 79-3-M 

VINC 79-227-P 

DENV 79-396-PM 

PIKE 78-420-P 

KENT 79-115-R 

HOPE 78-744-P 

WEST 79-373-RM 

LAKE 79-118 

SE 79-110 

CENT 79-92-M 

LAKE 79-109 

WEVA 79-238-D 

KENT 79-39 

KENT 79-124 

KENT 79-138 

LAKE 79-53 

SE 80-41-R 

WILK 79-149-P 

WEST 79-325-RM 

WEVA 79-351-R 

DENV 79-'155-PM 

VA 79-144-D 

MORG 79-26-P 

WEST 79-279-M 

HOPE 79-197-P 

NORT 79-63-P 

WEST 79-92-RM 

Hope 77-128 

HOPE 79-307 

HOPE 79-128-P 

PENN 79-113 

Pg. 277 

Pg. 279 

Pg. 288 

Pg. 290 

Pg. 294 

Pg. 301 

Pg. 305 

Pg. 307 

Pg. 311 

Pg. 336 

Pg. 338 

Pg. 348 

Pg. 350 

Pg. 360 

Pg. 368 

Pg. 370 

Pg. 392 

Pg. 398 

Pg. 405 

Pg. 407 

Pg. 437 

Pg. 438 

Pg. 440 

Pg. 443 

Pg. 446 

Pg. 451 

Pg. 456 

Pg. 467 

Pg. 469 

Pg. 470 

Pg. 479 

Pg. 493 

Pg. 504 

Pg. 510 

Pg. 515 

Pg. 520 

Pg. 532 

Pg. 542 

Pg. 575 

Pg. 591 

Pg. 597 

Pg. 609 

Commission Decisions 

February 1 - 29, 1980 

FEBRUARY 

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

Secretary of Labor , MSHA v. Paramont Mining Company, VA 79-51; (Judge 

Broderick, December 31, 1979.) 

Republic Steel Corporation v. Secretary of Labor, MSHA, PENN 80-56-R, 

PENN 80-61-R (Judge Kennedy, January 3, 1980.) 

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

Secretary of Labor, MSHA v. Ottawa Silica Company, WILK 79-69-PM; 

(Judge Michels, December 28, 1979) 

Secretary of Labor, MSHA on behalf of Anthony Heriges, etc., v. Island 

Creek Coal Company, KENT 80-22-D, etc. (Judge Bernstein, January 24, 1980) 

Secretary of Labor, MSHA v. Arch Mineral Corporation, WEST 79-58; 

Petition for Interlocutory Review. 

Thomas Dickenson & John Turner v. Clinchfield Coal Company, VA 79-93-D; 

Petition for Interlocutory Review. 

Alan Lund v. Clinchfield Coal Company, VA 79-94-D; Petition for Interlocutory Review. 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABQR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

ARCH MINERAL CORPORATION 

February 7, 1980 

Docket No. WEST 79-58 

ORDER 

Arch Mineral Corporation's petition for interlocutory review of an 

order of the administrative law judge that granted the Secretary of 

Labor's Motion to Accept Late Filing of Proposal for Penalty is denied. 

We do not pass on the question of what circumstances, if any, may excuse 

the late filing of a Proposal for Penalty. Because the events in this 

case occurred during the period of transition between the Commission's 

interim and final procedural rules, issues concerning the interpretation 

of final Commission Rule 27(a) are not presented squarely by this 

petition for interlocutory review. Our denial of the petition is not to 

be construed in any way as approval of the failure by the Secretary to 

timely file a proposal for a penalty in this or any other case. 

0\\et\lru 1 ~o~ill11w [,j '-QDJ..Q Marian Pearlman Nease, Commissioner 

80-2-3 

277 
DISTRIBUTION 

Brent L. Hotchan, Esq. 

Arch Mineral Corporation 

500 North Broadway 

Suite 1800 

St. Louis,•Missouri 63102 

Phyllis K. Caldwell, Esq. 

U.S. Department of Labor 

Off ice of the Solicitor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Administrative Law Judge John J. Morris 

Federal Mine Safety and Health Review Commission 

333 West Colfax 

Denver, Colorado 80294 

278 
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) 

February 25, 1980 

v. Docket No. KENT 79-129 

ISLAND CREEK COAL COMPANY 

DECISION 

On October 6, 1978, an inspector of the Mine Safety and Health 

Administration inspected Island Creek Coal Company's Big Creek No. 2 

mine. He observed an alleged violation of 30 CFR §75.400 (accumulation 

of combustible materials), which he believed was caused by an unwarrantable failure of the operator to comply with that standard. As a result 

of his finding, the inspector issued a withdrawal order under section 

104(d)(l) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§814(d)(l), because he believed that a citation containing the findings 

that must precede a section 104(d)(l) withdrawal order had been issued 

on September 27, 1978. 1./ 

1./ Section 104(d)(l) provides: 

If, upon any inspection of a coal or other mine, an authorized 

representative of the Secretary finds that there has been a violation of any mandatory health or safety standard, and if he also 

finds that, while the conditions created by such violation do not 

cause inuninent danger, such violation is of such nature as could 

significantly and substantially contribute to the cause and effect 

of a coal or other mine safety or health hazard, and if he finds 

such violation to be caused by an unwarrantable failure of such 

operator to comply with such mandatory health or safety standards, 

he shall include such finding in any citation given to the operator 

under this Act. If, during the same inspection or any subsequent 

inspection of such mine within 90 days after the issuance of such 

citation, an authorized representative of the Secretary finds 

another violation of any mandatory health or safety standard and 

finds such violation to be also caused by an unwarrantable failure 

of such operator to so comply, he shall forthwith issue an order 

requiring the operator to cause all persons in the area affected by 

such violation, except those persons referred to in subsection (c) 

to be withdrawn from, and to be prohibited from entering, such area 

until an authorized representative of the Secretary determines that 

such violation has been abated. 

80-2-9 

279 
On August 21, 1979, the Secretary filed with the Commission a 

proposal for a penalty, seeking the assessment of a penalty under 

section 110 of the Act for the alleged violation of 30 CFR §75.400 cited 

in the October 6 withdrawal order. A penalty of $2,000 was sought. 

Thereafter, the Secretary discovered that the September 27, 1978 

citation had been modified by the inspector on September 28, 1978 to 

provide that "[t]he 104 D-1 citation and termination is hereby modified 

to a 104-A citation and termination."]:_/ Thus, a citation containing 

the prerequisite findings did not in fact precede the October 6 withdrawal order under section 104(d)(l). On November 21, 1979, the Secretary filed a motion to dismiss the instant penalty proceeding, on the 

ground that "[a]s a result of the modification of [the September 27 

citation, the October 6 order] is without foundation and does not properly 

allege a violation of section 104(d)(l) of the Act." On November 29, 

1979, without explanation, the administrative law judge granted the 

Secretary's motion to dismiss. On December 28, 1979, we directed review 

on our own motion to determine whether the judge erred in granting the 

Secretary's motion to dismiss. We reverse. 

The Secretary's motion, and the judge's dismissal, proceeded on an 

erroneous understanding of the Act's penalty provisions. Section llO(a) 

of the Act provides in part: 

The operator of a coal or other mine in which a 

violation occurs of a mandatory health or safety 

standard or who violates any other provision of 

this Act, shall be assessed a civil penalty by 

the Secretary which penalty shall not be more than 

$10,000 for each such violation. 

The Act mandates assessment of a penalty for any violation of a mandatory 

safety standard, such as 30 CFR §75.400, whether that violation is 

alleged in a citation issued under section 104(a), or in a withdrawal 

order issued under section 104(d) or other section of the Act. Whether 

a withdrawal order was properly issued or not (rather than a citation 

alone) does not affect the fact that a violation of a mandatory safety 

standard was alleged in that order. That allegation, unless itself 

properly vacated, survives a vacation of the order it is contained in, 

and, if proven, the assessment of a penalty under section 110 is required. 

Thus, whether the October 6, 1978 withdrawal order was properly issued 

under section 104(d)(l) is not relevant to the assessment of a penalty 

under section 110 for an alleged violation of a safety standard cited in 

that order. Therefore, the judge erred in granting the motion to dismiss. 

2/ Presumably, the inspector meant that he was modifying the September 27 

citation to delete either or both of the "significant and substantial" 

or "unwarrantable failure" findings in that citation. 

280 
Accordingly, the judge's order of dismissal is reversed and the 

case is remanded _for further proceedings. 

man Nease, Commissioner 

281 

-· 
Distribution 

Darryl A. Stewart, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

280 U.S. Courthouse 

801 Broadway 

Nashville, TN 37203 

Marshall S. Peace, Esq. 

Island Creek Coal Company 

P.O. Box 11430 

Lexington, KY 40575 

Thomas A. Mascolino, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Va. 22203 

Administrative Law Judge Charles C. Moore, Jr. 

Office. of ALJ' s 

2 Skyline, Suite 1000, 

5203 Leesburg Pike 

Falls Church, VA 22041 

282 
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. 

February 25, 1980 

Docket No. SE 79-127 

VAN MULVEHILL COAL CO., INC. 

DECISION 

On January 22, 1979, an inspector of the Mine Safety and Heal.th 

Administration inspected Van Mulvehill Coal Company's Black Creek No. 1 

mine. He observed several alleged violations of mandatory safety 

standards, and he believed that an imminent danger existed. He issued a 

combined citation and withdrawal order under sections 104(a) and 107(a) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§814(a) 

and 817(a). The document stated: 

An imminent danger existed in that the mine 

fan was not operating and employees were in 

the mine (75.300). A ventilation and dust 

control plan had not been submitted (75.316). 

A fan stoppage plan had not been submitted 

(75.321). An up-to-date map of the mine had 

not been submitted to MSHA (75.316-la). The 

operator had not submitted arrangements for 

emergency medical assistance (75.1713-l(a)(b)). 

[Citation and Order No. 239804.] 

The conditions cited by the inspector were abated by the operator and 

the withdrawal order was terminated on January 30, 1979. 

On October 12, 1979, the Secretary filed with the Commission a 

proposal for a penalty, seeking the assessment of penalties under 

section 110 of the Act for the five alleged violations cited on 

January 22, 1979. Penalties totaling $164 were sought. 

80-2-10 

283 
On November 28, 1979, the inspector issued a document that stated: 

Citation number 239804 issued January 22, 1979 is vacated on 

grounds that coal was not being produced at the time. The 

financial condition as stated by accountants are such that the 

payment of the penalties could have an effect on the company 

continuing in operation. There has been full cooperation 

since the issuance of the citation to comply with the Act and 

regulations by company officials and employees. 

On December 10, the Secretary moved to withdraw his proposal for a 

penalty "for the reason that the Order of Withdrawal No. 239804, heretofore issued, has been vacated." On December 12, the administrative law 

judge granted the motion. On January 11, 1980, we directed review on 

our own motion to determine whether the judge erred in granting the 

Secretary's motion to dismiss. We reverse. 

We do not have before us in this civil penalty proceeding the 

propriety of the imminent danger withdrawal order issued under section 

107(a). Thus, to the extent that the inspector's action on November 28, 

1979, vacated that order (presumably on the basis that no imminent 

danger existed), as implied by the Secretary's December 10 motion to 

dismiss, we do not decide whether or not the vacation was correct. Even 

if it was, however, dismissal of the civil penalty proceeding was 

error. The Act mandates assessment of a penalty for any violation of a 

mandatory safety standard or any provision of the Act, whether that 

violation is alleged in a citation issued under section 104(a), or in a 

withdrawal order •••. Whether a withdrawal order was properly issued or 

not (rather than a citation alone) does not affect the fact that a 

violation was alleged in that order. That allegation, unless itself 

properly vacated, survives a vacation of the order it is contained in, 

and, if proven, the assessment of a penalty under section 110 is required. 

Cf. Island Creek Coal Company, Docket No. KENT 79-129 (February , 

1980). Thus, whether the January 22, 1979, withdrawal order was 

properly issued under section 107(a) is not relevant to the assessment 

of a penalty under section 110 for alleged violations cited in that 

order. 

To the extent, however, that the inspector's November 28 action 

purported to vacate the section 104(a) citations, as appears was his 

intent, the dismissal was still error. As the Secretary now correctly 

states in his brief on review, the factors stated by the inspector do 

not support vacation of the citations. Rather, if the alleged violations occurred, those factors may be taken into account in considering . 

the criteria of gravity, effect on ability to continue in business, and 

good faith of abatement efforts in assessing appropriate penalties under 

section llO(i) of the Act. 

284 
Accordingly, the judge's order of dismissal is reversed and the 

case is remanded for further proceedings. 

Frank 

A': 

285 
Distribution 

Van Mulvehill Coal Company, Inc. 

Route 1, Box 240 

Trafford, Alabama 35172 

Murray A. Battles, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1929 South Ninth Ave •. 

Birmingham, Alabama 35205 

Chief Administrative Law Judge 

James A. Broderick 

FMSHRC 

1730 K Street, N.W. 

Washington, D.C. 20006 

286 
Administrative Law Judge Decisions 

February 1 - 29, 1980 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE QF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

WHITE PINE COPPER, 

DIVISION OF COPPER MINE, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11/12 

FEB 4 1980 

Applications for Review 

Docket No. LAKE 79-223-RH 

Citation No. 295881; 7/31/79 

Docket No. LAKE 79-224-R11 

Citation No. 294054; 7/31/79 

Docket No. LAKE 79-225-RH 

Citation No. 295055; 7/31/79 

Docket No. LAKE 79-226-RH 

Citation No. 294056; 8/1/79 

White Pine Mine 

DECISION AND ORDER 

The Secretary moves to dismiss the captioned matters on the ground 

that vacation of the challenged citations moots the issue of their validity. 

The operator opposes the motion on the ground that issuance of the 

citations was in excess of MSHA's statutory authority. The operator seeks 

therefore an order declaring MSHA's action null, void and unenforceable. 

See, Eastern Associated Coal Corp., HOPE 73-663, decided February 12, 1974, 

affirmed in part and reversed in part, 4 IBMA 298 (1975); Eastern Assoc. Coal 

Corp. v. IBMA, 491 F.2d 277 (4th Cir. 1974); Super Tire Engineering v. 

Mccorkle, 416 U.S. 115, 122-126 (1975). 

In essence, the operator claims that MSHA's method of enforcement 

is a deprivation of its property without due process of law. MSHA 

and the Union, on the other hand, claim that the operator's asserted 

right to change its ground support system without proof that the alternate 

method is safe may result in deprivation of a miner's right to life, 

liberty and property, also without due process of law. 

The record shows that acting on a complaint under section 103(g)(l) 

of the Act, MSHA charged that the operator's failure to furnish data 

substantiating its claim that use of 4-foot resin bolts in lieu of 

alternating 4 and 6-foot mechanical bolts was a violation of the ground 

support standard for metal mines. 30 CFR 57.3-20. Thereafter, an 

evaluation of the alternate method by MSHA and the operator established 

288 
that in any area of the mine where "geologic and stress conditions 

are similar" 4-foot resin bolts will provide minimal adequate support. 

Evaluation Report at 6. In areas where the "geologic and horizontal 

stress conditions are different", however, MSHA reserves the right to 

require the operator to prove the efficacy of the 4-foot resin bolts 

prior to their general use. 

After a careful consideration of the vital interests involved, I 

conclude the interest in life outweighs the interest in property. 

Congress made this choice inevitable when, in staking out goals for the 

Mine Safety Act, it solemnly declared that "the first priority and 

concern of all in the mining industry must be the health and safety of 

its most precious resource--tl).e miner". That priority is reflected 

in the Act's review provisions, which do not tolerate temporary relief 

from 104(a) citations but which, under the Commission's decision in 

Energy Fuels Corp., DENV 78-410, 1 BNA MSHC 2013, 1 FMSHRC Decisions 299, 

(May 1, 1979), do provide for immediate, expedited review of the merits 

of abated citations. For these reasons, I find the operator's claim 

of irreparable injury or deprivation of property without due process 

of law without merit. As the courts have noted, "irreparable harm, 

presupposes the absence of an available remedy for relief, whether 

administrative or judicial." Sink v. Morton, 529 F.2d 601, 604 (4th Cir. 1975). 

In this case the Act clearly provides such a remedy since the operator 

can obtain an expedited hearing on the merits of the validity of a 

citation or closure order, including the right to apply for a temporary 

stay of a closure order. Such a procedure accords the operator all the 

process he is due. Lucas v. Morton, 358 F.Supp. 900, 905 (W.D. Pa. 1972); 

Sink v. Morton, supra. 

The premises considered, it is ORDERED that the Secretary's motion 

to dismiss the captioned notice of contest b

1

e and hereby is, GRANTED 

and the matter DISMISSED. 

I ' 

~{~. L/i ~ ne~d~y~..IAtA-4"~'1~~ Administrative Law Jud 

Distribution: 

John H. O'Donnell, Esq., U.S. Department of Labor, Office of the Solicitor, 

4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Ronald E. Greenlee, Esq., Clancey, Hansen, Chilman, Graybill & Greenlee, 

Peninsula Bank Bldg., Ishpeming, MI 49849 (Certified Mail) 

Harry Tuggle, United Steelworkers of America, 5 Gateway Plaza, Pittsburgh, 

PA 15222 (Certified Mail) 

John Cestkowsky, President, Local, United Steelworkers of America, Watersmeet, 

MI 4996'9 {/Certified Mail) 

289 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520!> LEESBURG PIKE 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

CLINCHFIELD COAL COMPANY, 

FALLS CHURCH, VIRGINIA 22041 

FEB 4 1980 

Petitioner 

Respondent 

Civil Penalty Proceeding 

Docket No. NORT 78-337-P 

A/O No. 44-02277-02004V 

Moss No. 3 Preparation Plant 

DECISION 

Appearances: Eddie Jenkins, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

Gary W. Callahan, Esq., The Pittston Company Coal 

Group, Lebanon, Virginia, for Respondent. 

Before: Judge Charles C. Moore, Jr. 

Inspector Daniel S. Graybeal, a surface mine inspector for MSHA, conducted a regular health and safety inspection at Clinchfield Coal Company's 

Moss No. 3 Preparation Plant on November 29, 1977 (Tr. 8), and during the 

course of inspecting the plant's thermal drying system (Tr. 10), Inspector 

Graybeal found that the bypass relief gate for the No. 3 furnace was not 

working (Tr. 11). This particular plant had four furnaces, each with two 

dryers (Tr. 11). 

Inspector Graybeal asked foreman Ernest Serber to have the furnace 

operator simulate an emergency shutdown. This is accomplished by stopping 

the dried coal transfer screw which stops all drying components except the 

exhaust fan. 1/ This was done, but the bypass gate did not open (Tr. 12) .. 

An emergency shutdown was simulated three more times and each time the 

bypass gate failed to open (Tr. 12). Inspector Graybeal then asked a local 

union representative to disconnect the air hose leading to the air motor 

that closes t~e bypass gate under pressure. The bypass gate still failed 

to open (Tr. 12). The protection door which normally allows heat from the 

furnace to rise into the dryers closed during the emergency shutdown, as it 

should (Tr. 23). 

IJ There is a dispute as to this statement which will be discussed later. 

290 
Although Inspector Graybeal did not have a clear line of vision to the 

furnace from his location on the feed and discharge screw platform next to 

the bypass gate, he could see smoke rising up from the area of the furnace 

during the shutdown. None of the other dryers were shut down at this point 

(Tr. 28). 

The inspector issued an unwarrantable failure order. This order was 

terminated 1 hour and 10 minutes after it was issued {Tr. 45). Inspector 

Graybeal was called back to reinspect the bypass relief gate (Tr. 46). In 

checking the gate, he observed it would only open part way and he refused 

to terminate the order until the bypass gate would open completely (Tr. 46). 

Employees of Respondent tied a 15-pound metal weight to the arm of the 

bypass gate to give it more leverage so that it would open (Tr. 46-47). 

The bypass gate then operated properly and the order was terminated. 

The furnace operator on the day shift informed Inspector Graybeal that 

the bypass gate was last checked on November 21, 1977 (Tr. 43). Four other 

employees of Respondent did not know when the bypass gate had been most 

recently inspected (Tr. 75). 

The last unwarrantable failure order issued to the Moss No. 3 Preparation Plant was written on October 12, 1976. During that 11-month interval, 

no complete health and safety inspections were conducted by MSHA at the 

plant to verify abatement of the unwarrantable failure citation, or for 

any other reason (Tr. 97). 

A plant electrician was called to the No. 3 furnace to check the bypass 

gate after the order was issued and before it was abated. He testified that 

he unhooked the air hose to the bypass gate and found that the gate operated 

properly (Tr. 145). The electrician called one of the foremen and told him 

that he could not find anything wrong with the bypass gate (Tr. 45). He had 

watched the bypass gate open when he unhooked the air hose (Tr. 147). 

Frank Hall, the plant superintendent, testified that no time had been 

lost due to a malfunctioning bypass gate during the week the citation was 

issued (Tr. 165). 

There is no doubt that thermal dryers can be hazardous and that the 

chance of explosion or fire is greater during startup and shutdown than 

during normal operation of the dryer. Hot gases from the furnace enter 

the main part of the dryer where coal and coal dust is present and ignition 

of the coal dust sometimes occurs. It was explained that there is sometimes 

incomplete combustion in the furnace and thus some flammable gases reach 

areas where coal dust accumulates and that if an ignition occurs these gases 

would add to the severity of a coal dust ignition. It is not at all clear 

however, how the failure of the bypass gate could lead to an explosion in 

the dryer. The last page of Exhibit M-2 contains a schematic diagram of 

the thermal dryer involved in this case. The furnace portion of the dryer 

is constructed of an inner wall which is firebrick hung on a framework with 

no mortar and an outer wall which, although mortared, nevertheless has substantial openings therein. When the system is operating the exhaust fans 

291 
cause air to be drawn in through the furnace openings and out of the furnace up past the protection door into the main part of the dryer. When the 

protection door is closed no gases from the furnace can be sucked up into 

the dryer, and the purpose of the bypass gate is to disburse the combustion 

products via a bypass stack leading to the outside rather than having these 

products exit the furnace through holes in the furnace itself. Even with 

the protection door closed (the bypass gate has no function unless the protection door is closed), I am unconvinced that an explosion hazard existed. 

I cannot accept the inspector's speculation that sufficient pressure might 

build up in the furnace to force open the protection door. According to 

the inspector, there were two 16-inch square openings at the top corners of 

the furnace (this is the outside wall of the furnace) and at the bottom 

some bricks were left out to provide an airflow (Tr. 70). With the protection door and the bypass gate closed, smoke could be forced through the 

furnace openings until the fire smothered itself. The smoke coming out of 

these openings may constitute a hazard, but not an explosion hazard. 

Although there is some question about it, I am going to assume that 

the thermal dryer operator used the proper emergency shutdown procedures. 

According to the note at the bottom of page 4 of the emergency shutdown 

procedures (Exhibit M-2), stopping the dried coal screw will stop the complete system in sequence except for the exaust fan. Respondent's superintendent however, testified that the note was erroneous and that the other 

steps listed on the same page would have to be taken in order to shut down 

the system in sequence. Inasmuch as the inspector asked the dryer operator 

to simulate an emergency shutdown and observed that the bypass gate did not 

close and that smoke was coming from the bottom of the furna1ce (indicating 

the protection door had closed), he established a·prima face case that the 

bypass gate was not working properly. If the dryer operator acted improperly, it was the burden of Respondent to rebut the prima face case by showing that some step in the shutdown procedure was omitted. It has failed to 

make such a showing. I therefore find that there was a violation of the 

safety standard. 

1he inspector issued the unwarrantable failure order because four tries 

were made to simulate the emergency shutdown and in each case the bypass 

gate would not open. It is clear that I do not have any authority to 

review the unwarrantability finding or the order during a civil penalty 

proceeding. In Zeigler Coal, 2 IBMA 216 (1973), the Board of Mine Operations Appeals decided that the validity of a withdrawal order is not an 

issue in a civil penalty proceeding. Subsequent cases under the 1969 Act 

decided by both the Board and the Commission unerringly follow Zeigler 

(Wolf Creek, PIKE 78-70-P, March 26, 1979; Pontiki, 1 FMSHRC 1476 (October 

1979); Jewell Ridge, 3 IBMA 376 (1974); Plateau Mining, 2 IBMA 303 (1973); 

Buffalo Mining, 2 IBMA 327 (1973); North American Coal, 3 IBMA 93 (1974), 

cf. Freeman Coal, 2 IBMA 197 (1973)). This is the rule whether the improperly considered order was an unwarrantable failure order (Wolf Creek, supra; 

Jewell Ridge, supra; Pontiki, supra; North American Coal, supra), or an 

imminent danger withdrawal order (Zeigler Coal, supra; Plateau Mining, 

supra; Buffalo Mining, supra; cf. Freeman Coal, supra). 

292 
I think a distinction should have been made between orders that depend 

on a violation of a health and safety standard, such as unwarrantable failure orders, and imminent danger orders which need not be supported by any 

violation of a health and safety standard. An imminent danger can exist 

when there is no violation, but the idea of there being an unwarrantable 

violation but no violation is self-contradictory. If I had found that 

there was no violation proved in this case, the effect of that finding 

would be to show the invalidity of the order but I could not vacate that 

order. Assuming my decision was affirmed, there would be a final legal 

determination that no violation had occurred and at the same time, an 

equally final and valid order stating that an unwarrantable failure violation had occurred. 

In the instant case, I have found that a violation occurred and while 

I cannot review the unwarrantability of the violation I can find and 

do find that Petitioner has not proved negligence in this case. 2/ The 

bypass stack has to open in both emergency and normal shutdowns and there 

was no evidence that prior to the date of the inspection this bypass stack 

had failed to operate properly. The fact that in four separate tries the 

inspector and dryer operator could not get the bypass stack to open, shows 

that there was something wrong with it but it does not prove that Respondent 

knew or should have known that something was wrong with it. Respondent is 

a large company and has a substantial history of violations and it abated 

the violation promptly and in good faith. I find the evidence establishes 

a low order of gravity and that a penalty of $300 is appropriate. 

ORDER 

IT IS THEREFORE ORDERED that Respondent pay to MSHA, within 30 days of 

the issuance of this decision, a civil~th~am~~OO~' 

Charles C. Moore, Jr. 

Administrative Law Judge 

Distribution: 

Eddie Jenkins, Esq., Office of the Solicitor, U.S. Department of 

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

Gary W. Callahan, The Pittston Company Coal Group, Lebanon, VA 

24266 (Certified Mail) 

Jj This makes it unnecessary for me to consider Respondent's contention 

that it was prevented from escaping the unwarrantable chain by MESA's 

failure to conduct a complete inspection for 11 months. 

293 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6225 

FEB 5 1980 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Complaint of Discharge, 

Discrimination, or 

Interference 

CHARLES W. MILLER, 

v. 

OLD BEN COAL COMPANY, 

Petitioner 

Applicant 

Respondent 

Docket No. LAKE 79-282-D 

CD 79-158 

No. 24 Mine 

DECISION 

'!his is a proceeding under Section 105(c)(3) of the Federal Mine Safety 

and Health Act of 1977. Applicant alleges that he was removed from his position as face boss at Old Ben's No. 24 Mine because of his "insistence that 

the men working under me do so under safe conditions and in compliance with 

[F]ederal law." A hearing was held in St. Louis, Missouri, on November 28 

and 29, 1979. The parties were represented by counsel, and have filed posthearing briefs. 

At the hearing, Applicant, J. B. Gibbs, John Barwick, George Jenkins, 

and Dennis Benns testified for Applicant. Lester Grogan, Roger Roper, 

Robert Travelstead, and James Green testified for Respondent. Ernest 

Duckworth testified for Applicant as an adverse witness, and for Respondent. 

FINDINGS OF FACT 

The parties stipulated and I find: 

1. Old Ben Coal Company (Old Ben) is engaged in the coal mining business in the State of Illinois, with its home office at 125 South Wacker 

Drive, Chicago, Illinois 60606, and a regional office at 500 North DuQuoin 

Street, Benton, Illinois 62812. 

2. Charles W. Miller was employed by Old Ben as an underground miner 

from June 3, 1974, to July 25, 1977. 

3. On or about July 25, 1977, Mr. Miller was promoted by Old Ben to 

a management position as a section boss (sometimes referred to as a "face 

boss"). 

294 
4. Mr. Miller performed his management duties at Old Ben's No. 24 

Mine. 

On February 27, 1979, Old Ben fired Applicant. Applicant contends that 

he was discharged because he had made complaints regarding various safety 

matters. Old Ben contends that Applicant was fired because he disobeyed 

orders and in other respects was not a satisfactory employee. 

In support of his case, Applicant alleges that his conduct in connection with four separate safety-related incidents resulted in his discharge. 

These incidents are: 

1. The "four-violation incident," which occurred on or about July 18, 

1978; 

2. The "telephone incident," which occurred on or about July 21, 1978; 

3. The "roof-bolting incident," which occurred in mid-December 1978; 

and 

4. The "longwall incident" of February 26, 1979. 

The Four-Violation Incident 

On July 18, 1978, Applicant worked the 4 p.m.-to-midnight shift as the 

face boss of a continuous miner crew. When he entered the company's conference room at approximately 3:30 p.m., he learned that a Federal inspector 

had discovered certain safety violations in his section of the mine. Four 

of these violations had to be corrected by 8 a.m. the following morning, 

and Applicant was told that this would have to be done by his crew. 1/ The 

key issue with respect to this incident concerns Applicant's testimo~y that 

he was directed by mine superintendent Lester Grogan to correct the violations and load coal at the same time. Applicant stated that when Mr. Grogan 

found out that no coal had been loaded on Applicant's shift, he became 

angry. Applicant testified that Robert Travelstead, Old Ben's safety director, shut down the continuous miner until a broken bolt under the seat was 

fixed. Applicant contends that it would have been unsafe to operate the 

continuous miner without first correcting the violations, and therefore 

that his refusal to follow Mr. Grogan's instructions was justified. Additionally, Applicant stated that there was no rock dust in his section of 

the mine, and thus he was unable to correct the rock dust violation. 

1/ Applicant testified that correcting the violations involved replacing 

a headlight on a continuous miner, replacing a broken bolt in an electrical panel under the seat of the continuous miner, cleaning up the area, 

and doing rock dusting. The testimony of Respondent's witnesses, including Old Ben's safety director, Robert Travelstead, indicates that the four 

violations found by the MSHA inspector did not include the broken bolt under 

the seat, but did include a permissibility electrical violation. 

Mr. Travelstead and Old Ben's mine superintendent, Lester Grogan, testified, 

and I find, that the broken bolt was found after the inspection. I do not 

believe, however, that this fact is material to the legal issues presented 

in this case. 

295 
Respondent's witnesses testified that Applicant was not told to operate the machinery while the violations remained uncorrected. Mr. Grogan 

testified that he told Applicant to fix the electrical violation and the 

headlight on the continuous miner before operating it. He added that when 

he later learned of the broken bolt under the seat, and Mr. Travelstead's 

order to shut down the machine, "the matter was dropped * * *·" Mr. Grogan's 

version of these events was corroborated by the testimony of Mr. Travelstead. 

None of the testimony of Applicant's fellow employees confirmed Applicant's 

testimony that he was ordered to'mine coal and repair the violations 

simultaneously. 

The Telephone Incident 

Applicant's testimony concerning the telephone incident is essentially 

consistent with that of Respondent's witnesses, as well as several of Applicant's co-workers. The telephones broke down in Applicant's section around 

July 21, 1978, and were inoperable for two or three days. Management claims 

that it did not know that the phones were broken, and that the situation 

was remedied as soon as the problem was made known to it. Applicant and 

his fellow employees contend that management was informed of the situation, 

and that after one or two days the workers refused to mine coal until the 

telephones were repaired. The workers felt that this was an unsafe situation. 

Management agreed that the miners should not mine coal in the section until 

the telephones were repaired, and the miners were given jobs shoveling coal 

elsewhere. There is no evidence, however, that Applicant was responsible 

for, or involved in, this refusal. One of the miners testified that Applicant "had nothing to do with it." Nor does it appear that management blamed 

him for this incident. 

The Roof-Bolting Incident 

Toward the end of November 1978, Applicant became a section boss of a 

crew that operated a longwall miner. 2/ When he was transferred to this 

position, he received eight hours of Instruction on the operation of this 

equipment. For about the first two weeks, he worked under an experienced 

face boss on the longwall miner, and then assumed those duties himself. 

He was not, as other mine personnel were, sent to Rend Lake College for 

longwall instruction. 

The roof-bolting incident occurred in mid-December 1978 in the longwall 

area during the midnight-to-8 a.m. shift. Some of the roof had fallen, and 

there was a crack in the roof which made it appear unsafe. Applicant's 

crew had planned to cut down the roof area around the fall, since Applicant 

felt it would be unsafe to bolt the roof. However, Ernest Duckworth, the 

longwall coordinator, instructed the crew to bolt it anyway. At this point, 

Duckworth left the area. The men started to bolt the roof when Roger Roper, 

2/ A longwall miner is a complicated 

along a section of face approximately 

it moves. Twelve people are required 

approximately seven million dollars. 

reponsible position. 

296 

and sophisticated machine which moves 

460 feet long, shearing off coal as 

to operate such a device, which costs 

The section boss thus holds a very 
the mine manager, arrived. When Roper learned of the situation, he told 

the men to move the roof-bolting machine back out of the way because the 

roof looked unsafe. Shortly after the machine was moved, the roof fell 

in. Applicant testified that men could have been killed if they had been 

under the roof, and the machine could have been damaged. Apparently, an 

argument ensued in which Roper blamed Applicant for doing bolting which 

was dangerous, and Applicant blamed Duckworth for giving him the order to 

do something which Applicant felt was wrong. Applicant also resented the 

fact that Duckworth usurped Applicant's authority.· There is no indication, 

however, that Applicant made a safety complaint in connection with this 

incident. 

The Longwall Incident 

On February 26, 1979, there was a severe blizzard along the eastern seaboard of the United States. Of between 100 and 125 men who were supposed 

to work the midnight-to-8 a.m. shift at Old Ben's No. 24 Mine, only six, 

including Applicant, reported to the mine. These six men were assigned to 

a make-shift crew on the longwall machine. Another man who reported to work 

was posted at the face of the mine to relay telephone messages for safety 

purposes. The crew on the longwall.machine included Applicant, another 

foreman named Palmowski, and four other men who were either trainees or just 

off of trainee status. None of the other men knew how to operate a longwall 

miner. At the beginning of the shift, Superintendent Grogan told Palmowski 

that he wanted Applicant, who was in charge of the crew, to have the men 

replace some "flights" 3/ on the longwall machine. Approximately 75 flights 

on the chain had to be bolted into place, a task which required that the 

machine be started and the chain moved into position. The equipment did 

not have to be actually operated, however, and it was not near the face. 

Applicant contends that he did not know how to ·operate the machine; that 

his crew was incapable of operating it; that he was totally unfamiliar with 

the machine's control panel; and that in order to start the machine, it 

would have been necessary to short out its methane detector. 4/ Applicant 

felt that this would be a violation of safety laws. Responde~t pointed out 

that Applicant was not being asked to mine any coal with the machine, but 

merely to start it and move the belt so that the flights could be replaced. 

Applicant's crew did not replace any flights on that day. He assigned 

the men to do other work. It was not until three or four hours after the 

shift began that Mr. Roper telephoned the crew and learned of this. Appli~ 

cant was fired the following day. 

3/ A flight is a metal bar about four inches in diameter and twelve inches 

long which is attached to a chain that drags coal towards the conveyor after 

it is cut from the face. The flights had to be installed because the longwall miner had recently been moved to a new panel. During the move, the 

flights had been removed. 

!±./ The methane detector on a longwall miner is a device which stops the 

machine from operating if methane is sensed. On the day in question, the 

detector was broken, rendering the machine inoperable unless the detector 

was circumvented. 

297 
Concluding Findings and Conclusions of Law 

For Applicant to prevail in this action, he must show that his safetyrelated actions constituted "protected activity." This concept has 

received considerable attention from the courts under both the 1969 and 

1977 Mine Acts. The leading case is Phillips v. Interior Board of Mine 

Operations Appeals, 500 F.2d 772 (D.C. Cir. 1974), cert. denied, 420 U.S. 

938 (1975). There, the Court held that the plaintiff's notification to his 

foreman of possible dangers was an "essential preliminary stage" of those 

actions which bring the protection of the Act into play. 5/ Id. at 779. 

This view, in the Court's opinion, represented a compromise between two 

extremes which the parties had urged upon it: 

'We do not think that merely because a discharge originates in a disagreement between a foreman and a miner that 

the Mine Safety Act is automatically brought into play. 

Nor do we adopt the other extreme, take the bare words of 

the statute with their most limited interpretation, and 

hold that before a miner's safety complaint is accorded 

the protection of the Safety Act the coal miner must have 

instituted a formal proceeding with the Secretary of Interior 

or his representative. Rather, we look to: the overall 

remedial purpose of the statute * * *; the practicalities of 

the situation in which government, management, and miner 

operate; and particularly to the procedure implementing the 

statute actually in effect at the*** mine." 

The issues to be determined are whether Applicant's action in any of 

the incidents crossed the line from a "disagreement" to "notification * * * 

of possible dangers * * *·" 

With respect to the four-violation incident, Applicant made no safety 

complaint. Applicant's testimony that he was directed to repair the violations in question and load coal simultaneously was not corroborated by 

the testimony of any of his fellow miners, and was expressly contradicted 

by Mr. Grogan and Mr. Travelstead. Similarly, the telephone incident did 

not involve such a complaint. Applicant merely informed management of the 

need for a telephone in his section of the mine. There is no evidence that 

he was responsible for the refusal of his men to work until the phones were 

repaired, nor is there any indication that management blamed him for the 

workers' refusal. 

The roof-bolting incident was, in my opinion, a mere "disagreement" 

between Applicant and management. Admittedly, Applicant was caught between 

the orders of two of his superiors and, as is often the case in such a situation, some hard feelings resulted. Applicant believed that Mr. Duckworth 

gave him an instruction to do something which was dangerous. When his men 

started to carry out those orders, Applicant found himself arguing with 

5/ While Phillips was decided under the 1969 Act, it remains the leading 

case defining the concept of "protected activity" under the 1977 Act. 

298 
Mr. Roper. Roper agreed with Applicant that the roof should not be bolted, 

and ordered the crew to move the equipment away from the roof. Clearly, 

there was no safety complaint made by Applicant to Mr. Roper, as the two 

men agreed that the situation was unsafe. Furthermore, Applicant's discussion with Mr. Duckworth did not cross the line from a "disagreement" to a 

"complaint." 

Thus, if Applicant is to prevail in this case, he must show that there 

was something about the longwall'incident which resulted in his being discriminated against for making a safety complaint. 

It is pertinent to note that none of the prior incidents occurred 

within three months of the date of Applicant's discharge. Although 

Mr. Grogan and other management witnesses indicated that they never placed 

any information in Applicant's personnel file, nor issued anything else in 

writing, which indicated that they were in anyway dissatisfied with 

Applicant's performance, there was considerable credible testimony concerning various sources of friction between Applicant and other management 

officials. For example, Applicant testified that he was always very 

safety-conscious, and that he often became concerned when the crew before 

him did not clean up the worksite properly, attach the sucker hose, 6/ or 

bolt and maintain the roof in a safe condition. Grogan testified that it 

was common for each crew to blame the previous one for such circumstances. 

He added that Applicant often did not clean, up his own area as much as he 

he should have, and that as a result, Applicant's section was the source 

of an abnormally high number of safety violations. Grogan testified that 

Applicant often disobeyed instructions, and blamed other shifts and upper 

management for his own problems. There was also testimony that Applicant 

resented being assigned to the longwall crew since this entailed working 

on Saturdays and Sundays. 

I agree with Mr. Grogan's assessment of Applicant as a very intelligent 

worker with a good deal of potential. Obviously, there was some friction 

between the parties, but I do not find that this was due to Applicant's 

having made safety complaints. The pivotal question here is whether Applicant's refusal to obey his orders to replace the flights on the longwall 

miner constitutes a safety complaint for which he can claim protection under 

the Act. The evidence indicates that Applicant was not as well trained in 

the operation of the longwall miner as he should have been. Although he 

may have been able to figure out how to start the machine on the day in 

question, he was justified in declining to do so without further instructions. However, I am more impressed with the fact that he was told to 

replace the machine's flights at the beginning of his shift, and although 

a telephone was available, he did not inform management of his feelings 

until the shift was almost half over and then only after Mr. Roper telephoned him. I think it was incumbent upon Applicant to register his complaint immediately, and tell his supervisor that he could not perform his 

~ A sucker hose is an exhaust hose which keeps the mine face free of 

methane and other harmful gases. 

299 
assigned duties without further instructions on the operation of the 

machine. Instead of doing this, Applicant simply disobeyed his supervisor's directions. That type of conduct is not protected under 

Section 105(c) of the Act. . 

The complaint is DISMISSED. 

Distribution: 

ORDER 

r a .. ~/~ Edwin s. Bernstein 

Administrative Law Judge 

Robert J. Araujo, Esq., Old Ben Coal Company, 125 South Wacker Drive -

#2400, Chicago, IL 60606 (Certified Mail) 

John W. Huffman, Esq., Kimmel, Huffman, Prosser & Kimmel, P.O. Box 30, 

Carbondale, IL 62901 (Certified Mail) 

MSHA, U.S. Department of Labor, Special Investigations, 4015 Wilson 

Boulevard, Arlington, VA 22203 (Certified Mail) 

300 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, IOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 6 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

v. 

PIKEVILLE COAL COMPANY 

Docket No. KENT 79-105 

Petitioner 

Chisholm Mine 

Respondent 

DECISION 

Appearances: Darryl A. Stewart, Office of the Solicitor, U.S. Department 

of Labor, for Petitioner; 

Before: 

John M. Stevens, Esq., Stephens, Combs and Page, Pikeville, 

Kentucky, for Respondent. 

Judge Lasher 

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

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

Kentucky, on December 20, 1979, at which both parties were well represented 

by counsel. After considering evidence submitted by both parties and proposed findings of fact and conclusions of law preferred by counsel during 

closing argument, I entered a detailed opinion on the record. It was found 

that the violation charged in the withdrawal order did occur. My oral 

decision, containing findings, conclusions and rationale appears below as 

it appears in the record, other than for minor corrections in grammar and 

punctuation: 

Turning to Docket No. KENT 79-105, that docket contains 

one charge of violation of section 30 CFR 75.~00, the 75.403 

violation having been dismissed for failure of evidence previously in this proceeding. 

The question involved is whether or not the accumulations as charged in the withdrawal order did exist, and if so, 

what the amount of penalty should be based upon the statutory 

penalty assessment criteria and any other relevant factor 

which might stand either in mitigation or aggravation of the 

amount of penalty. 

301 
As I have previously noted in my decision in the review 

proceeding which is related to this penalty proceeding, I 

find no question on the record but that the accumulations as 

described by inspector Vernon P. Hardin in the order of withdrawal did exist. There was no really serious challenge to 

the existence of such accumulations. I found specifically 

in the review proceeding that Inspector Hardin's testimony 

describing the appearance of these accumulations, the fact 

that the rock dusting was inadequate, and the depth and 

extent of the same, to be credible. And I so find here. 

Having found that the accumulations existed, and that 

does constitute the violation itself, I conclude that a violation of 30 CFR 75.400 occurred. 

I also find that this is a large company from the standpoint of a three-size spectrum--small, medium and large--since 

it had approximately 270 employees at the time of the violation, 285 employees at the present time, and since its coal 

production annually runs approximately 680,000 tons per year. 

To be more specific, I also find that if one were to take 

only the large category of coal companies, that this is not 

one of the giants, certainly, of the coal industry, nor would 

it be one of the middle range coal companies. This would be 

one of the smaller of the large coal companies. 

I find that the history of previous violations for this 

company is average for a company of this size based upon the 

stipulation of the parties, and also based thereon, that any 

penalty that I assess in this case and which I am going to be 

assessing in this proceeding will not affect the company's 

ability to continue in business. 

Turning now to the third statutory penalty assessment 

factor, whether or not the respondent company proceeded in 

good faith to abate the cited violation, I can only conclude 

that the company did proceed in ordinary good faith to abate 

this violation, there being no evidence to the contrary. I 

do note in this connection, in viewing abatement, that even 

though the inspector first sighted the violation at 9 o'clock, 

the abatement period would run from the time of the issuance 

of the order of withdrawal (approximately 2-1/2 hours later). 

It would not run from 9 o'clock to 11:30. It did appear to 

me that perhaps the operator here was a little slow in correcting the problem. On the other hand, it does appear that 

the scoop broke down with a defective hose at the wrong time, 

and perhaps other unanticipated misadventures occurred. 

With respect to the seriousness of the violation, I find 

that 10 employees were exposed to a hazard which itself could 

302 
be either fire or an explosion. As I have previously noted 

in the related review proceeding, I do not find this hazard 

to be an "urgent" or an "imminent" one. I do find this to be 

a serious violation. Accumulations are one of the serious 

violations, and as the Commission has recently noted in its 

decision in Old Ben Coal Company, which issued within the 

last month, this type of violation is one of the kinds which 

contributed to the passage of the 1969 Federal Coal Mine 

Health and Safety Act since it is the cataclysmic or 

disaster-type of violation. This type of violation will 

normally be found to be serious. 

In connection with negligence, I find the delay between 

9 o'clock and 11:15 which the operator engaged in to be 

adverse to any argument that the penalty should be nominal or 

small. One of the things which was not shown is whether or 

not, when a dangerous situation occurs and a piece of 

machinery designed to correct that situation malfunctions, 

there is a backup procedure or backup equipment or the like 

to cure it. If a fire is in progress and you have a hose 

which does not work, it would seem to me that there should be 

a backup procedure which would take care of a such a serious 

dlndition, or else some procedure or means of diverting 

another piece of machinery from another operation into an 

area where a danger occurs. While I do not find gross 

negligence, and it is very close to gross negligence in my 

estimation, I find a high degree of negligence in this case 

for allowing this type of condition to exist for that period 

of time. 

I know of no other factors to consider with respect to 

this violation. 

In summary, I do find that that violation occurred and 

that the penalty factors of seriousness, negligence and size 

of the company mandate a substantial penalty. The MSHA proposed assessment of $1,000 is a substantial penalty. I see 

no reason to increase it. On the other hand, I see no reason 

to reduce that penalty on the basis of this record. So a 

penalty of $1,000 for the 75.400 violation contained in Withdrawal Order 065134, dated December, 20, 1978, is assessed and 

the Respondent is directed to pay the same to the Secretary 

of Labor within 30 days from receipt of my written decision 

which will issue after this hearing." 

303 
ORDER 

Respondent, Pikeville Coal Company, is ORDERED to pay a penalty of 

$1,000 to the Secretary of Labor within 30 days from the issuqnce date of 

this decision. 

Distribution: 

-1,A ./ // d' _./-? ~ //./h-tta·~ // /d'J..,~'/ // -

Michael A. Lasher, Jr., 

Administr·ative Law Judge 

John M. Stephens, Esq., Stephens, Combs & Page, P.O. Drawer 31, 

Pikeville, KY 41501 (Certified Mail) 

Darryl A. Stewart, Esq., Office of the Solicitor, U.S. Department of 

Labor, 801 Broadway, Room 280, Nashville, TN 37203 (Certified Mail) 

Harrison Combs, Esq., UMWA, 900 - 15th Street NW, Washington, DC 20005 

(Certified Mail) 

304 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

PIKEVILLE COAL COMPANY, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52Cl3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 6 l91J 

Civil Penalty Proceeding 

Docket No. KENT 79-165 

Petitioner 

Chisholm Mine 

Respondent 

ORDER APPROVING SETTLEMENT 

At the hearing in Lexington, Kentucky, on December 20, 1978, a settlement of the two violations involved in the above docket was accomplished 

in the total sum of $975 (Citation No. 65011--$445 and Citation No. 65130--

$530). MSHA's total initial assessment was $1,640. 

This settlement is approved for the following reasons: 

1. MSHA concedes that its initial evaluation of proper penalties may 

have been excessive based upon its initial overevaluation of the statutory 

factor relating to Respondent's good faith in abating the two violations 

in question. 

2. The violative conditions described in Cit~tion Nos. 65011 and 

65130 are not inherently conditions of sufficient severity to warrant 

higher penalties absent aggravated surrounding circumstances. 

3. The settlement amounts are substantial. 

ORDER 

Respondent, if it has not previously done so, is ORDERED to pay the 

stipulated penalties totaling $975 in the above docket to the Secretary 

of Labor, within 30 days from the issuance date of this order. 

I ., 

,,./~)':~£..-f::. . .-::L.-! /'_;--. !~~t.'':..~t.l/'-

' Michael A. Lasher, Jr., Judge 

305 
Distribution: 

Darryl A. Stewart, Esq., Office of the Solicitor, U.S. Department 

of Labor, 801 Broadway, Room 280, Nashville, TN 37203 (Certified 

Mail) 

John M. Stephens, Esq., Stephens, Combs & Page, P.O. Drawer 31, 

Pikeville, KY 41501 (Certified Mail) 

Harrison Combs, Esq., United Mine Workers of America, 900-15th Street, 

NW., Washington, DC 20005 (Certified Mail) 

306 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

PIKEVILLE COAL COMPANY, 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520~ LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 6 1900 

Contest of Order 

Contestant 

Docket No. PIKE 

Order No. 65134 

79-66 

December 20, 1978 

Respondent Chisholm Mine 

DECISION 

Appearances: John M. Stephens, Esq., Stephens, Combs & Page, Pikeville, 

Kentucky, for Contestant; 

Darryl A. Stewart, Assistant Solicitor, Mine Safety and 

Health Administration, U.S. Department of Labor, for 

Respondent. 

Before: Judge Lasher 

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

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

Kentucky, on December 20, 1979, at which both parties were well represented 

by counsel. After considering evidence submitted by both parties and proposed findings of fact and conclusions of law proferred by counsel during 

closing argument, I entered a detailed opinion on the record. 1/ It was 

found that the violation charged in the withdrawal order did occur. My 

oral decision, containing findings, conclusions and rationale appears below 

as it appears in the record aside from minor corrections in grammar and 

punctuation: 

This proceeding involves an imminent danger withdrawal 

order, No. 065134, issued on December 20, 1978, which is the 

subject of both a penalty proceeding and an application for 

review. 

Turning first to Docket No. PIKE 79-66, which is the 

proceeding for review of the order, the issue presented is 

}:_/ Tr. 146-151. 

307 
whether or not the physical conditions described in the order 

did exist, and if so, if such conditions constitute an imminent danger, as that term is defined in section 107(a) of 

the 1977 Federal Mine Safety and Health Act. 

I preliminarily note that whether or not an imminent 

danger exists is not dependent upon the existence of an 

actual violation of any of the mandatory safety and health 

standards. 

I also preliminarily note that two violations of such 

standards were specifically stated in the withdrawal order, 

one of which, the violation of 30 CFR 75.403, has been previously dismissed upon motion by the Government, and properly I think, when it appeared that the sampling technique 

was inadequate. 

The withdrawal· order describes the condition as follows: 

"Loose coal and inadequate rock dust in depths of three and a 

half inches to ten inches deep in the Numbers 2 through 8 

Entries and connecting rooms, including the last open crosscut outby the face." The withdrawal order contains other 

language which I deem it unnecessary to quote. 

The evidence presented indicates that the depth of the 

accumulations was from 3-1/2 to 10 incqes, based upon the 

testimony of the inspector, which I do find credible. 

The inspector also indicated, and I find, that the accumulations ran from 50 to 100 feet in six of the entries and 

for approximately 200 feet in the No. 4 entry. 

I find that the condition existed on an active working 

production shift and that had an imminent danger existed 

some 10 employees would have been exposed. 

Since I conclude that there is really no serious question, nor has there really been a strong challenge to the 

evidence indicating the existence of the accumulations as 

described in the order, I do find that the accumulations did 

exist. The question then becomes whether or not these physical conditions constitute an imm~nent danger. 

The record reveals that the inspector arrived on the 

section in the area where the accumulations existed at 

approximately 9 o'clock on the morning of December 20, 

1978. At that time, he observed the accumulations but 

made no measurements. Nor did he take any samples of the 

accumulations to determine combustibility. 

308 
The inspector did visually observe the accumulations and 

believed that they had been inadequately rock dusted, that 

there was '

1

a thin layer" of rock dust over the material 

which appeared to him to be very black. On the other hand, 

at 9 o'clock in the morning, the inspector, visually observing this condition, took no action. He returned approximately 2 to 2-1/2 hours later and the condition was found to 

have remained present in the area. At this time, the 

inspector who is an "electrical inspector," and who was not 

equipped with a sampling kit containing sampling equipment to 

measure combustibility, did take samples, but these were processed in such a way that the same appeared to be inadequate 

for proper sampling analysis. This led in turn to the dismissal of one of the two violations specifically cited in the 

withdrawal order, that in 30 CFR 75.403. 

The inspector testified that there was present in the 

area where the acci.nnulations were present a roof bolting 

machine which had splices in its cable, but he also indicated that the splices were adequate and that there was 

nothing wrong with the splices. He also testified that 

occasionally shuttle cars were known to come in and out of 

the area but that there were none at the time he observed 

the condition. 

I thus find that there was only one potential, I underline potential, ignition source in the area. 

In concluding that an imminent danger has not been 

established in this case, I emphasize that one of the bases 

for finding no imminent danger is that this was not the 

type of situation one normally would encounter with respect 

to ignition sources where the imminent danger flows out of 

accumulations. In this case, there was no evidence indicating that there were sparks actually flying from any 

piece of machinery or equipment. There was no evidence, 

for example, that there was a belt roller grinding in accumulations or that there was arcing from some defective 

piece of equipment. Nor was there evidence in this case 

that there were ni.nnerous potential ignition sources which 

would perhaps increase the likelihood that a spark or a 

fire would result from it, which in turn would be aggravated 

by the existence of accumulations" or which would combine with 

accumulations to create an explosion. 

Here we have, really, one piece of equipment which is 

in operable condition. I find that while there was a hazard, 

that it is not shown to be innninent. It is not shown to be 

urgent. 

309 
In that same connection, I note that.the inspector 

observed substantially the same situation at 9 o'clock 

and yet, did not do anything about it. So this detracts 

somewhat, in my thinking--had this been a blatant or a 

clear cut situation where one senses urgency or imminence 

to a hazard, and a serious hazard, that one would act to 

clear the area upon the initial observance of the same. 

The Government's evidence with respect to imminent 

danger, and its position in this case, is also deteriorated 

by the fact that the evidence of combustibility of the material has substantially fallen by the wayside by the problem 

with the sampling technique, which led to the dismissal of 

the 75.403 charge and which in turn, I do note, was described 

by the inspector in the withdrawal order itself. 

So for those various reasons, I am unable to conclude 

that an imminent danger did exist and, accordingly, Order 

No. 065134, dated December 20, 1978, is ordered vacated, 

the application for review in this case, having been found 

to be meritorious. 

ORDER 

The application having merit, Order of Withdrawal No. 065134 is 

VACATED. 

~~ Michael / A. #'.~/~-- Lasher, Jr., Judge 

Distribution: 

John M. Stephens, Esq., Attorney for Pikeville Coal Company, 

Stephens, Combs & Page, 321 Second Street, Pikeville, KY 41501 

(Certified Mail) 

Darryl A. Stewart, Esq., Attorney for United States Department of 

Labor (MSHA), 280 U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Harrison Combs, Esq., United Mine Workers of America, 900 Fifteenth 

Street, NW., Washington, DC 20005 (Certified Mail) 

310 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52(l3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

.f.£8 8 1980 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY Ai~D HEALTH 

ADMINISTRATION (MSHA), Docket No. BARB 79-307-P 

Petitioner A.O. No. 15-11348-03002 

v. 

THE PITTSBURG & MIDWAY COAL 

MINING COMP ANY , 

Docket No. BARB 79-285-P 

A.O. No. 15-11348-03001 

Appearances: 

Before: 

Respondent Docket No. PIKE 79-129-P 

A.O. No. 11348-03004 F 

Docket No. KENT 79-74 

A.O. No. 15-11348-03006 

Docket No. KENT 79-180 

A.O. No. 15-13348-03007 

Docket No. KENT 79-367 

A.O. No. 15-13348-03009 

Docket No. KENT 79-269 

A.O. No. 15-11348-03008 

Docket No. KENT 79-99 

A.O. No. 15-11348-03003 

Pleasant Hill Surface Mine 

Docket No. KENT 79-229 

A.O. No. 15-02021-03005 

Colonial Strip Mine 

DECISIONS 

Marvin Tincher, Attorney, Office of the Regional Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, for the 

petitioner; 

George M. Paulson, Esq., Denver, Colorado, for respondent; 

Harold A. Hintze, Esq., Salt Lake City, Utah, for proposed 

intervenor Ford, Bacon and Davis Utah, Inc. 

Judge Koutras 

311 
Statement of the Proceedings 

These consolidated civil penalty proceedings concern proposals for 

assessment of civil penalties filed by the petitioner against the respondent 

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

30 U.S.C. § 820(a). Hearings were conducted in Docket Nos. BARB 129-P, BARB 

285-P~ and BARB 79-307-P, in Evansville, Indiana, on August 22, 1979, and 

the parties appeared and were represented by counsel. Subsequently, the 

petitioner filed proposals for assessment of civil penalties in Docket Nos. 

KENT 79-74, KENT 79-180, KENT 79-269, and KENT 79-367, and on motion by the 

respondent, these four dockets were consolidated with the three heard in 

Evansville. The motion was granted because of respondent's assertions that 

all of these cases involve the same legal issues as those covered by the 

Evansville hearings, namely the question of whether the proposals for assessment of civil penalties should have been served on certain independent contractors and subcontractors performing construction work for the respondent 

at its Pleasant Hill Surface Mine. Further, respondent's motions of 

February 4, 1980, concurred in by the petitioner, to consolidate Docket Nos. 

KENT 79-99 and KENT 79-229, with the previously-filed seven dockets was 

granted. 

During the August 22, 1979, hearings the parties indicated that they 

would jointly prepare and file with me a proposed stipulation and order for 

disposition of the cases which were heard, and that such stipulation would 

addxess the question of contractor and subcontractor responsibility and 

liability for the citations which were the subject of those proceedings. 

Thereafter, by letter received October 11, 1979, petitioner advised me that 

the parties were unable to agree upon the terms of a stipulation and proposed order as contemplated by the Evansville proceedings and that they had 

likewise failed to agree as to appropriate language in a motion by petitioner for continuance of the cases to which respondent would have no objection. At the same time, petitioner filed a motion for an indefinite continuance of all of the ~ockets pending final action by the Commission on the 

question concerning the Secretary's discretion to cite a mine/owner-operator 

for violations attributable to independent contractors on the mine property. 

In support of its motion, petitioner asserted that the parties were unable 

to stipulate all facts which would make a resumed hearing in these dockets 

unnecessary, but that a decision by the Commission in MSHA v. Monterey Coal 

Company, HOPE 78-469 through HOPE 78-476, which addresses-the question of 

the Secretary's discretion to cite the mine owner, may be dispositive of 

the liability question and that the legal questions regarding the right of 

certain contractors to intervene herein as respondents and the appropriate 

entities to be held accountable for the violations as such violations might 

affect respondent's non-compliance history in future penalty assessments can 

then be resolved on the basis of the present record or on a stipulation of 

additional facts which do not appear to be in dispute. 

On October 22, 1979, respondent filed a motion in opposition to the 

petitioner's motion for an indefinite continuance pending the Commission's 

decision in the Monterey case, and requested that I proceed with decisions 

312 
in these cases. In support of its opposition to any further delay, respondent argued that by .awaiting the Commission's decision in Monterey the decisions in the instant cases will be unduly delayed and that even if petitioner 

prevails in Monterey it will likely continue to cite mine owner-operators 

for administrative convenience rather than to carry our what respo~dent 

believes is the intent of Congress, namely, to cite the independent contractor responsible for the violations. Respondent also requested that its contractor, Ford, Bacon & Davis Utah and certain subcontractors be allowed to 

intervene and be substituted as parties in these proceedings, that I accept 

the offer of the contractor and certain named subcontractors to pay the 

civil penalties to which they admit responsibility and liability, that 

respondent be dismissed as a party respondent from all of these proceedings, and that none of the penalties for violations assessed in these proceedings be charged against respondent's history of violations at its 

Pleasant Hill Mine. 

Relying on the Commission's decisions in MSHA v. Monterey Coal Co., 

HOPE 78-469 and HOPE 78-476, November 13, 1979, and MSHA v. Old Ben Coal 

Company, VINC 79-119, October 29, 1979 which, I concluded were dispositive of 

respondent's "independent contractor" defenses in these dockets, I issued an 

order on December 10, 1979, and made the following rulings with respect to 

the motions filed by the parties: 

1. Respondent!s motion to permit its contractors and 

subcontractors to intervene and be substituted as parties was 

DENIED. 

2. Respondent's request to permit such contractors and 

subcontractors to pay the civil penalties for which they 

claim responsibility was DENIED. 

3. Respondent's motion thatit be dismissed as the 

respondent in these proceedings was DENIED. 

4. Petitioner's motion for an indefinite continuance 

was DENIED. 

My order of December 10, 1979, directed the parties to advise me of any 

stipulations or agreements as to all issues not in dispute, and any remaining issues which may be required to be tried by additional hearings. In 

compliance with my order, respondent- advised me by letter dated January 9, 

1980, that the parties were in the process of preparing a stipulation which, 

together with the record and exhibits made at the hearings of August 22, 

1979, would enable me to decide the case without the need for further evidentiary hearings. Regarding the independent contractor/mine-owner issue, 

respondent asserted that the factual question as to why MSHA elected the 

respondent as the party to bring these enforcement proceedings against is 

still unresolved, but in light of the history of the problem which indicates 

that the sole reason it is the respondent is MSHA's continued policy of 

enforcing violations committed by independent contractors against the owner 

313 
of the mine at which the contractor is employed, respondent suggested that 

the record contains sufficient evidence for me to decide this issue and it 

specifically makes reference to hearing Exhibits R-1 through R-3, which are 

identified as follows: 

(R-1) - November 17, 1978, Memorandum from MSHA 

Assistant Joseph 0. Cook to MSHA District Managers advising 

them that "[P]ending issuance of regulations to identify 

independent contractors, the instructions contain in memorandums dated June 3 and June 17, 1975, subjects, "Contractors Associated with the Coal Mining Industry" and "Violation Citations Issued to Contractors," respectively, remain 

in effect. 

(R-2) - June 3, 1975, Memorandum from former MSHA 

Assistant Administrator John W. Crawford to MSHA District 

Managers, citing the District Court decision in ABC v. 

Morton, and instructing all MSHA enforcement personnel to 

cite mine operators for all violations observed when 

inspecting contractors performing work on coal mine property. 

(R-3) - June 17, 1975, Memorandum from MSHA Assistant 

Administrator Crawford to·MSHA District Managers, followingup on his June 3 memorandum, instructing MSHA enforcement 

personnel to issue violation citations committed by contractors to the mine owner if the citations have not already 

been processed under section 109 of the 1969 Act. 

In addition to the independent contractor issue, respondent also 

requested that I make certain additional findings in regard to the following points of law in my final order concerning these cases: 

1. Whether these citations will become part of the 

citation history of the Pittsburg & Midway Coal Mining Co. 

for the purposes of 30 C.F.R. §l00.3(c). 

2. Whether the negligence involved in these citations 

must legally be attributed solely to the independent contractor actually committing the safety violation or whether it 

can also be attributed to the owner on a theory of vicarious 

liability. 

3. Whether the fact that the citations involved in 

these cases were issued at later dates than the citations 

involved in the cases of MSHA v. Old Ben Coal Company, 

Docket No. 79-119 and MSHA v. Monterey Coal Co., Dockets 

HOPE 78-469 - HOPE 78-476, affects the applicability of· 

the Old Ben Coal Company decision to these cases in light 

of the different facts involved in and the basis of decision 

used by the Mine Safety and Health Review Commission in the 

Old Ben Coal Company case. 

314 
4. Whether the fact that the independent contractors 

involved in these cases have petitioned for intervention and 

identified themselves to MSHA as the parties legally responsible for the violations involved in these cases affects the 

applicability of the Old Ben Coal Company decision in light 

of the different facts involved in and the basis of decision 

used by the Mine Safety and Health Review Commission in the 

Old Ben Coal Company case. 

In further response to my order of December 10, 1979, petitioner advised 

me by letter dated January 9, 1980, that the parties had reached agreement 

on a stipulation which they believe will enable me to dispose of the cases 

without further hearing and that as soon as it is finalized it would be filed 

with me for further consideration. In addition, petitioner advised that the 

agreement reached did not represent a proposed settlement of the cases since 

the parties are seeking to preserve their appeal rights in light of developments in the Old Ben and Monterey cases. 

On January 25, 1980, the petitioner and the respondent submitted their 

joint stipulation and agreed that these proceedings may now be disposed of 

on the basis of the present record and documents filed, including all pleadings, motions, exhibits, transcript of hearing, orders and stipulations and 

that the parties' rights of appeal are expressly reserved. However, in his 

transmittal letter, respondent's counsel states that there remain three 

questions to which the parties are unable to stipulate, namely: 

1. The reasons for MSHA selecting the respondent rather 

than the contractors for enforceement of the citations. 

2. Whether the independent contractors in these proceedings are "independent contractors" within the meaning 

of MSHA's proposed Rules, 30 CFR 45, published in the Federal 

Register on August 14, 1979. 

3. Whether the independent contractors involved in 

these cases have admitted responsibility for the citations. 

(In this regard, respondent invites my attention to pgs. 

28-29 of the August 22 Evansville hearing where contractor's 

counsel Hintze stipulated to liability on behalf of at least 

three of the contractors). 

Applicable Statutory and Regulatory Provisions 

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

30 U.S.C. § 801 et seq. 

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

3. Commission Rules, 29 CFR 2700.l et seq. 

315 
Issues 

The principal issues presented in these proceedings are (1) whether 

respondent has violated the provisions of the Act and implementing regulations as alleged in the proposals for assessment of civil penalties filed, 

and, if so, (2) the appropriate civil penalties that should be assessed 

against the respondent for the alleged violations based upon the criteria 

set forth in section llO(i) of the Act. Additional issues raised by the 

parties are identified and disposed of in the course of these decisions. 

In determining the amount of a civil penalty assessment, section llO(i) 

of the Act requires consideration of the following criteria: (1) the operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, (3) whether the operator 

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

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

faith of the operator in attempting to achieve rapid compliance after 

notification of the violation. 

Additional issues raised by the parties are identified and disposed of 

in the course of my findings, conclusions, and rulings made in these cases. 

Discussion 

Docket No. BARB 79-307-P 

104(a) Citation No. 399328, September 19, 1978, 30 CFR 77.1701: "The 

ho 012 TD-15 Dozer and 613 scraper used by Koester Const. Corporation are 

not provided with seat belts. Roll protection is provided. Responsibility 

of Roger Huser, project manager." 

Docket No. BARB 79-285-P 

104(a) Citation No. 399321, September 18, 1978, 30 CFR 77.1605(a): 

"Link belt mobile crane used by J & F Const. Co. The over head cab window 

is not in good condition in that the glass is broken with fragged edges. 

Responsibility of Roger Huser, project manager." 

104(a) Citation No. 399322, September 18, 1978, 30 CFR 77.208(d): 

"Oxygen and acetylene tanks used by J & F Const. Co. were not secured in a 

safe manner. Responsib~lity of Roger Huser project manager." 

104(a) Citation No. 339323, September 18, 1978, 30 CFR 77.1109(a): 

"The supply trailer used by J & F Const. Co. is not provided with a fire 

extinguisher. Responsibility of Roger Huser, project manager." 

104(a) Citation No. 399324, September 18, 1978, 30 CFR 77.1710(e): 

"Ted Rodgers, working for Davco Corporation is not wearing suitable foot 

wear. Responsibility of Roger Huser, project manager." 

316 
104(a) Citation No. 399325, September 18, 1978, 30 CFR 77.410: "Red 

Ford back dump and John Deere back hoe used by Davco Corp. are not provided 

with back-up alarms. Responsibility of Roger Huser, project manager." 

104(a) Citation No. 399326, September 18, 1978, 30 CFR 77.402: "Hand 

held saber saw and hand held portable grinder is not equipped with controls 

requiring constant hand or finger pressure to operate used by Davco Corp. 

Responsibility of Roger Huser, project manager." 

104(a) Citation No. 399329, September 19, 1978, 30 CFR 77.1109(c)(l): 

"The 613 scraper and Ford 7000 service truck used by Koester Corporation are 

not provided with fire extinguishers. Responsibility of Roger Huser, 

project manager." 

104(a) Citation No. 339330, September 19, 1978, 30 CFR 77.1102: "The 

Ford 700 service truck used by Koester Corp. is not provided with warning 

sign against smoking and open flame. Responsibility of Roger Huser, project 

manager." 

104(a) Citation No. 399335, September 26, 1978, 30 CFR 77.1713(a): 

"Daily on-shift safety inspections are not being made and recorded by a 

certified person at the mine. Responsibility of Roger Huser, project 

manager." 

Docket No. PIKE 79-129-P 

This docket concerns two citations in which MSHA elected to waive the 

assessment formula contained in 30 CFR 100.3 in determining the civil penalties, and the citations were "specially assessed" under section 100.4. 

104(a) Citation No. 399333, September 21, 1978, 30 CFR 77.400(a): "The 

hand held Black & Decker cut-off machine was not provided with a guard. The 

cut-off machine was being used by J & F construction Co. N 11. This citation 

was issued during a fatality accident investigation." 

104(a) Citation No. 399334, September 21, 1978, 30 CFR 77.404(a): 

The Black and Decker portable hand held cut off machine 

was not maintained in safe working condition in that an over 

size unguarded blade had been installed and used. The blade 

disintegrated resulted [sic] in a fatality accident. The 

machine was rated to use no larger than a 12 inch diameter 

blade. The blade in use was approximately 19 inches in 

diameter at the time of investigation (J & F Const. Co. 

IDNll). 

Docket No. KENT 79-180 

104(a) Citation No. 0795019, April 16, 1979, 30 CFR 77.1605(b): "The 

White No. SO Chevrolet truck used by Coal Rigging Contracting Corp. was not 

provided with a parking brake. Responsibility of Sonny Arnold, foreman." 

317 
104(a) Citation No. 0795020, April 16, 1979, 30 CFR 77.205(b). "The 

travelway in draw off tunnel used by Coal Rigging Contracting Corp. was not 

kept clear of stumbling and tripping hazard. Responsibility of Sonny Arnold, 

foreman." 

104(a) Citation No. 0795229, April 16, 1979, 30 CFR 77.402: "The 3/8 

and 1/2 electrical drills used by Cambron Electrical Co. was not equipped 

with controls requiring constant hand or finger pressure to operate." 

Docket No. KENT 79-74 

107(a) Citation No. 400843, December 31, 1978, 30 CFR 77.404: "The hand 

held grinder serial No. 627199 electric powered 115 volt and RPM rated 

6500 was provided with a buffing disc rated maximum 6000 RPM. This grinding 

device was connected to the power source. Under the supervision of J & F 

Construction Co. Jim Bethel." 

Docket No. KENT 79-269 

107.(a) Citation No. 0794248, April 11, 1979, 30 CFR 77.404(a): "The 

Lorain Crane No. 11 operated by Coal Rigging Construction Co. at the Pleasant 

Hill Mine construction site is hereby ordered to be removed from service in 

that the hoist brake will not ~old a load and the swinger will not reverse 

in a reasonable distance." 

107(a) Citation No. 0794249, April 11, 1979, 30 CFR 77.404 (a): "The 

Grove Crane No. CP operated by Coal Rigging Construction Co. at the Pleasant 

Hill Mine construction site is hereby ordered removed from service in that 

the swing lock brake is not working." 

Docket No. KENT 79-367 

104(a) Citation No. 0797717, August 1, 1979, 30 CFR 77.204: "At tipple 

construction site on third floor of tipple the opening for the elevator was 

not protected. On second floor the opening for wash box was not protected 

and sump in bottom of raw coal hopper was not protected. (Coal Rigging 

Contractors)." 

104(a) Citation No. 0797718, August 1, 1979, 30 CFR 77.205(b): "At 

tipple construction site on third floor and second floor of tipple travelways 

where persons were required to travel and work were not kept clear of all 

extraneous material and stumbling hazards. (Coal Rigging Contractor)." 

Docket No. KENT 79-99 

104( a) Citation No. 399327, September 18, 1978, 30 CFR 71. 400: "Bathing 

facilities change room and sanitary flush toilets are not provided for the 

employees at the mine. Responsibility of Roger Huser, project manager." 

104(a) Citation No. 399332, September 21, 1978, 30 CFR 77.701: "The 

electric powered hand held cut off machine was not provided with frame 

318 
grounding in that a two conductor exterior cable was used and the machine 

was not double insulated. This machine was in service at the shop office 

construction site. J & F Construction Co. I.D. N 11." 

104(a) Citation No. 400844, December 21, 1978, 30 CFR 77.701: 

The Fornly ram pressure machine electric motor was not 

frame grounded in that the grounding prong was broken off the 

plug and a two conductor extension cord was in use and the 

ventilation fan was not frame grounded in that the ground 

prong was missing from the plug located in the test building 

near the office trailers (Geological Associates) under Ford, 

Bacon Davis Utah Contractors. 

Docket No. KENT 79-229 

104(a) Citation No. 079425, May 15, 1979, 30 CFR 77.1102: "Warning 

signs are not posted at the liquid portable storage tank located at the 

Smith-Miller construction site. The responsibility of Guy Brownbuger." 

104(a) Citation No. 0794254, May 15, 1979, 30 CFR 77.1109(e)(l): 

''Portable fire ~xtinguishers are not provided at the liquid portable storage 

tank located at the Smith-Miller construction site. The responsibility of 

Greg Brownbuger." 

Stipulations 

During the hearing of August 22, 19.79, the parties agreed to the 

following stipulations (Tr. 7-10): 

1. Respondent Pittsburg and Midway has been inspected 

previously at two surface mines operated in Western Kentucky. 

A significant number of safety and health violations of the 

act involved had been disclosed by MESA and MSHA, admitted at 

this time, by those inspections for which ordinary negligence 

is conceded. Respondent exhibited good faith in correcting 

or abating those past violations. 

2. There was no gross negligence involved in any of 

those violations; the number of such violations was not 

large and the penalties were not large. 

3. The respondent is a wholly-owned subsidiary of 

Gulf Oil Company, and the size of its business in 1978 was 

approximately eight million tons of coal produced. 

4. Respondent's operations, including those at the 

Pleasant Hill Mine, affect commerce within the meaning of 

the statute and any assessment of penalties approximating 

those proposed in the matters pending for hearing will not 

seriously affect P and M's ability to continue in business. 

319 
5. Copies of the citations contested in this proceeding were identified as Exhibits P-1 through P-11 and P-13. 

And those, as well as a copy of the report of the fatality 

investigation which was identified as P-12 may be received 

in evidence. There is no issue as to the correct sections 

of the safety regulations cited. 

6. Respondent exhibited good faith in correcting or 

causing correction and abatement of the alleged conditions 

on which the citations involved in these proceedings are 

based. 

7. Bill Brasher, an employee of P and M, was mine 

superintendent of respondent's Pleasant Hill mine during 

the period involved in these proceedings. 

8. Roger Huser was an employee of the Gulf Mineral 

Resources Company, a division of the Gulf Oil Company, and 

was assigned to the P and M mine construction site, the 

Pleasant Hill surfac~ mine. 

9. No coal has been or was being mined by the respondent at the Pleasant Hill .mine at the time involved in these 

proceedings. Preparation and construction of the facilities, 

including a building to house shop offices and abating [sic] 

facilities, plus a railraod spur track and a loading hopper 

were in progress under construction agreement -- a construction agreement between P and M and Ford, Bacon and Davis 

Utah, Inc. which will be designated hereafter as the contractor. Various parts of the construction were being carried 

out by subcontractors pursuant to agreements between them 

and the contractor. There was no privity contract between 

P and Mand the subcontractors, including those identified 

in Exhibits P-1 through P-13. 

Findings and Conclusions 

The Independent Contractor Issue 

MSHA's prevailing enforcement policy at the time the citations in these 

proceedings were issued was to cite the mine owner for all citations generated on its mine property, regardless of the fact that they resulted from 

work being done by contractors. Further, although MSHA has argued that it 

does not routinely issue mine identification numbers to contractors, two of 

the citations issued in PIKE 79-129-P, contain mine identification numbers 

apparently assigned to the J & F Construction Company. Further, with the 

exception of Citation No. 399327 (KENT 79-99) for lack of bathing and toilet 

facilities, and one citation issued in BARB 79-285-P (Citation No. 399335) 

for failure to conduct a daily onshift examination, all of the citations 

contain findings by the inspector that the equipment---cTted or the practices 

320 
constituting violations resulted from work being performed by contractors, 

and they are identified collectively as follows: 

1. Koester Construction Corporation. 

2. J & F Construction Company. 

3. Davco Corporation. 

4. Coal Rigging Contracting Corporation. 

5. Cambron Electrical Company. 

6. The parties have stipulated that citation 399335 is 

the responsibility of contractor Ford, Bacon & Davis Utah Inc. 

(See also, Tr. 19). 

7. Smith-Miller Construction Company (KENT 79-229). 

8. Geological Associates (Citation 400844-KENT 79-99). 

MSHA's enforcement policy is reflected in the aforementioned hearing 

Exhibits R-1 through R-3. The November 17, 1978, Memorandum (R-1), sets 

forth MSHA's general inspections policies, and on page 9, states as follows: 

"Pending issuance of regulations to identify independent contractors, the 

instructions contained in memorandums dated June 3 and June 17, 1975, subjects, "Contractors Associated with the Coal Mining Industry" and "Violation Citations Issued to Contractors," respectively,' remain in effect." 

The June 3, 1975, MSHA Memorandum (R-2), quotes pertinent portions of 

District Court Judge Gessell's opinion in ABC v. Morton, and contains the 

following instructions: 

Memoranda of April 19, 1973, "Issuing Notices and Orders 

to Contractors on Mine Property" and June 29, 1973, "Assignment of identification numbers to contractors," are hereby 

rescinded. 

We will continue, as in the past, to inspect mine construction work, however, where violations or other hazardous 

conditions or practices are observed, appropriate Notices 

and/or Orders shall be issued to the mine operator (they 

shall not be issued to the contractor or construction company 

unless the contractor or construction company is also the 

mine owner, etc.). In accordance with the Court's ruling the 

mine operator is responsible for the contractor's compliance 

with the Regulations and the Act. 

Effective upon receipt of this memorandum, Coal Mine 

Health and Safety enforcement personnel will cite coal mine 

321 
operators for all violations observed when inspecting contractors performing work on coal mine property. 

MSHA's June 17, 1975 Memorandum (R-3), states as follows: 

As a follow-up to our memorandum dated June 3, 1975, 

concerning contractors doing mine construction work, this 

relates to the handling of citations issued to such contractors prior to the receipt of our June 3 memorandum. 

Notices and/or Orders, citing violations and issued to 

contractors will be reissued to the appropriate mine operator, except in instances where such citations have been 

processed pursuant to Section 109 of the Act, penalties paid 

and/or the cases closed. All such citations that have not 

been transmitted to the Assessment Office should be retained 

in the issuing office and reissued to the proper mine operator prior to transmitting. 

Notices and/or Orders issued to mine construction contractors, citing violations and transmitted to the Assessment 

Office, for processing under Section 109, but penalties have 

not been paid nor the case closed, will be r~turned to the 

appropriate issuing office to be reissued to the proper mine 

operator. 

In cases where Notices and/or Orders have been referred 

to the Associate Solicitor, Division of Mine Health and 

Safety, the Associate Solicitor will (1) notify the Assessment Office which will notify the District Office to reissue 

the Notice and/or Order to the proper mine operator and 

(2) file a motion to substitute parties. 

All Notices and/or Orders affected shall be modified and 

reissued to the appropriate mine operator. The following 

guidelines shall be adhered to: 

1. Notices (and Orders citing violations) issued to 

contractors that have not been disposed of under Section 109 

of the Act shall be modified and reissued to the appropriate 

mine operator. 

2. In modifying and reissuing the citations, the 

inspector will use the date of the modification, however he 

will refer to the original citation by No. and date and 

attach a copy of the original to the modification. 

3. On Modification, Form 2, following the statement, 

"is hereby modified as follows, * * *" use an explanation of 

what is being done and why, such as, By virtue of the U.S. 

322 
District Court for the District of Columbia, decision in 

Civil Action No. 1058-74, this modification is made to show 

the mine o·wner, in lieu of the contractor, as the operator 

charged with noncompliance of the cited regulations (see 

attachments). 

Respondent's Argument 

Respondent takes the position that petitioner should have cited the 

independent contractors identified in these proceedings for the violations 

described in each of the citations issued and that each of these contractors are independent contractors within the meaning of MSHA's proposed 

rules, 30 CFR, Part 45, published in the Federal Register on August 14, 

1979. Under the circumstances, respondent argues that it was improper and 

contrary to the Act for MSHA to cite the respondent for the violations 

solely for the reason that respondent is the owner-operator of the mine. 

Inasmuch as the contractors have admitted responsibility for the violations, 

respondent argues further that they should be permitted to intervene in 

these proceedings and that respondent's motion that it be dismissed as a 

party-respondent should have been granted. 

Petitioner's Argument 

MSHA' s position is that respondent was the o.perator of the mine in 

question at the time the citations were issued and therefore it was proper 

and appropriate under the circumstances to cite respondent for those violations, and that its motion to be dismissed as a party-respondent was properly denied. 

It seems clear to me from the facts presented in these proceedings that 

at the time the citations were issued and the petitions for assessment were 

filed, MSHA's enforcement policy was that owner-operators were liable for 

the violations of their independent contractors. Although respondent has 

made a most persuasive and cogent argument with respect to the basic unfairness in an enforcement scheme which penaltizes a mine owner for violations 

ove·r which it has no control, and which were caused by the independent contractors and did not endanger any of the mine owners' employees, I am constrained to follow the decisions of the Commission in MSHA v. Old Ben Coal 

Company, VINC 79-119, October 29, 1979, and MSHA v. Monterey Coal Company, 

HOPE 78-469 and HOPE 78-476, November 13, 1979, and I conclude that those 

decisions are controlling and dispositive of the independent contractor 

defenses raised by the respondent in these proceedings. Although the Commission seemingly recognized the folly of MSHA's continued policy decision 

to cite only mine owners for the violations attributable to independent contractors, it opted not to disturb that policy for the sake of "consistent 

enforcement." As I interpret these Commission decisions, the only conclusion I can draw is that the Commission has at this point in time given its 

blessing to MSHA's policy decision to enforce the Act only against owneroperators and not contractors, and in so doing, the Commission has specifically permitted the Secretary additional time within which to promulgate 

323 
and implement his proposed independent contractor regulatory guidelines as 

published in the Federal Register on August 14, 1978, 44 Fed. Reg. 47746-

47753. Under these circumstances, respondent's independent contractor 

defenses raised in these proceedings are rejected and I find and conclude 

that MSHA properly cited the respondent for the violations in question and 

that the respondent is liable for them. I am not persuaded by respondent's 

arguments that the factual record adduced in these proceedings indicates 

that the identified independent contractors are independent contractors 

within the meaning of MSHA's proposed rules. Those rules are at this point 

in time only proposed rules and have not been promulgated or implemented as 

final MSHA guidelines. 

In MSHA v. Republic Steel Corporation, IBMA 76-28 and IBMA 77-39, 

decided by the Commission on April 11, 1979, it was held that under the 

1969 Act, a mine owner may be held responsible for violations of the Act 

created by independent contractors even though none of the mine owner's 

employees were exposed to the violative conditions and the mine owner could 

not have prevented the violations. In Old Ben, a case decided under the 

1977 Act, the Secretary conceded that Old Ben was proceeded against under 

an agencywide policy to enforce the Act against only owner-operators for 

contractor violations. Although the Commission recognized the fact that the 

Secretary's enforcement policy "had its roots in the district court's decision in ABC v. Morton," which was subsequently reversed, indicated that any 

doubt concernng the Secretary's ability to proceed against contractors was 

dispelled by the passage of the 1977 Act, and observed that "if the .Secretary's decision to proceed against Old Ben was made pursuant to an enforcement policy based solely on the discredited foundation of ABC v. Morton, 

there would be no doubt that his decision was improper," the Commission, 

nonetheless, affirmed Old Ben on the basis of the Secretary's assertion 

that its enforcement policy was an interim one pending adoption of its 

proposed independent contractor regulations. 

In its posthearing briefs filed in these proceedings, respondent suggests that the facts in these proceedings may be different from those which 

prevailed at the time Old Ben and Monterey were decided. It further suggests 

that the basis for the Commission's decisions in those cases may be different 

from those presented here in that the citations involved in these cases were 

issued at later dates than those involved in Old Ben and Monterey. After 

careful analysis of the Commission's decisions in Old Ben and Monterey, I can 

find no factual distinctions in the cases, nor can I find any distinctions in 

the Commission's rationale for upholding the Secretary's prevailing policy. 

In the instant cases, it seems clear from the record that the Secretary's 

owners-only enforcement policy was bottomed on the ABC v. Morton decision, 

and notwithstanding the publication of proposed rules-covering independent 

contractors, I can perceive no change in that policy until such time as the 

rules are adopted and promulgated. As I interpret the Commission's decisions 

in Old Ben and Monterey, the Commission has permitted the Secretary to buy 

additional time within which to implement his new rules for enforcement and 

no amount of semantical or rationalized arguments have persuaded me to the 

contrary, irrespective of the fact that I may disagree with the Commission's 

324 
rationale or am in accord with Commissioner Backley's well-reasoned dissents 

with respect to the independent contractor liability issue. Under the circumstances, respondent's suggestions that there are factual differences in 

the cases insofar as the respondent and the proposed contractor intervenors 

are concerned must be rejected. 

In the course of the arguments at the hearing, and in arguments presented by the respondent in its motions objecting to any continuance of these 

dockets, filed October 22, 1979, respondent alluded to my prior ruling of 

April 24, 1979, in MSHA v. Morton Salt Company, DENV 79-161-PM, where I took 

the position that on the facts there presented, since the independent contractors were crying out to be recognized as party-respondents ready, willing, and able to assume their responsibilities and liabilities for violations 

and citations issued under the Act, MSHA's continued ignoring of this fact 

and its rigid enforcement policy defied logic, was basically unfair, and did 

little to promote and assure the safety of miners. I therefore dismissed 

MSHA's proposals to assess civil penalties against Morton Salt for three of 

the citations included in its proposals, and one remaining citation is still 

to be adjudicated as chargeable to Morton. Since my ruling dismissing the 

three citations was an interlocutory ruling rather than a final decision 

constituting my final disposition of the case, the Commission, on June 4, 

1979, dismissed MSHA's petition for discretionary review of my order as 

premature, and in so doing noted that it expressed no view on whether the 

issues raised by MSHA were reviewable through the interlocutory review procedures provided for in Commission Rules 29 CFR 2700.52 and 61. Since my 

Morton Salt ruling was made prior to the Commission's decisions in Old Ben 

and Monterey, it would now appear that my ruling dismissing MSHA's proposal 

to assess Morton Salt for three violations may not stand Commission scrutiny 

in light of the developments in Old Ben and Monterey. Under the circumstances, my prior ruling of December 10, 1979, denying respondent's motion 

to be dismissed as a party-respondent in these proceedings is reaffirmed. 

My prior rulings made in the December 10, 1979, order denying respondent's motion to permit its contractors and subcontractors to intervene 

and be substituted as parties are likewise reaffirmed. In Morton Salt, I 

rejected a similar motion by Morton to intervene its independent contractor 

on the ground that my interpretation of the then-prevailing Commission 

Interim Rules, 29 CFR 2700.10, limited participation by certain "parties" 

to hearings, and that the rules may not serve as a basis for transforming 

such "parties" into respondents not named by the Secretary as respondents 

subject to civil penalty assessments. The Commission's current Rules, 

29 CFR 2700.4, confer party status on operators who are "named as parties 

or permitted to intervene," and -while subsection (c) permits the filing of 

a motion to intervene at any time before a hearing on the merits, and 

requires the party to show its interest and establish that intervention 

will not unduly delay or prejudice the adjudication of the issues, I can 

find no authority in the rules to support a substitution of a party for 

purposes of civil penalty assessments and respondent has cited none. 

Further, for these same reasons, respondent's motion of February 4, 1980, 

to permit contractor Smith-Miller Construction Company to intervene in 

Docket No. KENT 79-229, is likewise DENIED. 

325 
My prior ruling made in the December 10, 1979, order denying respondent's request to permit the identified contractors and subcontractors in 

these proceedings to pay the civil penalty assessments for which they claim 

responsibility and liability is reaffirmed. Further, respondent's assertion 

that Smith-Niller Construction Company has agreed to pay the penalties 

assessed in Docket No. KENT 79-229, insofar as it seeks an order from me 

accepting this agreement, is likewise rejected and DENIED. I can find no 

authority for summarily entering an order assessing civil penalties on the 

basis of a stipulation or agreement entered into by a party-respondent and 

a non-party contractor, nor can I find any authority for forcing MSHA to 

accept a unilateral offer to pay civil penalty assessments, Zeigler Coal 

Company, 7 IBMA 312 (1977), and it makes no difference that MSHA is unwilling to stipulate in these proceedings that the named independent contractors 

have each admitted responsibility for the citations and are willing to pay 

the penalties. With regard to this question, I find that the record as a 

whole supports the conclusion that the independent contractors are willing 

to assume responsibility for the penalties assessed in these proceedings 

(Tr. 28-29, 33; p. 4 of January 25, 1980, stipulation). 

Fact of Violation 

Respondent concedes that all of the conditions and practices described 

on the face of the citations issued in these proceedings constitute violations of the cited safety standards, and that the citations were properly 

issued (Tr. 28; January 25, 1980, stipulation, p. 2). Accordingly, I find 

that the fact of violation as to each of the citations issued in all of 

these cases has been established and they are all affirmed. Further, on 

the basis of my findings and conclusions concerning respondent's liability 

for these citations, I conclude that they were properly issued to the 

respondent and that the respondent is liable for any civil penalties 

assessed for the citations. 

Size of Business and Affect of Civil Penalties Assessed on the Respondent's 

Ability to Continue in Business. 

At the Evansville hearing, the parties stipulated that respondent is a 

wholly-owned subsidiary of Gulf Oil Company, and that the size of its mining 

business in 1978 was approximately 8 million tons of coal produced. The 

parties also stipulated that respondent's operations, including those at the 

Pleasant Hill Mine, affect commerce within the meaning of the Act. Under 

the circumstances, I conclude that for purposes of any civil penalty assessments levied in these proceedings respondent may be considered a large mine 

operator. 

The parties stipulated that all of the citations issued in these proceedings were properly issued and that the proposed penalty assessment 

amounts are fair and reasonable under the circumstances known to have 

existed at the time the citations issued. Further, the parties agree and 

stipulate to the fact that MSHA's proposed penalties as reflected in its 

pleadings are appropriate to the size of respondent's business, and that 

326 
payment thereof will not seriously affect respondent's ability to continue 

in business. The .stipulation and agreement on this issue is adopted as my 

finding and conclusion. 

Good Faith Compliance 

The parties stipulated that respondent, as well as the independent contractors, demonstrated good faith in causing correction and timely abatement 

of the conditions or practices cited by the inspectors in these proceedings. 

I accept and adopt this stipulation as my finding in these proceedings. 

Gravity 

The gravity of the conditions or practices described on the face of each 

of the citations issued in these proceedings, with the probability of the 

occurrence of the event against which each safety standard is directed, and 

the employee exposure to possible injury, is reflected as follows in the 

January 25, 1980, stipulations: 

Docket No. BARB 79-307-P 

Citation No. Standard Probability 

399328 77.1710(i) moderate 

Docket No. BARB 79-285-P 

Citation No. Standard Probability 

399321 77 .1605( a) moderate 

399322 77 .208(d) moderate 

399323 77 .1109( a) moderate 

399324 77.1710(e) moderate 

399325 77 .410 moderate 

399326 77 .402 moderate 

399329 77 .1109(c)(l) substantial 

399330 77 .1102 moderate 

399335 77.1713(a) moderate 

Docket No. BARB 79-129-P 

Citation No. Standard Probability 

399333 77.400(a) imminent 

327 

Exposure 

2 employees 

Exposure 

1 employee 

4 or more 

4 or more 

1 employee 

4 or more 

2 employees 

1 employee 

1 employee 

30 employees 

Exposure 

1 employee 

Gravity 

of Injury 

lost work days 

Gravity 

of Injury 

lost work days 

lost work days 

lost work days 

lost work days 

permanent 

disability 

lost work days 

lost work days 

lost work days 

lost work days 

Gravity 

of Injury 

permanent disability or death 
399334 77.404(a) 

Docket No. BARB 79-180-P 

Citation No. 

0795019 

0795020 

0795229 

Standard 

77 .1605(b) 

77.205(b) 

77 .402 

Docket No. KENT 79-74-P 

Citation No. Standard 

400843 77 .404 

Docket No. KENT 79-269-P 

Citation No. Standard 

0794248 77.404(a) 

0794249 77.404(a) 

Docket No. KENT 79-367 

Citation No. 

797717 

797718 

Standard 

77. 204 

77.205(b) 

imminent 

Probability 

moderate 

moderate 

moderate 

Probability 

substantial 

Probability 

imminent 

imminent 

Probability 

substantial 

moderate 

1 employee 

Exposure 

1 employee 

1 employee 

1 employee 

Exposure 

1 employee 

Exposure 

1 employee 

1 employee 

Exposure 

1 employee 

1 employee 

permanent 

disability or 

death 

Gravity 

of Injury 

lost work days 

lost work days 

lost work days 

Gravity 

of Injury 

lost work days 

Gravity 

of Injury 

permanent 

disability 

permanent 

disability 

Gravity 

of Injury 

lost work days 

lost work days 

All of the citations issued in these dockets, with three exceptions, 

were issued pursuant to section 104(a) of the Act. The one citation issued 

in Docket No. KENT 79-74-P, and the two citations issued in Docket No. 

KENT 79-269-P, were imminent danger orders issued pursuant to section 107(a). 

The first one ordered the removal from service of a hand-held grinder which 

was connected to a power source and which was equipped with an overly-rated 

(RPM) buffing disc. The other two ordered the removal from service of a 

crane which had a hoisting brake which would not hold a load and a swinger 

which would not operate in reverse in a reasonable distance, and a second 

crane which had an inoperative swing lock brake. Aside from the fact that 

the equipment cited was removed from service, and in addition to the stipulated characterization of the probability of any injury resulting from these 

citations as "substantial" and "imminent," I have also weighed the fact that 

328 
the violations were cited in withdrawal orders, Zeigler Coal Company, 3 IBMA 

366 (1974), and I find that these citations were seri.ous. 

In Docket No. PIKE 79-129-P, although both citations were issued pursuant to section 104(a) of the Act, for failure to provide a guard for a 

cut-off machine, and for using an over-sized blade on that machine, the 

conditions cited resulted in a fatality and the record reflects that MSHA 

"specially assessed" these citations in light of that fatality. Under the 

circumstances, I conclude and find that these two violations were very 

serious. 

Docket No. BARB 79-307-P, concerns a citation for failure to provide 

seat belts for a dozer and a scraper. Although the citation reflects that 

the equipment was provided with roll protection, the standard requires the 

use of seat belts in a vehicle where there is a danger of overturning. 

Since the equipment was provided with roll protection, an inference may be 

made that the equipment cited could overturn and injure the operators. The 

use of seat belts would provide additional protection for the operators and 

I conclude that the failure to provide them as required resulted in a 

serious violation. 

Docket No. KENT 79-99 concerns three citations for (1) failure to provide bathing, change, and toilet facilities at the mine, (2) failure to frame 

ground an electric hand-held cut-off machine, and (3) failure to frame ground 

an electric machine motor and ventilation fan. Failure to provide necessary 

toilet facilities could lead to hygiene and discomfort problems and I find 

that was a serious violation. Failure to properly ground electrical equipment could lead to shock and electrocution and I find these violations are 

serious. 

Docket No. KENT 79-229 concerns two citations for failure to post warning signs at a storage tank and failure to provide fire extinguishers at a 

storage tank location. I find that in the event of a fire there would be 

no means to control it in view of the absence of fire extinguishers and the 

failure to post warning signs could lead to employees not being aware of 

fire hazards. I find these violations are serious. 

Docket No. BARB 79-285-P concerns nine citations for (1) broken glass 

and fragged edges on a windshield of a mobile crane; (2) failure to secure 

oxygen and acetylene tanks in a safe manner; (3) lack of a fire extinguisher 

in a supply trailer; (4) an employee's failure to wear suitable footwear; 

(5) lack of back-up alarms on a dump truck and a back hoe; (6) failure to 

equip a saber saw and grinder with constant pressure hand or finger controls; 

(7) failure to provide fire extinguishers for a scraper and a service truck; 

(8) failure to provide a "No Smoking" sign on a service truck; and (9) failure by a qualified person to conduct and record daily onshift inspections. 

Considering the circumstances described on the face of each of the 

aforesaid citations, and the stipulations of the parties which reflect that 

329 
lost work days would result in the event of an injury caused by the conditions cited to one or more employees, I conclude that the conditions cited 

as violations were serious. 

Docket No. KENT 79-367 concerns two citations for (1) failure to provide protection for an elevator opening in the tipple and in an opening at 

the wash box in the raw coal hopper, and (2) failure to maintain two tipple 

travelways where persons were required to travel and work clear of extraneous 

material and stumbling hazards. These standards are obviously intended to 

prevent injuries to employees from falling into unprotected openings and 

from stumbling or tripping in areas where they are required to work or 

travel, and coupled with the stipulations concerning employee exposure to 

such hazards, I conclude that the conditions cited as violations were 

serious. 

Docket No. KENT 79~180 concerns three citations for (1) no parking 

brakes on a truck; (2) failure to keep a tunnel travelway clear of stumbling 

and tripping hazards; and (3) failure to equip two drills with constant 

pressure hand or finger controls. On the basis of the stipulations, an~ 

considering the conditions described on the face of the citations, I find 

these violations were serious. 

Negligence 

At the hearing, the parties stipulated that there was no gross negligence involved in any of the citations covered in these proceedings. 

Further, the subsequent stipulations filed January 25, 1980, on this issue 

reflect agreement by the parties that there was negligence involved in each 

of the citations presented in all of these dockets. Aside from the question 

as to the entity against whom negligence should be attributed and whether 

respondent should be held accountable for any negligence with respect to the 

conditions or practices cited as violations, I find and conclude that the 

record supports a finding that each of the citations resulted from a failure 

to exercise reasonable care to prevent the conditions or practices which were 

known or should have been known to exist at the time the citations issued, 

and that in such circumstances, the violations resulted from ordinary 

negligence. 

With regard to the question of whether the negligence involved in the 

citations must be legally attributable solely to the independent contractors 

or whether it can also be attributable to the respondent mine owner on a 

theory of vicarious liability, I take note of the fact that at the time the 

citations were issued no coal was being produced at the mine in question 

(Tr. 30), and the parties stipulated and agreed that the contract (Exh. 

R-4) entered into between the respondent and its contractor, Ford, Bacon 

and Davis Utah, Inc., as well as its subcontractors with regard to the 

Pleasant Hill construction or mine site, reflects that each contractor had 

control over their respective employees as to health and safety, each had 

a continuing presence in the mine for a substantial period of time to perform the work that they were doing, each had complete control over their 

330 
portion of the work, and the only control that the Pittsburg and Midway 

Coal Mining Company.had was as to the results to be obtained. Further, the 

parties stipulated that Ford, Bacon and Davis Utah, Inc., is an independent 

contractor, that it is not the agent of respondent Pittsburgh and Midway 

Mining Company in performing the work, that the contractor had control of 

the work, and that the respondent mine owner only had an interest in the 

results to be obtained from that work (Tr. 15-16). Further, the January 25, 

1980, stipulation reflects an agreement by the parties that Ford,, Bacon and 

Davis Utah's subcontractors, namely, J & F Construction Company, Koester 

Contracting Corporation, Davco Corporation, Coal Rigging Contracting Corporation, and Cambron Electrical Company, may be considered for purposes of these 

proceedings, during the periods involved, as independent contractors. As 

such independent contractors they were engaged in clearly-defined areas of 

mine construction work prior to and in preparation·for respondent's putting 

its Pleasant Hill Surface Mine into actual production of coal. Each of said 

independent contractors was engaged in a major work and exercised a continuous presence at the mine during the periods designated. 

It is clear that while the absence of any negligence on the part of an 

operator does not absolve him from liability for a civil penalty, that fact 

may however be weighed in mitigation in determining the amount of any civil 

penalty assessed for the violation, Webster County Coal Corporation, 7 IBMA 

264 (1977), and the cases cited therein. It follows therefore, that if the 

record establishes that a mine owner is not negligent for violations attributed to an independent contractor who has exclusive control and supervision 

over the work site, and no employees of the mine owner are exposed to any 

hazard caused by those violations, the mine owner should not be penalized 

for such negligence. One of the statutory criteria which must be considered 

under section llO(i) of the Act in the assessment of civil penalties for 

violations which have been establish.ed is the negligence of the operator. 

Accordingly, while I have found the respondent liable for the citations which 

were issued, and while respondent is liable for any civil penalty assessments 

resulting from those citations, I conclude that since the facts presented in 

these proceedings establish that any negligence which occurred as a result 

of the conditions or practices cited as violations resulted from a lack of 

reasonable care on the part of the identified contractors and subcontractors 

cited, the respondent should not bear the burden of any increased assessments 

based on that negligence. In addition, since the parties stipulated that the 

contractors were not the agents of the respondent, I further conclude that 

any theory of vicarious liability may not serve as a basis for increasing 

any assessments levied against the respondent. 

History of Prior Violations 

During the Evansville hearing, MSHA's counsel characterized the Pleasant 

Hill Mine site ·as a "construction site", that it is a new mine, and that 

these proceedings in fact constitute the first time that any violations have 

occurred at that mining operation (Tr. 22). Counsel also indicated that in 

view of these circumstances no assessment points for prior history were 

levied against the respondent by MSHA's Assessment Office in its initial 

331 
evaluation of the citations, and the Assessment Office limited its consideration of prior history to that mine (Tr. 23). Although counsel indicated 

that the respondent has two other surface mines in operation within the 

Western Kentucky area which have generated what he characterized as a 

"significant number of violations," he also qualified this statement by indicating that the number is "not large" and that in each instance the violations involved only ordinary negligence (Tr. 24-25). MSHA has submitted no 

additional information concerning the overall prior history of the respondent separate and apart from the information relating to its Pleasant Hills 

mining operation. I accept counsel's assertion that it is not large, and 

based on the stipulated facts here presented I conclude and find that for 

purposes of these proceedings, respondent has no prior history of violations. 

Respondent's suggestions that the violations in these proceedings should 

not be charged against its record and should not become a part of its citation record for purposes of future proceedings is rejected. In effect, 

respondent is seeking a declaratory judgment from me that in any future proceedings, another Commission judge may not consider the instant violations 

as part of its track record. I find no authority for such a decision by me 

and it seems clear that prior violations which have been paid, compromised, 

settled, or finally ordered paid, and even those paid under protest, may be 

considered as part of a mine operator's prior history, Church of Latter Day 

Saints, 2 IBMA 285 (1973); Peggs Run Coal Company, 5 IBMA 144 (1975). 

Further, it is clear that the identified contractors are not respondents in 

these cases, and the fact that they are willing to include-t°he violations as 

part of their history is immaterial. Of course, I see nothing to preclude 

the respondent from arguing in any future proceedings that the judge may 

consider and weigh the effect of those violations on any civil penalty 

amounts fixed against a mine owner. 

Penalty Assessments 

It is clear that in litigated civil penalty proceedings, the determination of appropriate civil penalty assessments for proven violations is made 

on a de novo basis by the presiding judge and he is not bound by any assessment ;IBthod of computation utilized by MSHA's Assessment Office, Boggs 

Construction Company, 6 IBMA 145 (1976); Associated Drilling Company, 6 IBMA 

217 (1976); Gay Coal Company, 7 IBMA 245 (1977); MSHA v. Consolidated Coal 

Company, VINC 77-132-P, IBMA 78-3, decided by the Commission on January 22, 

1980. 

In the instant proceedings, the initial civil penalty assessments which 

appear as part of the petitioner's initial pleadings and civil penalty 

proposals in the form of "assessment worksheets" as exhibits to the proposals, reflect proposed penalty amounts derived from either the application 

of "points" assessed for each of the statutory criteria set out in section 

llO(i) of the Act, or from a "special assessment" made pursuant to Part 100, 

Title 30, Code of Federal Regulations. The record reflects that no penalty 

assessment points were attributable to the respondent's prior history of violations and MSHA has admitted that this is the case. Howev~r, with regard 

332 
to the question of negligence, a review of the proposed penalty assessments 

made by MSHA reflects that negligence "points" were assessed against the 

respondent for some but not all of the citations in question and this fact 

obviously resulted in an increase in the proposed penalty amounts. Since I 

have concluded that the respondent was not negligent for any of the citations, the question presented is whether I may consider this as mitigating 

a decrease in the proposed amounts where MSHA considered the factor of 

negligence in determining the proposed penalties. 

The parties have stipulated that any civil penalties approximating those 

proposed in these proceedings will not adversely affect its ability to remain 

in business, that the proposed penalties are appropriate to the size of 

respondent's business, and that the proposed assessments are fair and reasonable amounts under the circumstances known to have existed at the time the 

citations were issued. MSHA has recommended no penalties as part of its~ 

posthearing arguments or stipulations, and apparently rests on the initial 

evaluations made by its Assessment Office, and respondent makes no further 

arguments that it is in entitled to any penalty reductions for lack of negligence on its part. However, I believe that section llO(i) mandates consideration of the element of negligence on a case-by-case basis, and if the 

record supports a reduction in penalties, basic fairness dictates that 

respondent is entitled to it even though he has not specifically pleaded for 

a reduction. Further, as I view the stipulations with respect to the reasonableness of the proposed assessments, they were obviously made on the basis 

of negligence attributable to the respondent and as such, I conclude that I 

am not bound by them, particularly in light of my finding that the absence 

of any negligence attributable to the respondent may be considered in mitigation of the penalties which I may assess. Accordingly, as to each citation 

where no negligence points were assessed against the respondent, except for 

those "specially assessed", I find them to be r-easonable and I adopt them 

as the penalties assessed by me in these proceedings. With regard to those 

citations which took into account any negligence by the respondent, including 

those "specially assessed", I find that reductions are warranted and they 

are reflected in the assessments levied me in these proceedings. I might 

add that had the named contractors been before me as parties, absent any 

mitigating circumstances, or the presence of any aggravating factor-s, the 

initial proposed assessments may or may not have been disturbed. 

On the basis of the foregoing findings and conclusions made in these 

proceedings, civil penalties are assessed in each of these dockets as 

follows: 

Docket No. KENT 79-180 

Citation No. Date 30 CFR Section Assessment 

0795019 4/16/79 77.1605(b) $50 

0795020 4/16/79 77.205(b) 45 

0795229 4/16/79 77 .402 45 

333 
Docket No. KENT 79-367 

Citation No. Date 30 CFR Section Assessment 

0797717 8/1/79 77. 204 $80 

0797718 8/ 1/79 77.205(b) 50 

Docket No. KENT 79-74 

Citation No. Date 30 CFR Section Assessment 

400843 12/ 21/78 77 .404 $175 

Docket No. KENT 79-269 

Citation No. Date 30 CFR Section Assessment 

0794248 4/11/79 77 .404( a) $205 

0794249 4/11/79 77.404(a) 200 

Docket No. KENT 79-129-P 

Citation No. Date 30 CFR Section Assessment 

399333 9/21/78 77.400(a) $1,500 

399334 9/21/78 77 .404( a) 350 

Docket No. KENT 79-307-P 

Citation No. Date 30 CFR Section Assessment 

399328 9/19/78 77.1710(i) $20 

Docket No. BARB 79-285-P 

Citation No. Date 30 CFR Section Assessment 

399321 9/18/78 77.15605(a) $25 

399322 9/18/78 77.208(d) 44 

399323 9/18/78 77 .1109(a) 25 

399324 9/18/78 77.1710(e) 30 

399325 9/18/78 77 .410 60 

399326 9/18/78 77 .402 25 

399329 9/18/78 77.1109(c)(l) 50 

399330 9/18/78 77 .1102 44 

399335 9/26/78 77.1713(a) 25 

334 
~Docket No. KENT 

Citation No. 

399327 

399332 

400844 

Docket No. KENT 

Citation No. 

794253 

794254 

79-99 

Date 

9/ 18/78 

9/21/78 

12/21/78 

79-229 

Date 

5/ 15/79 

5/ 15/79 

30 CFR Section 

71.400 

77. 701 

77.701 

30 CFR Section 

77 .1102 

77 .1109(e) (1) 

ORDER 

Assessment 

$15 

35 

45 

Assessment 

$45 

30 

The respondent IS ORDERED to pay the penalties assessed in these proceedings in the amounts shown above, totaling $3,218 within thirty (30) days 

of the date of these decisions. 

./~:_i-F :.~. "{ --. i:·::. ·._--/-:·-::. George A. Koutras ~ c --

Administrative Law Judge 

Distribution: 

Marvin Tincher, Esq., U.S. Department of Labor, Office of the Solicitor, 

280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

George M. Paulson, Jr., Esq., The Gulf Companies, Law Department, 

1720 South Bellaire St., Denver, CO 80222 (Certified Mail) 

Harold A. Hintze, Esq., 2000 Beneficial Life Tower, 36 South State St., 

Salt Lake City, UT 84111 (Certified Mail) 

Standard Distribution 

335 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520'3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

KERR-MCGEE COAL CORP., 

Respondent 

FEB 8 1980 

Civil Penalty Proceedings 

Docket No. DENV 79-461-P 

A/O No. 48-01096-03003 

Docket No. DENV 79-460-P 

A/O No. 48-01096-03002 

Docket No. DENV 79-462-P 

A/O No. 48-01096-03004 

East Gillette No. 16 Surface Mine 

DECISION 

These cases concern four citations and one order issued to 

Respondent for safety violations committed by independent construction 

contractors operating at Respondent's "East Gillette No. 16 Surface Mine." 

Having stipulated that the facts contained in the citations are 

true, and that the proposed penalties are reasonable, both parties 

submit that the only issue remaining is whether Respondent was the 

proper party to be cited. 

After MSHA v. Monterey Coal Co., 1 FMSHRC 1781 (November 1979), it 

is clear that Respondent was properly cited. The Commission based its 

decision in that case on MSHA v. Old Ben Coal Co., 1 FMSHRC 1480 

(October 1979), wherein it held that until final rules were promulgated, 

the practice of citing owner-operators for independent contractor 

violations would be upheld for reasons of consistent enforcement. 

Based upon the foregoing and the parties' stipulation, I find 

Respondent was properly cited for the violations contained herein. 

ORDER 

It is therefore ORDERED that Respondent pay to MSHA, within 30 days, 

a civil penalty in a total amount of $796. 

336 

Charles 

~CJh~% C. Moore, Jr. 

Administrative Law Judge 
2 

Distribution: 

Thomas E. Korson, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 80294 (Certified 

Mail) 

Carolyn G. Hill, Esq., Kerr-McGee Center, P.O. Box 25861, Oklahoma City, 

OK 73125 (Certified Mail) 

337 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMfSSfON 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 8 1980 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. SE 79-2-M 

Petitioner A/O No. 54-00036-05003 

v. 

DAVID CABRERA, INC., 

Docket No., SE 79-53-M 

A/O No. 54-00036-05006 

Respondent 

Cantera Dorado 

DECISION 

ORDER TO PAY 

Appearances: Edwin Tyler, Esq., Office of the Solicitor, U.S. Department of 

Labor, Santurce, Puerto Rico, for Petitioner; 

Before: 

Tadeo Negron Medero, Esq., Rafael Castro, Esq., Santurce, 

Puerto Rico, for Respondent, David Cabrera, Inc. 

Judge Merlin 

The above-captioned cases are petitions for the assessment of civil 

penalties filed by the Mine Safety and Health Administration against 

David Cabrera, Inc. A hearing was held on January 8, 1980. 

At the hearing, the parties agreed to the following stipulations 

(Tr. 3-5): 

1. The legal n&~e of the respondent is David Cabrera, 

Inc. 

2. The ident~fication of the mine where the inspection 

was conducted is Cantera Dorado. 

3. The location of said mine is Dorado, Puerto Rico. 

4. David Cabrera, Inc., is the operator of said mine. 

5. During the period from June 29, 1978, to January 8, 

1979, a duly authorized representative of the Federal Mine 

Safety and Health Administration, namely Pedro Sarkis, conducted inspections at respondent's aforesaid Cantera Dorado 

Nine under the Federal Mine Safety and Health Act of 1977, 

hereinafter referred to as the Act. 

338 
6. As a _result of an inspection conducted on January 5, 

1979, Citation Number 94112 was issued to respondent for 

failure to comply with an order of withdrawal previously 

issued to respondent on September 26, 1978, in relation to 

its bulldozer Komatzu D-155. 

7. The parties stipulate that all orders, citations, 

extensions and notifications attached to the ·Solicitor's 

petition in the Commission's files are true and accurate 

with respect to the facts set forth therein. 

8. Respondent employs approximately 27 employees at 

Cantera Dorado. 

9. Re.spondent employs 10 employees during one shift 

daily, six days per week, 52 weeks per year. 

10. Each of the employees of respondent works 

approximately 44 hours per week. 

11. The parties stipulate that respondent has a small 

history of previous violations. 

12. The annual manhours worked at respondent's. Cantera 

Dorado Mine in 1978 and 1979 were approximately 52,000 manhours respectively. 

13. Respondent was the owner and had control of 

bulldozer Komatzu D-155 and Caterpillar D-8. 

14. The payment of the penalty as assessed will not 

affect respondent's ability to continue in business. 

15. The parties stipulate that citation numbers 93314, 

93315, and 94112 correctly cited violations of the Act. 

16. The parties stipulate that MSHA Exhibit 1 is true 

and accurate respecting the facts stated therein. 

At the hearing, documentary exhibits were received and witnesses testified on behalf of MSHA and the operator (Tr. 1-29). At the conclusion of the 

taking of evidence, the parties waived the filing of written briefs, proposed 

findings of fact, and conclusions of law. Instead, they agreed to make oral 

argument and have a decision rendered from the bench (Tr. 29-30). A decision 

was rendered setting forth findings, conclusions, and determinations with 

respect to the alleged violations (Tr. 32-37). 

Bench Decision 

The bench decision (which was simultaneously translated in Spanish for 

the benefit of respondent) is as follows: 

339 
These two consolidated cases involve noise violations on 

two bulldozers for which two citations were issued. 

The operator has admitted the violations. The parties 

also have agreed that the facts as set forth in the inspector's citations, extensions and orders, all of which have 

been admitted into the record or are attached to the pleadings, are true and accurate with respect to the facts set 

forth therein. Both citations were originally issued on 

June 29th, 1978. Numerous extensions were given simultaneously on both bulldozers with respect to both citations 

until September 6, 1978. 

Thereafter, citation 93315 on the D-8 bulldozer was 

eventually abated on October 10, 1978, within the time 

allowed. The Solicitor has recommended a penalty of $40, 

the originally assessed amount for this violation. I 

conclude this is a reasonable penalty for this violation. 

Accordingl¥, a penalty of $40 is assessed for this citation. 

The story with respect to citation number 93314 issued 

with respect to the 155 bulldozer is unfortunately much 

different. The record reflects that on September 6, 1978, 

the inspector gave an extension until September 11, 1978. 

·The inspector also testified that on September 12 and 

September 20 he spoke with the operator's brother who is the 

plant manager and with the operator's son who is the plant 

supervisor, and that although the materials for abatement 

were present, the operator did not abate the violation. The 

inspector issued a withdrawal order on September 26, 1978. 

The Solicitor recommends a penalty of $370, the 

originally assessed amount for this citation for which a 

withdrawal order was issued. Under the circumstances, 

including repeated advice from the inspector to the operator, 

despite which there was a failure to abate, I cannot agree 

with operator's counsel that this amount is excessive. On 

the contrary, I conclude this amount to be reasonable on 

the facts presented. 

If the operator cannot abate the citation within the 

time allowed, particularly where many extensions have been 

given and substantial time has elapsed, then the operator 

has a responsibility to inform the inspector why abatement 

has not been accomplished and, moreover, to justify to the 

inspector why a further extension should be given. It is not 

the inspector's function to chase after the operator. 

This, however, is not the end of the matter. These 

consolidated cases also contain a petition for the assessment 

340 
of a civil penalty based upon Citation 94112, dated 

January 5, 1979, issued for failure to comply with the withdrawal order on the 155 bulldozer. It appears from the 

inspector's testimony and from MSHA Exhibit No. 1 that 

another citation not at issue in these proceedings was 

issued on November 28, 1978, also for failure to comply with 

the subject withdrawal order. Apparently, after the withdrawal order was issued, the operator continued to use the 

machine in defiance of the withdrawal order. However, the 

inspector also testified that after the November 28 citation 

was issued, the operator did some work on November 29 and 

November 30 with respect to abating the noise violation but 

that this abatement had not been completed. 

The operator must understand that it cannot ignore withdrawal orders issued by inspectors of the Mine Safety and 

Health Administration, especially where, as here, the inspector's uncontradicted testimony demonstrates he told the operator what the effect of the withdrawal order was, i.e., that 

the equipment in question must not be used until the-withdrawal order is terminated by an inspector no matter what 

work has been done on the equipment for abatement. If the 

operator believes the inspector is wrong, he can go to the 

inspector's superiors or he can request and obtain a hearing 

before a Judge within four days or even less if the parties 

agree. The operator has avenues of relief against erroneous 

actions by inspectors. What the operator does not have is 

the right to disregard these orders as if they did not exist. 

If an inspector removes a piece of equipment from service, 

then it cannot be used until the operator obtains the proper 

permission to do so. 

The operator must understand that by acting as it has 

done in this case, it is subjecting itself to very severe 

penalties indeed. Section llO(b) of the law provides that an 

operator who fails to correct a violation within the period 

permitted may be assessed a penalty of up to $1,000 for each 

day during which the violation continues. In addition, 

Section llO(d) provides that any operator who willfully violates the law 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. 

After listening to the testimony and conferring with 

the Solicitor and counsel for the operator, I have reached 

the conclusion that the operator's unfamiliarity with the Act 

played a part in its misconduct in this case. Upon questioning from the bench, the inspector's testimony indicated that 

the circumstances occurred during early inspections of this 

facility under the Act. 

341 
I also bear in mind the operator's small size and small 

prior history. However, the operator's actions cannot be 

excused and an appropriate civil penalty must be assessed. 

What the operator must realize is that recurre.nce of such 

conduct in the future will result in much harsher and severer 

punishment. 

After much deliberation, I determine that 

appropriate civil penalty for this violation. 

penalties of $40, $370 and $1,800 are assessed 

ORDER 

$1,800 is an 

Accordingly, 

in this case. 

The foregoing bench decision is hereby, AFFIRMED. 

The operator is ORDERED to pay $750 within 30 days from the date of this 

decision; $750 within 60 days from the date of this decision; and $710 within 

90 days from the date of this decision. 

~~~~ Assistant Chief Administrative Law Judge 

Distribution: 

Edwin Tyler, Esq., Office of the Solicitor, U.S. Department of Labor, 

P.O. Box 9092, Santurce, P.R. 00908 (Certified Mail) 

Tadeo Negron Medero, Esq., Box 40621, Minillas Station, Santurce, 

P.R. 00949 (Certified Mail) 

Administrator, Metal and Non-metal Mine Safety and Health, 

U.S. Department of Labor 

Standard Distribution 

342 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 8 1980 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. SE 79-2-M 

Petitioner A/O No. 54-00036-05003 

v. 

DAVID CABRERA, INC., 

Docket No. SE 79-53-M 

A/O No. 54-00036-05006 

Respondent 

Cantera Dorado 

DECISION 

ORDER TO PAY 

Appearances: Edwin Tyler, Esq., Office of the Solicitor, U.S. Department of 

Labor, Santurce, Puerto Rico, for Petitioner; 

Before: 

Tadeo Negron Medero, Esq., Rafael Castro, Esq., Santurce, 

Puerto Rico, for Respondent, David Cabrera, Inc. 

Judge Merlin 

The above-captioned cases are petitions for the assessment of civil 

penalties filed by the Mine Safety and Health Administration against 

David Cabrera, Inc. A hearing was held on January 8, 1980. 

At the hearing, the parties agreed to the following stipulations 

(Tr. 3-5): 

1. The legal name of the respondent is David Cabrera, 

Inc. 

2. The iden~ification of the mine where the inspection 

was conducted is Cantera Dorado. 

3. The location of said mine is Dorado, Puerto Rico. 

4. David Cabrera, Inc., is the operator of said mine. 

5. During the period from June 29, 1978, to January 8, 

1979, a duly authorized representative of the Federal Mine 

Safety and Health Administration, namely Pedro Sarkis, conducted inspections at respondent's aforesaid Cantera Dorado 

Mine under the Federal Mine Safety and Health Act of 1977, 

hereinafter referred to as the Act. 

343 
6. As a result of an inspection conducted on January 5, 

1979, Citation Number 94112 was issued to respondent for 

failure to comply with an order of withdrawal previously 

issued to respondent on September 26, 1978, in relation to 

its bulldozer Komatzu D-155. 

7. The parties stipulate that all orders, citations, 

extensions and notifications attached to the Solicitor's 

petition in the Commission's files are true and accurate 

with respect to the facts set forth therein. 

8. Respondent employs approximately 27 employees at 

Cantera Dorado. 

9. Respondent employs 10 employees during one shift 

daily, six days per week, 52 weeks per year. 

10. Each of the employees of respondent works 

approximately 44 hours per week. 

11. The parties stipulate that respondent has a small 

history of previous violations. 

12. The annual manhours worked at respondent's Cantera 

Dorado Mine in 1978 and 1979 were approximately 52,000 manhours respectively. 

13. Respondent was the owner and had control of 

bulldozer Komatzu D-155 and Caterpillar D-8. 

14. The payment of the penalty as assessed will not 

affect respondent's ability to continue in business. 

15. The parties stipulate that citation numbers 93314, 

93315, and 94112 correctly cited violations of the Act. 

16. The parties stipulate that MSHA Exhibit 1 is true 

and accurate respecting the facts stated therein. 

At the hearing, documentary exhibits were received and witnesses testified on behalf of MSHA and the operator (Tr. 1-29). At the conclusion of the 

taking of evidence, the parties waived the filing of written briefs, proposed 

findings of fact, and conclusions of law. Instead, they agreed to make oral 

argument and have a decision rendered from the bench (Tr. 29-30). A decision 

was rendered setting forth findings, conclusions, and determinations with 

respect to the alleged violations (Tr. 32-37). 

Bench Decision 

1he bench decision (which was simultaneously translated in Spanish for 

the benefit of respondent) is as follows: 

344 
These two consolidated cases involve noise violations on 

two bulldozers for which two citations were issued. 

The operator has admitted the violations. The parties 

also have agreed that the facts as set forth in the inspector's citations, extensions and orders, all of which have 

been admitted into the record or are attached to the pleadings, are true and accurate with respect to the facts set 

forth therein. Both citations were originally issued on 

June 29th, 1978. Numerous extensions were given simultaneously on both bulldozers with respect to both citations 

until September 6, 1978. 

Thereafter, citation 93315 on the D-8 bulldozer was 

eventually abated on October 10, 1978, within the time 

allowed. The Solicitor has recommended a penalty of $40, 

the originally assessed amount for this violation. I 

conclude this is a reasonable penalty for this violation. 

Accordingly, a penalty of $40 is assessed for this citation. 

The story with respect to citation number 93314 issued 

with respect to the 155 bulldozer is unfortunately much 

different. The record reflects that on September 6, 1978, 

the inspector gave an extension until September 11, 1978. 

The inspector also testified that on September 12 and 

September 20 he spoke with the operator's brother who is the 

plant manager and with the operator's son who is the plant 

supervisor, and that although the materials for abatement 

were present, the operator did not abate the violation. The 

inspector issued a withdrawal order on September 26, 1978. 

The Solicitor recommends a penalty of $370, the 

originally assessed amount for this citation for which a 

withdrawal order was issued. Under the circumstances, 

including repeated advice from the inspector to the operator, 

despite which there was a failure to abate, I cannot agree 

with operator's counsel that this amount is excessive. On 

the contrary, I conclude this amount to be reasonable on 

the facts presented. 

If the operator cannot abate the citation within the 

time allowed, particularly where many extensions have been 

given and substantial time has elapsed, then the operator 

has a responsibility to inform the inspector why abatement 

has not been accomplished and, moreover, to justify to the 

inspector why a further extension should be given. It is not 

the inspector's function to chase after the operator. 

This, however, is not the end of the matter. These 

consolidated cases also contain a petition for the assessment 

345 
of a civil penalty based upon Citation 94112, dated 

January 5, 1979, issued for failure to comply with the withdrawal order on the 155 bulldozer. It appears from the 

inspector's testimony and from MSHA Exhibit No. 1 that 

another citation not at issue in these proceedings was 

issued on November 28, 1978, also for failure to comply with 

the subject withdrawal order. Apparently, after the withdrawal order was issued, the operator continued to use the 

machine in defiance of the withdrawal order. However, the 

inspector also testified that after the November 28 citation 

was issued, the operator did some work on November 29 and 

November 30 with respect to abating the noise violation but 

that this abatement had not been completed. 

The operator must understand that it cannot ignore withdrawal orders issued by inspectors of the Mine Safety and 

Health Administration, especially where, as here, the inspector's uncontradicted testimony demonstrates he told the operator what the effect of the withdrawal order was, i.e., that 

the equipment in question must not be used until the-withdrawal order is terminated by an inspector no matter what 

work has been done on the equipment for-abatement. If the 

operator believes the inspector is wrong, he can go to the 

inspector's superiors or he can request and obtain a hearing 

before a Judge within four days or even less if the parties 

agree. The operator has avenues of relief against erroneous 

actions by inspectors. What the operator does not have is 

the right to disregard these orders as if they did not exist. 

If an inspector removes a piece of equipment from service, 

then it cannot be used until the operator obtains the proper 

permission to do so. 

The operator must understand that by acting as it has 

done in this case, it is subjecting itself to very severe 

penalties indeed. Section llO(b) of the law provides that an 

operator who fails to correct ~ violation within the period 

permitted may be assessed a penalty of up to $1,000 for each 

day during which the violation continues. In addition, 

Section llO(d) provides that any operator who willfully violates the law 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. 

After listening to the testimony and conferring with 

the Solicitor and counsel for the operator, I have reached 

the conclusion that the operator's unfamiliarity with the Act 

played a part in its misconduct in this case. Upon questioning from the bench, the inspector's testimony indicated that 

the circumstances occurred during early inspections of this 

facility under the Act. 

346 
I also bear in mind the operator's small size and small 

prior history. However, t.he operator's actions cannot be 

excused and ~n appropriate civil penalty must be assessed. 

What the operator must realize is that recurrence of such 

conduct in the future will result in much harsher and severer 

punishment. 

After much deliberation, I determine that 

appropriate civil penalty for this violation. 

penalties of $40, $370 and $1,800 are assessed 

ORDER 

$1,800 is an 

Accordingly, 

in this case. 

The foregoing bench decision is hereby, AFFIRMED. 

The operator is ORDERED to pay $750 within 30 days from the date of this 

decision; $.750 within 60 days from the date of this decision; and $710 within 

90 days from the date of this decision. 

~~~~ Assistant Chief Administrative Law Judge 

Distribution: 

Edwin Tyler, Esq., Office of the Solicitor, U.S. Department of Labor, 

P.O. Box 9092, Santurce, P.R. 00908 (Certified Mail) 

Tadeo Negron Medero, Esq., Box 40621, Minillas Station, Santurce, 

P.R. 00949 (Certified Mail) 

Administrator, Metal and Non-metal Mine Safety and Health, 

U.S. Department of Labor 

Standard Distribution 

347 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520! LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 8 1900 

SECRETARY OF LABOR, · 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Civil Penalty Proceeding 

Docket No. SE 79-3-M 

Petitioner A/0 No. 54-00036-05004 

v. 

·· Cantera Dorado 

DAVID CABRERA, INC., 

Appearances: 

Before: 

Respondent 

DECISION 

ORDER TO PAY 

Edwin Tyler, Esq., Office of the Solicitor, U.S. Department 

of Labor, Santurce, Puerto Rico, for Petitioner; 

Tadeo Negron Medero, Esq., Rafael Castro, Esq., Santurce, 

Puerto Rico, for Respondent, David Cabrera, Inc. 

Judge Merlin 

The above-captioned proceeding is a petition for the assessment of 

civil penalties for 19 alleged violations of the Act. 

At the hearing on January 8, 1980, the Solicitor advised that the 

parties now recommended settlement of the violations in this docket number. 

The Solicitor explained each of the settlements in detail and stated that 

the gravity factor had been overassessed. Further, the operator has virtually no history of prior violations under the Act, and the Act itself is 

relatively new as regards this operator. The recommended settlements total 

$1,504, which is a substantial amount for this operator who is not large in 

size. 1/ In view of the circumstances which are fully set forth in the 

administrative transcript of the hearing, the recommended settlements are 

approved. It is however, a matter of concern when at the hearing the Solicitor expresses evaluations so different from that of the Assessment Office. 

1/ The Solicitor incorrectly stated the total amount to be $1,554. The 

correct amount is $1,504. 

348 
ORDER 

The operator is ORDERED to pay $1,504 in six equal payments, the first 

payment to be made within 30 days from the date of this decision, with subsequent payments every 30 days thereafter. 

~~~ Paul Merlin 

Assistant Chief Administrative Law Judge 

Distribution: 

Edwin Tyler, Esq., Office of the Solicitor, U.S. Department of Labor, 

P.O. Box 9092, Santurce, P.R. 00908 (Certified Mail) 

Tadeo Negron Medero, Esq., Box 40621, Minillas Station, Santurce, 

P.R. 00949 (Certified Mail) 

Administrator, Metal and Non-metal Mine Safety and Health, 

U.S. Department of Labor 

Standard Distribution 

349 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11/12 

FEB 8 1900. 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. VINC 79-227-P 

Petitioner A.O. No. 33-02308-03021F 

v. Raccoon No. 3 Mine 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION AND ORDER 

Linda Leasure, Esq., U.S. Department of Labor, 

Office of the Solicitor, Cleveland, Ohio, for 

Petitioner; 

David Cohen,· Esq., Lancaster, Ohio, for 

Respondent. 

Judge Kennedy 

The captioned penalty proceeding came on for an evidentiary 

hearing in Columbus, Ohio on November 1 and 2, 1979. The 

Secretary charged that as the result of two separate occurrences 

on May 5, 1978, the operator violated section 302(a) of 

the Act, 30 CFR 75.200. The first charge was that as a result 

of an investigation of a fatal roof fall accident that occurred 

on May 5, 1978, it was determined that the victim and another 

miner had travelled inby permanent roof support for the purpose 

of removing temporary supports in violation of the prohibition 

against miners travelling under unsupported roof. The second 

350 
charge was that the investigation revealed that at the time 

of the accident the victim and another miner were removing 

temporary supports under unsupported roof by hand instead 

of by some remote means and without installing other temporary 

support in violation of Safety Precaution No. 3 of the approved 

roof control plan. 

At the hearing, counsel for the operator conceded the 

two miners in question "were engaged in the practices that 

were stated in the citations" (Tr. Vol. I, 16) but now claims 

there was only one violation. The statute, however, clearly 

provides that.each occurrence of a violation constitutes a 

separate offense and there is no dispute about that the fact 

that two miners participated in the conduct charged and that 

the conduct of each was in violation of the standard. The 

operator is fortunate that the Secretary did not charge, as 

he might have, that each of the miners violated the standard 

twice for a total of four violations. 

The operator's theory of two for the price of one is, 

therefore, rejected. 

At the conclusion of the hearing, and in accordance with 

the pretrial order, the parties presented oral argument in 

support of their proposed findings and conclusions and the 

presiding judge made a tentative decision on the record. 

At the request of the operator, the effective date of the 

bench decision was stayed pending receipt of the transcript 

351 
and the parties proposed findings, conclusions, and supporting 

briefs. 

After a careful consideration of the parties' written 

submissions, I find my bench decision, as supplemented below, 

should be adopted and confirmed as my final decision in this 

matter. My decision, therefore, is as follows: 

After observing the demeanor of the witnesses 

and based on a preponderance of the reliable, probative 

and substantial evidence, I find: 

1. The two violations charged did, in fact, 

occur. 

2. Because these violations were the proximate 

cause of the death of a miner they were 

extremely serious. 

3. The violations were the result of a disregard 

for compliance with safe mining practices by 

Socco's top management, its Section Foreman, 

Lonnie Darst, the miner-victim, James Six, 

and the miner-survivor, John Endicott. 

4. Mr. Six's knowing disregard of the prohibition 

against working under unsupported roof and the 

safety precautions of the approved roof control 

plan was an act of gross negligence. 

5. The violations were also the result of a 

reckless disregard for compliance with safe 

mining practices by the miner-survivor, John 

Endicott. Mr. Endicott knowingly disregarded 

the same prohibitions of the mandatory safety 

standard and the safety precautions of the 

approved roof control plan as did Mr. Six. 

6. The acts of the miners Six and Endicott were 

foreseeable and preventable by the Section 

Foreman Lonnie Darst and top management. As 

several witnesses testified it was not unusual 

for miners in the Raccoon #3 Mine to work under 

unsupported roof (Tr. Vol. I 94, 108, 110, 131, 

136, 159-160; Vol. 2 144; GX-9). Mr. Darst 

and top management knew or should have known 

this. 

352 
7. More specifically, Lonnie Darst knew or should 

have known that Mr. Six could not knock the 

six jacks in the 15 entry with the loader 

without damaging the jacks seriously. 

8. Lonnie Darst did not tell James Six how to 

knock and remove the six jacks without damaging 

them. 

9. Lonnie Darst did not tell James Six how to load 

the coal in the 15 entry without removing the 

jacks. 

10. James Six and John Endicott knew they were 

expected to knock and remove the jacks without 

damaging them. 

11. It never occurred to Six and Endicott to knock 

out the jacks with the loader because this 

would have damaged the jacks and seriously 

impeded production. 

12. It is not reasonable to believe that Lonnie 

Darst would have directed Six to employ a 

means of removing the jacks that would render 

them inoperable. 

13. Lonnie Darst and top management condoned the 

violations committed by Six and Endicott 

because they did only what was expected of them. 

14. Lonnie Darst's actions as well as those of 

Six and Endicott are, therefore, imputable to 

Sacco. 

15. Lonnie Darst was negligent in his supervision 

of the 15 entry of the 001 Section on May 5, 1978. 

16. Sacco's management is vicariously responsible 

for the negligence of its agents and employees 

and independently responsible for its failure 

to design, implement and enforce a mine safety 

program that ensures compliance with the Mine 

Safety Laws at all times--not just some times--

by its section foremen and miners. 

353 
17. The operator's claim that the section 

foreman, Lonnie Darst and top management 

were not involved in the violations committed 

is without merit. The record shows the section 

foreman's failure to supervise and monitor 

the remote recovery of the temporary supports 

was in violation of the safety precautions 

set forth in 30 CFR 75.200-14. These precautions 

were issued in implementation of the underlying 

interim mandatory standard pursuant to the 

Secretary's authority under section 30l(d) 

of the Act to "prescribe" the manner in which 

roof support recovery is to be accomplished 

under roof control plans adopted and approved 

under section 302(a), 30 CFR 75.200 of the 

Mine Safety Law. Inasmuch as this criteria 

"prescribes" the manner in which an operator 

is to "carry out on a continuing basis" his 

program of roof control as mandated by section 

302(a), 30 CFR 75.200, it is an enforceable 

part of the underlying interim.mandatory safety 

standard. Zeigler Coal Co. v. Kleppe, 536 

F.2d 398, 405 and n. 32 (D.C. Cir. 1976); United 

States v. Finley Coal Co., 493 F.2d 285, 290 

(6th Cir. 1974), aff~g. 345 F.Supp. 62, 67 

(E.D. Ky. 1972). Un er decisions of the Board 

of Mine Operations Appeals, it is well settled 

that once an operator adopts and the Secretary 

approves a roof control plan the operator is 

"obliged to carry out" the plan in accordance 

with the cirteria set forth in 30 CFR 75.200-7 

through 75.200-14. Affinity Mining Company, 

6 IBMA 100, 109 (1976); Bishop Coal Company, 

5 IBMA 231, 241-244 (1975) (75.200-1 through 

75-200-14 "fill in some of the interstices" 

of the operator's obligation to "adequately" 

support or otherwise control the roof or ribs). 

18. 30 CFR 75.200-14 prescribes a detailed method 

for roof support recovery. Mr. Darst's conduct 

and instructions violated this criteria in six 

particulars all of which are imputable to top 

management. Furthermore, top management is 

independently responsible for its own negligent 

failure to supervise properly Mr. Darst's 

performance of his duties and responsibilities. 

354 
19. Mr. Darst's six violations of 75.200-14 were 

as follows: 

(a) 75.200-14(a) provides that "Recovery should 

be done only under the direct supervision 

of a mine foreman, assistant mine foreman, 

or section foreman." It is undisputed 

that at the time of the fatal roo~ fall 

the section foreman, Lonnie Darst, was 

not supervising the recovery operation but 

was in the No. 13 crosscut assisting 

another miner in hanging power cable 

(Tr. Vol. II, 101, 107, 156). 

(b) 75.200-14(c) required that "The person 

supervising recovery should make a careful 

examination and evaluation of the roof, and 

designate each support to be recovered." 

Mr. Darst admitted that he failed to 

designate the jacks to be recovered 

(Tr. Vol. II, 108-109). In addition, the 

record shows that neither Mr. Darst nor 

the miners involved made any effort to 

sound or otherwise evaluate the condition 

of a badly fractured roof that, in the 

area where the fatality occurred, was 

unsupported for a minimum distance of 

23 feet, 9 inches. The record further 

shows that despite the requirement for 

preshift and on-shift reports of hazardous 

conditions the operator tolerated the 

existence of this massive unsupported roof 

area for approximately 17 hours. This 

constituted a reckless disregard for 

management's obligation to exercise a 

high degree of care for the safety of the 

miners. Legislative History of the 

Federal Coal Mine Health and Safety Act 

of 1969, U.S. Senate, Committee on Labor 

and Public Welfare, 94th Cong., 1st Sess., 

(August 1975), at 1515. 

(c) 75.200-14(d)(l) directs that "Supports should 

not be recovered . . . Where roof 

fractures are present or there are other 

indications of the roof being structurally 

weak." The record shows the operator had 

encountered extremely bad roof conditions 

while driving the 15 entry. The roof leaked 

355 
substantial quantities of water which 

indicated the overlying strata had lost 

its cohesive qualities and that the 

overburden was fractured. During the 

period it was unsupported, the roof had 

sagged and cracked. (Tr. Vol. I, 71, 

74, 87-88, 93, 96, 108, 173, 193; 

Vol. II, 107, 159). Mr. Darst was fully 

aware of the condition of the roof 

in the number 15 entry. This knowledge 

is imputable to top management. In 

addition, top management knew or should 

have known of the hazardous roof condition 

in the 15 entry at the time it made its 

determination to recover coal from the 

area. Its determination to do so in the 

face of this criterion constituted a 

conscious and deliberate indifference to 

the safety of its employees. 

(d) 75.200-14(e) requires that "Two rows of 

temporary supports on not more than 4 foot 

centers, lengthwise and crosswise, should 

be set across the place, beginning not 

more than 4 feet inby the support being 

recovered. In addition, at least one 

temporary support should be provided as 

close as practicable to the support being 

recovered." It is undisputed that the 

only temporary supports in the No. 15 

entry were those taken down by the miners 

Six and Endicott. (OX-8, Tr. Vol. I, 

91, 120-121). The record shows Mr. Darst's 

instruction for tripping the jacks with 

the loader dir~ctly contravened this 

criterion, the approved roof control plan, 

and the requirement that the operator control 

the roof adequately to protect Mr. Six 

from a roof fall during removal of the 

temporary supports. Section 302(a) of 

the Act, 30 CFR 75.200. Mr. Darst's 

instruction which was tantamount to a 

directive to violate the safety precautions 

set forth in the law was negligence per se 

and clearly imputable to top management ~ 

which was responsible for ensuring that Mr. 

Darst performed his duties in accordance with 

the law. 

356 
(e) 75.200-14(f) provides that "Temporary 

supports used should not be recovered 

unless recovery is done remotely 

from under roof where the permanent supports 

have not been disturbed and two rows of 

temporary support, set across the place 

on 4 foot centers, are maintained at 

all times between the workmen and the 

unsupported area." Mr. Darst's instructions 

to knock the jacks out with the loader 

compelled action by Mr. Six that directly 

contravened this safety precaution as it 

was impossible to trip the jacks if 

two rows of temporary supports had been 

installed as required. Inspector Petit 

testified that to comply with this 

safety precaution and still recover the 

jacks it would be necessary, after setting 

the additional temporary support, to tie 

a rope around the jacks and then pull 

them out with the loader while remaining 

under supported roof (Tr. Vol. II, 59, 

62-63). This, of course, would leave 

two rows of temporary support that could not 

be removed, nor could the coal. It is 

clear therefore that there was no way 

to effect remote removal of the temporary 

supports in compliance with the law 

and still recover the coal. Mr. Darst 

opted to flout the law and recover the coal. 

In doing so he set the stage for another 

roof fall fatality. It is a fair inference 

that Mr. Darst did not alone make the 

decision to go for the coal at the risk 

of a miner's life. I conclude therefore 

that top management of the Raccoon :f,1:3 Mine 

was primarily responsible for this regrettable 

case of institutional manslaughter. 

(f) 75.200-14(h) requires that "Entrances to the 

areas from which supports are being 

recovered should be marked with danger 

signs placed at conspicuous locations." 

Mr. Darst admitted he did not danger off 

the unsupported roof area in entry 15 

(Tr. Vol. II, 107). The failure to 

ensure compliance with thi.s safety precaution 

was another instance of the operator's 

failure to carry out its obligation to 

protect its miners from travelling or 

357 
working under hazardous roof as required 

by section .302(a), 30 CFR 75.200. 

It also constituted another instance of 

the operator's failure to exercise the 

high degree of care imposed by the Act. 

20. Finally, I find that the operator's independent 

failure to enforce sound mining practices, 

as evidenced by its failure to ensure compliance 

with the safety precautions applicable to the 

remote removal of temporary supports by its 

section foreman and the miners Six and Endicott 

as well as its foreman's failure to monitor 

and supervise properly the remote removal of 

the temporary supports by the miners Six and 

Endicott warrant the imposition of maximum 

penalties for the violations charged. 

I conclude therefore that for the imputed negligence of 

its agents and employees as well as for its own acts of 

independent and contributory negligence, Socco is fully 

responsible for the violations charged. See Valley Camp Coal Co., 

3 IBMA 463 (December 13, 1974) (section foreman's knowledge 

of dangerous condition imputable to operator for purpose of 

determining negligence); Pocahontas Fuel Co., 8 IBMA 136 

(September 28, 1977) aff'd 590 F.2d 95 (4th Cir. 1979) (failure 

of preshift examiner to detect violation imputable to operator); 

Webster County Coal Co., BARB 78-185-P (June 7, 1978); 

Grundy Mining Co., BARB 78-168-P (June 19, 1978), 

appeal pending No. 78-3424 (6th Circuit) (foreseeable and 

preventable miner's negligence imputable to operator); 

Buffalo Mining Co., HOPE 78-333-P (October 30, 1979) (independent 

contractor's negligence imputable to operator); Cf. U.S. v. 

Illinois Central R. Co., 303 U.S. 239 (1938) (employee's 

358 
negligent breach of statutory duty imputable to employer); 

Atlantic and Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541 

(3rd Cir. 1976) (employer liable for predictable and 

forseeable employee misconduct). 

I further conclude that in order to deter future violations, 

heighten top management's awareness of the need for meaningful 

supervision and sanctions to backup the mine safety laws, and 

to ensure, if possible, voluntary compliance with those laws, 

the amount of the penalty warranted for each violation found 

is $10,000.00. 

Accordingly, it is ORDERED that Southern Ohio Coal Company 

pay a penalty of $20,000.00 on or Friday, March 21, 1980. 

Distribution: 

Linda Leasure, Esq., U.S. Department of Labor, Office of 

the Solicitor, 881 Federal Office Bldg., 1240 E. Ninth St., 

Cleveland, OH 44199 (Certified Mail) 

David Cohen, Esq., American Electric Power Service Corp., 

P.O. Box 700, Lancaster, OH 43130 (Certified Mail) 

359 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52Q3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

ff.B 1 1 1900 

Petitioner 

Civil Penalty Proceeding 

Docket No. DENV 79-396-PM 

A.C. No. 05-00354-05010 

Climax Mine 

CLIMAX MOLYBDENUM COMPANY, 

Respondent 

DECISION 

Appearances: Thomas E. Korson, Esq., Assistant Solicitor, Mine Safety 

and Health Administration, U.S. Department of Labor, for 

Petitioner; 

Richard W. Manning and Katherine Vigil, Climax Molybdenum 

Company, Golden, Colorado, for Respondent. 

Before: Judge Lasher 

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

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

Colorado, on January 3, 1980, at which both parties were represented by 

counsel. After considering evidence submitted by both parties and proposed findings of fact and conclusions of law proffered by counsel during 

closing argument, I entered a detailed opinion on the record. 1/ It was 

found that the violation charged in the withdrawal order did occur. My 

oral decision containing findings, conclusions and rationale appear below 

as it appears in the record aside from minor corrections in grammar and 

punctuation: 

This penalty proceeding arose upon the filing of a petition for assessment of civil penalty by the Department of 

Labor on March 5, 1979, in which the Government seeks a penalty against the Respondent, Climax Molybdenum Company, for 

causing or permitting a condition or practice described in 

Citation No. 331766 which was issued by inspector James L. 

Atwood on August 2, 1978, and which is more particularly 

described as follows: "The ore pass in 3180-9 stopes, subdrift F-finger, was not provided with a bumper block or berm. 

y Tr. 127-139. 

%0 
Mobile preparation crews use this ore pass for a dumping 

location." 

The standard involved is that provided in 30 CFR 57.9-54 

which provides as part of some 73 specific loading, hauling, 

and dumping safety requirements which are applicable generally to surface and underground mines that: "Berms, bumper 

blocks, safety hooks, or similar means shall be provided to 

prevent overtravel and overturning at dumping locations." 

At the outset, it is found, based upon stipulation provided by counsel, that this is a large mine having a payroll 

of some 1,500 underground employees and a daily production 

of molybdenum of 25,000 to 28,000 tons. It is also found 

that Respondent had a prior history of 122 previous violations. Since I do not know during what period of time that 

is involved, I make no specific finding with respect to 

that element. 

The parties stipulated that payment of the proposed 

penalty of $106 would not affect Respondent's ability to continue in business. I so find and, in addition, find that in 

view of the Respondent's size and that Respondent is itself 

a division of AMAX, Inc., that it would be able to pay a 

much higher penalty including the maximum penalty in this 

case without affecting its ability to continue in business. 

Finally, based upon the expressed stipulation of the 

parties, I find that the Respondent, after being served 

with the citation involved here, proceeded in good faith 

to achieve rapid compliance with the safety standard cited 

in the citation by providing a berm at the site allegedly 

in violation. 

In terms of issues, the general issues are, of course, 

whether or not a violation did occur and, if so, what 

degree of negligence, if such exists, and what degree of 

seriousness should be attributed to the Respondent and the 

condition respectively. 

The primary issue in this case is a legal one which 

arises out of the proper interpretation which should be 

placed on the safety standard cited, 30 CFR 57.9-54. 

More particularly, the question is whether the coverage 

of this regulation applies when dumping is not actually 

going on. The issμe of the construction to be given the 

regulation comes up based upon the defenses asserted by 

Respondent in this proceeding, the chief and secondary 

supporting arguments of such a defense being that berms 

361 
are not required around finger openings except when dumping is going on and that the Respondent had a practice of 

using berms when dumping actually was in progress. Respondent contends that there was no dumping in progress when 

the alleged violation was observed by the inspector on 

August 2, 1978, and that its employees were instructed to 

use berms when carrying on dumping, and other similar contentions which relate back to the primary construction of 

the regulation which it urges. 

Turning now to the evidence, the inspector testified 

and I find that on August 2, 1978, the opening reflected on 

Exhibit R-2, which sometimes has been referred to as the 

"ore pass," but generally called the "F-finger," was not 

filled up; that it was irregular in shape; that it was 

approximately 8 feet across (the Respondent contends the 

same was approximately 7-1/2 feet across) and that it was 

some 31 feet deep. 

I find, based upon the inspector's testimony and that of 

Respondent's witness, Dick Robush, that the depth of the 

finger was approximately 23 feet, the first half of which was 

straight down and the second half of which sloped off at an 

angle of approximately 45 degrees. As reflected on Exhibit 

R-1, the finger extended from subdrift F down to an area 

sometimes referred to as the slusher drift- area. 

I would footnote that I would refer to the ore pass as 

the actual opening or top of the hole through which the ore 

was dumped into the finger. 

I find that on August 2, 1978, the ore pass and the 

finger was not filled up. For all intents and purposes it 

was empty. I also find that the subdrift reflected on 

Exhibit R-1 and in which the ore pass was located was used 

as a trailway, that the ore pass abutted on one side a 

wall of the subdrift, that there was a 3/4-inch hemp rope 

suspended from the sides which hung approximately 3 feet 

off the ground and which had a sway in it which at the 

bottom was approximately three-fourths of a foot off the 

bottom. Part of the rope was out over the open hole. 

At the time the inspector observed the condition there 

were equipment tracks imprinted in the bottom of the material 

which constituted the floor of the area, most of which followed the direction of the trailway and some of which were 

in the direction of the ore pass, the closest of which were 

some 3 to 4 feet away from the edge of the ore pass. I am 

unable to find when these tracks were made or by which specific type of mobile equipment the tracks were left. 

362 
I find that there was a sign in proximity to the 

allegedly violative condition which said "Danger--No Manway," and that the area in which the ore pass was located 

could at times become, as the inspector described it, smoky 

as a result of blasting which could take place in the mine 

at distances ranging from 100 yards to 1 mile from the subject area. 

In this connection, I also find that while such smoky or 

dusty condition could in the abstract affect visibility to 

what extend the same would be affected cannot be found on 

this record and, further, that there was no such condition 

on the day the alleged violation was observed. 

I find that when the citation was issued at 8:50 a.m., 

the first or morning shift was in progress, that no dumping 

was carried on on the morning shift, and that the last dumping which occurred into the finger in question through the 

subject ore pass occurred on August 1 during the swing shift 

(between 3:30 and 11:30 p.m.). 

I find that the ore pass and finger in question, both 

parts of the same thing, had prior to August 2, 1978, been 

used as a dumping location and would have been used as a 

dumping location subsequent to such date. The meaning of 

this finding is that actual dumping had oc.curred at such 

site and would have occurred at such site subsequent to the 

issuance of the citation. 

I specifically find that on August 2, 1978, there was 

no berm, bumper guard, or other suitable means or materiai 

present at the site in question which would have prevented 

the overtravei of yehicles or overturning of vehicles--

overtravel being a vehicle's going too far and going into 

the opening of the ore pass. 

At the time the citation was issued, the only mobile 

equipment in the general area depicted on Exhibit R-2 were 

two loaders, a 1-yard loader and a 5-yard loader. The 

1-yard loader was some 16 feet long, 5-1/2 feet high and 

4-1/2 feet wide, and the 5-yard loader being some 26 feet 

long, 6 to 7 feet high, and 8-1/2 feet wide. 

In this connection, I also find that, based upon the 

inspector's testimony, so-called "Wagner muckers"--a 

vehicle used for hauling which approximates the size of a 

standard-size automobile running on four wheels and powered 

by a diesel engine--constituted the majority of Respondent's 

mobile equipment operating in the area. As I have noted, 

the tracks found in the area cannot be attributed to any 

363 
specific piece of equipment including the Wagner mucker 

or the loaders previously described. 

There were approximately four employees working in the 

general area depicted on Exhibit R-2 on August 2, 1978. It 

would have been impossible for the two loaders to proceed as 

depicted on Exhibit R-3 from the 400 production drift past 

the subdrift 22 into 3160 crosscut, and get closer than 

7 feet to the ore pass opening. On the other hand, equipment could have directly turned into subdrift 22 and have 

been exposed to the hazard presented by the unfilled ore 

pass opening, which was not protected by a berm, bumper 

guard, or other suitable means or material to prevent overtravel or overturning. 

Based upon the foregoing specific findings of fact, I 

make these following ultimate findings of fact: On August 2, 

1978, when the citation was issued, no dumping was being conducted at the ore pass in question; the ore pass described 

in the citation was not protected in accordance with the specific requirements of° the regulation cited, 29 CFR 57 .9-54, 

in that no berms, bumper blocks, safety hooks, or similar 

means were provided to prevent overtravel and overturning; 

the ore pass and finger shown on Exhibit R-3 was used for 

dumping, even though at the specific time the inspector 

observed the same, dumping was not actually in progress; the 

ore pass in question constituted a very serious hazard to 

employees working or traveling in proximity to it due to 

its depth, its location--adjacent to a travelway, the condition of the protective rope--insofar as the same was not 

fastened properly, the possibility of impaired visibility, 

and all despite the precaution taken by management personnel 

in putting up a sign entitled "Danger--No Manway." 

Since Respondent had other signs, some of which were 

more specific than the sign in question such as the ones 

which said "Danger--Open Finger" and one which said 

"Danger--Open Ore Pass," I find it possible that a sign 

which says "Danger--No Manway" might lead an employee into 

the belief that there was no danger from an open finger or 

an open ore pass. That is, by having specific signs which 

describe specific dangers, a (less) specific sign might be 

counterproductive. However, those are in my judgment minor 

considerations in comparison to the major considerations 

upon which (rests) my finding that the condition was a very 

serious hazard. 

In this sense and in this respect, I fully 

testimony of the inspector that in the event of 

of equipment, a fatality would probably occur. 

364 

credit the 

an overturn 

There was 
really no challenge to this evidence with respect to seriousness. The general description of the condition itself would 

lead me to find the same absent the inspector's testimony. 

I turn now to the primary question which is the construction of the regulation. I first note that it's a 

long-established principle of mine safety law that 

ambiguous provisions of the law are to be construed liberally so as to enhance the safety aspects of the language. 

I construe that to mean that if there is an ambiguity, a 

regulation should be construed liberally to promote health 

and safety. However, I find no ambiguity whatsoever in 

this regulation. 

I'm going to be very explicit in saying I find the argument of Respondent that the regulation should be limited to 

only those times when dumping is going on to be wishful 

thinking at best and very cynical at worst. This regulation 

says that berms, bumper blocks, or similar means shall be 

present at dumping locations. Is an open hole in the ground 

7-1/2 feet long a "dumping location" only when dumping is 

in progress when it's (been) used for dumping within some 

15 to 20 hours before it's seen to present a very serious 

violation? Is a piano that's not in use not a piano because 

there's no musician sitting there playing it? 

This site was used shortly before this violation was 

discovered as a dumping place and was intended to be used 

as a dumping place subsequently. The regulaton does not 

say that berms, etc., shall be provided while dumping is 

going on. It says it shall be used at "dumping locations." 

In my judgment, if there was ever a dumping location, this 

was it,· since it was one that was used very shortly before 

the violation was found. It would be impossible to enforce 

such a regulation absent having an inspector present at 

every single such location 24 hours a day, because you 

would then get down to where someone would say, "Well, it 

wasn't a dumping location, we were using it for ventilation or some other purpose at the time the violation was 

discovered." 

This regulation is not just for the benefit of the 

employees actually engaged in dumping at some particular 

time. The hazard is to anybody that happens to be going 

along there at any time whether dumping is going on or 

not. The hazard is for a piece of equipment to overturn 

or to fall into that hole whether or not it's in the 

process of dumping. Are we to discriminate and limit the 

protection afforded by such a regulation, the hazard 

365 
which it is designed to protect being so obvious, in such 

a way?. 

I find no ambiguity whatsoever and I am surprised at 

the position that the Respondent has taken which, as it has 

pointed out, has resulted in a practice wherein the berms are 

taken away after the dumping is over. I find, in that connection, Inspector Atwood's testimony that it was not possible for the berms to have been removed without leaving 

traces of their presence, to be credible. Although I credit 

this testimony, I do not find it necessary to make an express 

finding of fact in resolving the ultimate issue in this case. 

More specifically, I do not find it necessary to determine 

whether there was a berm there or not at the time the dumping occurred the previous day or other times when dumping 

occurred. The fact this hole was present at 8:50 a.m. on 

August 2, 1978, presenting a·hazard as it did without the 

berms or other similar means of protection constitutes a 

violation, and I so find. 

The remaining question is whether or not, in permitting 

the violation, the Respondent was negligent. The facts of 

this case indicate that this was a willful act. I'm not 

saying it was a willful violation. It was a willful act on 

the part of the Respondent based upon its understanding that 

it was in compliance with the regulations.-

The negligence aspect of the case is not susceptible to 

being analyzed in terms of the normal prece·pts of negligence 

law. I do accept the Respondent's statement that in this 

case it had a sincere good faith belief that it was not violating the standard in question. I thus find that it is not 

a willful violation. If I found a willful violation, I'd 

have to refer this for criminal action. 

Analyzing it in terms of willfulness, I would therefore 

find that the willfulness is excused by the good faith 

belief--and what I believe to be mistaken belief--that they 

were not in violation. This would, therefore, in my judgment 

equate with a low degree of negligence were we to analogize 

it to negligence. 

Summing up then, I find that this is a large mine operator. I find that, based upon the history of previous violations, there is no reason to increase any penalty. I find 

that the penalty that I'm to assess will not interfere with 

Respondent's ability to continue in business. I have found 

this to be a very serious violation which was attributable 

to the Respondent's good faith belief that it was in compliance with the standard. And I footnote that I make such 

366 
finding even though I don't find much ambiguity or any 

ambiguity in· that standard myself. Standing in some mitigation is the fact that Respondent proceeded rapidly to abate 

the violation found. Weighing all those factors and again 

noting that I had found either willfulness or gross negligence I would have given a penalty close to the maximum 

which is $10,000 in this case, a penalty of,$1,500 is 

assessed. Respondent is directed to pay the same within 

30 days of issuance of my subsequent writ.ten decision which 

will incorporate the oral decision which I have placed on 

the record. 

ORDER 

Respondent, Climax Molybdenum Company, is ORDERED to pay a penalty of 

$1,500 to the Secretary of Labor within 30 days from the issuance date of 

this decision. 

1f·~.L~~·'p· J4~d'/ /t ~-

Michael A. Lasher, Jr., Judge 

Distribution: 

Thomas E. Korson, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1961 Stout Street, Room 1585, Denyer, CO 80294 (Certified 

Mail) 

Richard W. Manning, Esq., Climax Molybdenum Company, AMAX, Inc., 

13949 W. Colfax Avenue, Golden, CO 80401 (Certified Mail)· 

John R. Tadlock, Esq., General Counsel, Oil, Chemical and Atomic 

Workers' International Union, 1636 Champa Street, Denver, CO 80202 

(Certified Mail) 

David A. Jones, Jr., President, Oil, Chemical and Atomic Workers' 

International Union, Local 2-24410, Box 949, Leadville, CO 80461 

(Certified Mail) 

Edwin Matheson, Chairman, International Brotherhood of Electrical 

Workers, Local 1823, P.O. Box 102, Minturn, CO 81645 (Certified 

Mail) 

Charles W. Newcom, Esq., 2900 First of Denver Plaza, 633 Seventeenth 

Plaza, Denver, CO 80202 (Certified Mail) 

367 
FEDERAL M1NE SAFETY AND HEALTH REVIE'n COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5205 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 1 1980 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. PIKE 78-420-P 

A. C. No. 15-08413-02012V 

Pontiki No. 1 Mine 

Petitioner 

v. 

PONTIKI COAL CORPORATION, 

Respondent 

DECISION 

This matter is before me for reassessment of penalties for violations 

involved in three withdrawal orders after reassignment of judges pursuant 

to remand by the Commission's decision of October 25, 1979. The Administrative Law Judge who originally heard and decided this matter has since 

retired. He found the violations occurred as alleged. However, for 

failure of the Secretary's proof, he vacated the three section 104(c)(2) 

orders in question and mitigated penalties for the reason that the orders 

had been vacated. 

In its reversal and remand, the Commission specifies only that the 

reassessment be made without consideration of the vacated orders as a 

mitigating factor. 1/ I therefore adopt the original judge's findings 

with respect to the-six statutory criteria and incorporate such findings 

by reference. 2/ Although the original judge indicated that the penalties were being "mitigated due to the fact that the orders involved 

(were) vacated" the extent to which such reduction was carried was not 

described or shown. In these circumstances, my assessments will be 

de novo, that is, an independent evaluation of proper penalties--based, 

however, on the penalty assessment factors found by the original judge. 

It should be further noted that (a) while this Respondent was a very 

large coal operator in 1977, it was not one of the giants of the industry 

1/ The Judge's finding that the violations occurred as charged by MSHA, 

and his findings with respect to the statutory criteria were not 

disturbed. 

2/ These findings are summarized in his written decision of February 9, 

1979, at page 20, Finding Nos. 3 through 8, and are incorporated herein 

by reference. 

368 
(Tr. 7-9), or affiliated with one of the giant coal-producing groups, 3/ 

and (b) no injuries or fatalities were involved in any of the violations. 4/ 

Respondent l. s assessed the following penalties: 

Order No. Date Section Penalty 

1 TE 12/05/77 30 CFR 75.316 $ 250 

1 MM 12/05/77 30 CFR 75.316 1,250 

2 FDG 12/06/77 30 CFR 75.200 4,500 

$6,000 

ORDER 

IT IS ORDERED that Respondent pay to the Secretary of Labor the sum 

of $6,000 within 30 days from the date of this decision. 

~;a;_/.,,.~~~ 

,-2,._, • -;/' ... ~ ~ , r#~::'-"~~ ,tlf?.. ,A A ~ t7 . 

Michael A. Lasher, Jr., Judge 

Distribution: 

William H. Howe, Esq., Loomis, Owen, Fellman & Howe, 2020 K Street, 

NW., Washington, DC 20006 (Certified Mail) 

Judith Macaluso, Esq., Leo J. McGinn, Esq., Thomas A. Mascolino, 

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

4015 Wilson Boulevard, Arlington, VA 22203 

3/ See (Keystone Coal Industry Manual, (McGraw-Hill, 1977), pages 546, 

756, and 757, indicating that in 1977 Pontiki was in Class 4 of a 

10-class spectrum with annual coal production under 1 million tons, that 

the largest group with which it was then affiliated was in Class 1 (the 

largest class) with annual production of 3 million tons or more, and 

that such group was not one of the top 15 coal-producing groups in 1976. 

4/ Respondent's appeal to the United States Court of Appeals, D.C. 

Circuit, was voluntarily withdrawn and dismissed on January 30, 1980. 

369 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52C3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

.FEB 1 1 1980 

PONTIKI COAL CORPORATION, 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Contestant 

Respondent 

Petitioner 

PONTIKI COAL CORPORATION, 

Respondent 

Contest of Order 

Docket No. KENT 79-115-R 

Order No. 706444 

May 3, 1979 

No. 1 Mine 

Civil Penalty Proceeding 

Docket No. KENT 80-53 

Assessment Control 

No. 15-08413-03042V 

No. 1 Mine 

DECISION 

Appearances: William H. Howe, Esq., and Timothy J. Parsons, Esq., 

Loomis, Owen, Fellman & Howe, Washington, D.c., for 

Pontiki Coal Corporation; 

John H. O'Donnell, Esq., Office of the Solicitor, u.s. 

Department of Labor, for Secretary of Labor. 

Before: Administrative Law Judge Steffey 

Pursuant to written order dated June 22, 1979, a hearing in the aboveentitled 1/ consolidated proceeding was held on August 9, 1979, in Pikeville, 

Kentucky,-under section 105(d) of the Federal Mine Safety and Health Act of 

1977. 

1/ The order proviaing for hearing consolidated any civil penalty issues 

which might arise with respect to Order No. 706444 with the issues raised 

by Pontiki Coal Corporation's request for review of Order No. 706444, MSHA's 

Proposal for Assessment of Civil Penalty was filed on January 15, 1980, in 

Docket No, KENT 80-53 seeking assessment of a civil penalty for the violation 

of 30 CFR 75.403 alleged in Order No, 706444. Therefore, it is now possible 

to decide in this proceeding the civil penalty issues on which evidence was 

presented by the parties at the hearing held on August 9, 1979. My order did 

not consolidate the civil penalty issues raised in Docket No. KENT 80-53 with 

respect to underlying Citation No. 706762. Therefore, the order accompanying 

this decision defers all civil penalty issues pertaining to Citation 

No. 706762 for future disposition. 

370 
Counsel for Pontiki Coal Corporation filed on December 11, 1979, a 

posthearing brief and counsel for the Mine Safety and Health Administration 

filed on January 7, 1980, a reply to Pontiki's brief. 

Issues 

Pontiki's brief argues that Order No. 706444 is invalid as well as 

underlying Citation No. 706762 on which Order No. 706444 is based. Pontiki 

also contends that the violation of 30 CFR 75.403 alleged in Order No. 

706444 did not occur or, in the alternative, that if a violation of section 75.403 did occur, th~ violation was not the result of any unwarrantable 

failure on the part of Pontiki. 

MSHA's brief argues that a violation of section 75,403 occurred as 

alleged in Order No. 706444, that the violation was the result of an unwarrantable failure on the part of Pontiki, and that underlying Citation No. 

706762 was validly issued and properly cited a violation of 30 CFR 75.313, 

Additionally, MSHA's brief claims that I am obligated to determine in my 

decision whether the violation of section 75.313 alleged in underlying 

Citation No. 706762 occurred even though Pontiki did not raise that issue 

in its contest of Order No, 706444. Finally, MSHA contends that a judge is 

obligated to consider a conglomerate's total civil penalty record of previous violations when he is evaluating an operator's history of previous 

violations as one of the six criteria which must be considered in assessing 

penalties in civil penalty proceedings if violations of the mandatory health 

and safety standards are found to have occurred, 

Findings of Fact 

My decision on all issues in this consolidated proceeding will be based 

on the findings of fact set forth below: 

1. Pontiki Coal Corporation is a subsidiary of Mapco, Inc, (Exh. 1), 

In addition to Pontiki Coal Corporation, Mapco controls four other coal 

companies, namely, Webster County Coal Corporation, Martiki Coal Corporation, Topiki Coal Corporation, and Mettiki Coal Corporation, Mapco's five 

subsidiaries operate a total of nine underground and surface coal mines, 

Pontiki operates two underground coal mines and one preparation plant (Exh. 

2), Only Pontiki's No, 1 Mine is involved in this proceeding, That mine 

employs 169 miners on two production shifts and one maintenance shift to 

produce about 3,500 tons of raw coal per day from the Pond Creek coal seam 

(Tr. 12), After cleaning, the No, 1 Mine's production amounts to about 

3,000 tons per day (Tr. 96), The mining height ranges from 36 to 109 inches 

(Tr, 12; 84), The No, 1 Mine is entered by one 400-foot shaft and one slope 

(Tr, 12), Coal is produced from four working sections, three of which use 

continuous mining machines and one of which utilizes conventional m1n1ng 

methods (Tr. 45), The No, 1 Mine liberates approximately 450,000 cubic feet 

of methane over a 24-hour period (Tr. 13). 

2, An MSHA inspector entered the No, 1 Mine on May_3, 1979, at about 

4:30 p.m, He was accompanied by an inspector trainee and Pontiki's safety 

371 
director, Mr, Danny P, Curry (Tr, 65; 81), All three men traveled to the 

No. 5 Section which uses conventional mining equipment (Tr. 136). For a 

month prior to May 3, the inspector had been engaged in making a complete 

inspection of the No. 1 Mine (Tr. 14; 41). He knew from previous experience that the personnel in the No. 5 Section were having some difficulty 

in controlling the roof and he wanted to check the roof conditions in the 

No. 5 Section before finishing his inspection (Tr. 42; 45; 194). 

3. The inspector, the trainee, and Mr. Curry traveled up the No. 5 or 

track entry to the second crosscut outby the face (Tr. 83; 137). At that 

point they observed a miner installing roof bolts. Mr. Curry remained at 

the site of the roof bolter while the inspector and the trainee walked over 

to return entries Nos. 6 and 7. When they returned from those entries, 

they were rejoined by Mr. Curry at the No. 5 entry and all three men thereafter continued their examination of the entries by walking through the last 

open crosscut to the No. 1 entry. They walked down the No. 1 entry to the 

second open crosscut. As they entered the crosscut between the Nos. 1 and 2 

entries, the inspector orally advised Mr. Curry that he was issuing a "(d)" 

order (Tr. 139; 146). 

4. Mr. Curry himself had been a former MSHA inspector (Tr. 134) and he 

understood that the inspector was issuing an unwarrantable failure order (Tr. 

154). Mr. Curry then left the inspector for about 10 minutes so that he 

could call the mine superintendent, Mr. Sloan, for the purpose of letting 

the superintendent know that the No. 5 Section had been closed by an order 

(Tr. 140; 162). 

5. The inspector had found that the mine personnel were doing a "good 

job" of supporting the roof (Tr. 91), but he found that there was insufficient rock dust on the floor of the mine (Tr. 31-38). The inspector's 

Order No. 706444 was written at 6:05 p.m. on May 3, 1979, and cites Pontiki 

for a violation of 30 CFR 75.403 because there had been an "[i]nadequate 

application of rock dust on mine floor in entries No. 1 through No. 7 and 

connecting crosscuts on No. 005-0 Section, starting at spad No. 1450 and 

extending inby approx[ imately] 360 feet" (Exh. 5). 

6. The inspector based his citation of inadequate rock dusting in 

seven entries and their connecting crosscuts on an examination of the crosscuts and entries which he could see by walking through the No. 5 entry to 

the two rows of crosscuts outby the face (Tr. 46-47; 82-83). The inspector 

walked through the first and second rows of crosscuts outby the face and 

looked down each of the seven entries. The inspector walked down the 

No. 1 entry for three crosscuts from the face, down the No. 2 entry for 

2-1/2 crosscuts from the face, and down the No. 4 entry to the belt feeder 

which was located just inby the third crosscut from the face. With the 

exception of the No. 5 entry, the inspector did not travel any entry for a 

distance of more than three crosscuts from the face (Tr. 84). Although the 

inspector had no illumination other than his cap light, he stated that he 

could see a distance of from 300 to 360 feet down each entry and could 

determine that the floor had been inadequately rock dusted (Tr. 82; 87; 

196). There were permanent stoppings between the Nos. 2 and 3 entries and 

372 
between the Nos. 5 and 6 entries for the purpose of separating the intake 

and return airways (Tr. 47; 86; 159-160). The inspector could not have seen 

what the condition of the rock dust was in the crosscuts. between Nos. 2 and 

3 entries and between Nos, 5 and 6 entries because his observation from 

entry No. 5 would have been blocked by permanent stoppings as he walked up 

the No. 5 entry to the working faces (Tr. 149). Those portions of the 

crosscuts would not have constituted a major part of the No. 5 Section and 

would not have existed closer than three crosscuts from the working face 

(Tr. 86). 

7. The inspector took two floor samples and the trainee took one floor 

sample to support the inspector's claim that rock dust on the mine floor in 

No. 5 Section was inadequate. One of the inspector's floor samples was 

taken at a point 20 feet inby spad No. 1491 in the No. 2 entry. The inspector's other floor sample was taken in the crosscut between the Nos. 1 and 2 

entries at a point which was about 50 or 60 feet from the place where he 

obtained the first sample. The inspector trainee's floor sample was taken 

in the No. 3 entry about 10 feet outby spad No, 1490, or approximately 

80 feet from the place where the inspector took his first sample (Exh. C; 

Tr. 190-195). Thus, all three samples used to substantiate the inspector's 

order were taken either in or close to the second crosscut from the face and 

all three samples were taken within a distance from each other of about 

120 feet even though the inspe.ctor' s order covered the entire No. 5 Section 

for a distance of seven crosscuts, or about 420 feet outby the face (Exhs. 

5, 6 and C; Tr. 78-79; 86). The inspector considered the three samples, 

two of which revealed an incombustibility of 35 precent and one of which 

showed an incombustibility of 31 percent, to be representative of the condition of the floor throughout the No. 5 Section (Tr. 37-38). 

8. The inspector conceded that there had been spillage in the crosscut 

where the samples were taken, but he insisted that he did not take samples 

where spillage existed (Tr. 71-72). In the inspector's opinion, the amount 

of spillage in the crosscuts and entries near the face was not excessive and 

would not have justified citing Pontiki for a violation of 30 CFR 75.400 for 

permitting combustible materials to accumulate (Tr. 90-91). 

9. Respondent's safety director introduced as Exhibit Ca drawing of 

the No. 5 Section which he made about 2 days after the inspector's order was 

issued. Exhibit C shows that both of the inspector's samples were taken in 

places where spillage existed. The sample obtained by the trainee was taken 

at a place where no spillage .is shown on Exhibit C, and the incombustibility 

of that sample was 35 percent (Exhs. 6 and C; Tr. 144). 

10. The chief mine foreman, second-shift mine foreman, and third-shift 

mine foreman all testified that they were having trouble in controlling the 

roof in the No. 5 Section (Tr. 105; 112; 121; 124; 170). Timbers were being 

set on each side of the entry and 72-inch roof bolts on 4-foot centers were 

being used to support the roof (Tr. 91-92). It was also frequently necessary to install cribs as further supplemental support (Tr. 112; 124; Exh. B). 

373. 
Pontiki's safety director and all three foremen stated that when additional 

roof supports and rock dusting needed to be done at the same time, they gave 

priority to installation of roof supports (Tr. 112; 124; 151; 180). 

11. All three foremen testified that the cleaning and rock dusting 

program in the No. 5 Section consisted of cleaning and rock dusting during 

both production shifts as well as cleaning and rock dusting on the maintenance shift (Tr. 99-100; 119; 124; 168-169). On each production shift, 

the operator of the scoop had the duty of bringing in supplies such as 

roof bolts, timbers, and rock dust during the first part of his shift. 

After he had completed bringing in supplies, it was the scoop operator's 

duty to shove excess coal accumulations into the face and to apply rock 

dust to the floor after the loading machine had completed removal of coal 

from ·each working place (Tr. 99-100; 167-169). The chief mine foreman 

each day leaves a list of duties for the third-shift mine foreman to complete on his shift between midnight and 8:00 a.m. Those duties always 

include cleaning up excessive coal accumulations and applying rock dust 

(Tr. 100-101; 119; Exhs. A and B). 

12. Three of Pontiki's witnesses agreed that on May 3, 1979, when 

Order No. 706444 was written, there was an inadequate amount of rock dust 

on the mine floor (Tr. 110; 164; 174-175). Pontiki's safety director, who 

had formerly been an MSHA inspector for about 3 years, stated that he agreed 

that a violation of section 75.403 existed at the time Order No. 706444 was 

written, but the safety director stated that he disagreed with the inspector's claim that the violation was the result of unwarrantable failure (Tr. 

164-165). 

13. Pontiki's mine foreman stated that rock dusting on the midnight 

or maintenance shift is done by a machine and the maintenance shift concentrates on the area which has been mined during the preceding two production 

shifts (Tr. 99-100). The mine foreman specifically stated: "Honestly, 

when he dusts the last line of breaks he doesn't concentrate on the floor. 

Really machine dusting you just can't dust the floor * * *" (Tr. 104). The 

mine foreman explained that rock dust is applied by hand during the production shift by the scoop operator. Sometimes they get behind with dusting 

the floor and at such times"*** we'll work extra hours at dusting the 

floor" (Tr. 105). 

14. Pontiki's third-shift foreman stated that the miners on his maintenance shift did not apply rock dust to the mine floor as well as they 

should. He stated specifically, "I leave instructions for them to spray 

the ribs and the top and the bottom. Of course, you know, a lot of times, 

they don't get maybe to the bottom as good as they should. It should be 

thicker than what it is, really" (Tr. 123). 

15. The inspector issued an unwarrantable failure order because the 

section foreman knew that inadequate rock dusting had been done, but the 

foreman was taking no action to apply rock dust although the roof-bolting 

machine was being operated and the miners were getting ready to produce 

374 
coal at the time Order No. 706444 was issued (Tr. 39; 45). The inspector 

believed that the violation of section 75.403 contributed significantly and 

substantially to the cause and effect of a safety hazard because the No. 1 

Mine releases methane and an explosion could have occurred as a result of 

the inadequate rock dusting. The inspector believed that management was 

becoming complacent about the need to apply an adequate amount of rock dust. 

The inspector did not find that there was sufficient methane in the area at 

the time the order was written to warrant a finding of imminent danger (Tr. 

39-40; 64; 73-80). 

16. Order No. 706444 was based on Citation No. 706762 issued April 3,-

1979, citing Pontiki for a violation of section 75.313 because "[t]he Sand 

S battery powered scoop (no serial No.) which is used to load and haul coal 

from the faces on No. 001-0 Section is not equipped with a methane monitor" 

(Exh. 3). Pontiki had been using the scoop for about 2 weeks without ever 

having installed a methane monitor on the scoop. If the inspector had found 

that the scoop had been equipped with a methane monitor which had become 

inoperable, he would have issued an ordinary citation under section 104(a) 

of the Act, but he found that Pontiki's use of a scoop for 2 weeks without 

installing a methane monitor was a sufficient showing of negligence to 

justify his issuance of the citation under section 104(d)(l) of the Act. 

The inspector found that the alleged violation of section 75.313 contributed 

significantly and substantial~y to the cause or effect of a safety hazard 

because the No. 1 Mine releases methane and a methane monitor will deenergize equipment if it encounters a concentration of methane of up to 2 percent or more. A concentration-of methane of up to 5 percent may cause an 

ignition. The inspector did not find that an imminent danger existed 

because the scoop was not being operated in an explosive concentration of 

methane (Tr. 14-29). 

17. In the inspector's opinion, Pontiki's management failed to demonstrate a good faith effort to achieve rapid compliance after he issued Order 

No. 706444 citing Pontiki for a violation of section 75.403. The inspector based his opinion of lack of good faith abatement on the fact that his 

order was issued on May 3, 1979, and was not abated until May 7, 1979 (Tr. 

40). After the inspector was shown a calendar, he stated that his order 

was issued on a Thursday at 6:05 p.m. and that an intervening weekend 

passed before he terminated the order on Monday, May 7, 1979 (Tr. 41). The 

inspector's opinion as to lack of good faith abatement failed to take into 

consideration the fact that Pontiki's management tried to get an inspector 

to return to the mine on Friday, May 4, 1979, to terminate the order, but 

no MSHA inspector was available for checking the conditions in the No. 5 

Section because all of the inspectors were attending a personnel meeting 

at MSHA's Prestonsburg Office (Tr. 42-43; 115; 187). The inspector did not 

bring his notes with him when he testified at the hearing and therefore was 

unable to agree or disagree as to his availability to check the No. 5 Section on May 4, 1979, to determine whether his order should be terminated 

(Tr. 43). In the opinion of Pontiki's mine foreman, the conditions cited 

in the inspector's order had been abated by the next day after the order 

was issued (Tr. 115). 

375 
18. When Pontiki's management was unable to obtain an inspector to 

check the conditions in the No, 5 Section on May 4, 1979, additional cleaning and rock dusting were done during the weekend, but much of that cleaning consisted of removal of loose coal which had sloughed off the ribs and 

was lying behind the roadway timbers (Tr, 132; 187). The inspector stated 

that his order was not intended to require the removal of material from 

behind the timbers (Tr. 67-71). The preponderance of the evidence shows 

that Pontiki's management demonstrated a good faith effort to achieve rapid 

compliance. 

Docket No. KENT 79-115-R 

The Validity of Underlying Citation No. 706762 

The first contention made in Pontiki's brief (pp. 24-27) is that underlying Citation No. 706762, on which Order No, 706444 is based, is invalid 

because it does not contain the finding of unwarrantable failure which is 

required by section 104(d)(l) of the Act. For all practical purposes, 

Pontiki is raising the question of whether MSHA Form 7000-3, which is used 

by inspectors for issuing citations and orders under the 1977 Act, is sufficiently specific to comply with the requirements of section 104(d)(l) 

when the inspector wishes to issue an unwarrantable failure citation, As 

Pontiki correctly points out, section 104(d)(l) unambiguously requires that 

"***if he [an authorized representative·of the Secretary] finds such violation to be caused by an unwarrantable failure of such operator to comply 

with such mandatory health or safety standards, he shall include such finding in any citation given to the operator under this chapter," 

Exhibit No. 3 in this proceeding is Citation No. 706762 issued by an 

inspector on April 3, 1979. Citation No, 706762 is written on MSHA Form 

7000-3. The inspector placed an "X" in a box at the top of the form to 

show that he was issuing a citation. Under the word "Citation" there 

appears in parentheses "See Reverse," If one turns the form over, he 

reads on the right side of the back of the form the following statement: 

CITATION/ORDER 

Pursuant to the Federal Mine Safety and Health Act of 1977, 

the undersigned Authorized Representative of the Secretary 

upon making an inspection or an investigation of the hereon 

designated mine on this date finds/believes that the following condition or practice exists, or has existed, in the 

mine area or on the equipment described hereon, 

Section 104(a) - Violation of the Act, mandatory 

health or safety standard, rule, 

order or regulation 

376 
Section 104(d)(l) 

Section 104(f) 

- Unwarrantable failure - could 

significantly and substantially 

contribute to health or safety 

hazard 

- Citation - exceeding respirable 

dust standard 

Beneath the word "Citation" on the front of the form, the phrase "Type 

of Action" appears. The inspector entered after "Type of Action" the numbers 

and letter "104-D." There is nothing on the front of the form to explain 

what the entry "104-D" means. If one turns the form over, he will find 

nothing on the back of the form which explains what "104-D" means, but he 

will find under the caption "Citation/Order," as quoted above, an explanation opposite "Section 104(ci)(l)" to the effect that section 104(d)(l) is 

associated with "unwarrantable failure." 

Beneath the words "Part and Section" on the front of the form, the 

inspector placed an "X" in a box after which there appears "S and S (See 

Reverse)." Again, if one turns to the back of the form, he will find 

opposite "Section 104(d)(l)" a statement indicating that a 104(d)(l) type 

of action involves a violation which "could significantly and substantially 

contribute to health or safety. hazard." 

Pontiki contends that the entries on Exhibit No. 3 or Form 700G-3, as 

described above, fall short of _compliance with section 104(d)(l) of the Act 

which requires that an inspector shall include a finding of unwarrantable 

failure "* * * in any citation given to the operator U\lder this chapter." 

MSHA's brief (p. 11) notes that the Commission stated in Secretary of 

Labor v. Jim Walter Resources, Inc., 1 F.M.S.H.R. Comm. Decisions 1827, 1829, 

that "(t]he primary reasons compelling the statutory mandate of specificity 

is for the purpose of enabling the operator to be properly advised so that 

corrections can be made to insure safety and to allow adequate preparations 

for any potential hearing on the matter." The issue in the Jim Walter case 

was whether the inspector's description of the "condition or practice" cited 

in his notice of violation was sufficiently specific to comply with section 

104(e) of the Federal Coal Mine Health and Safety Act of 1969, but the 

principle is the same, namely, whether Exhibit No. 3 sets forth a specific 

finding as to unwarrantable failure which satisfies the provisions of section 104(d)(l) of the 1977 Act. 

I find that Exhibit No. 3 complies with the "finding" requirements of 

section 104(d)(l). The front of Exhibit No, 3 informed Pontiki that Citation No. 706762 was being issued under section 104(d). Although the inspector did not add subsection (1) after his entry of section "104-D," his 

omission was not prejudicial to Pontiki because there is no entry on the 

back of Citation No. 706762 with which the inspector's reference to "104-D" 

could have been confused. Therefore, the back of Citation No. 706762 specifically stated that the inspector had found the existence of a condition 

377 
or practice which was described on the front of Citation No. 706762. The 

front of the citation also advised Pontiki that the citation was being 

issued under section 104-D and the back of the form clearly shows that any 

reference to "D" must pertain to section 104(d)(l) which is only associated 

with unwarrantable failure. The inspector's checking of "S and S" on the 

front of the citation was associated with a request that the operator examine 

the "reverse" or back side of the form. There, again, opposite "Section 

104(d)(l)," the form explained that "S and S" meant a significant and substantial violation which could contribute to a health or safety standard. 

I do not think that Pontiki's brief raises a question about whether 

the evidence in this proceeding would support a finding that the violation 

alleged in Citation No. 706762 was the result of unwarrantable failure on 

the part of Pontiki, but if such an issue is inherent in Pontiki's arguments, I believe that Finding No. 16, supra, supports the inspector's 

finding of unwarrantable failure in Citation No. 706762, assuming that 

unwarrantable failure has the meaning assigned to that term in Zeigler 

Coal Co., 7 IBMA 280, 295-96 (1977). 

MSHA's Request that I Find a Violation of Section 75.313 

At the hearing, I sustained an objection by Pontiki's counsel when 

MSHA's counsel asked the inspector whether Pontiki had demonstrated a good 

faith effort to achieve compliance after Citation No. 706762 was issued. 

I sustained the objection because my. order had consolidated for hearing in 

this proceeding only the civil -penalty issues pertaining to Order No. 706444. 

Since Pontiki's counsel had claimed that the underlying Citation No. 706762 

was invalid only for failure to make the findings required by section 

104(d)(l) of the Act, it did not occur to me that I should consolidate the 

the civil penalty issues with respect to underlying Citation No. 706762 with 

the civil penalty issues pertaining to Order No. 706444. 

In the preceding portion of this decision I have rejected Pontiki's 

argument that Citation No. 706762 failed to make the findings required by 

section 104(d)(l). Since Pontiki was not given notice that the civil penalty issues with respect to Citation No. 706762 would be considered at the 

hearing, I think that I must reaffirm my sustaining of Pontiki's objection 

to my considering in this proceeding the civil penalty issues with respect 

to Citation No. 706762. 

It is true that MSHA's brief (p. 7) argues that I may find a violation 

of section 75.313 on the basis of the evidence introduced by MSHA in this 

proceeding regardless of whether Pontiki was given notice that the civil 

penalty issues with respect to Citation No. 706762 would be considered at 

the hearing. MSHA's theory is that I may determine whether the violation 

of section 75.313 alleged in Citation No. 706762 occurred as a part of my 

consideration of Pontiki's arguments that Citation No. 706762 is invalid 

for failure to make the findings required by section 104(d)(l) because MSHA 

claims that one of the findings required by section 104(d)(l) is that the 

inspector find that a violation has occurred. While that may be true, it 

378 
is a fact that Pontiki did not raise the specific issue of whether a violation of section 75.313 occurred. Pontiki's objection to the underlying 

citation has always been directed to the question of whether the citation 

properly made the finding as to unwarrantable failure which is required by 

section 104(d)(l). 

In any event, it is a fact that my order did not consolidate for hearing in this proceeding the civil penalty issues associated with Citation 

No. 706762. The sole reason that MSHA requests me to find that a violation 

of section 75.313 occurred is to make my finding "res judicata" for the 

prospective civil penalty proceeding (MSHA's brief-:-P. 7). I do not believe 

I can ignore the clear provisions of my order providing for hearing and consider issues which my order failed to state would be considered. 

As I stated at the hearing, it was an oversight on my part not to have 

consolidated for hearing the civil penalty issues pertaining to Citation 

No. 706762. It has been my consistent practice to consolidate for hearing 

all civil penalty issues with the issues relating to the primary order or 

citation involved in proceedings initiated by applications for review or 

notices of contest, but this is the first proceeding I have had in which 

MSHA wished to have me consider the civil penalty issues associated with an 

underlying citation. It would be unfortunate if my lack of foresight in 

consolidating the civil penalty issues pertaining to Citation No. 706762 for 

hearing in this proceeding should result in the necessity of my having to 

hold a further hearing on the civil penalty issues raised by MSHA's Proposal 

for Assessment of Civil Penalty filed in Docket No. KENT 80-53 with respect 

to underlying Citation No. 706762. As explained below, I do not think that 

an additional hearing should be required to resolve the civil penalty issues 

remaining to be determined with respect to Citation No. 706762. 

Although the order accompanying this decision disposes only of the civil 

penalty issues raised by Order No. 706444, it is my opinion that this record 

contains the essential facts required for determining all civil penalty 

issues with respect to Citation No. 706762, provided counsel for the parties 

are agreeable to a resolution of the civil penalty issues on the basis of the 

record in this proceeding. The fact that evidence has been received with 

respect to Citation No. 706762 should not, of course, preclude the parties 

from settling the civil penalty issues raised with respect to Citation 

No. 706762, if they should be inclined to do so. 

I shall take no action in scheduling a hearing or deciding the civil 

penalty issues with respect to Citation No. 706762 until time for filing a 

request for discretionary review of my decision has expired. Within a reasonable time after review has either been granted or denied, counsel for 

the parties should advise me as to their wishes concerning the manner for 

disposition of the civil penalty issues. If I do not eventually receive 

an expression of opinion from counsel for the parties as to the method they 

would prefer for disposing of the civil penalty issues raised by Citation 

No. 706762, I shall schedule those issues for hearing. 

379 
The Validity of Order No. 706444 

The first argument in Pontiki's brief (p. 28) with respect to the 

invalidity of Order No. 706444 is that the order must fall because it was 

based on Citation No. 706762 which has been shown by Pontiki to be invalid. 

Since I have already held in a preceding portion of this decision that Citation No. 706762 was validly issued, I must necessarily reject Pontiki's 

first argument. 

The second argument raised by Pontiki's brief (pp. 28-29) "***is 

substantially identical to that made with respect to the underlying citation," namely, that Order No. 706444 is invalid because it failed to make 

the special findings which are required by the remainder of section 104(d)(l) 

which provides: 

* * * If, during the same inspection or any subsequent 

inspection of such mine within 90 days after the issuance 

of such citation, an authorized representative of the Secretary finds another violation of any mandatory health or 

safety standard and finds such violation to be also caused 

by an unwarrantable failure of such operator to so comply, 

he shall forthwith issue an order [of withdrawal] * * *· 

Since Pontiki's argument with respect to the invalidity of Order No. 

706444 is substantially identical to that made with respect to underlying 

Citation No. 706762, my determination as to the validity of Order No. 

706444 will also be nearly identical to that made with respect to Citation 

No. 706762. Order No. 706444 was received in evidence as Exhibit No. 5. 

Form 7000-3 used by the inspector in this instance for issuance of Order 

No. 706444 is, of course, identical to the form used for issuance of Citation No. 706762 except that the inspector correctly cited the type of action 

as 11 104(d)(l) 11 and checked the block at the top of the form indicating that 

he was issuing an order of withdrawal. When Exhibit No. 5 is examined on 

its reverse side in response to the suggestion on the front of the form to 

"See reverse," the following statement will be found on the left side of the 

back of the form: 

ORDER 

You are hereby ordered to cause immediately all persons, 

except those permitted under Section 103(j), 103(k) and/or 

104(c) of the Federal Mine Safety and Health Act of 1977, to 

be withdrawn from, and to be prohibited from, entering the 

area of the mine described hereon until an Authorized Representative of the Secretary determines that the danger(s) and 

its causes no longer exist, the violation(s) of the mandatory 

health or safety standards have been abated or the emergency 

has been eliminated. 

380 
Section 104(b) 

Section 104(d)(l) 

Section 104(d)(2) 

* * * 

- Failure to abate a violation 104(a) 

or (d)(l) in the time period given 

- Unwarrantable failure - subsequent 

to 104(d)(l) citation during the 

same inspection or within 90 days 

after issuance of 104(d)(l) citation 

- Unwarrantable ·failure violation -

subsequent to issuance to 104(d)(l) 

order - subsequent inspection - no 

intervening inspection of the mine 

in its entirety which has disclosed 

no further unwarrantable violation 

* * * * * * 

An examination of Exhibit No. 5 shows that the inspector checked that 

an order of withdrawal was being issued under section 104(d)(l) of the Act 

and the reverse side of Exhibit No. 5 explained to Pontiki that the order 

involved a finding that the violation was the result of unwarrantable failure found during the same inspection or within 90 days after the issuance 

of Citation No. 706762. Exhibit No .• 5 clearly made all the preliminary 

findings which are required to comply with the provisions of section 

104(d)(l) of the Act insofar as they pertain to the issuance of an order. 

Although the former Board of Mine Operations Appeals has held that the violation cited in an order issued under section 104(c)(l) of the 1969 Act does 

not have to be a violation which would significantly and substantially contribute to the cause or effect of a health or safety standard (Zeigler Coal 

Co., 6 IBMA 182 (1976); Old Ben Coal Co., 6 IBMA 229 (1976); Old Ben Coal 

CO:-, 6 IBMA 234 (1976); Old Ben Coal Co., 7 IBMA 224 (1976); and Alabama 

"BY=°Products Corp., 7 IBMA 85 (1976)), the inspector checked the "Sand S" 

block on Order No. 706444 because he believed the violation of section 

75.403 cited in the order was a significant and substantial violation which 

could significantly and substantially contribute to the cause and effect of 

a health or safety standard (Finding No. 15, supra). 

Based on the examination of Order No. 706444 set forth above, I find 

that the order contained th~ special findings required by section 104(d)(l) 

of the Act and was therefore a valid order. 

The third argument made in Pontiki's brief (pp. 29-31) is that the violation of section 75.403 cited in Order No. 706444 was not proven. As 

indicated in Finding No. 5, supra, Order No. 706444 cited Pontiki for having 

inadequate rock dust in all seven entries and connecting crosscuts in the 

No. 5 Section of the mine. Pontiki points to the fact that the inspector's 

order of termination stated that loose coal and coal dust were removed from 

the No. 5 Section and that entries Nos. 1 through 7 and connecting crosscuts 

were adequately rock dusted. Pontiki then refers to its own witnesses' testimony to the effect that there were loose coal accumulations in the No. 5 

381 
Section and concludes from such evidence that since there was a violation of 

section 75.400 in the No. 5 Section, the inspector incorrectly cited Pontiki 

for a violation of section 75.403. 

One of the difficulties I have with Pontiki's argument that the existence of a violation of section 75.400 precludes an inspector from citing 

Pontiki for a violation of section 75.403, is the fact that three of 

Pontiki's own witnesses, including one who had previously been an MSHA 

inspector for 3 years, stated unequivocally that there was inadequate rock 

dust on the floor in the No. 5 Section (Finding No. 12, supra). Obviously, 

the inspector could have cited Pontiki for a violation of section 75.400 

in the same order in which he cited Pontiki for a violation of section 

75.403. Thus, it is quite immaterial that the floor in the No. 5 Section 

contained loose coal accumulations so long as the evidence also showed that 

Pontiki had failed to apply an adequate amount of rock dust to the floors 

as required by section 75.403. 

Section 75.403 provides as follows: 

Where rock dust is required to be applied, it shall be 

distributed upon the top, floor, and sides of all underground 

areas of a coal mine and maintained in such quantities that 

the incombustible content of the combined coal dust, rock 

dust, and other dust shaH not be less than 65 per centum 

[in intake entries] * * *· [Emphasis supplied.] 

All the entries in which the inspector obtained a total of three samples 

were in intake air and two samples, when analyzed, showed an incombustible 

content of 35 percent and one sample had an incombustible content of 31 percent. The inspector's order cited a lack of rock dust in only those areas 

where rock dusting is required, that is, the areas were more than 40 feet 

from the working face, they were not too wet or too high in incombustible 

content to propagate an explosion, they were not inaccessible or unsafe to 

enter, and they had not been exempted from rock dusting by the Secretary 

(Tr. 93-94). Inasmuch as section 75.403 requires that an adequate amount 

of rock dust be "maintained" in the entries and crosscuts cited in Order 

No. 706444, Pontiki was not exempt from having the entries and crosscuts 

rock dusted just because its witnesses testified that an excessive amount 

of loose coal and coal dust had been permitted to accumulate. Pontiki was 

required by section 75.400 to keep the loose coal cleaned up and was also 

required by section 75.403 to apply sufficient rock dust to maintain the 

incombustible content at 65 percent in intake entries. The inspector 

believed the loose coal accumulations of about 1 inch were sufficiently 

thin that the area could be rendered 65 percent incombustible by application of rock dust alone without any cleaning (Finding Nos. 8 and 18, 

supra). If he had also believed that the loose coal needed to be cleaned 

up before rock dust could be applied, he could have cited Pontiki for a 

violation of section 75.400 and also for a violation of section 75.403. 

The fact that the inspector elected to cite Pontiki for only one violation 

instead of two does not make his order invalid for failing to cite both 

violations. 

382 
Perhaps the most unsatisfactory aspect of the evidence presented by 

MSHA to prove that a violation of section 75.403 existed is the question 

of whether the in.spector' s three samples were really representative of 

the conditions which existed throughout the seven entries and connecting 

crosscuts cited in the inspector's order (Pontiki's Brief, p. 31). The 

evidence unequivocally shows that all three samples were taken within the 

second crosscut from the face, or within a few feet of that crosscut in 

the Nos. 2 and 3 entries. Thus, the samples proved that the floor in the 

second crosscut from the face had an incombustibility of from 31 to 35 percent (Finding No. 7, supra). The inspector believed that those three samples were representative of conditions throughout all seven entries and 

connecting crosscuts, but his credibility would have been considerably 

enhanced if he had taken his samples farther apart than he did. 

The inspector's testimony was, however, corroborated by the testimony 

of Pontiki's safety director who had been an MSHA inspector for about 

3 years before he began working for Pontiki. The safety director was 

traveling with the inspector when the inspector stated that he was going 

to issue a "(d)" order citing Pontiki for a violation of section 75 .403. 

Pontiki's safety director candidly stated that he agreed that Pontiki had 

violated section 75.403 (Finding No. 12, supra). Pontiki's safety director 

was of the opinion that the inspector should have taken additional samples 

and that the violation was not the result of unwarrantable failure, but he 

readily agreed that a violation of section 75.403 had occurred. Additionally, two of Pontiki's foremen stated that an inadequate amount of rock dust 

had been applied to the mine floor and they specifically stated that the 

machine duster used on the maintenance shift did not apply as much rock dust 

to the floor of the mine as was desirable (Finding Nos. 13 and 14, supra). 

Therefore, I find that the preponderance of the evidence shows that a violation of section 75.403 occurred as cited in Order No. 706444 (Finding Nos. 

3 through 9 and 12 through 14, supra). 

The fourth argument made in Pontiki' s brief (pp. 32-39) is that, · assuming, arguendo, that a violation of section 75.403 occurred, the violation 

was not the result of an unwarrantable failure by Pontiki's management. 

Many of the factual arguments advanced by Pontiki in support of its argument 

that MSHA failed to prove that the violation was the result of unwarrantable 

failure have been answered in my discussion above of the issue as to whether 

a violation of section 75.403 was proven. I agree that Pontiki's brief 

correctly cites the language from the former Board's Zeigler opinion for.the 

correct definition of the words "unwarrantable failure," namely (7 IBMA at 

295-96): 

* * * an inspector should find that a violation of any mandatory standard was caused by an unwarrantable failure to comply with such standard if he determines that the operator 

involved has failed to abate the conditions or practices constituting such violation, conditions or practices the operator knew or should have known existed or which it failed to 

abate because of a lack of due diligence, or because of 

indifference or lack of reasonable care. [Emphasis supplied.] 

383 
Pontiki's brief also correctly quotes one of the inspector's answers in 

response to questioning done to elicit from the inspector his understanding 

of the words "unwarrantable failure" (Br., p. 32 and .Tr. 27): 

Unwarrantable failure on the part of an operator is a 

violation of a law where a condition exists at the mines 

which could add substantially and significantly to the 

health and safety of the miners. The operator knows the 

condition exists and yet is doing nothing to correct it. 

Or it can be a condition that exists where the operator 

knows or through diligent effort should have known the 

condition existed yet he was doing nothing to correct it. 

This is what I consider unwarrantable; it's a condition 

the operator knows exists. 

Inasmuch as the inspector practically quoted one of the definitions of 

unwarrantable failure given in the Board's Zeigler opinion, supra, it is 

difficult to determine any defects in the inspector's rationale for finding 

that the violation cited in his order was the result of an unwarrantable 

failure to comply. Pontiki, therefore, resorts to language in the Zeigler 

opinion in which the Board indicated that the inspector's judgment that 

unwarrantable failure existed must be based on a thorough investigation and 

must be reasonable in light of the peculiar relevant facts and circumstances 

which existed at the time the .inspector writes an unwarrantable failure 

order. Pontiki argues that the inspector's finding of unwarrantable failure 

was not based on a thorough investigation or reasonable conclusions because 

he did not walk the complete length of all the entries and connecting crosscuts cited in his order and because he did not inquire about the efforts 

which Pontiki's management was making to maintain an adequate coating of 

rock dust in the No. 5 Section (Br., pp. 34-36). 

Although the inspector did not walk the entire length of each of the 

entries cited in his order (Finding No. 6, supra), he did inspect the face 

area, including walking through the last open crosscut and the second open 

crosscut from the face. He did walk back to the feeder and he did look 

down each of the entries. While he may not have been able to see a total 

distance of 360 feet with great precision while having only his cap light 

for illumination, it is quite probable that he could distinguish between 

the blackness of the floor and the whiteness of the roof and ribs for a 

distance of 360 feet. His order was primarily based on what he saw in the 

last two crosscuts and the fact that the floor appeared black everywhere 

he looked. Therefore, his testimony that he could see for a distance of 

360 feet for the purpose of determining the condition of the floor is a 

credible statement. 

It should be recalled that the inspector entered the mine about 

4:15 p.m. or shortly after the second shift went to work at 4:00 p.m. (Tr. 

136). The inspector issued his unwarrantable failure order at 6:05 p.m. 

after an examination of the No. 5 Section which had lasted about 1-1/2 hours. 

Pontiki's safety director testified that 190 shuttle cars of coal had been 

384 
produced in the No, 5 Section during the day shift which had ended just a 

few minutes before the inspector began his examination of the No. 5 Section 

(Tr. 142). I have never had a case in which anyone estimated the amount of 

coal hauled by shuttle cars to be less than 5 tons, and most of the time, 

the tonnage is estimated at 8 tons. Since all witnesses agreed that the 

shuttle cars in the No, 5 Section had been loaded so high that coal spilled 

off of them on the way to the feeder, it is likely that the 190 shuttle cars 

produced on the No, 5 Section during a single shift were hauling 8 tons 

each, In any event, the cars would have hauled from 950 tons (190 x 5) to 

1,520 tons (190 x 8), The four producing sections in the No. 5 Mine produce a total of about 3,500 tons of raw coal per day, Therefore, the production of about 1,000 tons of coal during a single shift on a single 

section was a remarkable achievement, Moreover, even if the 190 cars 

only hauled 1 ton of coal each, just the process of loading and unloading 190 cars within an 8-hour period was a phenomenal accomplishment, 

Pontiki's brief emphasizes that management had a very fine program for 

cleaning and rock dusting in the No, 1 Mine (Finding No. 11, supra), All 

three of Pontiki's foremen testified, however, that they were having a great 

many roof-control problems in the No, 5 Section and that much of their 

time was being spent in installing supplemental roof support in addition to 

the normal roof-bolting configuration, They further stated that when both 

a need for supporting the roof and a need for rock dusting occurred simultaneously, they gave priority to supporting the roof (Finding No. 10, supra), 

Three of Pontiki's witnesses also testified that they were not applying--asmuch rock dust to the floor as was desirable (Finding No. 13, supra). 

Pontiki's chief foreman, in describing their difficulties in keeping the 

floor cleaned and rock dusted in the No, 5 Section, stated (Tr. 105): 

Well, what I seen was just the ribs rolling off, And, 

well, the seam of coal was I guess all across the face from 

seven to nine feet and when a piece would tumble off it 

would almost close the roadway, if you know what I mean. 

Sometimes it would fall twenty foot long and clear across 

the road, but we had all kinds of trouble with that. We 

done everything I could and I guess just failed, that's all. 

It is easy to understand why Pontiki's management thought that the 

inspector's finding of unwarrantable failure was unfair, The record shows 

that management had procedures which should have assured that the roof in 

the No. 5 Section was controlled and that the section was properly cleaned 

and rock dusted (Findings Nos. 10 and 11, supra). Nevertheless, in my 

opinion, there was at least one defect in management's plan, namely, an 

unreasonable and excessive reliance was placed on the ability of the operators of the scoop to bring in supplies, clean up excess coal, and apply 

rock dust to the floor during the production shifts, It was the duty of 

the scoop operator to bring in roof bolts, rock dust, and other supplies 

at the beginning of each shift, After he had finished bringing in supplies, it was his duty to clean uPl:OQse coal accumulations and apply rock 

385 
dust to the floor by hand. The maintenance shift, which worked from midnight to 8 a.m., was responsible for machine dusting the roof, ribs, and 

floor. While they were supposed to apply rock dust .to the floor, they did 

not apply as much as was desirable (Finding Nos. 12 and 13, supra). 

Since management was having difficulty in supporting the roof and since 

extra time was needed to maintain the roof, the evidence clearly supports 

a finding that management was not giving as much attention to cleaning and 

rock dusting as was required in the circumstances. In every instance, it 

was the scoop operator's duty to clean and rock dust after he had completed 

bringing in supplies. In other words, Pontiki's management was placing primary emphasis on producing coal rather than in maintaining a completely 

safe operation. At the beginning of the shift on which the inspector's 

order was issued, one of Pontiki's shift foremen had made an inspection of 

the section before the inspector arrived and he had concluded that the section needed cleaning and rock dusting (Tr. 175). Despite the fact that 

management knew an inadequate amount of rock dust was being applied to the 

floor and that excessive coal needed to be cleaned up, management was continuing to produce 190 shuttle cars of coal per shift, instead of stopping 

production long enough to clean up the section and apply an adequate 

amount of rock dust. It makes very little difference if miners are protected from having the roof fall on them if, while standing under a perfectly safe roof, they are killed or injured by a coal dust explosion. 

A preponderance of the evidence supports the inspector's finding that 

management knew an inadequate amount of rock dust had been applied and yet 

management was not making sure ~hat the section was cleaned and rock dusted 

as required by section 75.403. Therefore, I find that the inspector properly found that the violation of section 75.403 cited in Order No. 706444 

was the result of unwarrantable failure. Since Order No. 706444 has successfully withstood all of Pontiki's arguments, the order accompanying this 

decision will hereinafter affirm Order No. 706444. 

Docket No. KENT 80-53 

MSHA's Proposal for Assessment of Civil Penalty was filed on January 15, 

1980, seeking assessment of civil penalties for the violations of sections 

75.313 and 75.403 alleged in Citation No. 706762 and Order No. 706444, 

respectively. As I have already explained on page 10 of this decision, 

supra, my order setting this case for hearing did not consolidate the civil 

penalty issues raised with respect to underlying Citation No. 706762. Therefore, my decision in this proceeding will deal only with the civil penalty 

issues concerning Order No. 706444. 

I have hereinbefore found that the violation of section 75.403 alleged 

in Order No. 706444 occurred. I shall hereinafter consider the six criteria 

set forth in section llO(i) of the Act so that an appropriate civil penalty 

may be assessed for the violation of section 75.403 cited in Order No. 

706444. 

386 
Size of Respondent's Business 

On the basis of Finding No. 1, supra, I find that Pontiki is a large 

operator and that the civil penalty to be assessed in this proceeding 

should be in an upper range of magnitude insofar as it is determined under 

the criterion of the size of respondent's business. 

Effect of Penalties on Operator's Ability To Continue in Business 

Pontiki's counsel did not present any evidence at the hearing with 

respect to Pontiki' s financial condition. In Buffalo Mining Co., 2 IBMA 

226 (1973), and in Associated Drilling, Inc., 3 IBMA 164 (1974), the 

former Board of Mine Operations Appeals held that when a respondent fails 

to present any evidence concerning its financial condition, a judge may 

presume that payment of penalties would not cause respondent to discontinue 

in business. In the absence of any specific evidence to the contrary, I 

find that payment of penalties will not cause Pontiki to discontinue in 

business. 

Good Faith Effort To Achieve Rapid Compliance 

On the basis of Finding Nos. 17 and 18, supra, I find that Pontiki 

demonstrated a good faith effort to achieve compliance and Pontiki will be 

given full credit for that mitigating factor in the assessment of a civil 

penalty. 

History of Previous Violations· 

At the hearing, MSHA's counsel introduced as Exhibit No. 2 a 53-page 

computer printout which lists previous violations at all the mines controlled 

by Mapco, Inc. (Finding No. 1, supra). I stated at the hearing that it has 

been my practice to consider only the history of previous violations of the 

individual mine in which a given violation is found to have occurred (Tr. 7). 

MSHA's brief (pp. 3 and 24-25) argues that I am obligated to consider Mapco, 

Inc.'s, total history of previous violations rather than the previous violations which have occurred only at Pontiki's No. 1 Mine where the violation 

of section 75.403 here involved occurred. MSHA's argument is primarily 

based on a claim that sec.tion 110( i) of the Act provides for consideration 

to be given to"*** the operator's history of previous violations," 

rather than for consideration to be given to the history of previous violations which have occurred at a single mine. MSHA contends that a greater 

deterrent against continued violations will be achieved if top management is 

held responsible for all of its subsidiaries' history than will be achieved 

if only a single mine is considered at a given time. 

I do not have a closed mind on the subject. There may be cases in 

which it would be beneficial to consider the controlling company's history 

of previous violations rather than to consider only the previous violations 

which have occurred at the mine under consideration for a specific violation. In each proceeding, a judge must use the evidence which the parties 

387 
have presented. 

vious violations 

has considered a 

If the evidence concerning the controlling company's preis limited, there is no way for the judge to show how he 

given respondent's history of previous violations. 

In this proceeding, for example, Exhibit No. 2 indicates that Mapco, 

Inc,, which controls Pontiki and four other coal companies, has a history 

of previous violations totaling 2,089 violations. The fact that Mapco's 

subsidiaries have violated various regulations on 2,089 occasions, by 

itself, means nothing. That figure does not reveal whether Mapco' s viola·-

tions are greater or less than the violations committed by other control·-

ling companies of comparable size. Exhibit No. 2 does not indicate how 

many tons of coal are produced in the nine mines which are controlled by 

Mapco. Exhibit No, 2 does not reveal how many sections of each mine are 

engaged in production. Exhibit No. 2 does not show how many production 

shifts exist at each mine nor how many employees work at each mine, 

The absence of statistical information prevents me from giving any 

meaningful consideration to Mapco's previous violations as a whole. For 

example, Exhibit No. 2 shows that Pontiki's No. 1 Mine has had 15 previous 

violations of section 75,403 over a period of 3 years, whereas the Retiki 

Mine of Webster Coal Company has had 14 previous violations of section 

75.403 over a period of 5 years, and the Dotiki Mine of Webster Coal Company has had 11 previous violations of section 75.403 over a period of 

6 years. The foregoing comparison would make it appear that Pontiki's 

previous violations are more adverse than those of its affiliated company, 

but I cannot make such a finding because I do not know how many sections 

produce coal in either the Retiki Mine or the Dotiki Mine, If those mines 

employ fewer miners and produce less coal than Pontiki's No. 1 Mine, their 

record of 14 and 11 previous violations of section 75.403 would be more 

significant and unfavorable than Pontiki's 15 previous violations of section 75.403. 

In short, until MSHA is able to introduce data of a more meaningful 

nature than those provided in Exhibit No, 2, there is no way for me to show 

how I have actually considered the criterion of history of previous violations with respect to a given controlling company's total history of previous violations. Moreover, I believe that top management will be as much 

deterred from allowing future violations to occur by a penalty assessed 

specifically for a given mine's adverse history of previous violations as 

it would be deterred by a penalty assessed for its overall adverse history 

of previous violations, Management would recognize from having to pay a 

civil penalty so determined that action taken by it to reduce or eliminate 

future repetitious violations at all mines would be likely to reduce any 

civil penalties that might result from any subsequent violations. 

As to the history of previous violations at Pontiki's No. 1 Mine, 

Exhibit No, 2 shows that there were two violations of section 75.403 in 1977, 

12 in 1978, and one in 1979 by January 4, 1979. I find that 12 violations 

of section 75.403 during a single year shows a very unfavorable history of 

previous violations, Therefore, the penalty hereinafter assessed will be 

388 
increased by $500 under the criterion of history of previous violations. 

That large a number of violations of section 75.403 tends to support the 

inspector's belief that Pontiki's management was becoming complacent about 

the need to maintain an adequate amount of rock dust to within 40 feet of 

the working faces (Tr. 39). 

Negligence 

The preponderance of the evidence shows that there was a high degree of 

negligence in respondent's violation of section 75.403. Management was producing coal at the rate of 190 shuttle cars per shift despite the fact that 

a greater amount of time and effort than normal was being exerted in controlling the roof. The effort to maintain a high productivity from the 

No. 5 Section, despite the roof-control problem, caused Pontiki's management to slight the need to exert as great an effort at cleaning and rock 

dusting as was being utilized to control the roof. Management's failure to 

keep the section clean and maintain an adequate amount of rock dust was the 

result of a considerable amount of indifference to adherence with section 

75.403. The criterion of negligence requires that a penalty of $2,000 be 

assessed (Finding Nos. 5, 7, 1-0, and 12 through 15, supra). 

Gravity 

Inasmuch as Pontiki's No. 1 Mine liberates about 454,000 cubic feet of 

methane in a 24-hour period (Finding No. 1, supra), the failure to maintain 

an adequate amount of rock dust exposed the miners to a serious threat of 

an explosion. At the time the inspector cited the violation of section 

75.403, he found that no dangerous amount of methane was present. Nevertheless, there was a potential for an explosion because the roof-bolting machine 

was being operated and respondent's shift foreman had just inspected the 

No. 5 Section and had recognized that the section was badly in need of cleaning and had directed that cleaning be done as soon as possible. The section 

foreman, however, had made no attempt to clean up or rock dust and no cleaning had been commenced up to the time that the inspector issued Order No. 

706444. In such circumstances, the miners had been exposed to a potential 

ignition for a considerable period of time and the lack of rock dust was 

necessarily a serious violation. Therefore, I find that a penalty of $1,000 

is required under the criterion of gravity (Finding No. 15, supra). 

A total penalty of $3,500 will hereinafter be assessed based on my 

findings above that $500 be attributed to Pontiki's history of previous 

violations, that $2,000 be attributed to Pontiki's negligence and that 

$1,000 be attributed to the gravity of the violation. The penalty would 

have been larger than $3,500 if Pontiki had failed to demonstrate a good 

faith effort to achieve rapid compliance. The penalty would have been 

less than $3,500 if Pontiki were not a large operator and if the evidence 

in this proceeding had shown that Pontiki's ability to continue in business 

would be adversely affected by having to pay civil penalties. 

389 
Ultimate Findings and Conclusions 

(1) Pontiki's application for review or notice of contest of Order 

No. 706444 dated May 3, 1979, should be denied and Order No. 706444 should 

be affirmed as having correctly cited a violation of section 75.403 and 

having properly found that the violation was the result of unwarrantable 

failure under section 104(d)(l) of the Act. 

(2) Underlying Citation No. 706762 issued April 3, 1979, and Order 

No. 706444 properly made the findings required by section 104(d)(l) of the 

Act and were validly issued. 

(3) MSHA's Proposal for Assessment of Civil Penalty filed in Docket 

No. KENT 80-53 should be granted to the extent that it seeks assessment of 

a civil penalty for the violation of section 75.403 alleged in Order No. 

706444 and a civil penalty of $3,500.00 should be assessed for that 

violation. 

(4) The portion of MSHA's Proposal for Assessment of Civil Penalty 

which seeks assessment of a civil penalty for a violation of section 75.403 

with respect to Order No. 706444 should be severed from the remainder of 

that Proposal and should be disposed of as provided for in paragraph 3 

above. The remaining portion oj MSHA's Proposal for Assessment of Civil 

Penalty in Docket No. KENT 80-53 which seeks assessment of a civil penalty 

for the violation of section 75.313 alleged in Citation No. 706762 should 

be scheduled for a hearing or should be decided on the basis of the record 

already made in this proceeding, depending upon the requests which are 

hereafter received from the parties to the proceeding in Docket No. KENT 

80-53. 

(5) Pontiki Coal Corporation is subject to the provisions of the Act 

and to the regulations promulgated thereunder (Tr. 96). 

WHEREFORE, it is ordered: 

(A) Pontiki Coal Corporation's application for review or notice of 

contest filed in Docket No. KENT 79-115-R is denied and Order No. 706444 

issued May 3, 1979, is affirmed. 

(B) MSHA's Proposal for Assessment of Civil Penalty filed in Docket 

No. KENT 80-53 is severed from the remainder of the Proposal and is granted 

to the extent specified in paragraph (3) above. Pontiki Coal Corporation 

is ordered, within 30 days from the date of this decision, to pay a civil 

penalty of $3,500.00 for the violation of section 75.403 cited in Order 

No. 706444. 

390 
(C) MSHA's Proposal for Assessment of Civil Penalty, insofar as it 

seeks assessment of a civil penalty for the violation of section 75.313 

alleged in Citation No. 706762 will be disposed of as provided for in 

paragraph (4) above. 

Distribution: 

~st?tf:T£fhr Administrative Law Judge 

(Phone: 703-756-6225) 

William H. Howe, Esq., and Timothy J. Parsons, Esq., Attorneys for 

Pontiki Coal Corporation, Loomis, Owen, Fellman & Howe, 2020 K 

Street, NW, Washington, DC 20006 (Certified Mail) 

John H. O'Donnell, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

391 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520..5: LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 1 2 19fl!' 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADHINISTRATION (MSHA) , Docket No. HOPE 78-744-P 

Petitioner A.C. No. 46-03467-02070 

v. 

Meadow River No. 1 Mine 

SEWELL COAL COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION 

Edward H. Fitch, Esq., Office of the Solicitor, Department 

of Labor, for Petitioner; 

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

O'Farrell, Charleston, West Virginia, and Gary W. Callahan, 

Esq., Lebanon, Virginia, for Respondent. 

Judge Lasher 

This proceeding arises under section 109 0-f the Federal Coal Mine 

Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1970), hereinafter 

the Act. 1/ Under section 30l(c)(3) of the Federal Mine Safety and Health 

Act of 1977, '!:._/proceedings such as this which were pending at the time the 

1977 Act took effect are to be continued before the Federal Mine Safety and 

Health Review Commission. 

STIPULATIONS 

The parties entered the following stipulations: 

1/ Section 109(a)Il) states, in part, as follows: 

"The operator of a coal mine in which a violation occurs of a mandatory 

health or safety standard or who violates any other provision of this Act, 

except the provisions of Title 4, shall be assessed a civil penalty by the 

Secretary under paragraph (3) of this subsection which penalty shall not be 

more than $10,000 for each such violation. Each occurrence of a violation 

of a mandatory health or safety standard may constitute a separate offense 

* * *·" 

Jj 83 Stat. 742, 30 U.S.C. § 801 ~seq. 

392 
1. Notices of Violation 2 HSG (8-0004) issued February 12, 1978, and 

1 HSG (8-0005) issued February 14, 1978, are the subjects of this proceeding 

(Tr. 5). 3/ 

2. The presiding judge has jurisdiction in this matter. 

3. Sewell Coal Company, a subsidiary of the Pittston Company, is the 

operator of the Meadow River No. 1 Mine located at Lookout, Fayette County, 

·west Virginia (Tr. 5). The Meadow River No. 1 Mine was, at the time of the 

issuance of the two notices, subject to the provisions of the Federal Coal 

Mine Health and Safety Act of 1969, and the regulations promulgated thereunder (Tr. 5-6). The Meadow River No. 1 Mine is subject to the provisions 

of the Act and the regulations promulgated thereunder (Tr. 6). 

4. Respondent is a large operator (Tr. 6). !±_/ 

5. At the time the notices of violation were issued, Respondent's 

union employees, members of the United Mine Workers of America, were on 

strike. This strike began on December 6, 1977, and continued until March 17, 

1978 (Tr. 6). 

6. The UMWA employees had been on strike for over 2 months prior to 

the issuance of the notices of violation (Tr. 6). 

7. Homer S. Grose was a duly authorized representative of the Secretary 

at all times relevant to the issuance of Notic~s of Violation Nos. 2 HSG 

and 1 HSG. True and correct copies of the notices of violation were served 

on Respondent (Tr. 6). 

8. At approximately 9:50 a.m. on February 13, 1978, Inspector Grose 

issued Notice of Violation No. 2 HSG to Sewell for an alleged violation of 

30 CFR § 75.1704. The condition or practice alleged was Respondent's 

failure to maintain a designated intake escapeway to insure passage at all 

times of any person~ including disabled persons. The alleged impediment to 

3/ Notice No. 2 HSG (8-0004) alleges that Respondent violated 30 CFR 

75.1704 by failing to maintain a designated intake escapeway to insure the 

passage of any person at all times, because of water ranging from 0 to 

16 inches in depth. Notice No. 1 HSG (8-0005), alleges that Sewell violated 

30 CFR 75.200 because of the occurrence of fractured and loose roof in the 

No. 1 section above the No. 1 entry roadway just inby the last open crosscut 

and extending inby approximately 30 feet. 

4/ At the time pertinent herein, Sewell's payroll was 203 underground 

enployees (which figure includes supervisory personnel). During the strike 

only 33 supervisory personnel worked (Tr. 85-86). Approximately 15 worked 

on the day shift, 10 on the second shift, and 8 on the third shift. Other 

personnel could not be hired because of the economic strike (Tr. 111-113, 

124) which was in progress at the time. 

~93 
travel was a water accumulation from 0 to 16 inches in depth for about 

40 feet in the designated escapeway (Tr. 6-7). 

9. At approximately 9:30 a.m., on February 14, 1978, Inspector Grose 

issued Notice of Violation No. 1 HSG to Respondent for an alleged violation 

of 30 CFR § 75.200. The condition alleged was fractured and loose roof 

in the No. 1 section above the No. 1 entry roadway just inby the last open 

crosscut and extending in toward the face approximately 30 feet. The roof 

was a shale material with loose rocks between the resin roof bolts, some of 

which had allegedly fallen in this area (Tr. 7). 

10. The conditions cited in Notices of Violation Nos. 1 HSG and 

2 HSG did exist (Tr. 7). 

11. Respondent demonstrated good faith in abating Notices of Violation 

Nos. 1 HSG and 2 HSG and both notices were subsequently terminated (Tr. 7). 

12. For the purposes of this proceeding, the Meadow River No. 1 Mine 

has a moderate history of previous violations (Tr. 7). 

Although not by stipulation, Respondent concedes that payment of penalties for the two alleged violations would not interfere with its ability 

to continue in business (Tr. 48). 

FINDINGS OF FACT 

Sewell's Meadow River No. 1 Mine is a six-section coal mine entered by 

two shafts and one slope (Tr. 26). Mining is performed in the Sewell seam 

of coal and the Sewell Meadow River No. 1 Mine has approximately 25 miles 

of entries in such seam (Tr. 83). The entries are approximately 20 feet 

wide and 4-1/2 feet high (Tr. 24, 83), and are connected to adjacent entries 

by crosscuts (Tr. 82-83; R-1) which provide ventilation for the entries (Tr. 

82). The roof above the coal seam is of a glassy shale type which is subject to fracture (Tr. 53, 84). The floor of the mine is undulating (dips 

up and down) and the mine itself is very "wet" in that it accumulates 

500,000 gallons per day (Tr. 24, 84, 85). 

Inspector Grose and his fellow inspectors were instructed to conduct 

inspections of all the coal mines within the jurisdiction of their field 

office for the purpose of finding violations and hazardous conditions so 

that the operators would give "priority in eliminating these from the mines 

as soon as the miners return to work" after the strike (Tr. 21, 22). ~_/ 

5/ Inspector Grose testified: 

"During the strike period, the abatement process is more liberal. We 

do not try to force management personnel to do manual labor and labor related 

activities in the mines. We give them an extended period of time. In some 

instances, if the original time as set expires before the work force returns, 

there are extensions given extending the time 'til the workforce does 

394 
An accumulation of water on the floor of an escapeway Hforty feet long" 

and "zero to 16 inches" deep led Inspector Grose to issue Notice No. 2 HSG 

(8-0004) Tr. 24, 31). Inspector Grose admitted that this was not a "particularly serious" condition (Tr. 30) and that "***the mine deteriorates 

a little more rapidly during work stoppages" (Tr. 34). 

Slips and cracks in the mine roof, fallen rock, and rock which was ready 

to fall led the inspector to issue Notice No. 1 HSG (8-0005) (Tr. 37). This 

was a serious condition which could have caused a fatality or serious injury 

(Tr. 37). 

During the strike period (see Stipulation #5, supra), MSHA (MESA) 

inspectors were instructed to be more liberal with respect to granting abatement time and to help the mine operator find hazardous conditions during the 

strike since the operator has "fewer personnel and only management personnel" 

employed (Tr. 21-23, 52-54, 56, 57). The inspectors were also instructed not 

"to insist on management complying with" abating violations since this would 

be an interference with labor and management and would force management to 

perform manual labor (Tr. 21, 22, 57). Inspector Grose thought the strike 

would be over by the time he set for abatement (Tr. 58). 

During a strike, a mine deteriorates rapidly because it does not get 

attention to minor problems since there are insufficient personnel to perform the repairs (Tr. 90, 92). The conditions cited in the two notices of 

violation were the result of natural deterioration in the mine (Tr. 91-93, 

119) and there were an insufficient number of personnel at the mine to 

accomplish the elimination of such conditions during the strike (Tr. 91, 

111-113, 120). 

The mine was not sealed by Respondent during the strike because flooding 

and massive roof falls would probably occur, equipment would deteriorate, 

and a permit for reopening the mine might have taken a year because of 

changing legal requirements (Tr. 525, 526). 

During the strike no coal production was undertaken (Tr. 90). The 

supervisory personnel who worked were occupied in "fixing up hazard conditions," such as rock dusting and pumping, and also timbering and ventilation 

work (Tr. 90-91). There were not sufficient supervisory personnel available 

during the strike to eliminate all the conditions which occurred in the mine 

fn. 5 (continued) 

return." Respondent was given 14 days to abate the two notices involved. 

Abatement of both, however, was accomplished within 2 days. The two 

notices were issued during MESA's first inspection of the mine during the 

strike-after the strike had been in progress approximately 2 months (Tr. 

36). 

395 
as a result of natural deterioration which might constitute violations (Tr. 

85, 96, 90, 91,·93, 102). §.../ 

The supervisors conducted preshift examinations only of the areas 

where they were assigned to work on a given day during the strike (Tr. 87, 

106). Mine management followed the practice of correcting the most serious 

conditions first (Tr. 110, 127). 

DISCUSSION, ULTIMATE FINDINGS AND CONCLUSIONS 

Petitioner, MSHA, maintains that its policy was not to force management 

into performing manual labor during the strike. 7/ Yet, it did issue notices 

of violation during the strike and in this proceeding seeks a penalty. 8/ 

Respondent concedes the existence of the violative conditions (see Stip~lation No. 10, supra), but contends it was impossible to prevent such violations during the strike because of insufficient personnel. 

Impossibility of compliance became established in mine safety law as 

an affirmative defense to charges of mine safety violations by the Interior 

Department's Board of Mine Operations Appeals in its decision in Itmann Coal 

Company, 4 IBMA 61 (1975). In that matter, the mine operator, as the Respondent here, in effect conceded the existence of the violative conditions (a 

lack of various items of safety equipment) but argued that no violation 

should have been found because the equipment required by the regulations was 

not available. In Itmann, the Board affirmed its prior holding in Buffalo 

Mining Company, 2 IBMA 226m, 80 I.D. 630 (19731, that "* * * Congress did 

not intend that a section 104(b) notice be issued or a civil pepalty assessed 

where compliance with a mandatory health or safety standard is impossible due 

to unavailability of equipment, materials, or qualified technicians." 

6/ I have found the following testimony of Respondent's Division Safety 

Director to be persuasive: 

"Q. In your opinion, Mr. Given, based on your experience with Sewell 

for the thirteen years you've been employed there and your knowledge of the 

Meadow River No. 1 Mine, do you believe the number of employees at the 

Meadow River No. 1 Mine during the· strike were capable of eliminating all 

the conditions which occurred in the mine as a result of natural deterioration which might constitute violations of the Act? 

A. No, we did not have enough for that, I don't believe. 

Q. Can you generally summarize for the Court why? 

A. Well, the fact you have twenty-five miles of entry and crosscuts 

to look after. You know. We didn't have a work force there, and the people 

we were using weren't very experienced in doing these things. And it's just 

physically impossible for a fellow to cover all these areas and take care of 

every conceivable condition." (Tr. 91). 

7/ To avoid interfering with labor-management relations, and presumably, to 

avoid pressuring one of the parties involved in an economic strike to the 

benefit of the other. 

8/ The subject of safeguard notices--for which penalties are not sought--was 

raised at the hearing but not subsequently pursued by either party (Tr. 58). 

396 
The burden of establishing that compliance with the safety standards 

is impossible rests of course on the mine operator charged. Here, as the 

proponent of the rule, Respondent clearly carried its burden and established 

a prima facie case by its evidence that the mine was idled by an economic 

strike, that the mine deteriorates rapidly when idle due to natural forces, 

that the two violations charged occurred as a result of such natural deterioration, that the small complement of men (33 management personnel) available 

was insufficient to correct conditions in such a large mine (25 miles of 

entries and crosscuts), and that the realities of labor--management relations made it impossible to hire additional personnel to keep the mine violation--free during the prolonged period of its idleness. 

Petitioner failed to rebut Respondent's evidence in those respects. 

In contrast to the persuasive evidentiary presentation by Respondent, Petitioner failed to establish, even in a general way, how it would have been 

possible for Respondent to either prevent or correct the various physical 

problems occurring during the work stoppage. Petitioner's stated policy 

of not forcing management personnel to perform manuql labor during a strike 

seems to be in contradiction to its prosecution of this proceeding. 

I conclude that Respondent's position is meritorious and that the two 

notices of violation involved should be vacated. 

ORDER 

1. All proposed findings of fact and concl.usions of law proposed by 

the parties which are inconsistent with the foregoing are rejected. 

2. Notices of Violation 2 HSD (8-0004) issued February 12, 1978, and 

1 HSG (8-0005) issued February 14, 1978, are VACATED. 

: ~--""' . . .- .,.,/~ /.,. 

Y/:<~~£--~· //;:::: ,0'.~,& ·/' tf',. r' r· ~I •• ./ 

Michae 1 A. Lasher, "Jr., Judge 

Distribution: 

Edward H. Fitch, Esq., .Office of the Solicitor, U.S. Department of 

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

Gary W. Callahan, Esq., Sewell Coal Company, Lebanon, VA 24266 

(Certified Mail) 

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

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

397 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

FEB 1 2 1980 

CONROCK COMPANY, 

Applicant, 

v. 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

~~~~~~~~~~~~~~~~~~·) 

DECISION 

APPEARANCES: 

CONTEST OF CITATION 

DOCKET NOS. WEST 79-373-RM 

WEST 79-374-RM 

(CONSOLIDATED) 

CITATION NOS. 384009, 8/1/79 

384010, 8/1/79 

MINE: UPLAND PIT AND MILL 

Scott J. Walcott, Esq., 3200 San Fernando Road, Los Angeles, California 90065, 

for the Applicant. 

Marshall P. Salzman, Esq., Office of Daniel W. Teehan, Regional Solicitor, 

United States Department of Labor, San Francisco, California 94102, 

for the Respondent. 

Before: Judge John J. Morris 

Applicant, Conrock Company, seeks review of two citations alleging its workers 

were exposed to excessive noise concentrations in violation of 30 CFR 56.5-50. !/ 

1/ The cited standard provides in part as follows: 

56.5-50 Mandatory. (a) No employee shall be permitted an exposure to 

noise in excess of that specified in the table below. Noise level measurements shall be made using a sound level meter meeting specifications for 

type 2 meters contained in American National Standards Institute (ANSI) 

Standard Sl.4-1971, "General Purpose Sound Level Meters," approved April 27, 

1971, which is hereby incorporated by reference and made a part hereof, or by 

a dosimeter with similar accuracy. This publication may be obtained from 

the American National Standards Institute, Inc., 1430 Broadway, New York, 

New York 10018, or may be examined in any Metal and Nonmetal Mine Health 

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

Administration. 

Footnote 1_,/ Cont'u on Page 2 

398 
The citations were issued pursuant to Section 104(a) !.:__/ of the Federal Mine 

Safety and Health Amendments Act of 1977 (30 U.S.C. 801 ~ ~.). 

ISSUES 

The issues are whether the standard is impermissibly vagu~ and ~hether 

Conrock violated it. 

Conrock contends the excessive noise levels must be measured by the noise 

actually reaching the employee's ears. Further, Conrock asserts the standard in 

contest is unenforceably vague. Finally, Conrock argues that MSHA failed to meet 

its burden of proof in respect to Citation 384010. 

The contentions of Conrock and MSHA's counter arguments require a review of 

the uncontroverted evidence. 

Footnote 1/ Cont'd 

PERMISSIBLE NOISE EXPOSURES 

Duration Per Day, Sound Level dBA, 

Hours of Exposure Slow Response 

8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 

6 o 0 o o o G Q e e o 0 0 o Q o o o o o o o Clo o o o o D & Q o o o 0 o o o o 0 o o 0 o o o o a o o o o o o o o o o o o (Io O 92 

4 o o o o o o o o o o o o e o o o a" o o o o o o o o o o o o o o o o o o o o o o o 9 11 a o o o e o o o a 11 o o o o e o o 0 o 95 

3 0 0 0 0 0 0 0 0 0 0 0 0 o 0 0 0 0 0 0 P 0 0 0 0 0 0 o o 0 0 11 '1 O O GOO O O O O O O O O O O 0 0 O o O O O O O 0 (IO O 0 O 97 

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

1 1I2 . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 

1 0 Cl 0 0 0 0 0 6 ti 0 0 0 0 0 0 0 G Cl 0 & O 0 0 <> 0 0 0 0 Cl 0 0 0 II 0 & 0 0 0 o 0 O 0 O 0 0 O Cl 0 O O O 0 O O & 0 O O Ci1 O O O 105 

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

.l/4 or less ................................................•... 1.15 

No exposure shall exceed 1.15 dBA. Impact or impulsive noises shall not 

exceed .140 dB, peak sound pressure level. 

(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. 

2/ 30 u.s.c. 814 

399 
FINDINGS OF FACT 

CITATION 384009 

1. The noise exposure to Conrock's truck driver, who was wearing ear plugs, 

was 21.6 percent of permissible limit, or about 96 dBA (Tr 9-14, 26). 

2. A dosimeter was worn by the driver for 430 minutes; it measured an 

average exposure of between 95 and 96 dBA (Tr 11-14). 

3. Engineering controls to reduce the noise levels include a barrier at the 

firewall (Tr 21, 60). 

4. Holes in the floor could be plugged (Tr 21, 57). 

5. Most of the noise was coming from in front of the driver's feet (Tr 42-43). 

6. The cost of the controls would not exceed $200; companies selling 

insulating material also make engineering recommendations (Tr 62). 

7. Controls on the truck, if implemented, would reduce the noise level to 

within permissible limits. 

8. Conrock implemented engineering controls on its Euclide truck at its 

Capistrano plant; these controls reduced the noise levels to within permissible 

limits (Tr 73-74, R4, RS). 

CITATION 384010 

9. A noise sampling was taken by the plant operator who is stationed near 

one of the sizing screens and the crusher (Tr 22, 23). 

10. Most of the time the plant operator, who was wearing earplugs, was 

outside of his metal 3 X 5 X 6 foot high metal shack; the uninsulated shack was 

3 to 4 feet from the shaker screen (Tr 23, 26). 

11. The greatest amount of noise came from the shaker screen (Tr 24). 

12. Sampling for 485 minutes, an 8 hour shift, indicated a noise level at 

165 percent of the permissible limit (Tr 24, 53). 

400 
13. Engineering controls for the plant operator include installing a 

barrier, insulating the shack, or moving it, (Tr 62-63). 

14. MSHA recommendations, if implemented, would reduce the nois~ levels 

to within permissible limits at a cost of $200 to $300 (Tr 64). 

DISCUSSION 

For the reasons hereafter stated, I dismiss the contests filed herein. 

Conrock's initial contention is that MSHA must measure the alleged violation 

·by the noise actually reaching the worker's ears. The thrust of Conrock's 

argument seeks to place personal protective equipment, such as ear plugs, before 

feasible administrative or engineering controls. 

The plain wording of Section 56.5-50(b) is directly contrary to Conrock's 

contention. The section initially requires administrative or engineering controls. 

If they do not reduce the noise levels, then personal protective equipment is 

required. The rationale for this approach appears to lie in the fact that workers 

prefer not to use ear plugs. In addition, the ear plugs are not always fitted 

properly. Further, ear plugs cannot eliminate all frequencies of noise (Tr 66-67). 

Applicant's second contention attacks the vagueness of the standard in 

regards to its requirement of "feasible administrative or engineering controls." 

The test of vagueness is whether the standard is so indefinite that men of 

common intelligence must necessarily guess at its meaning and differ as to its 

application, Allis-Chalmers Corporation v. Occupational Safety and Health Review 

Connnission 542 F2d 27 (7th Cir., 1976). 

Applicant's reliance on Hilo Coast Processing Company v. Secretary of 

Labor, MSHA DENV 79-50-M is misplaced. Commission Judge Charles C. Moore, Jr., 

did not rule the standard invalid but he indicated MSHA failed to prove that the 

401 
recommended engineering controls were technically and economically feasible. 

Further considering vagueness compare Brennan v. OSHRC ~ND Santa Fe Transport 

Company 505 F2d 869, (10th Cir., 1974). 

Applicant cites three Occupational Safety and Health Review Commission (OSHRC) 

cases in support of its argument that "the vagueness issue has not been put to bed 

by OSHRC." I disagree, OSHRC has repeatedly ruled that the Occupational Safety and 

Health Standard 'i/ relating to noise exposure was not vague, cf Secretary of Labor 

)_/ The Occupational Noise Exposure Standard, 29 CFR 1910.95 reads in part as 

follows: 

(a) Protection against the effects of noise exposure shall be 

provided when the sound levels exceed those shown in Table G-16 

when measured on the A scale of a standard sound level meter at 

slow response. When noise levels are determined by octave band 

analysis, the equivalent A-weighted sound level may be determined 

as follows: 

TABLE G-16 PERMISSIBLE NOISE EXPOSURES! 

Duration Per Day, Sound Level dBA, 

Hours of Exposure Slow Response 

8 . • • . . • . . • • • • • . . • • • . • • . • . • . . • • . . • • . . . • • . • . • • . • • . • . . . . • . . . • • . 90 

6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 2 

4 . . . . . • . . . . . . . . . . • . . . . . • • . . . . . . . . . . . . . . . • . • . . . . . . . . . . . . • . • • . 95 

3 • • . . • • • . • . . . . . . . . • . • . . • . • . . . . . . • . • • • . • . • • • • • • • . . • • • . . • . • • • . 9 7 

2 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • . • • • • • • • • • • • • • • • • • • • • • • • • • • • • 100 

1 1/2 ......................................................... 102 

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

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

1/4 or less .................................................. 115 

(1) When employees are subjected to sound exceeding those listed in 

Table G-16, feasible administrative or engineering controls shall be utilized. 

If such controls fail to reduce sound levels within the levels of Table G-16, 

personal protective equipment shall be provided and used to reduce sound 

levels within the levels of the table. 

Exposure to impulsive or impact noise should not exceed 140 dB peak sound 

pressure level. 

(2) If the variations in noise level involve maxima at intervals of 1 second 

or less, it is to be considered continuous. 

(3) In all cases where the sound levels exceed the values shown herein, a 

continuing, effective hearing conservation program shall be administered. 

402 
v. Boise Cascade Corporation, Composite, Docket No. 802 (April 1977); Secretary 

of Labor v. Wheeling Pittsburg Steel Corporation, Docket No. 13286 (November 1977). 

In this case MSHA established that engineering controls would reduce the 

noise levels to within permissible limits. Concerning the Euclide truck see the 

facts in Paragraphs 3, 4, 5, 6, 7, 8, in this decision. Concerning the plant 

operator, see facts in Paragraphs 13 and 14. 

MSHA's evidence shows that as an administrative control Conrock could rotate 

its workers after four hours at the site. I reject this proposal since the record 

presents no foundation to establish the feasibility of this proposal. 

Conrock's post trial brief points to the testimony of witness Readon to 

establish a failure of MSHA's proof on feasibility. I reject this view since 

witnesses Drussel and Polk directly established economic and technical feasibility. 

In determining the issues here, the entire record must be considered. 

Applicant's final argument is that MSHA failed to prove the economic and 

technical feasibility of its recommendations for the plant operator's shack. 

Contrary to Conrock's argument MSHA's engineering recommendations at a cost of 

$200 - $300 are unrebutted (Fact 13, 14). 

CONCLUSIONS OF LAW 

1. Applicant's Euclide truck operator was exposed to excessive noise and 

applicant violated 30 CFR 56.5-50; the contest of Citation 384009 ~hould be 

dismissed (Facts 1 - 8). 

2. Applicant's plant operator was exposed to excessive noise and applicant 

thereby violated 30 CFR 56.5-50; the contest of Citation 384010 shoud be 

dismissed (Facts 9 - 14). 

403 
Based on the foregoing findings of fact and conclusions of law, I enter the 

following: 

• ORDER 

The contests of Citations 384009 and 384010 are dismissed. 

Judge 

Distribution: 

Scott J. Wilcott, Esq., 3200 San Fernando Road, Los Angeles, Californis 9001 

Marshall P. Salzman, Esq., Office of the Solicitor, U. S. Department of Labo: 

11071 Federal Building, 450 Golden Gate Avenue, Box 36017, San Francisco, 

California 94102 

404 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5205 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Phone (703) 756-6236 

f·tb 1 ~ 1980 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

THE NORTH AMERICAN COAL CORP., 

Respondent 

QUARTO MINING COMPANY, 

Respondent 

405 

Civil Penalty Proceedings 

Docket No. LAKE 79-118 

A/O No. 33-00939-03042 

Docket No. LAKE 79-214 

A/O No. 33-00939-03055 

Docket No. LAKE 79-263 

A/O No. 33-00939-03059 

Docket No. LAKE 80-64 

A/O No. 33-00939-03066 

Powhatan No. 3 Mine 

Docket No. LAKE 79-262 

A/O No. 33-00938-03050 

Docket No. LAKE 80-61 

A/O No. 33-00938-03052 

Powhatan No. 1 Mine 

Docket No. LAKE 79-266 

A/O No. 33-00937-03031 

Docket No. LAKE 80-65 

A/O-No. 33-00937-03034 

Powhatan No. 5 Mine 

Docket No. VINC 79-124-P 

A/O No. 33-01157-03021 

Docket No. LAKE 79-228 

A/O No. 33-01157-03079 

Docket No. LAKE 79-265 

A/O No. 33-01157-03082 

Docket No. LAKE 80-31 

A/O No. 33-01157-03083 

Docket No. LAKE 80-32 

A/O No. 33-01157-03084 

Powhatan No. 4 Mine 

Docket No. LAKE 79-229 

A/O No. 33-02624-03055 

Docket No. LAKE 80-95 

A/O No. 33-02624-03066 

Docket No. LAKE 80-96 

A/O No. 33-02624-03065 

Powhatan No. 7 Mine 
NACCO MINING COMPANY, 

Respondent 

Docket No. LAKE 79-230 

A/O No. 33-01159-03059 

Powhatan No. 6 Mine 

DECISION 

The issue in the above-captioned cases and the arguments of the 

parties are identical to those involved in Secretary of Labor v. 

Alabama By-Products Corp., Docket No. SE 79-110, et al. which I have 

decided today. For the reasons set forth in the latter opinion, a 

copy of which is attached, the citations in the instant cases are 

vacated and the petitions are DISMISSED. 

Distribution: 

~c 9'-t~?. Charles C. Moore, Jr. 

Administrative Law Judge 

Linda Leasure, Esq., Office of the Solicitor, U.S. Department of 

Labor, 881 Federal Office Building, 1240 E. Ninth Street, Cleveland, 

OH 44199 (Certified Mail) 

David R. Case, Esq., Thomas C. Means, Esq., Crowell & Moring, 1100 

Connecticut Avenue, NW., Washington, D.C. 20036 (Certified Mail) 

406 

2 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520.3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 1 2 19% 

Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. SE 79-110 

Petitioner A/O No. 01-00347-03023 

v. 

ALABAMA BY-PRODUCTS CORPORATION, 

Respondent 

Docket No. SE 79-82 

A/O No. 01-00347-03021 

· Docket No. SE 80-8 

A/O No. 01-00347-03030 

Segco No. 1 Mine 

Docket No. SE 79-33 

A/O No. 01-00515-03015 

Docket No. SE 79-74 

A/O No. 01-00515-03019 

Docket No. SE 79-108 

A/O No~ 01-00515-03020 

Docket No. BARB 79-215-P 

A/O No. 01-00515-03008 

Mary Lee No. 1 Mine 

Docket No. SE 79-123 

A/O No. 01-00340-03024 

Gorgas No. 7 Mine 

DECISION 

Docket No. SE 79-110 was originally assigned to me. The other listed 

docket numbers were subsequently consolidated with SE 79-110 because of the 

similar parties and issues. While all of the files do not contain identical 

documents, Respondent's motion for summary decision and supporting papers, 

together with MSHA's opposition and supporting affidavit, are applicable to 

all of the consolidated cases. After the motion was filed and briefed, the 
parties entered a stipulation resolving all factual disputes and submitted 

the matter for decision on the stipulation and further briefing. By submitting the stipulation and further briefing based thereon, Respondent has 

abandoned its motion for summary decision. This decision is therefore based 

on the stipulation and arguments. Also, there is another sizable group of 

cases which have been consolidated under the caption Secretary of Labor v. 

North American Coal Corporation, et al., Docket Nos. LAKE 79-118, et al., 

which involve the identical issue although facts were not stipulated in 

those cases. 

The question before me is whether there is a valid and enforceable 

respirable dust standard. On June 28, 1974, in Secretary of Labor v. 

Olga Coal Company, Docket No. HOPE 79-113-P, I issued a decision in which 

I held that "there is not now and never has been a valid enforceable 

respirable dust program***" (Dec., p. 2). I had previously made a 

similar ruling in MSHA v. B.B.W. Coal Company, Docket No. PIKE 76-149-P 

on January 9, 1979-:----T"hose rulings were made without the benefit of briefing and I think it is necessary that I reexamine the matter at this time. 

Respirable dust, is an extremely important part of both the 1969 and 

1977 Mine Acts. Respirable coal mine dust causes coal miners pneumoconiosis 

or black lung, and it has been estimated that 173,000 miners and 333,000 survivors are receiving black lung compensation from the Federal Government 

(see statement of John A. Breslin contained in Bureau of Mines' Information 

Circular 8753 published in 1973). It is because I consider it such an 

important program that I have been disturbed by _the way the Bureau of Mines, 

MESA, and MSHA have dealt with that program. 

I first considered respirable dust in a decision issued on July 9, 

1973, in Valley Camp Coal Company, Docket No. MORG 72-88-P. I was unsatisfied with the quality of the proof offered in the respirable dust violations and rejected the evidence as being unconvincing. Subsequently, the 

Board of Mine Operations Appeals decided the Castle Valley Mining Company 

case, 3 IBMA 10 (January 25, 1974), in which it held that a computer printout, standing alone, would establish a violation of the respirable dust 

standard. I next considered respirable dust in Eastern Associated Coal 

Corporation, Docket Nos. MORG 73-131-P et al. (December 16, 1974). In that 

case, I heard experts from MESA's respirable dust laboratory in Pittsburgh, 

as well as· the testimony of Dr. Corn, who had done extensive research in 

connection with respirable dust. It was during the course of those hearings 

that I learned that MESA had been completely ignoring the statutory definition of respirable dust since the inception of the program. Instead of 

·attempting to modify its equipment or work out some conversion factor, MESA 

chose to pretend that Congress had not defined respirable dust as only those 

dust particles of 5 microns or less in diameter. The evidence clearly 

established that MESA had been counting, as respirable coal mine dust, 

particles not only in excess of 5 microns in diameter, but also in excess 

of 10 microns in diameter. I am attaching as Appendix I excerpts from my 

opinion in that case which describe the dust-collecting instruments and the 

procedure at the Pittsburgh laboratory. 

408 
The Interior Department's Board of Mine Operations Appeals eventually 

ruled that the respirable dust procedures were invalid because MSHA had 

collected, and counted as respirable coal mine dust, particles which did not 

meet the statutory definition of respirable dust. Eastern Associated Coal 

Corporation, 7 IBMA 14 (1976), and 7 IBMA 133 (1976). Again, instead of 

attempting to modify its equipment, MESA sought, and obtained an order 

from the Secretary of the Interior staying the effect of the decision of 

the Board of Mine Operations Appeals. Such an appeal to the Secretary was 

not provided for in the published rules of the Department and, in my opinion, would not have survived a court test, but the stay was eventually dissolved and the Board's opinion became final. 

The golden opportunity for the enforcement branch came on November 9, 

1977, when Congress eliminated the statutory definition of respirable dust 

in the old Act and amended section 202(e) of the Act to read: "References 

to concentrations of respirable dust in this title mean the average concentration of respirable dust measured with a device approved by the Secretary 

and the Secretary of Health, Education and Welfare." While this is not a 

definition of respirable dust, it does appear to give the Secretary of Labor 

and the Secretary of Health, Education and Welfare the opportunity to establish a definition of respirable dust based on the size and type of dust 

which certain equipment collects. The Solicitor has taken the position that 

because section 202(e) of the Act became effective before the other sections 

of the Act, the definition of "Secretary" contained in the 1977 Act as the 

Secretary of Labor was not effective and that therefore, "Secretary" in section 202 means the Secretary of the Interior. The argument goes on that 

since the Secretary of the Interior and the Secretary of Health, Education 

and Welfare approved certain devices for the collection of respirable dust 

back in the 1970, Congress intended to ratify that 7-year old agreement and 

define as respirable dust anything collected by the MRE or the personal 

sampling device. This is obviously a contrived piece of backfilling because 

at no time has MSHA or MESA or anyone else contended that the oversized 

particles collected by both of these pieces of equipment was respirable dust. 

To do so would be to contravene the sworn testimony of the experts in the 

field and would be despite the "Report to the Senate Committee on Labor and 

Public Welfare", issued December 1975 and the Report of W. G. Courtney, 

research supervisor, dust control and life support group, dated November 29, 

1974. The latter contains the following statements. 

* * * * * * * 

3. Sampler precision. MESA enforces the dust standard 

by stipulating that (1) the company use approved personal samplers and (2) the company-obtained 10-shift average for the 

dust level be less than 2.lmg/m3. 

Using data obtained by MESA personnel using approved personal 

samplers, we have established that the approved samplers have 

a precision of only 30 pct (standard deviation) when routinely used in the field. Thus, if 100 MESA inspectors went 

409 
into the field to measure with approved dust samplers a dust 

cloud .known to have a concentration of 2.0 mg/m3 (MRE equivalent), 68 of their measurements would be between 1.4 and 

2.6 mg/m3 and 32 of the measurements would be outside this 

range. 

Assuming that the precision of operator samples is as good as 

the precision of MESA inspector samples (a dubious assumption), the operator 10-shift average must be greater than 

2.36 mg/m3 to be 95 pct confident that the true average concentration. is actually above 2.0 mg/m3. More important, a 

10-shift average of less than 1.64 mg/m3 is required to 

assure that the worker is not being exposed to hazardous dust 

levels as established by law. With the present limited precision of approved personal dust samplers in the field, 129 

shifts must be sampled and averaged to reduce the width of 

the uncertainty to _2:. 0.1 mg/m3. 

* * * * * * * 

5. Sampler flowrate. However, the MESA 0.1 mg/m3 standard for respirable quartz dust does not match any known medical standard. MESA-coal requires that the approved personal 

sampler be operated at 2.0 ~/min when used for enforcement 

purposes in coal mines, while the semi-official ACGIH recommendation of 0.1 mg/m3 for the respirable quartz dust is 

based on a sampler flowrate of 1.7 ~/min. Our field tests 

have indicated that similar masses of respirable dust are 

obtained when the approved personal sampler is operating at 

1.7 or 2.0 ~/min. Therefore, a quartz dust level of only 

0.085 mg/m3 when sampled at 2.0 f.,,/min should be 3ermitted 

in order to match the ACGIH standard of 0.1 mg/m when sam~ 

pled at 1.7 .£-/min. The percentage of coal miners being 

subjected to excessive amounts of respirable quartz dust thus 

is even higher than 20 pct. 

* * * * * * * 

We conducted a detailed comparison of company-obtained dust 

levels with MESA-obtained dust levels for the same sections. 

Results indicated that, on the average, MESA dust levels are 

about 30 pct higher than operator dust levels. This poor comparison casts grave doubts about the veracity of operator data 

and thus the entire MESA enforcement program. 

* * * * * * 

In summary, the MESA enforcement program to ensure that coal 

mine personnel are working in a healthful dust-free environment involves seven major features. We have shown that, for 

410 

* 
each of these features, the MESA procedure is unsatisfactory. 

As a result· of this inadequate enforcement program, our coal 

mine personnel are being subjected to flagrantly hazardous 

environments, despite public reports to the contrary. 

In view of these comments, I cannot believe Congress intended to 

perpetuate the discr;dited program. It intended that the Secretary of 

Labor and the Secretary of Health, Education and Welfare come up with a 

new definition. They have not done so. 

But even if it could be said that it was the Secretary of the Interior 

and the Secretary of Health, Education and Welfare that could have established a new respirable dust definition, the fact is that such a new definition has not been established. To this day, 30 CFR 75.2(k) states 

"'Respirable dust' means only dust particulates 5 microns or less in size." 

It is axiomatic that an agency binds itself by its own regulation even 

though the Act of Congress would allow a different result. Vitarelli v. 

Seaton, 359 U.S. 535 (1959); Accardi v. Shaugnessy, 347 U.S. 260 (1945); 

Service v. Dulles, 354 U.S. 363 (1957); Pacific Molasses Company v. Federal Trade Commission, 356 F.2d 386, 389 (5th Cir. 1966). Under these--

authorities, the definition of respirable dust is still particles 

(particulates) of 5 microns or less in diameter. Under that standard, the 

program cannot be enforced using the type of collection equipment which 

MSHA currently uses. */ 

In my view, MSHA has two choices in order to institute an effective and 

enforceable respirable dust program. One, it can either develop equipment 

or modify equipment so as to collect and weigh only particles 5 microns or 

less in diameter or two, it can amend its regulations so as to rescind 

the definition contained in 30 CFR 75.2(k) and have the Secretary of Labor 

and the Secretary of Health, Education and Welfare agree on a new definition 

for and a device for the measurement of respirable dust. 

In view of the importance of any early resolution of this matter, I 

urge the Commission to review this case on its own motion under 29 CFR 

2700.71 and set an accelerated briefing schedule. 

Judgment is for Respondent and the citations are vacated. 

CJ~f .?77~ i. 

Charles C. Moore, Jr. 

Administrative Law Judge 

*/ I realize this paragraph is contrary to some of my previous rulings 

regarding respirable dust, but I now believe that the 5-micron definition 

is still in effect. 

411 
Distribution: 

Anna Wolgast, Esq., Office of the Solicitor, U.S. Department of Labor, 

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

Murray Battles, Esq., Office of the Solicitor, U.S. Department of Labor, 

1929 9th Avenue, South, Birmingham, Alabama 35202 (Certified Mail) • 

J. Fred McDuff Esq., Curtis W. Jones, Esq., Alabama By-Products 

Corporation, P.O. Box 10246, Birmingham, Alabama 35202 (Certified Mail) 

412 
APPENDIX I 

EXCERPTS FROM JUDGE MOORE'S DECISION IN 

EASTERN ASSOCIATED COAL CORPORATION 

DOCKET NOS. MORG 73-131-P et al (Dec. 16, 1974) 

With reference to these 22 respirable dust violations, (footnote 

omitted) in Castle Valley Mining Company, 3 IBMA 10 (January 25, 1974) 

the Board of Mine Operations Appeals decided that the computer printout 

designated as a Notice of Noncompliance creates prima f acie proof of the 

facts asserted therein regarding the respirable dust content of tested 

samples. In the absence of any rebutting evidence the printout's introduction into evidence may establish the violation. MESA relied almost 

exclusively on Castle Valley in its presentation of the instant case. 

In the Castle Valley case, however, there were a number of other 

holdings by the Board that bear on the outcome of the instant decision. 

In that case there had been no evidence, except for that contained in 

various circulars of which the Board of Mine Operations Appeals took 

official notice, of the testing procedures employed by MESA's testing 

laboratory in Pittsburgh, Pennsylvania. The Board took official notice 

also that the techniques employed by MESA in respirable dust testing 

"are based upon scientific principles generally recognized in the 

scientific community." But, as pointed out by Respondent, the Board 

relied on facts "officially noticed" without giving the parties an 

opportunity to rebut such facts as required by the Administrative Procedure 

Act. Inasmuch as the Respondent in that case did not appear at the 

hearing before the Board, however, the Board may have reasoned 

413 
that Respondent was in default and thus not entitled to the opportunity to rebut officially noticed evidence. In any event, Respondent Eastern Associated Coal Corporation is challenging the 

scientific validity of NESA's testing procedures in the instant 

case, and its right to do so was specifically recognized by the 

Board on page 14 of its Castle Valley decision where it stated 

"of course, either the operator or MESA may question the reliability of the system at any stage." 

Other statements about notices of noncompliance made by the 

Board in Castle Valley which bear on the decision in the instant 

case are: 

[at page 19] All other circumstances of the making of 

such writing or record, including lack of personal knowledge by the enterant or maker, may be shown to affect 

its weight, but the circumstances shall not affect its 

admissibility. 

[at page 21] This section does not make a government 

document received in evidence conclusive, irrefutable, 

or immutable. If such papers do not speak the truth, 

the defense can prove the untruth of the document. 

[at page 22] Full discovery procedureg were available 

to Castle Valley had they had any reason to question the 

reliability of the information recorded in the Notice 

of Noncompliance. 

Respondent in this case has taken advantage of the discovery procedures provided by our rules and has attempted to prove the unreliability of the testing procedure. Although it has not actually 

demonstrated the untruth of any particular Notice of Noncompliance, 

Respondent has made such a showing that I cannot simply rely on 

Castle Valley and rule that the Notices of Noncompliance in evidence in this case establish the fact that Respondent has violated 

the respirable dust standard. 

Regarding respirable dust, its definition, and measurement, 

we were indeed fortunate to have as witnesses such e~inent experts 

as Dr. Morton Corn who has studied the subject for many years, 

Mr. Murray Jacobson who has also been involved in the respirable 

dust program for many years and who in fact set up the testing 

program in issue in this case, and Hr. Paul Parobeck who is currently in charge of the HESA respirable dust laboratory in 

Pittsburgh. 

414 
Respirable dust does not consist of coal dust exclusively. 

It is coal mine dust which would include fine particles of co~l 

as well as any. other fine particles of rock or other dust that 

may be found in a coal mine. When a miner breathes the dust contained in the atmosphere of a coal mine, a certain portion of 

that dust is filtered out in the nose, trachea and bronchial areas 

of the respiration system anJ another portion is deposited in the 

lungs or pulmonary compartment. Years of study have shown that 

it is the larger particles that are filtered out or deposited on 

surfaces of the respiratory system before reaching the lungs. It 

is only those small particles that pass through the filtering 

system and are deposited in the lungs which will lead to the 

disease known as coal miner's pneumoconiosis and which are accordingly called respirable dust. 

Some of the testimony concerning respirabl~ dust ref erred to 

a Bureau of Mines information circular dated February, 1971, entitled Sampling and Evaluating Respirable Coal Mine Dust bearing 

the number IC8503. .On page three of that document, there appears 

a graph which plots the diameter and den.sity of the particles of 

coal mine dust against the percentage of penetration or deposition 

of such dust in the lungs, in a.personal sampler device and in an 

MRE instrument. 1/ While it is not exactly clear from the graph 

itself, the solid line indicates the manner -in which various sizes 

of dust are deposited in the lungs, the dashed line designated 11AEC11 , (a development of the Atomic Energy Commission,) indicates 

the same information with respect to deposition in the personal 

respirable dust sampler, developed by the Bureau of Hines and the 

line consisting of both dashes and dots and designated "11RE" indicates the amount of dust deposited in an HRE Isleworth Gravometric 

Dust Sampler, which is referred to as the l-1RE instrument. So far 

as the two instruments are concerned, deposition as depicted by 

the graph, indicates that part of the coal mine dust which is 

deposited in the section of the instrument which is designed to 

be equivalent to the lungs, i.e. the filter. Both instruments 

contain areas which are designed to eliminate dust that would 

ordinarily be deposited in the nose, trachea or bronchial areas 

of the human respiration system. The two instruments do this 

·filtering out ~f the larger non-respirable particles by taking 

21 A copy of the referenced graph is designated Figure I. 

415 
advantage of the fact that if two spherical particles composed of 

the same sub.stance are allowed to fall in an atmosphere, the larger 

particle will fall faster. This is because, as the size of spher~ 

ical particles increase the cross-sectional diameter and therefore 

the air resistance is not increased to the same extent as the 

volume, (thus the mass of the particle) increases. In moving 

air, therefore, the larger particle will fall out sooner than the 

smaller particle. In the HRE instrument the air flow rate is 

such that the large particles fall out along the horizontal elutriator and only the smaller particles are deposited upon the 

filter which is later weighed. The air flow rate in this instrument is 2.5 liters per minute. It is obvious, that if the air 

flow in this instrument were increased, the larger particles would 

be deposited upon the filter whereas if it were decreased, particles 

normally reaching the filter might be deposited in the elutriator. 

The personal sampler works on the same principle except that 

a cyclonic system is used to cause increased acceleration for the 

purpose of driving larger (i.e. heavier) particles to the outside 

of the circling atmosphere. The personal sampler must operate 

with an air flow of 2 liters per minute, and it is equally obvious 

that in this system an ir.c:::-ease in the air flm·:- i:lill increase. the 

G loads and thus cause the particles which might ordinarily ~each 

the filter to drop out earlier, whereas too low an air flow would 

cause such larger, non-respirable particles to reach the filter. 

Any variation in the air flow in the two instruments therefore 

has the opposite effect. In one, increased air flow would cause 

an error of too small a particle being deposited on the filter 

whereas the same increased air flow in the other instrument would 

cause too large a particle to be deposited on the filter. The 

proper rate of air flow is thus extremely critical to both instru~ 

ments. 

Assuming both instruments are properly adjusted, the graph 

on page 3 of Information Circular 8503, [Figure I herein] shows 

that neither instrument collects on its filter, dust exactly corresponding to that collected by the lungs. The graph indicates 

that the NRE instrument will collect particles up to 7.1 microns 

in diameter whereas the person~l sarepler will collect particles 

up to 10 microns in diaIT.eter. While the graph is not exactly 

clear as to the pulmonary deposition, it appears to indicate deposition of particles up to somewhere between slightly over 6 microns 

and 7 IT..i.crons in the lungs. There are other significant differences in the graphs. For example, both the personal sampler and 

the MRE instrument collecc bet~·;een 90 and 100 percent oi the coal 

mine dust 2 microns in diameter whereas the lungs collect only 

416 
c eo 

~ Z CP 0 a. -- • 60 1-Z <(0 . e:::- 1-t: 

wUl 40 z~ WUJ 

O..o 

~ 20 

0 

. \ 

""· ,, 

<\ '~BMRcLFirst stage \AAEC J penetrcrion 

Pulmonary 

deposition 

" \. \ . 

\ 

2 4 6 8 IO 

DIAMETER UNIT DENSITY, SPHERE, microns 

FIGURE 1. ·Comparison of Respirable Size Criteria 

With Pulmonary Deposition Curve., 

FIGURE I 

417 

12 
somewhere between 70 and 75 percent of that size particle. The 

lungs collect only 54 percent of the p~rticles that are a half 

micron in diameter whereas both instruments collect almost 100 

percent of that size of particle. But it must be assumed that 

the Congress knew of the collection curves involved when it passed 

the Act and defined respirable dust as those particles of coal 

mine dust 5 microns or less in diamete,r. And, in the area between 

5 micron particles and 2 micron particles the personal sampler 

curve is very close to the pulmonary curve. While the personal 

sampler does collect particles up to 10 microns in size, it collects 

a very small percentage of particles with a diameter in excess of 

7 microns. The fact remains, however, that the instruments do 

collect particles larger than the statutory definition of respirable 

dust. 2._/ 

From the aforementioned distribution curve, it appears that 

both the lungs and the personal sampler collect slightly more 

than 20 percent of the particles that are 5 microns in diameter. 

The personal sampler collects almost no particles that are 10 

microns in diameter, and from observing the curve it would appear 

that the personal saopler collects approximately 10 percent of 

those particles between 5 microns in diameter and 10 microns in 

diameter. The fact that the personal sampler collects 10 percent 

of the dust that is larger than the statutory definition of respirable dust, however, does not mean that 10 percent of the dust 

collected by the sampler is too large to be considered respirable 

dust. It means that whatever quantity of that size particles is 

contained in the mine atmosphere, the personal sampler will collect 

10 percent of that total quantity on its filter. 

2._/ The fact that in Section 202(e) of the Act it states "references 

to concentrations of respirable dust in this title means the av~rage 

concentration of respirable dust if measured with an HRE instrument 

or such equivalent concentration as measured with another device 

approved by the Secretary of Health, Education and Welfare" does 

not mean that anything measured by an MRE instrument or another 

equivalent device would be respirable dust. While concentrations 

of such dust are to be measured in such instru.~ents, there is no 

equivocation or uncertainty about the proscriptions of Section 318(k) 

which states in no uncertain terms '"respirable dust' means only 

dust particles 5 microns or less in size ••• " (Undersccring supplied) 

418 
While there was no testimony on the point, it would seem 

reasonable that a slight increase in the air flow of the personal 

sampler would tend to prevent the larger particles of dust in 

excess of 5 microns in diameter from being deposited upon the 

filter. I must assume, however, that if such a simple solution 

would work, it would have been undertaken and that, therefore, 

any increase of a:i.r flow would affect the accuracy of the device 

in collecting the smaller particles of respirable dust. Also, it 

may be that rather than trying to approximate the human respiration system, the technicians should seek to devise an instrument 

which will measure and weigh only particles of dust 5 microns or 

less in diameter, but such a determination is not within the 

province of this hearing. We deal here with the devices as they 

exist, not as they might be. 

The dust sampling procedure established by the Bureau of 

Mines has been described in Info:::mation Circulars 8484, 8520, and 

8503, as well as in other publications of the Bureau of }fines and 

MESA. The testimony in this case agrees with the descriptions 

referred to and will only be explained herein in general terms. 

In general, the mine operator purchases cassettes for the purpose 

of measuring respirable dust from a manufacturer who has its cas..,. 

settes and the empty filter weight data checlced by the Bureau of 

Mines on a routine basis. The cassette has a serial number and a 

mine data card accompanying it has the same number. After the 

test has been run in the personal sampler the cassette and mine 

data card, filled out so far as required, are forwarded to the 

Pittsburgh testing laboratory. 

The Pittsburgh testing laboratory is maintained under controlled temperature and humidity and at a pressure slightly higher 

than the surrounding areas so that there will be no dust d:::-awn 

into the laboratory. The cassettes received from the mine operator are opened in the laboratory, and the mine data card and 

capsule containing the filter are placed on trays and the numbers 

on the card and capsule are checked. They are then desiccated 

i.e. dried, to remove any moisture that might otherwise affect 

the weight, and moved to an electronic balance where devices are 

placed to nullify any electrostatic effect that might distort the 

actual weight of the filter. The filter is weighed on the electronic balance and an operator notes the weight and writes it 

down on the mine data card. At that point the te::::hnician performing the weighing operation makes a mental calculation to detern::ine 

if the weight gain, that is the difference between the :-ecordeci 

empty weight of the filter and the weight of the filter with the 

dust particles deposited thereon, is greater than 6 ~illig:::-ams. 

419 
If it is, the sample is put aside for testing for oversize particles, but if there is a weight gain of 6 milligrams or less, the 

sample is discarded and destroyed. No record. is kept on the mine 

card or anywhere else as to which of a number of technicians made 

the actual weighing on any particular sample. After the weighing, 

the results are punched out on a keypunch teletype system by one 

operator and then a different person keypunches the same data 

again. The system is such that if the two operators do not punch 

out exactly the same data, an automatic notification is given so 

that the operators can check to see if one or the other made an 

error in transcribing the information from the mine data card. 

The data punched into the system, goes directly to the computer 

in Denver, Colorado which, at a later date, determines if any 10 

consecutive valid samples comply or do not comply with the standard 

in effect. 

Throughout this procedure, at.several places, the mine data 

card and filter identification numbers are checked. But there 

was at the time of the violations involved in this case, no double 

check of tqe visual weight display observed by the person operating 

the balance. At a later time, subsequent to Mr. Parobeck 1 s deposition (Respondent's Exhibit 14) but prior to the hearing, a spot 

check system was instituted whereby a certain number of these 

weighings were later duplicated by a different operator on a ran.,... 

dom basis to see if a discrepancy had occurred. 

The testimony indicated that the decision to check filters 

showing a weight gain gr2ater than 6 milligrams was an arbitrary 

decision not based on any particular studies. With respect to 

those capsules, showing the 6 milligram weight gain, first they 

are examined to see if oversized particles appear visually ·with.,.. 

out the aid of a microscope. It such particles appear the sample 

is voided. If they do not appear, however, the filter is examined 

under a microscope with various sections of the filter designated 

as fields. It is not stated in the testimony the exact size of a 

field, but 10 of these fields are exa..~ined and the sample is voided 

if these 10 fields each show three or more particles that are in 

excess of 10 microns in size. Mr. Parobeck's testimony made it 

clear that if nine of these fields all show more than 3 particles 

in excess of 10 microns but the 10th field did not show such particles, the sample would not be voided. It is thus fairly clear 

that in addition to the particles over 5 microns in diameter, 

particles in excess of 10 microns in diameter and thus also not 

respirable are counted against a Respondent whether the sample 

420 
weight gain is more than 6 milligrams or less than 6 milligrams 

since no tes·t is taken regarding the weight gains of less than 6 

milligrams. ]_/ 

In the Castle Valley case, supra, the Board of Mine Operations 

Appeals stated that a notice of non-compliance which is a computer 

print-out from the Denver computer, is prima facie evidence of a 

violation which can be rebutted. The Board indicated that in 

view of the discovery procedures available to a Respondent, he. 

could challenge any notice of non-compliance that might be issued. 

As testimony has indicated in this case, however, discovery techniques will help a Respondent very little in determining whether 

or not his sample was actually tested properly. It is clear that 

he cannot discover who made the actual weighing, he cannot test 

the sample prior to sending it in because it would then be voided 

for tampering, and he.cannot send in experts to test his sample 

after it has shown a greater than 3 milligrams result. There is 

in effect absolutely nothing a Respondent can do to defend itself 

if the computer print-out shows that it is in violation of the 

respirable dust standard. 

421 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. SE 79-110 

Petitioner A/O No. 01-00347-03023 

v. 

ALABAMA BY-PRODUCTS CORPORATION, 

Respondent 

Docket No. SE 79-82 

A/O No. 01-00347-03021 

Docket No. SE 80-8 

A/O No. 01-00347-03030 

Segco No. 1 Mine 

Docket No. SE 79-33 

A/O No. 01-00515-03015 

Docket No. SE 79-74 

A/O No. 01-00515-03019 

Docket No. SE 79-108 

A/O No. 01-00515-03020 

Docket No. BARB 79-215-P 

A/O No. 01-00515-03008 

Mary Lee No. 1 Mine 

Docket No. SE 79-123 

A/O No. 01-00340-03024 

Gorgas No. 7 Mine 

DECISION 

Docket No. SE 79-110 was originally assigned to me. The other listed 

docket numbers were subsequently consolidated with SE 79-110 because of the 

similar parties and issues. While all of the files do not contain identical 

documents, Respondent's motion for summary decision and supporting papers, 

together with MSHA's opposition and supporting affidavit, are applicable to 

all of the consolidated cases. After the motion was filed and briefed, the 

422 
parties entered a stipulation resolving all factual disputes and submitted 

the matter for de.cision on the stipulation and further briefing. By submitting the stipulation and further briefing based thereon, Respondent has 

abandoned its motion for summary decision. This decision is therefore based 

on the stipulation and arguments. Also, there is another sizable group of 

cases which have been consolidated under the caption Secretary of Labor v. 

North American Coal Corporation, et al,, Docket Nos. LAKE 79-118, et al., 

which involve the identical issue although facts were not stipulated in 

those cases. 

The question before me is whether there is a valid and enforceable 

respirable dust standard. On June 28, 1974, in Secretary of Labor v. 

Olga Coal Company, Docket No. HOPE 79-113-P, I issued a decision in which 

I held that "there is not now and never has been a valid enforceable 

respirable dust program***" (Dec., p. 2). I had previously made a 

similar ruling in MSHA v. B.B.W. Coal Company, Docket No. PIKE 76-149-P 

on January 9, 1979-:----Those rulings were made without the benefit of briefing and I think it is necessary that I reexamine the matter at this time. 

Respirable dust, is an extremely important part of both the 1969 and 

1977 Mine Acts. Respirable coal mine dust causes coal miners pneumoconiosis 

or black lung, and it has been estimated that 173,000 miners and 333,000 survivors are receiving black lung compensation from the Federal Government 

(see statement of John A. Breslin contained in Bureau of Mines' Information 

Circular 8753 published in 1973). It is because I consider it such an 

important program that I have been disturbed by the way the Bureau of Mines, 

MESA, and MSHA have dealt with that program. 

I first considered respirable dust in a decision issued on July 9, 

1973, in Valley Camp Coal Company, Docket No. MORG 72-88-P. I was unsatisfied with the quality of the proof offered in the respirable dust violations and rejected the evidence as being unconvincing. Subsequently, the 

Board of Mine Operations Appeals decided the Castle Valley Mining Company 

case, 3 IBMA 10 (January 25, 1974), in which it held that a computer printout, standing alone, would establish a violation of the respirable dust 

standard. I next considered respirable dust in Eastern Associated Coal 

Corporation, Docket Nos. MORG 73-131-P et al. (December 16, 1974). In that 

case, I heard experts from MESA's respirable dust laboratory in Pittsburgh, 

as well as the testimony of Dr. Corn, who had done extensive research in 

connection with respirable dust. It was during the course of those hearings 

that I learned that MESA had been completely ignoring the statutory definition of respirable dust since the inception of the program. Instead of 

·attempting to modify its equipment or work out some conversion factor, MESA 

chose to pretend that Congress had not defined respirable dust as only those 

dust particles of 5 microns or less in diameter. The evidence clearly 

established that MESA had been counting, as respirable coal mine dust, 

particles not only in excess of 5 microns in diameter, but also in excess 

of 10 microns in diameter. I am attaching as Appendix I excerpts from my 

opinion in that case which describe the dust-collecting instruments and the 

procedure at the Pittsburgh laboratory. 

423 
The Interior Department's Board of Mine Operations Appeals eventually 

ruled that the re.spirable dust procedures were invalid because MSHA had 

collected, and counted as respirable coal mine dust, particles which did not 

meet the statutory definition of respirable dust. Eastern Associated Coal 

Corporation, 7 IBMA 14 (1976), and 7 IBMA 133 (1976). Again, instead of 

attempting to modify its equipment, MESA sought, and obtained an order 

from the Secretary of the Interior staying the effect of the decision of 

the Board of Mine Operations Appeals. Such an appeal to the Secretary was 

not provided for in the published rules of the Department and, in my opinion, would not have survived a court test, but the stay was eventually dis-

.solved and the Board's opinion became final. 

The golden opportunity for the enforcement branch came on November 9, 

1977, when Congress eliminated the statutory definition of respirable dust 

in the old Act and amended section 202(e) of the Act to read: "References 

to concentrations of respirable dust in this title mean the average concentration of respirable dust measured with a device approved by the Secretary 

and the Secretary of Health, Education and Welfare." While this is not a 

definition of respirable dust, it does appear to give the Secretary of Labor 

and the Secretary of Health, Education and Welfare the opportunity to establish a definition of respirable dust based on the size and type of dust 

which certain equipment colleyts. The Solicitor has taken the position that 

because section 202(e) of the Act became effective before the other sections 

of the Act, .the definition of "Secretary" contained in the 1977 Act as the 

Secretary of Labor was not effective and that therefore, "Secretary" in section 202 means the Secretary of the Interior. The argument goes on that 

since the Secretary of the Interior and the Secretary of Health, Education 

and Welfare approved certain devices for the collection of respirable dust 

back in the 1970, Congress intended to ratify that 7-year old agreement and 

define as respirable dust anything collected by the MRE or the personal 

sampling device. This is obviously a contrived piece of backfilling because 

at no time has MSHA or MESA or anyone else contended that the oversized 

particles collected by both of these pieces of equipment was respirable dust. 

To do so would be to contravene the sworn testimony of the experts in the 

field and would be despite the "Report to the Senate Committee on Labor and 

Public Welfare", issued December 1975 and the Report of W. G. Courtney, 

research supervisor, dust control and life support group, dated November 29, 

1974. The latter contains the following statements. 

* * * * * * * 

3. Sampler precision. MESA enforces the dust standard 

by stipulating that (1) the company use approved personal samplers and (2) the company-obtained 10-shift average for the 

dust level be less than 2.lmg/m3 • 

Using data obtained by MESA personnel using approved personal 

samplers, we have established that the approved samplers have 

a precision of only 30 pct (standard deviation) when routinely used in the field. Thus, if 100 MESA inspectors went 

424 
into the field to measure with approved dust samplers a dust 

cloud known to have a concentration of 2.0 mg/m3 (MRE equivalent), 68 of their measurements would be between 1.4 and 

2.6 mg/m3 and 32 of the measurements would be outside this 

range. 

Assuming that the precillion of operator samples is as good as 

the precision of MESA inspector samples (a dubious assumption), the operator 10-shift average must be greater than 

2.36 mg/m3 to be 95 pct confident that the true average concentration is actually above 2.0 mg/m3. More important, a 

10-shift average of less than 1.64 mg/m3 is required to 

assure that the worker is not being exposed to hazardous dust 

levels as established by law. With the present limited precision of approved personal dust samplers in the field, 129 

shifts must be sampled and averaged to reduce the width of 

the uncertainty to_:: 0.1 mg/m3. 

* * * * * * * 

5. Sampler flowrate. However, the MESA 0.1 mg/m3 standard for respirable quartz dust does not match any known medical standard. MESA-coal requires that the approved personal 

sampler be operated at 2.0 ~/min when used for enforcement 

purposes in coal mines, while the semi-official ACGIH recommendation of 0.1 mg/m3 for the respirable quartz dust is 

based on a sampler flowrate of 1. 7 ~/min. Our field tests 

have indicated that similar masses of respirable dust are 

obtained when the approved personal sampler is operating at 

1.7 or 2.0 e/min. Therefore, a quartz dust .level of only 

0.085 mg/m3 when sampled at 2.0 r.,/min should be ~ermitted 

in order to match the ACGIH standard of 0.1 mg/m when sampled at 1.7 .£-/min. The percentage of coal miners being 

subjected to excessive amounts of respirable quartz dust thus 

is even higher than 20 pct. 

* * * * * * * 

We conducted a detailed comparison of company-obtained dust 

levels with MESA-obtained dust levels for the same sections. 

Results indicated that, on the average, MESA dust levels are 

about 30 pct higher than operator dust levels. This poor comparison casts grave doubts about the veracity of operator data 

and thus the entire MESA enforcement program. 

* * * * * * 

In summary, the MESA enforcement program to ensure that coal 

mine personnel are working in a healthful dust-free environment involves seven major features. We have shown that, for 

425 

* 
each of these features, the MESA procedure is unsatisfactory. 

As a resutt of this inadequate enforcement program, our coal 

mine personnel are being subjected to flagrantly hazardous 

environments, despite public reports to the contrary. 

In view of these comments, I cannot believe Congress intended to 

perpetuate the discredited program. It inte~ded that the Secretary of 

Labor and the Secretary of Health, Education and Welfare come up with a 

new definition. They have not done so. 

But even if it could be said that it was the Secretary of the Interior 

and the Secretary of Health, Education and Welfare that could have established a new respirable dust definition, the fact is that such a new definition has not been established. To this day, 30 CFR 75.2(k) states 

"'Respirable dust' means only dust particulates 5 microns or less in size." 

It is axiomatic that an agency binds itself by its own regulation even 

though the Act of Congress would allow a different result. Vitarelli v. 

Seaton, 359 U.S. 535 (1959); Accardi v. Shaugnessy, 347 U.S. 260 (1945); 

Service v. Dulles, 354 U.S. 363 (1957); Pacific Molasses Company v. Federal Trade Commission, 356 F.2d 386, 389 (5th Cir. 1966). Under the~ 

authorities, the definition of respirable dust is still particles 

(particulates) of 5 microns or less in diameter. Under that standard, the 

program cannot be enforced using the type of collection equipment which 

MSHA currently uses. */ 

In my view, MSHA has two choices in order to institute an effective and 

enforceable respirable dust program. One, it can either develop equipment 

or modify equipment so as to collect and weigh only particles 5 microns or 

less in diameter or two, it can amend its regulations so as to rescind 

the definition contained in 30 CFR 75.2(k) and have the Secretary of Labor 

and the Secretary of Health, Education and Welfare agree on a new definition 

for and a device for the measurement of respirable dust. 

In view of the importance of any early resolution of this matter, I 

urge the Commission to review this case on its own motion under 29 CFR 

2700.71 and set an accelerated briefing schedule. 

Judgment is for Respondent and the citations are vacated. 

CJ~f.m~i. Charles C. Moore, Jr. 

Administrative Law Judge 

*/ I realize this paragraph is contrary to some of my previous rulings 

regarding respirable dust, but I now believe that the 5-micron definition 

is still in effect. 

426 
Distribution: 

Anna Wolgast, Esq., Office of the Solicitor, U.S. Department of Labor, 

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

Murray Battles, Esq., Office of the Solicitor, U.S. Department of Labor, 

1929 9th Avenue, South, Birmingham, Alabama 35202 (Certified Mail) 

J. Fred McDuff Esq., Curtis W. Jones, Esq., Alabama By-Products 

Corporation, P.O. Box 10246, Birmingham, Alabama 35202 (Certified Mail) 

427 
APPENDIX I 

EXCERPTS FROM JUDGE MOORE '-S DECISION IN 

EASTERN ASSOCIATED COAL CORPORATION 

DOCKET NOS. MORG 73-131-P et al (Dec. 16, 1974) 

With reference to these 22 respirable dust violations, (footnote 

omitted) in Castle Valley Mining Company, 3 IBMA 10 (January 25, 1974) 

the Board of Mine Operations Appeals decided that the computer printout 

designated as a Notice of Noncompliance creates prima f acie proof of the 

facts asserted therein regarding the respirable dust content of tested 

samples. In the absence of any rebutting evidence the printout's introduction into evidence may establish the violation. MESA relied almost 

exclusively on Castle Valley in its presentation of the instant case. 

In the Castle Valley case, however, there were a number of other 

holdings by the Board that bear ·on the outcome of the instant decision. 

In that case there had been no evidence, except for that contained in 

various circulars of which the Board of Mine Operations Appeals took 

official notice, of the testing procedures employed by MESA's testing 

laboratory in Pittsburgh, Pennsylvania. The· Board took official notice 

also that the techniques employed by MESA in respirable dust testing 

''are based upon scientific principles generally recognized in the 

scientific community." But, as pointed out by Respondent, the Board 

relied on facts "officially noticed" without giving the parties an 

opportunity to rebut such facts as required by the Administrative Procedure 

Act. Inasmuch as the Respondent in that case did not appear at the 

hearing before the Board, however, the Board may have reasoned 

428 
that Respondent was in default and thus not entitled to the opportunity to rebut officially noticed evidence. In any event, Respondent Eastern Associated Coal Corporation is challenging the 

scientific validity of lIBSA's testing procedures ih the instant 

case, and its right to do so was specifically recognized by the 

Board on page 14 of its Castle Valley decision where it stated 

"of course, either the operator or MESA may question the reliability of the system at any stage." 

Other statements about notices of noncompliance made by the 

Board in Castle Valley which bear on the decision in the instant 

case are: 

[at page 19) All other circumstances of the making of 

such writing or record, including lack of personal knowledge by the enterant or maker, may be shown to affect 

its weight, but the circumstances shall not affect its 

admissibility. 

[at page 21) This section does not make a government 

document received in evidence conclusive, irrefutable, 

or immutable. If such papers do not speak the truth, 

the defense can prove the untruth of the document. 

[at page 22) Full discovery procedures were available 

to Castle Valley had they had any reason to question the 

reliability of the information recorded in the Notice 

of Noncompliance. 

Respondent in this case has taken advantage of the discovery procedures provided by our rules and has attempted to prove the unreliability of the testing procedure. Although it has not actually 

demonstrated the untruth of any particular Notice of Noncompliance, 

Respondent has made such a showing that I cannot simply rely on 

Castle Valley and rule that the Notices of Noncompliance in evidence in this case establish the fact that Respondent has violated 

the respirable dust standard. 

Regarding respirable dust, its definition, and measurement, 

we were indeed fortunate to have as witnesses such e~inent experts 

as Dr. Morton Corn who has studied the subject for many years, 

Mr. Murray Jacobson who has also been involved in the respirable 

dust program for many years and who in fact set up the testing 

program in issue in this case, and Nr. Pc.ul Parobeck who is currently in charge of the l·IBSA respirable dust laboratory in 

Pittsburgh. 

429 
Respirable dust does not consist of coal dust exclusively. 

It is coal mine dust which would include fine particles of coal 

as well as any other fine particles of rock or other dust that 

may be found in a coal mine. When a miner breathes the dust contained in the atmosphere of a coal mine, a certain portion of 

that dust is filtered out in the nose, trachea and bronchial areas 

of the respiration system anil another portion is deposited in the 

lungs or pulmonary compartment. Years of study have shown that 

it is the larger particles that are filtered out or deposited on 

surfaces of the respiratory system before reaching the lungs. It 

is only those small particles that pass through the filtering 

system and are deposited in the lungs which will lead to the 

disease known as coal miner's pneumoconiosis and which are accordingly called respirable dust. 

Some of the testimony concerning respirable dust ref erred to 

a Bureau of Mines infonnation circular dated February, 1971, entitled Sampling and Evaluating Resnirable Coal Mine Dust bearing 

the number IC8503. On page three of that document, there appears 

a graph which plots the diameter and density of the particles of 

coal mine dust against th'e percentage of penetration or deposition 

of such dust in the lungs, in a personal sampler device and in an 

MRE instrument. 2_/ While it is not exactly clear from the graph 

itself, the solid line indicates the manner .in which various sizes 

of dust are deposited in the lungs, the dashed line designated 

"AEC", (a development of the Atomic Energy Commission,) indicates 

the same information with respect to deposition in the personal 

respirable dust sampler, developed by the Bureau of Mines and the 

line consisting of both dashes and dots and designated "URE" indicates the amount of dust deposited in an HRE Isleworth Gravometric 

Dust Sampler, which is referred to as the NRE instrument. So far 

as the two instruments are concerned, deposition as depicted by 

the graph, indicates that part of the co2l mine dust which is . 

deposited in the section of the instrument which is designed to 

be equivalent to the lungs, i.e. the filter. Both instruments 

contain areas which are designed to eliminate dust that would 

ordinarily be deposited in the nose, trachea or bronchial areas 

of the human respiration system. The two instruments do this 

filtering out 9f the larger non-respirable particles by taking 

2_/ A copy of the referenced graph is designated Figure I. 

430 
advantage of the fact that if two spherical particles composed of 

the same substance are allowed to fall in an atmosphere, the larger 

particle will fall faster. This is because, as the size of spherical particles increase the cross-sectional diameter and therefore 

the air resistance is not increased to the same extent as the 

volume, (thus the mass of the particle) increases. In moving 

air, therefore, the larger particle will fall out sooner than the 

smaller particle. In the MRE instrument the air flow rate is 

such that the large particles fall out along the horizontal elutriator and only the smaller particles are deposited upon the 

filter which is later weighed. The air flow rate in this instrument is 2.5 liters per minute. It is obvious, that if the air 

flow in this instrument were increased, the larger particles would 

be deposited upon the filter whereas if it were decreased, particles 

normally reaching the filter might be deposited in the elutriator. 

The personal sampler works on the same principle except that 

a cyclonic system is used to cause increased acceleration for the 

purpose of driving larger (i.e. heavier) particles to the outside 

of the circling atmosphere. The personal sampler must operate 

with an air flow of 2 liters per minute, and it is equally obvious 

that in this system an i.nc::-ease in the air flm·: will increase the 

G loads and thus cause the particles which might ordinarily reach 

the filter to drop out earlier, whereas too low an air flow would 

cause such larger, non-respirable particles ~o reach the filter. 

Any variation in the air flow in the two instruments therefore 

has the opposite effect. In one, increased air flow would cause 

an error of too small a particle being deposited on the filter 

whereas the same increased air flow in the other instrument would 

cause· too large a particle to be deposited on the filter. The 

proper rate of air flow is thus extremely critic.al to both instru-::" 

men ts. 

Assuming both instruments are properly adjusted, the graph 

on page 3 of Information Circular 8503, (Figure I herein] shows 

that neither instrument collects on its filter, dust exactly corresponding to that collected by the lungs. The graph indicates 

that the MRE instrument will collect particles up to 7.1 microns 

in diameter whereas the person?l sarepler will collect particles 

up to 10 microns in diameter. While the graph is not exactly 

clear as to the pulmonary deposition, it appears to indicate deposition of particles up to somewhere between slightly over 6 microns 

and 7 microns in the lungs. The~e are other significant differences in the graphs. For example, both the personal sampler and 

the MRE instrument collecr. bet\·;een 90 and 100 percent of the coal 

mine dust 2 microns in diameter whereas the lungs collect only 

431 
0 2 4 6 8 IO 

DIAMETER UNIT DENSITY, SPHERE, micror.s 

FIGURE 1. ·Comparison of Respirable Size Criteria 

With Pulmonary Deposition Curve.· 

FIGURE I 

432 

12 
somewhere between 70 and 75 percent of that size particle. The 

lungs collect only 54 percent of the particles that are a half 

micron in diameter whereas both instruments collect almost 100 

percent of that size of particle. But it must be assumed that 

the Congress knew of the collection curves involved when it passed 

the Act and defined respirable dust as those particles of coal 

mine dust 5 microns or less in diameter. And, in the area between 

5 micron particles and 2 micron particles the personal sampler 

curve is very close to the pulmonary curve. While the personal 

sampler does collect particles up to 10 microns in size, it collects 

a very small percentage of particles with a diameter in excess of 

7 microns. The fact remains, however, that the instruments do 

collect particles larger than the statutory definition of respirable 

dust. 2-_/ 

From the aforementioned distribution curve, it appears that 

both the lungs and the personal sampler collect sl~ghtly more 

than 20 percent of the particles that are 5 microns in diameter. 

The personal sampler collects almost no particles that are 10 

microns in diameter, and from observing the curve it would appear 

that the personal sampler collects approximately 10 percent of 

those particles between 5 microns in diameter and 10 microns in 

diameter. The fact that the personal sampler collects 10 percent 

of the dust that is larger than the statutoroy definition of respirable dust, however, does not mean that 10 percent of the dust 

collected by the sampler is too large to be considered respirable 

dust. It means that whatever quantity of that size particles is 

contained in the mine atmosphere, the personal sampler will collect 

10 percent of that total quantity on its filter. 

2-_/ The fact that in Section 202(e) of the Act it states "references 

to concentrations of respirable dust in this title means the average 

concentration of respirable dust if measured with an HRE instrument 

or such equivalent concentration as measured with another device 

approved by the Secretary of Health, Education and Welfare" does 

not mean that anything me<rnured by an MRE instrument or another 

equivalent device would be respirable dust. While concentrations 

of such dust are to be measured in such instru."llents, there is no 

equivocation or uncertainty about the proscriptions of Section 318(k) 

which states in no uncertain terms "'respirable dust' means only 

dust particles 5 microns or less in size ••• " (Underscoring supplied) 

433 
While there was no testimony on the point, it would se~m 

reasonable that a slight increase in the air flow of the personal 

sampler would tend to prevent the larger particles of dust in 

excess of 5 microns in diameter from being deposited upon the 

filter. I must assume, however, that if such a simple solution 

would work, it would have been undertaken and that, therefore, 

any increase of air flow would affect the qccuracy of the device 

in collecting the smaller particles of respirable dust. Also, it 

may be that rather than trying to approximate the human respira .... 

tion system, the technicians should seek to devise an instrument 

which will measure and weigh only particles of dust 5 microns or 

less in diameter, but such a determination is not within the 

province of this hearing. We deal here with the devices as they 

exist, not as they might be. 

The dust sampling procedure established by the Bureau of 

Mines has been described in Info:::-mation Circulars 8484, 8520, and 

8503, as well as in other publications of the Bureau of Hines and 

MESA. The testimony in this case agrees with the descriptions 

referred to and will only be explained herein in general terms. 

In general, the mine opeTator purchases cassettes for the purpose 

of measuring respirable dust from-a manufacturer who has its cas.,. 

settes and the empty filter weight data chec};\.ed by the Bureau of 

Mines on a routine basis. The cassette has a serial number and a 

mine data card accompanying it has the same number. After the 

test has been run in the personal sampler the cassette and mine 

data card, filled out so far as required, are forwarded to the 

Pittsburgh testing laboratory. 

The Pittsburgh testing laboratory is maintained under controlled temperature and humidity and at a pressure slightly higher 

than the surrounding areas so that there will be no dust d:rawn 

into the laboratory. The cassettes received from the mine operator are opened in the laboratory, and the mine data card and 

capsule containing the filter are placed on trays and the numbers 

on the card and capsule are checked. They are then desiccated 

i.e. dried, to remove any moisture that might otherwise affect 

the weight, and moved to an electronic balance where devices are 

placed to nullify any electrostatic effect that might distort the 

actual weight of the filter. The filter is weighed on the electronic balance and an operator notes the weight and writes it 

down on the mine data card. At that point the technician perfo,rm .... 

ing the weighing operation makes a mental calculation to determine 

if the weight gain, that is the difference between the :::-ecordeci 

empty weight of the filter and the weight of the filter with the 

dust particles deposited thereon, is greater than 6 nilligrams. 

434 
If it is, the sample is put aside for testing for oversize particles, but if there is a weight gain of 6 milligrams or less, the 

sample is discarded and destroyed. No record is kept on the mine 

card or anywhere else as to which of a number of technicians made 

the actual weighing on any particular sample. After the weighing, 

the results are punched out on a keypunch teletype system by one 

operator and then a different person keypunches the same data 

again. The system is such that if the two operators do not punch 

out exactly the same data, an automatic notification is given so 

that the operators can check to see if one or the other made an 

error in transcribing the information from the mine data card. 

The data punched into the system, goes directly to the computer 

in Denver, Colorado which, at a later date, determines if any 10 

consecutive valid samples comply or do not comply with the standard 

in effect. 

Throughout this procedure, at.several places, the mine data 

card and filter identification numbers are checked. But there 

was at the time of the violations involved in this case, no double 

check of t~e visual weight display observed by the person operating 

the balance. At a later time, subsequent to Mr. Parobeck's deposition (Respondent's Exhibit 14) but prior to the hearing, a spot 

check system was instituted whereby a certain number of these 

weighings were later duplicated by a different operator on a ran~ 

dam basis to see if a discrepancy had occurred. 

The testimony indicated that the decision to check filters 

showing a weight gain greater than 6 milligrams was an arbitrary 

decision not based on any particular studies. With respect to 

those capsules, showing the 6 milligram weight gain, first they 

are examined to see if oversized particles appear visually ·with..,.. 

out the aid of a microscope. It such particles appear the sample 

is voided. If they do not appear, however, the filter is examined 

under a microscope with various sections of the filter designated 

as fields. It is not stated in the testimony the exact size of a 

field, but 10 of these fields are exa."Ilined and the sample is voided 

if these 10 fields each show three or more particles that are in 

excess of 10 microns in size. Mr. Parobeck's testimony made it 

clear that if nine of these fields all show more than 3 particles 

in excess of 10 microns but the 10th field did not show such particles, the sample would not be voided. It is thus fairly clear 

that in addition to the particles over 5 microns in diameter, 

particles in excess of 10 microns in diameter and thus also not 

respirable are counted against a Respondent whether the sample 

435 
weight gain is more than 6 milligrams or less than 6 milligrams 

since no test is taken regarding the weight gains of less than 6 

milligrams. 1/ 

In the Castle Valley case, supra, the Board of Mine Operations 

Appeals stated that a notice of non-compliance which is a computer 

print-out from the Denver computer, is prima facie evidence of a 

violation which can be rebutted. The Board indicated that in 

view of the discovery procedures available to a Respondent, he. 

could challenge any notice of non-compliance that might be issued. 

As testimony has indicated in this case, however, discovery techniques will help a Respondent very little in determining whether 

or not his sample was actually tested properly. It is clear that 

he cannot discover who made the actual weighing, he cannot test 

the sample prior to sending it in because it would then be voided 

for tampering, and he cannot send in experts to test his sample 

after it has shown a greater than 3 milligrams result. There is 

in effect absolutely nothing a Respondent can do to defend itself 

if the computer print-out shows that it is in violation of the 

respirable dust standard. 

436 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 1 3 1980 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 79-92-M 

A/O No. 41-01163-05002 

v. 

Plant 53 Seagoville 

GENERAL PORTLAND, INC., 

Respondent 

DECISION APPROVING SETTLEMENT 

The Solicitor has filed a motion to approve a settlement in the 

above-captioned proceeding. 

Citation No. 153605 was issued when a back-up alarm on a bulldozer 

was found to be inoperative, a violation of 30 CFR 56.9-2. The 

assessed penalty was $72 and the recommended settlement is $40. In 

support of the recommended settlement, the Solicitor states that there 

was little operator negligence as the violation could not have been 

reasonably predicted. The Solicitor gives no basis for this representation. In the future the Solicitor should give reasons. Bare conclusions 

will not suffice. The Solicitor also states that the probability of 

injury was over-evaluated since very few employees were exposed to the 

risk, they were not exposed to the risk with any great frequency and 

they were not working in a situation where their attention would be 

distracted. I accept the Solicitor's representations and on the basis 

of low gravity conclude that the recommended settlement should be 

approved. The Solicitor further advises that respondent has already 

paid the $40 penalty sought by MSHA. 

ORDER 

The recommended settlement is hereby APPROVED. 

~~\\,~ Paul Merlin 

Assistant Chief Administrative Law Judge 

Distribution: 

David S. Jones, Esq., Office of the Solicitor, U.S. Department of 

Labor, 555 Griffin Square, Suite 501, Dallas, Texas 75202 

(Certified Mail) 

M. Susan Carlson, Esq., Kilcullen, Smith & Heenan, 1800 M St., N.W., 

Washington, DC 20036 (Certified Mail) 

437 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE pF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH\SVlaGINIA 22041 

fEB t 3 tjU 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. LAKE 79-109 

A/O No. 33-01357-03003 

v. 

BUCKEYE COAL MINING COMP Ai~, INC. , 

Respondent 

West.Point Strip Mine 

DECISION APPROVING SETTLEMENTS 

ORDER TO PAY 

The Solicitor has filed a motion to approve settlements in the 

above-captioned proceeding. 

Citation No. 273083 was issued for a failure to conduct noise level 

surveys at six month intervals, as required by 30 CFR 71.303(a). The 

original assessment was $150 and the recommended settlement is $52. In 

support of her motion, the Solicitor states that both operator negligence 

and gravity had been overassessed: the operator's safety director thought 

he had conducted the survey, and the probability of occurrence was 

improbable as previous surveys had demonstrated no excessive noise 

exposures. I accept the Solicitor's representations, which indicate a 

low level of negligence and a lack of gravity. Accordingly, the recommended settlement is hereby approved. 

Citation Np. 784608 was issued when a portable fire extinguisher 

was found to be unusable and inoperative, a violation of 30 CFR 77.1110. 

The original assessment was $34 and the recommended settlement is $25. 

In support of her motion, the Solicitor states that the probability of 

injury was minimal as there were other fire extinguishers present in the 

area. I accept the Solicitor's representations. Accordingly, the 

recommended settlement is hereby approved. I would however, note that 

the original assessment was low. I cannot understand why the Solicitor 

would agree to any reduction. However, the difference involved is so 

small that further expenditure of the taxpayers' money on this matter is 

not justified. 

The Solicitor further states that Citation Nos. 784606 and 784607 

have been settled for the original amounts of $48 and $66, respectively. 

However, she gives no reasons for the recommended settlements. Proceedings 

before the Commission are de novo, and a sufficient basis must be provided 

for the approval of all settlements. Rather than disapprove these 

settlements, I have reviewed the citations, the assessment sheets and 

the inspector's statements. Based upon my own review of the violations, 

I conclude the recommended settlements are consistent with and will 

effectuate the purposes of the Act. The recommended settlements are 

therefore, approved. In the future, however the Solicitor should given 

reasons. 

438 
ORDER 

The operator is ORDERED to pay $191 within 30 days from the date of 

this decision. 

Paul Merlin 

Assistant Chief Administrative Law Judge 

Distribution: 

Linda Leasure, Esq., Office of the Solicitor, U.S. Department of 

Labor, 881 Federal Office Bldg., 1240 East Ninth St., Cleveland, 

OH 44199 (Certified Mail) 

John Orr Beck, Esq., 26 N. Park Avenue, Lisbon, OH 44432 

(Certified Mail) 

439 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

STEVE SHAPIRO, 

Complainant 

v. 

BISHOP COAL COMPANY, 

Respondent 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210}.J..l/12 

fEB \ 3 19tll 

Complaint of Discharge, 

Discrimination and Interference 

Docket No. WEVA 79-238-D 

Docket No. WEVA 79-445-D 

Bishop No. 34 Mine 

ON BEHALF OF STEVE SHAPIRO, 

Complainant 

v. 

CONSOLIDATION COAL COMPANY 

(BISHOP COAL COMPANY), 

Respondent 

DECISIONS APPROVING SETTLEMENT 

Appearances: Barbara K. Kaufmann and Kenneth Stein, Esqs., Office of the 

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

Pennsylvania, for the Complainants; Kendrick King, UMWA, 

District #29, Beckley, West Virginia, for complainant 

Steve Shapiro; Samuel P. Skeen, Esq., Pittsburgh, Pennsylvania, 

for the respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings concern discrimination complaints filed 

by the complainants against the respondent pursuant to section 105(c)(3) of 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq. A 

hearing was conducted in Charleston, West Virginia during the term October 23-24, 

1979, to commence again at a time and place convenient to the parties. 

Subsequently, complainant MSHA advised me by letter dated January 18, 1980, 

that the parties had reached a settlement in the cases and that a motion 

to withdraw the complaints would be forthcoming for my review and consideration. 

By motion filed February 7, 1980, MSHA moves to withdraw its 

discrimination complaint on the ground that the parties have agreed to 

settle the matter and that the terms of the agreement finalizing 

the settlement are satisfactory to all concerned, including Mr. Shapiro, 

and that both the operator and Mr. Shapiro have signed and executed the 

settlement agreement, a copy of which as been submitted for the record. 

440 
Under the terms of the agreement respondent agrees that it will not 

discharge or in any· manner discriminate against or interfere with any 

miner, representative of miners, or applicants for employment subject 

to the Act because of their engaging in activities protected by the Act 

or in the exercise of any rights granted to them under the Act, including 

the making of health or safety complaints to the respondent or to MSHA 

or the filing of charges with MSHA. Further, respondent agrees to 

innnediately post on the mine bulletin board, or in a conspicuous place 

where notices to employees are customarily posted and maintained for a 

period of 60 consecutive days from the date of posting, the notice 

setting forth the terms of the settlement agreement between the respondent 

and Mr. Shapiro. 

Discussion 

Connnission Rule 30, 29 CFR 2700.30, requires Connnission approval 

for proposed civil penalty cases which have been contested but subsequently 

settled. Although the instant cases are complaints of discrimination 

filed pursuant to section 105(c)(2), MSHA's claims for relief included 

a proposal for assessment of an appropriate civil penalty in the event 

it prevailed on its discrimination claim. Accordingly, I believe that 

any proposed settlement in cases of this kind require a Judge's approval 

pursuant to rule 30. See, Secretary of Labor (MSHA) and John Koerner v. 

Arch Mineral Coal Company, DENV 78-564, March 9, 1979, a discrimination 

case decided by now retired Judge Littlefield on February 7, 1979. 

Judge Littlefield approved a settlement entered into by the parties on 

the ground that "the parties have successfully negotiated a settlement 

on all matters formally in issue", and he vacated a reinstatement order 

previously entered in the case. On review, the Connnission remanded the 

case to the Judge in order to supplement the record with (1) the terms 

of the settlement and (2) to document the fact that the employee agreed· 

to or otherwise acquiesced in the negotiated settlement. Further, in a 

recent case decided by Judge Steffey on January 8, 1980, MSHA and James 

Blevins, et al., v. Cedar Creek Coal Corporation, VA 79-55-D, he 

approved a discrimination case settlement and permitted withdrawal of the 

complaint on the basis of his findings that all of the affected miners 

signed the agreement and that it reflected a reasonable resolution of 

all issues p~esented in the proceedings. 

Conclusion 

After full consideration of the record adduced in these proceedings, 

including the transcripts of the testimony presented by the witnesses who 

testified in the two-day hearing session of October 23 and 24, 1979, and 

the settlement agreement entered into by the parties, I conclude that 

the proposed disposition of these proceedings is in the public interest 

and should be approved. It seems clear to me that both Mr. Shapiro and 

the respondent are satisfied with the agreed upon disposition of the complaints 

441 
which were filed in these proceedings, and that the Secretary is in 

accord with the agreement. Accordingly, pursuant to 29 CFR 2700.30, 

th.e settlement is approved, and MSHA' s motion to withdraw and dismiss 

is granted. 

Order 

Respondent is ordered to comply forthwith with the terms of the 

settlement as set forth above and to post the notice of the agreement 

as agreed. Upon compliance, these proceedings are dismissed. 

. Koutras 

(l~ Judge 

Distribution: 

Kendrick King, General Counsel, District 29, U.M.W.A. Box 511, Beckley, 

WV 25801 (Certified Mail) 

Samuel P. Skeen, Esq., Consolidation Coal Company, Consol Plaza, Pittsburgh, 

PA 15241 (Certified Mail) 

Barbara K. Kaufmann, Kenneth Stein, Esqs., U.S. Department of Labor, 

Office of the Solicitor, Rm. 14480 Gateway Bldg., 3535 Market St., 

Philadelphia, PA 19104 (Certified Mail) 

Steve Shapiro, P.O. Box 137, Newhall, WV 24866 (Certified Mail) 

442 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

H & H COAL COMPANY, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6225 

'FEB t 4 t900 

Petitioner 

Respondent 

Civil Penalty Proceeding 

Docket No. KENT 79-39 

A.O. No. 15-11014-03002 

Mine: Freedom No. 1 Surface 

DECISION 

Pursuant to Section llO(a) of the Federal Mine Safety and Health Act 

of 1977 (the Act), the Secretary of Labor petitioned for the assessment of 

a civil penalty. A hearing was held on January 9, 1980 in Louisville, 

Kentucky. 

The parties stipulated and I find: 

1. Respondent, H & H Coal Company, is subject to the Act's jurisdiction, is a small operator, and operates Freedom No. 1 Surface. 

2. I have jurisdiction over this case. 

3. On November 20, 1978, Earl T. Leisure, a duly authorized MSHA 

representative, inspected Freedom No. 1 Surface and properly issued the 

citation in question. 

4. Exhibit P-1 accurately reflects Respondent's history of previous 

violations. 

5. Any penalty that I assess will not adversely affect Respondent's 

ability to continue in business. 

6. Respondent acted in good faith in connection with this matter. 

At the conclusion of the hearing, the parties waived the filing of 

written briefs, proposed findings of fact, and conclusions of law and I 

rendered the following decision from the bench: 

Petitioner alleged that pursuant to Section 110 of the 

Act a civil penalty should be assessed against Respondent 

for violating the Safety Standard at 30 CFR 77.404(a). 

443 
That Standard reads "mobile and stationary machinery 

and equi.pment shall be maintained in safe operating condition, and machinery or equipment in unsafe condition shall 

be removed from service immediately." 

Petitioner contends that in permitting a vehicle, 

which was used for drilling to be operated with its front, 

rear and side windows removed, Respondent did not maintain 

that vehicle in a safe condition in that the vehicle's 

driver could have been injured by the -sharp edges of the 

window frames and by dust or the debris flying back from 

the drill to the front window opening. I agree. 

I find that the operation of this vehicle without 

windows constituted an unsafe operating condition, and 

this violated the Standard at 30 CFR 77.404. 

I find that there was some danger of the driver being 

struck by dust and/or debris that might come into the front 

of the vehicle through the front window opening. A window 

would have protected the driver against this danger. 

To a lesser extent, there was possible danger from the 

windows' edges. 

There is some dispute as to the sharpness of the edges 

in and about the window frames, and in view of the fact that 

the vehicle moved slowly and the driver generally kept his 

hands on the controls, this danger was slight. 

There was little negligence involved since the violation was based upon an interpretation of the regulation, 

which the operator legitimately disagreed with and of which 

the operator had no advance notice. 

In consideration of the above, as well as the other 

criteria under Section llO(i), including H & H's rapid compliance and good faith and its efforts to prevent repetition 

of this violation, I assess a penalty of $15 against the 

operator for this violation. 

Accordingly, it is ordered that H & H Coal Company pay 

a penalty of $15 on or before 30 days after it receives a 

copy of my signed decision and Order in this matter. 

The bench decision is AFFIRMED. 

444 
ORDER 

Respondent is ORDERED to pay $15.00 in penalties within 30 days after 

receipt of this Order. 

Distribution: 

Edwin S. Bernstein 

Administrative Law Judge 

George Drumming, Jr., Attorney, Office of the Solicitor, U.S. Department of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Byron W. Terry, Safety Director, The Hoke Company, Inc, Box 61, 

Cromwell, KY 42333 (Certified Mail) 

445 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

GOLDEN R COAL COMPANY, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR . 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6225 

f£9 14 i9M 

Petitioner 

Respondent 

Civil Penalty Proceeding 

Docket No. KENT 79-124 

A.O. No. 15-10364-03003 

Mine: Prep Plant 

DECISION 

Pursuant to Section llO(a) of the Federal Mine Safety and Health Act 

of 1977 (the Act), the Secretary of Labor petitioned for the assessment of 

a civil penalty. Petitioner alleged that Respondent violated the mandatory 

safety standard at 30 CFR § 77.1707(b), which reads: 

The first aid equipment required to be maintained under 

the provisions of paragraph (a) of this section shall include 

at least the following: 

(1) One stretcher; 

(2) One broken-back board (if a splint-stretcher combination is used it will satisfy the requirements of both subparagraph (1) of this paragraph and this subparagraph (2)); 

. (3) Twenty-four triangular bandages (15 if a splintstretcher combination is used); 

(4) Eight 4-inch bandage compresses; 

(5) Eight 2-inch bandage compresses; 

( 6) Twelve 1-inch adhesive compresses; 

(7) An approved burn remedy; 

(8) Two cloth blankets; 

(9) One rubber blanket or equivalent substitute; 

(10) Two tourniquets; 

446 
(11) One 1-ounce bottle of aromatic spirits of ammom.a 

or 1 dozen ammonia ampules; and, 

(12) The necessary complements of arm and leg splints 

or two each inflatable plastic arm and leg splints. 

Paragraph (a) reads: 

Each operator of a surface coal mine shall maintain a 

supply of the first aid equipment set forth in paragraph (b) 

of this section at or near each working place where coal is 

being mined, at each preparation plant and at shops and other 

surface installation where ten or more persons are regularly 

employed. 

A hearing was held on January 9, 1980, in Louisville, Kentucky. The 

issues are whether Respondent violated the standard and, if so, the appropriate civil penalty to be assessed, based upon the six criteria in Section 

llO(i) of the Act. At the hearing, Earl T. Leisure, the MSHA inspector who 

issued the citation, testified for Petitioner and Byron W. Terry, Respondent's safety director, testified for Respondent. 

The parties stipulated, and I 'find: 

1. Respondent, Golden R Coal Company, is subject to the jurisdiction 

of the Act. 

2. Respondent operates a coal preparation plant called the "Prep 

Plant." 

3. Earl T. Leisure is a duly authorized representative of the Mine 

Safety and Health Administration, and in his official capacity inspected the 

"Prep Plant" on September 18, 1978. 

4. Respondent was properly issued the citation in question. 

S. Respondent is a small operator. 

6. Any penalty which I assess will not adversely affect Respondent's 

ability to continue in business. 

7. The certified computer printout marked as Exhibit P-1 reflected 

an accurate history of previous violations. 

Mr. Leisure testified that on September 18, 1978, he inspected the Prep 

Plant, accompanied by Respondent's plant manager, Larry Gwinn. During this 

inspection, Mr. Leisure discovered that the plant's first-aid kit was missing certain items which are required by the standard. The missing items 

included one broken back board, 21 triangular bandages, three 4-inch bandage 

compresses, 12 1-inch adhesive compresses, an approved burn remedy, two 

cloth blankets, and one tourniquet. Mr. Leisure stated that the missing 

447 
items represented more than half of the required contents of the kit, and 

that in his opinion, they were "major items as opposed to small items." 

Although Mr. Leisure felt that Mr. Gwinn should have. known of these shortages, he also felt that Respondent exercised good faith in rapidly abating 

the condition. The abatement notice, which was issued by another inspector, 

stated that the Prep Plant later procured a complete first-aid kit. 

Mr. Terry testified that the operator read Section 77.1707(a) as requiring a full first-aid kit (i.e., one meeting all the requirements of section 77.1707(b)) only at preparation plants where 10 or more persons are regularly employed. He.stated that only three people were working at the Prep 

Plant at the time of the alleged violation. With respect to specific shortages in the Prep Plant's equipment on the day in question, Mr. Terry stated 

that additional blankets were available at the owner's house, which was 

120 yards from the plant. The absence of a stretcher or broken back board was 

explained by the close proximity of ambulance service in Morgantown, Kentucky, 

which was apparently 5 to 10 minutes from the plant. On cross-examination, 

however, Mr. Terry admitted that if the standard applied to the Prep Plant, 

the availability of ambulance service did not provide the type of protection 

that compliance with the standard would. Finally, Mr. Terry stated that 

after the citation was issued, plant employees drove 89 miles to obtain a 

full first-aid kit, and that the kit was in the plant office the morning 

after the citation was issued.· 

The parties filed posthearing submissions directed to Respondent's argument that the requirements of s·ection 77 .1707(b) do not apply to preparation 

plants employing less than 10 persons. Petitioner argues that Section 

77.1707(a) designates working places and preparation plants specifically with 

the use of the word "each, 11 while "shops and other surface installation(s)" 

are only generally designated. Thus, in Petitioner's view, the "10 or more 

persons" requirement relates back only to shops and other surface 

installations. 

Respondent argued that the comma after the word "mined" in Section 

77.1707(a) was intended to divide the sentence into those installations where 

a first-aid kit would be required regardless of the number of employees at 

the facility, and those installations where a kit would be required only if 

10 or more persons were regularly employed. 

I commend both parties on their arguments concerning the interpretation 

of a standard which is, admittedly, drafted in an ambiguous and confusing 

manner. However, on balance, I believe that Petitioner's interpretation is 

more persuasive. In reaching this conclusion, I am guided not only by the 

wording of the regulation, but by the Act's underlying remedial purposes. 

As a general proposition, rules of statutory construction can be 

employed in the interpretation of administrative regulations. See 

C. D. Sands, lA Sutherland Statutory Construction, § 31.06, p. 362 (1972). 

According to 2 Am. Jur. 2d, Administrative Law, § 307 (1962), "rules made 

in the exercise of a power delegated by statute should be construed together 

448 
with the statute to make, if possible, an effectual piece of legislation in 

harmony with common sense and sound reason." 

Section 2 of the 1977 Mine Act attests to the statute's remedial purpose as follows: 

SEC. 2 Congress declares that--

(a) the first priority and concern of all in the coal or 

other mining industry must be the health and safety of its 

most precious resource--the miner; 

(b) deaths and serious injuries from unsafe and 

unhealthful conditions and practices in the coal or other 

mines cause grief and suffering to the miners and to their 

families; 

(c) there is an urgent need to provide more effective 

means and measures for improving the working conditions and 

practices in.the Nation's coal or other mines in order to 

prevent death and serious physical harm, and in order to 

prevent occupational diseases originating in such mines; 

(d) the existence of unsafe and unhealthful conditions 

and practices in the Nation's coal or other mines is a 

serious impediment to the future growth of the coal or 

other mining industry and cannot be tolerated; 

(e) the operators of such mines with the assistance of 

the miners have the primary responsibility to prevent the 

existence of such conditions and practices in such mines; 

(f) the disruption of production and the loss of income 

to operators and miners as a result of coal or other mine 

accidents or occupationally caused diseases unduly impedes 

and burdens commerce; and 

(g) it is the purpose of this Act (1) to establish 

interim mandatory health and safety standards and to direct 

the Secretary of Health, Education, and Welfare and the 

Secretary of Labor to develop and promulgate improved mandatory health or safety standards to protect the health and 

safety of the Nation's coal or other miners; (2) to require 

that each operator of a coal or other mine and every miner 

in such mine comply with such standards; (3) to cooperate 

with, and provide assistance to, the States in the development and enforcement of effective State coal or other mine 

health and safety programs; and (4) to improve and expand, 

in cooperation with the States and the coal or other mining 

industry, research and development and training programs 

449 
aimed at preventing coal or other mine accidents and 

occupationally caused diseases in the industry. 

Remedial legislation such as the 1977 Mine Act must be interpreted in 

light of the express Congressional purpose of providing a safe work environment, and the regulations promulgated pursuant to such legislation must be 

construed to effectuate Congress' goal of accident prevention. Brennen v. 

Occupational Safety and Health Review Commission, 491 F.2d 1340, 1343 

(2d Cir. 1974). "Should a conflict develop between a statutory interpretation that would promote safety and an interpretation that would serve 

another purpose at a possible compromise of safety, the first should be 

preferred." District 6, UMWA v. Department of the Interior Board of Mine 

Operations Appeals, 562 F.2d 1260, 1265 (D.C. Cir. 1972). 

Turning to the regulation itself, I do not agree with Respondent's contention that the comma after the word "mined" was intended to substantively 

separate the sentence so as to include preparation plants in the "10-person" 

limit. If such a meaning had been intended, I believe that the word "and" 

would have been placed after the word "mined", rather than after "preparation 

plant." I find Petitioner's argument concerning the use of the word "each" 

before "working place" and "preparation plant," but not before "shops and 

other surface installation(s)" to be more convincing. Accordingly, I find 

that Respondent violated 30 CFR § 77.1707(b). 

However, I do not agree w~~h the Assessment Office's proposed penalty 

of $98. The language of this regulation is so unclear that it did not provide this operator with adequate notice of its meaning. Therefore, I assess 

a penalty of $10. 

ORDER 

Respondent is ORDERED to pay $10 in penalties within 30 days of the 

date of its receipt of this Order. 

Distribution: 

~· //'. &~ ·- Edwin s. Bernstein 

Administrative Law Judge 

George Drumming, Jr., Attorney, Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Byron W. Terry, Safety Director, Golden R Coal Company, R.R. No. 1, 

Cromwell, KY 42333 (Certified Mail) 

450 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

THE HOKE COMPANY, INC. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52Q3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6225 

FEB f ·4 1990 

Petitioner 

Respondent 

Civil Penalty Proceeding 

Docket No. KENT 79-138 

A.O. No. 15-11129-03003 

Mine: Land Fill Strip 

DECISION 

Pursuant to Section llO(a) of the Federal Mine Safety and Health Act of 

1977 (the Act), the Secretary of Labor petitioned for the assessment of civil 

penalties for six citations issued to Respondent. A hearing was held on 

January 9, 198?, in Louisville~ Kentucky. 

The parties stipulated and I find: 

1. Respondent, The Hoke Company, Inc., is subject to the Act's jurisdiction, is a small operator, and operates the surface coal mine designated 

as "Land Fill Strip." 

2. On January 16, 1979, Earl T. Leisure, a duly authorized MSHA representative, inspected Land Fill Strip and properly issued the citations in 

question. 

3. Exhibit P-1 accurately reflects Respondent's history of previous 

violations. 

4. Any penalty that I assess will not adversely affect Respondent's 

ability to continue in business. 

After submitting evidence, the parties waived filing briefs and proposed 

findings of fact and conclusions of law and I issued the following decisions 

from the bench. 

Citation No. 399161 

The violation, alleged under the Section 110 of the Act, is of 30 CFR 

77.410, which reads: "Mobile equipment such as trucks, forklifts, frontend 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." 

451 
It is undisputed that Respondent violated that safety provision, and 

I so find. 

There was a high degree of negligence. Knowing that the backup alarm 

on the vehicle was disabled, Respondent operated the vehicle. This constituted a willful violation of the standard. 

The gravity was moderate. No one was in the area, according to 

Mr. Terry's testimony and the testimony of-Mr. Leisure. 

As Mr. Leisure testified, it is difficult to see behind this vehicle. 

The vehicle was in reverse at least 50 percent of the time, and the vehicle 

is extremely heavy, many tons in weight. Therefore, the risk of death or 

serious injury as a result of this violation can be quite great. Because of 

this violation and the negligence involved, sufficient penalty to encourage 

future voluntary compliance is required. However, taking into consideration 

the fact that the operator is a small operator and exercised good faith 

efforts to correct the condition, in this case, I assess a penalty of $200. 

But for these factors, I would assess a larger penalty, and I would expect 

that the next time such a violation occurs, given this type of factual situation by this operator, the penalty would be larger. 

Citation No. 399162 

1his citation involves an alleged violation of 30 CFR § 77.404(a), 

which reads: "Mobile and stationary machinery and equipment shall be maintained in safe operating condition and machinery or equipment in unsafe 

condition shall be removed from service immediately." 

Petitioner contends that in operating this truck with its muffler and 

tailpipe missing, Respondent exposed the occupants of that truck to the danger 

of being seriously injured by carbon monoxide fumes. 

I find that Respondent was in violation of that provision. There was a 

fair degree of negligence. Respondent knowingly violated that provision. 

The gravity was moderate. It was wintertime. There was a danger of the 

operators of that vehicle keeping the windows closed and of the fumes poisoning the occupants. However~ there is no evidence that on this occasion the 

windows were rolled up. 

This is a small operator, and the evidence is that the operator did 

achieve prompt compliance. Therefore, I find the amount of the penalty 

warranted for this violation in order to encourage voluntary compliance is 

$125. 

Citation No. 399163 

I find that by not providing this explosive truck with a working horn, 

Respondent violated several safety standards of this Act. 

452 
In my opinion, Respondent violated all three standards that were 

discussed. 

It was a violation of 30 CFR § 77 .404( a) which reads: "Mobile and 

stationary machinery and equipment shall be maintained in safe operating 

condition and machinery or equipment in unsafe condition shall be removed 

from service immediately." 

This was mobile machinery or equipment. A working horn is a requirement 

of operating a vehicle in a safe operating condition. In not having a working horn, Respondent violated that safety provision. 

A similar violation occurred with respect to 30 CFR § 77.1302(b), 

which reads: "Vehicles containing explosives or detonators shall be 

maintained in good condition and shall be operated at a safe speed and 

in accordance with all safe operating practices." 

In not having a working horn, this vehicle was not maintained in good 

condition. 

Finally, although I agree with Mr. Terry that there is some question as 

to the applicability of the Section, 30 CFR § 77.1605(d)• I agree that of 

the three sections, this may b~ the least applicable. I find that the 

language in this section is sufficiently broad to apply. 

Therefore, I find a violation. I find moderate gravity. A horn is an 

important safety device in a vehicle of this kind. There is a question as 

to the degree of negligence. There is no evidence that the supervisory 

personnel of Respondent knew of this condition before the inspector discovered it, although there is some hearsay evidence that a driver stated that 

the condition existed for quite some time. 

There was good faith compliance, and this is a small operator. As I 

have indicated, I consider these standards to be quite important. I assess 

a penalty of $65, which I hope would be sufficient enough to encourage voluntary compliance of these standards on the part of the operator in the future. 

Citation No. 

In view 

set forth in 

posed by the 

No. 399164. 

Citation No. 

399164 

of what 

Section 

parties 

399165 

I have heard and upon consideration of the six criteria 

llO(i) of the Act, I will approve the settlement proand I will assess a penalty of $84 for Citation 

After hearing the testimony of the witness and upon consideration of 

the six criteria set forth in Section llO(a) of the Act, I will approve the 

proposed settlement and I will approve the assessment. I will assess a 

penalty of $106 for the violation in Citation No. 399165. 

453 
Citation No. 399200 

'Ihe citation involves an alleged violation of the mandatory standard 

at 30 CFR § 77.1109(c)(l), which reads: "Mobile equipment, including 

trucks, front-end loaders, bulldozers, portable welding units, and augers, 

shall be equipped with at least one portable fire extinguisher." 

The undisputed testimony of Mr. Leisure is that at the time of his 

inspection, the Caterpillar D9E tractor did not have a portable fire extinguisher. Therefore, Respondent violated the safety standard. 

The operator was negligent in that this condition was readily observable. The extinguisher was reasonably large. It would have been a bright 

color, and it was the type of item that could have been noted upon an 

inspection. 

The fact that there is no evidence that the officials in charge of the 

mine knew that the extinguisher was not on the vehicle does not nullify the 

fact that they should have or could have known upon inspection that the 

extinguisher was not on the vehicle. 

A lack of an extinguisher could have caused serious injury to the driver 

of the vehicle in the event of a fire. 

The gravity of the violation is somewhat mitigated by the fact that, as 

testified to by Mr: Terry, there were other extinguishers nearby. However, 

the regulation does require an extinguisher on each vehicle. 

There was good faith correction by the operator, and this is a small 

operator. 

I therefore assess a penalty for this violation in an amount of $65, 

which I hope would be high enough to deter further violations of this kind 

and assure voluntary compliance of this Standard by the mine operator. 

I affirm these six bench decisions. 

Summary 

The following table summarizes the citation numbers, the amounts 

originally proposed by the Assessment Office, and the final assessments to 

be paid by Respondent: 

Citation No. 

399161 

399162 

399163 

399164 

399165 

399200 

Proposed Assessment 

$ 72.00 

$106.00 

$ 48.00 

$ 84.00 

$106.00 

$ 40.00 

454 

Final Assessment 

$200.00 

$125.00 

$ 65.00 

$ 84.00 

$106.00 

$ 65.00 
ORDER 

Respondent is ORDERED to pay $645.00 in penalties within 30 days after 

its receipt of this Order. 

Distribution: 

#-· #· & ... ;z; 

Edwin s~ Bernstein 

Administrative Law Judge 

George Drumming, Jr., Attorney, Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Byron W. Terry, Safety Director, The Hoke Company, Inc., Box 61, 

Cromwell, KY 42333 (Certified Mail) 

455 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR; 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 1 4 1980 

Petitioner 

Civil Penalty Proceeding 

Docket No. LAKE 79-53 

Assessment Control 

No. 11-00614-03007 

SOUTHWESTERN ILLINOIS COAL 

CORPORATION, 

Streamline Strip Mine 

Respondent 

DECISION 

Appearances: Miguel J. Carmona, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Brent L. Motchan, Esq., St. Louis, Missouri, for 

Respondent. 

Before: Administrative Law Judge Steffey 

Pursuant to written notice dated September 4, 1979, a hearing in the 

above-entitled proceeding was held on October 10, 1979, in St. Louis, 

Missouri, under section 105(d) of the Federal Mine Safety and Health Act 

of 1977. 

MSHA's Petition for Assessment of Civil Penalty was filed in Docket 

No. LAKE 79-53 on May 14, 1979, seeking assessment of a civil penalty for 

an alleged violation of 30 CFR 77.1710(a). 

Issues 

Simultaneous posthearing briefs were filed on December 13, 1979, by 

counsel for MSHA and Southwestern Illinois Coal Corporation. The briefs 

raise the issues of (1) whether a violation of section 77.1710(a) occurred 

and, if so, what civil penalty should be assessed based on the six criteria 

set forth in section llO(i) of the Act and (2) whether Southwestern Illinois 

Coal Corporation should be required to pay a civil penalty for an alleged 

violation which was committed by an independent contractor. 

Findings of Fact 

My decision in this proceeding will be based on the findings of fact 

set forth below: 

456 
1. Southwestern Illinois Coal Corporation operates the Streamline 

.Strip Mine which is located in Randolph County, Illinois. The mine employs 

176 miners to produce about 5,600 tons of coal per day from the Illinois 

No. 6 coal seam which is 72 inches thick (Exh. 1, p. 3). Southwestern is 

controlled by Arch Mineral Corporation whose total annual coal production 

for the year 1978 was 7,783,693 tons. Ashland Oil Incorporated owns a 

48.9-percent interest in Arch Mineral Corporation (Exh. 1, pp. 1 & 2). 

2. Southwestern Illinois Coal Corporation, hereinafter referred to 

as the operator, entered into a contract dated June 22, 1977, with Darryll 

Waggle Construction, Inc., hereinafter referred to as Waggle. Under the 

contract, Waggle agreed to assemble and erect a Model No. 8200 Marion Dragline at the operator's Streamline Mine in accordance with blueprints and 

other specifications to be provided by the operator. The operator reserved 

the right to make changes in the drawings and specifications. Waggle was 

obligated to provide all labor and supervision and all tools except that 

the operator agreed to provide all welding machines, torches, grinders, air 

motors, and derrick or crawler cranes (Operator's Br., Exh. 1, pp. 1-3). 

3. Waggle was obligated under the contract to provide a competent foreman or superintendent, satisfactory to the operator, at the site of the work 

at all times and Waggle was obligated under the contract to enforce strict 

disc.ipline and good order among its employees (Op. Br., Exh. 1, p. 3). The 

contract provided that Waggle should complete the assembly and erection of 

the dragline within a period of 14 months after sufficient material had been 

received at the erection site for work to begin. The operator agreed to provide (1) a graded and drained erection site at the Streamline Mine, (2) an 

all-weather access road to the erection site, and (3) a railroad spur and 

unloading area for unloading dragline component~, other equipment, and supplies (Op. Br., Exh. 1, pp. 4 & 5). Waggle was obligated under the contract 

to perform all work on a "cost-plus" basis and the operator reserved the 

right to inspect, audit, and make photocopies of all of Waggle's records 

(Op. Br., Exh. 1, p. 7). Under the contract, Waggle could not subcontract 

any work without obtaining the operator's express permission in writing (Op. 

Br., Exh. 1, p. 9). Waggle was obligated under the contract to reimburse 

the operator for any claims, damages, or lawsuits arising from the assembly 

of the dragline, including any claims or expenses arising under the Federal 

Coal Mine Health and Safety Act of 1969, as amended (Op. Br., Exh. 1, p. 10). 

Waggle was obligated under the contract to take all necessary precautions 

for the safety of employees and to comply with all applicable provisions of 

Federal, State, and local safety laws and building codes to prevent accidents or injuries to persons on or about or adjacent to the premises where 

the work was being performed (Op. Br., Exh. 1, p. 12) . • 

4. An MSHA inspector on January 9, 1979, went to the operator's 

Streamline Mine and advised the operator's safety director, Mr. Allan Byrd, 

that he would be making an inspection at the site where Waggle was assembling 

the Marion dragline (Tr. 9). The inspector then went to the construction 

site office where he examined Waggle's preshift and accident reports. The 

inspector was accompanied on his examination of the construction site by 

457 
Waggle's safety representative, Mr. Sam Higgerson, and the UMWA's safety 

representative (Tr. 10). 

S. When the inspector was about 40 feet northwest of the dragline, he 

observed two of Waggle's employees at a point about midway of the boom. When 

the inspector first saw the workmen, they were about 220 feet from him. It 

appeared to the inspector that one of the employees was cutting metal with 

an oxygen-acetylene torch while the other watched or assisted in the cutting 

operation. The inspector started walking toward the men to determine whether 

they were wearing safety goggles. The man who was doing the actual cutting 

-was wearing goggles, but the man who was watching the cutting operation was 

not wearing goggles. When the inspector was between 100 and 10 feet from 

the men, he calculated that the face of the man without goggles was within 

2-1/2 feet of the cutting torch. The workmen did not realize that the 

inspector was in their vicinity until he was about 10 feet from them. At 

that time, they stopped working and turned to face the inspector (Tr. 12; 

29; SS; 63; 86; Exhs. Band C). 

6. The inspector learned from Waggle's construction site representative that the name of the workman who was observing the cutting process 

was Mr. Doug Hepp. The inspector advised Mr. Higgerson, Waggle's safety 

representative, that Mr. Hepp was in violation of section 77.1710(a) which 

provides "[p]rotective clothing or equipment and face-shields or goggles 

shall be worn when welding, cutting, or working with molten metal or when 

other hazards to the eyes exist." The inspector wrote Citation No. 771428 

at 11:30 a.m., citing the operator for a violation of section 77.1710(a) 

because (Tr. 12; Exh. 2): 

Doug Hepp, a classified welder, was observed assisting 

another welder in cutting out pieces of metal from a section 

of 1-1/2" plate. Mr. Hepp's eyes were within 2-1/2 feet from 

the cutting tip and he was not wearing any eye protection. 

The violation occurred in the boom area of the 8200 Dragline 

on the construction site. Mr. Hepp was under the supervision 

of Ralph Gaither. 

7. Although Mr. Hepp testified that he keeps goggles in his tool 

box and wears them when he is cutting with a torch, it was necessary for 

Mr. Hepp to go to the welding shanty and procure a pair of goggles after 

he was cited by the inspector for not wearing them (Tr. 80-81). Both 

Mr. Horton, who was doing the cutting when Citation No. 771428 was 

written, and Mr. Hepp testified that Mr. Hepp was standing behind 

Mr. Horton while metal was being cut (Tr. 68; 76). Faggle provided the 

goggles used by its workers and Waggle always had plenty of goggles at 

the construction site (Tr. 81-82). 

8. A master mechanic employed by the operator presented a diagram of 

a Model 8200 Marion dragline and testified that, in his opinion, it would 

have been difficult for the inspector to have determined from a distance 

of approximately 220 feet that Mr. Hepp's face was within 2-1/2 feet of 

458 
the tip of the cutting torch (Tr. 63). The master mechanic also testified 

that there were two. buildings in the general area where the inspector was 

standing at the time he claims to have seen Messrs. Horton and Hepp working. The master mechanic expressed the opinion that the two buildings 

might also have obstructed the inspector's view of the place where 

Messrs. Horton and Hepp were working (Tr. 63). The master mechanic, however, was not present when the inspector made the investigation which 

resulted in the issuance of Citation No. 771428 (Tr. 66). Messrs. Horton 

and Hepp also expressed a belief that the inspector would not have been 

able to tell how close Mr. Hepp was to the cutting torch when the inspector was 220 feet from the cutting operation (Tr. 69; 77). 

9. The inspector gave Waggle a period of 5 minutes within which to 

abate the violation of section 77.1710(a) and the violation was abated 

within the time allowed. Therefore, the inspector was of the opinion that 

the operator had shown a good faith effort to achieve rapid compliance (Tr. 

19; Exh. 2). 

10. The danger associated with Mr. Hepp's failure to wear goggles lies 

in the fact that a piece of molten metal could have flown up from the cutting 

torch and could have caused a serious eye injury (Tr. 15). The inspector 

believed that the operator had tried to the best of its ability to get all 

employees to wear protective eyewear (Tr. 17-18). 

11. The inspector stated that it was MSHA's policy to cite the operator for violations attributable to work performed for an operator by an independent contractor. At the time the inspector wrote Citation No. 771428, he 

was solely concerned with bringing about compliance with section 77.1710(a) 

rather than with a question of whether he shoul4 have written the citation 

in the name of Waggle, instead of the operator of the Streamline Mine (Tr. 

42-43). The inspector was aware of the fact that the Secretary has published some proposed regulations governing the issuance of citations or 

orders in the name of independent contractors and he recognized that MSHA's 

policy of citing the operator for violations committed by independent contractors might have to be revised after the regulations have been finalized 

(Tr. 49). 

'Th.e Issue of Whether the Operator or Waggle Should Have Been Cited 

In its brief (pp. 6-7), the operator correctly notes that all of the 

persons working at the construction site were employees of Waggle except for 

a construction superintendent who was employed by the operator to make sure 

that Waggle was conforming with the operator's blueprints and specifications 

for assembly of the dragline. The operator argues that Waggle was in the 

best position to control health and safety matters and that there is no 

justification to allow MSHA to carry out its policy of administrative convenience in citing operators rather than independent contractors who are in 

actuality responsible for violations. 

MSHA's brief (pp. 9-10) appropriately cites the inspector's statement 

that he had issued the citation in the name of the operator because it was 

459 
MSHA's policy to cite operators for violations committed by an independent 

contractor's employees pending such time as the Secretary finalizes his 

proposed regulations governing the procedures to be used for citing independent contractors (Finding No. 11, supra). 

The Commission has so far upheld MSHA in citing operators for violations committed by independent contractors (Secretary of Labor v. Republic 

Steel Corporation, 1 FMSHRC S; Secretary of Labor v. Kaiser Steel Corporation, 1 FMSHRC 343; Secretary of Labor v. Consolidation Coal Company, 

1 FMSHRC 347; Secretary of Labor v. Old Ben Coal Company, 1 FMSHRC 1480; 

and Secretary of Labor v. Monterey Coal Company, 1 FMSHRC 1781). In the 

Old Ben case the Commission noted, however, that MSHA's policy of citing 

operators for independent contractors' violations should be an interim 

policy and that if MSHA unduly prolongs that interim policy, intead of 

implementing direct enforcement procedures against the independent contractors, MSHA "* * *will be disregarding the intent of Congress" 

(1 FMSHRC at 1486). 

The Commission's decision in the Old Ben case, supra, was not issued 

until 20 days after the hearing in this proceeding was completed. In the 

Old Ben case, the Commission held that citing an operator for contractor 

violations solely as a mere administrative expedient would be an abuse. 

The inspector was specifically asked on cross-examination if he had cited 

the operator for the contractor's violation as an administrative convenience. The inspector denied that he had cited the operator for mere convenience and stated that he had cited the operator in this instance because 

that was MSHA's policy (Tr. 42-43). Subsequently, the inspector stated 

that he was aware that regulations pertaining to citing independent contractor·s had been proposed and that he was aware that MSHA' s policy of 

citing the operator would probably have to be changed after those regulations have been finalized (Finding No. 11, supra). In such circumstances, 

I find that the inspector's citing of the operator for Waggle's violation 

was permissible in this case and that MSHA's Petition for Assessment of 

Civil Penalty filed in this proceeding should be upheld as a proper way 

to proceed under the 1977 Act at the time Citation No. 771428 was issued. 

The Issue of Whether MS'HA Proved that a Violation Occurred 

The operator's brief (pp. 3-6) contends that the inspector's testimony 

was not sufficiently probative to establish that a violation of section 

77.1710(a) actually occurred. The operator bases its contention that no 

violation was proven on two primary arguments. First, the operator claims 

that the inspector was unable to give sufficient details about the actions 

of Mr. Hepp to establish that Mr. Hepp was assisting another welder in 

cutting pieces of metal, as was alleged in Citation No. 771428. 

It is true that the inspector did not know precisely what Mr. Hepp was 

doing. The inspector said that Mr. Hepp (1) could have been merely observing 

the other welder cut the metal, (2) could have been picking up fallen pieces 

with a pair of tongs, or (3) could have been marking metal. The inspector 

460 
candidly conceded that although Mr. Hepp might have been doing any of the 

aforementioned acts, he could not recall the exact nature of Mr. Hepp's 

assistance. The inspector said that all he was really claiming was that 

Mr. Hepp was so close to the cutting torch that he should have been wearing 

goggles (Tr. 45). 

Mr. Hepp corroborated the inspector's statement by testifying that both 

he and Mr. Horton had been told to cut pieces of metal from a large section 

of plate. Mr. Hepp stated that he had assisted Mr. Horton in marking the 

pieces before they were cut. Mr. Hepp further said that although both he 

and Mr. Horton normally would cut and weld each day, he did not recall that 

he had personally done any cutting on January 9, 1979, prior to the time 

that the citation was issued (Tr. 80; 83). 

Mr. Horton also corroborated the inspector's testimony by stating that 

Mr. Hepp was helping him mark the pieces of metal for cutting (Tr. 68). 

Therefore, I find that the preponderance of the evidence support.s the 

inspector's statement in Citation No. 771428 to the effect that Mr. Hepp 

was "* * * assisting another welder in cutting out pieces of metal" (Finding Nos. 6 and 7, supra). 

The second argument made in the operator's brief (p. 4) is that the 

inspector could not have determined that Mr. Hepp's eyes were only 2-1/2 feet 

from the torch while the inspector was 220 feet away, particularly when consideration is given to the fact that two buildings were situated some place 

between the inspector and the site where the cutting was being done. 

A distance of 220 feet is less than the length of a football field. 

Yet it is easy for a spectator with normal visiqn at a football game to tell 

when a player at the most remote part of the field is lying on the ground or 

running or catching a pass. I find that the inspector made a credible statement when he said he could determine from a distance of about 220 feet that 

Mr. Hepp was kneeling beside the man who was using the cutting torch. Moreover, it should be recalled that the inspector stated that he first observed 

the workmen when he was about 220 feet from them. He then said that while 

he was walking toward the men, he made his determination that Mr. Hepp's 

eyes were about 2-1/2 feet from the cutting torch. It is unreasonable for 

the operator to argue that the inspector should be able to specify the exact 

distance he was from Mr. Hepp when he made his determination that Mr. Hepp's 

eyes were 2-1/2 feet from the cutting torch. The inspector said that 

Messrs. Hepp and Horton did not realize that he was approaching them until 

he was about 10 feet from them. It is certain that the inspector would 

have been able to determine at some point before he was within 10 feet of 

the men that Mr. Hepp's eyes were within 2-1/2 feet of the cutting torch. 

The inspector's last statement on the subject was that he did not think 

that he made his determination that Mr. Hepp's eyes were within 2-1/2 feet 

of the torch at a distance of 220 feet, but he is certain that he was able 

to make that determination by the time he reached the 10-foot distance when 

the men stopped cutting and turned to face the inspector (Tr. 87-88). 

461 
The most that the operator's witnesses said about the inspector's 

ability to determine the 2-1/2-foot distance was that it would have 

been hard for the inspector to determine at a distance of approximately 

220 feet that Mr. Hepp's eyes were within 2-1/2 feet of the cutting torch 

(Finding No. 8, supra). None of the operator's witnesses were asked to 

give an opinion as to whether the inspector could have made that determination when he was somewhere between 100 and 10 feet from the men. I 

find that the preponderance of the evidence supports a finding that the 

inspector made a credible statement when he said that he was able to 

determine that Mr. Hepp's eyes were within 2-1/2 feet of the cutting 

torch. 

The operator's brief (pp. 5-6) also contends that its witnesses' testimony to the effect that Mr. Hepp always stood behind Mr. Horton when 

Mr. Horton was cutting is more credible than the inspector's testimony to 

the effect that Mr. Hepp was kneeling down and was within 2-1/2 feet of 

the torch while Mr. Horton was cutting. The operator's brief cites 

Mr. Horton's statement that Mr. Hepp stood to the rear of Mr. Horton 

while Mr. Horton was cutting. Mr. Horton also claimed that while he was 

cutting, Mr. Hepp was not engaged in marking the metal (Tr. 68; 71; 74). 

The operator's brief also cites Mr. Hepp's testimony to the effect that 

he always stood up and turned around when Mr. Horton started cutting with 

the torch. Mr. Hepp also testified that he was about 5 feet 7 inches 

tall and that his face was about 6 or 7 feet from the cutting torch when 

Mr. Horton was cutting (Tr. 76; 84). 

'!be operator's brief (p. 6) additionally argues that the inspector's 

inability to be certain as to details is fatal to MSHA's case. In order for 

the inspector's lack of certainty as to what Mr. Hepp was doing to be fatal 

to MSHA's case in this proceeding, the lack of certainty would have to bear 

directly on the nature of the violation charged. The inspector was certain 

as to the vital point necessary for his testimony to support his allegation 

that a violation of section 77.1710(a) occurred, namely, the inspector said 

that he was certain that Mr. Hepp's eyes were close enough to the cutting 

torch to make it essential for him to wear goggles in order to protect his 

eyes from possible injury (Tr. 45). Moreover, as I have previously indicated above, the inspector's inability to know what Mr. Hepp had been doing 

before he came within the inspector's scrutiny did not prevent the inspector from correctly concluding that Mr. Hepp had unnecessarily exposed himself to the hazard of a possible eye injury by kneeling down close to the 

cutting torch. 

As to the operator's credibility arguments, I find, for at least two 

reasons, that the inspector's testimony was more credible than that of 

Mr. Hepp. First, it should be recalled that Mr. Hepp testified that when 

Mr. Horton began cutting with the torch, he stood up and turned around 

(Tr. 76). At no time did Mr. Hepp ever deny that the inspector was within 

10 feet of him before he realized that the inspector was in his vicinity. 

If Mr. Hepp had actually stood up and turned around while Mr. Horton was 

cutting with the torch, Mr. Hepp would have been in a position to see the 

462 
inspector approaching and would have been able to assert when the inspector 

cited him for failing to wear goggles that he was not even looking in the 

direction of the cutting torch, must less close enough to be injured by 

flying bits of molten metal. 

The second reason for downgrading the credibility of Mr. Hepp's testimony is that Mr. Hepp testified that it was his practice to cut and weld 

every day that he was at the construction site. He stated that when he did 

cut or weld that he always wore goggles or an eye-shield. He further said 

that he kept his goggles in his toolbox. Despite Mr. Hepp's assertion that 

he kept his goggles in his toolbox, it was necessary for Mr. Hepp to go to 

the welding shanty in order to obtain goggles when he was cited by the 

inspector for failure to wear goggles (Tr. 80-81). If Mr. Hepp had been 

accustomed to wearing goggles when he was cutting, it is very unlikely that 

he would have had to go all the way to the welding shanty to procure goggles 

when his supervisor asked him to get them. 

Finally, the operator's brief claims that MSHA could have produced 

other witnesses to substantiate the inspector's claim as to the 2-1/2-foot 

distance and to fill in other details lacking in the inspector's testimony. 

The choice of witnesses was a defect which was more apparent in the operator's presentation than it was in MSHA's. The inspector stated that 

Waggle's safety representative, Mr. Sam Higgerson, was with him at the time 

he observed Mr. Hepp violating section 77.1710(a) (Finding No. 4, supra). 

Yet the operator tried to cast doubt on the inspector's ability to see the 

cutting operation from a distance of 220 feet by bringing in a witness who 

was not even with the inspector at the time the violation was observed. 

Clearly, the only person who could have placed a real cloud of doubt over 

the inspector's testimony would have been another person who was standing 

at the same place the inspector was standing when the inspector first 

observed the cutting operation. The operator's failure to present 

Mr. Higgerson as a witness is a strong indication that Mr. Higgerson was 

also able to see Messrs. Horton and Hepp at a distance of 220 feet. Moreover, Mr. Higgerson would have been able to draw a diagram showing the 

exact location of the two buildings which were allegedly close to the west 

end of the dragline and Mr. Higgerson would have been able to state with 

certainty whether the inspector was standing in a place where the buildings 

would have blocked his view of the boom area where the cutting operation 

was in progress. 

Based on my credibility determinations and the foregoing discussion, I 

find that the preponderance of the evidence shows that a violation of section 77.1710(a) occurred. It is now necessary to consider the six criteria set forth in section llO(i) of the Act to determine what civil penalty 

is appropriate. 

Size of the Operator's Business 

On the basis of the facts set forth in Finding No. 1, supra, I find 

that Southwestern Illinois Coal Corporation is a large operator and that 

463 
any penalty assessed in this proceeding should be in an upper range of 

magnitude insofar as it is based on the criterion of the size of the operator's business. 

Effect of Penalties on Operator's Ability To Continue in Business 

Counsel for the operator did not present any evidence at the hearing 

with respect to the operator's financial condition. In Buffalo Mining Co., 

2 IBMA 226 (1973), and in Associated Drilling, Inc., 3 IBMA 164 (1974), the 

former Board of Mine Operations Appeals held that when a respondent fails to 

present any evidence concerning its financial condition, a judge may presume 

that payment of penalties would not cause respondent to discontinue in business. In the absence of any specific evidence to the contrary, I find that 

payment of penalties will not cause the operator to discontinue in business. 

History of Previous Violations 

Counsel for the operator and MSHA introduced at the hearing as Exhibit 

No. 1 some data which the Assessment Office used in this proceeding to 

arrive at a determination that the operator's history of previous violations 

would result in assignment of 8 points for the purpose of determining penalties in accordance with the procedures set forth in 30 CFR 100.3. The Commission held in Secretary of Labor v. Shamrock Coal Co., 79-6-5, 1 FMSHRC 

469, that a judge is not bound by the procedures used by the Assessment 

Office in determining penalties and that de novo assessments are within the 

authority of the Commission and its judgeS:- When I am considering motions 

for approval of settlements, there is reason for me to review the Assessment 

Office's findings as to the number of points which have been assigned under 

the six criteria. In a contested case, however, I would prefer that counsel 

for MSHA introduce a listing of respondent's actual previous violations, if 

any, so that I can make findings regarding the criterion of history of previous violations without having to examine the findings of the Assessment 

Office. 

Normally, I increase penalties when there is evidence before me to show 

that a given operator has previously violated the same section of the regulations which is charged in MSHA's Petition for Assessment of Civil Penalty 

in the case under consideration. In this case, the parties stipulated that 

the operator has not previously violated section 77.1710(a). Therefore, I 

find that respondent has no history of previous violations which has to be 

considered when a penalty is assessed for the violation of section 77.1710(a) 

which is before me in this proceeding. 

Good Faith Effort To Achieve Rapid Compliance 

Citation No. 771428 gave Mr. Hepp a period of 5 minutes within which to 

procure goggles. Mr. Hepp was able to obtain goggles within the time given 

and the inspector terminated the citation 5 minutes after it had.been issued. 

It was the inspector's opinion that a good faith effort to achieve rapid 

compliance had been shown (Tr. 19). Therefore, I find that a good faith 

464 
effort to achieve rapid compliance was made and the operator will be given 

full credit for that mitigating factor in the assessment of a penalty. 

Negligence 

Counsel for MSHA introduced as Exhibit No. 3 a form on which the inspector had indicated his views with respect to the criteria of negligence and 

gravity. On Exhibit No. 3, the inspector checked a box which states that 

"[t]he condition or practice cited could not have been known or predicted; 

or occurred due to circumstances beyond the.operator's control." At the 

hearing, the inspector testified that the operator had tried to the best of 

its ability, short of discharging employees, to get the workers to wear protective eyewear (Tr. 18). 

I find on the basis of the evidence in this proceeding that the violation of section 77.1710(a) was accompanied by a low degree of negligence. 

Gravity 

On the basis of Finding No. 10, supra, I find that the violation was 

moderately serious. The piece of metal which was being cut with the torch 

was supported by two crib blocks so that the molten metal would drop to the 

ground (Tr. 73). In such circumstances, there was not a very strong likelihood that Mr. Hepp would have received a severe injury because of his 

failure to wear goggles. 

Assessment of Penalty 

'Ihe inspector made the following recomrnend~tion with respect to the 

assessment of a penalty (Exh. 3, p. 2): 

On this particular site, management has repeatedly 

attempted to enforce safe working habits. Some employees, 

however, attempt to circumvent the using of protective 

equipment. Although management is ultimately responsible 

for violations, I feel that in this case leniency should 

be exercised when assessing the penalty. It is impossible 

for management to accompany and supervise each employee 

every minute of the day. 

Exhibit 1 indicates that the Assessment Office proposed a penalty of 

$84.oo for the violation of section 77.1710(a) here involved. MSHA's brief 

(p. 11) requests that a penalty of not less than $84.00 be assessed. As 

indicated above, I am not bound by the Assessment Office's recommended penalties, but my findings must be based on the evidence presented by the parties. The inspector testified that the operator was not negligent and 

the inspector made a special plea for leniency in the assessment of the 

penalty. The facts show that the violation was only moderately serious. 

In such circumstances, I find that the penalty of $84.00 proposed by the 

Assessment Office is fair and reasonable in light of the evidence presented 

by the parties in this proceeding. 

465 
Findings and Conclusions 

(1) Under the facts in this proceeding and current Commission precedents, MSHA's Petition for Assessment of Civil Penalty should be sustained 

in citing respondent for the independent contractor's violation of section 

77. l 710(a). 

(2) Southwestern Illinois Coal Corporation should be assessed a penalty of $84.00 for the violation of section 77.1710(a) alleged in Citation 

No. 771428 dated January 9, 1979. 

(3) As the operator of the Streamline Mine and controller of the erection site involved in this proceeding, Southwestern Illinois Coal Corporation is subject to the Act and to all regulations promulgated thereunder. 

WHEREFORE, it is ordered: 

Within 30 days from the date of this decision, Southwestern Illinois 

Coal Corporation shall pay a penalty of $84.00 for the violation of section 

77.1710(a) alleged in Citation No. 771428 dated January 9, 1979. 

Distribution: 

~ C. <;$;tAD?/ 

Richard C. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 

Miguel J. Carmona, Esq., Attorney for Secretary of Labor, Office 

of the Solicitor, 230 South Dearborn Street, Chicago, IL 60604 

(Certified Mail) 

Brent L. Motchan, Esq., Attorney for Southwestern Illinois Coal 

Corporation, 500 North Broadway, St. Louis, MO 63102 (Certified 

Mail) 

466 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ALABAi\fA BY-PRODUCTS 

CORPORATION, 

SECRETARY OF LABOR, 

v. 

OFFICE QF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

fEB \ 4 1980 

Contest of Citation 

Petitioner Docket No, SE 80-41-R 

Mary Lee No. 2 Mine 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

DECISION AND ORDER GRANTING 

MOTION FOR SUMMARY DECISION 

On December 12, 1979, Petitioner was issued Citation No. 748714 which 

alleged a violation of section 103(f) of the Federal Mine Safety and Health 

Act of 1977, JO U,S,C. § 813(f) (hereinafter the Act), That section provides 

that miners may accompany inspectors on mine inspections and suffer no loss 

of pay, 1/ On December 19, 1979, Petitioner filed a notice of contest of 

that citation which contended that it had not violated section 103(f) of the 

Act. Petitioner here moves for summary decision of its contest of citation. 

1/ "Subject to regulations _;_ssued by the Secretary, a representative of 

the operator and a representative authorized by his miners shall be given 

an opportunity to accompany the Secretary or his authorized representative 

during the physical inspection of any coal or other mine made pursuant to 

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

and to participate in pre- or post-inspection conferences held at the mine. 

Where there is no authorized miner representative, the Secretary or his 

authorized representative shall consult with a reasonable number of miners 

concerning matters of health and safety in such mine, Such representative 

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

pay during the period of his participation in the inspection made under 

this subsection, To the extent that the Secretary or authorized representative of the Secretary determines that more than one representative from 

each party would further aid the inspection, he can permit each party to 

have an equal number of such additional representatives. However, only one 

such representative of miners who is an employee of the operator shall be 

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

under· the provisions of this subsection, Compliance with this subsection 

shall not be a jurisdictional prerequisite to the enforcement of any 

provision of this Act." 

467 
Summary decision shall be granted "only if the entire record, including 

the pleadings,· depositions, answers to interrogatories, admissions, and 

affidavits shows: (1) that there is no issue as to any material fact; and 

(2) that the moving party is entitled to summary decision as a matter of 

law." 29 CFR 2700.64(b). 

The facts in this case as outlined in Petitioner's affidavits are not 

disputed by Respondent. On November 29, 1979, 12 MSHA inspectors conducted a 

"blitz" inspection of Petitioner's mine. The inspection was not a "regular" 

inspection of the mine under section 103(a) of the Act. Miners were permitted to accompany the inspectors but were not compensated for the time 

they spent accompanying them. 

The issue here is whether those undisputed facts constitute a violation 

of Section 103(f) of the Act. In Secretary of Labor v. Helen Mining Company, 

Docket No. Pitt 79-11-P (November 21, 1979 (appeal pending No. 79-2537 (D.C. 

Cir., Dec. 21, 1979)), the Federal Mine Safety and Health Review Commission 

(hereinafter Commission) held that section 103(f) requires payment to miner 

representives accompanying inspectors only during "regular" inspections of 

mines. 

The case does not involve a, "regular" inspection of a mine. Pursuant to 

the Commission's decision in Helen Mining, supra, the miners therefore are 

not entitled to be compensated for the time they spent accompanying the 

inspectors. Petitioner did not violate section 103(f) of the Act and is 

therefore entitled to summary decision as a matter of law. 

Accordingly, it is ORDERED that the motion for summary decision is 

GRANTED, and the citation is VACATED. 

Distribution: 

J. Fred McDuff, Alabama, By-Products Corporation, P.O. Box 10246, 

Birmingham, AL 35202 (Certified Mail) 

H. Thomas Wells, Jr., Esq., Cabaniss, Johnston, Gardner, Dumas & O'Neal, 

1900 First National-Southern Natural Building, Birmingham, AL 35203 

(Certified Mail) 

Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., 

Arlington, VA 22203 (Certified Mail) 

Harrison Combs, Esq,, UMWA, 900 Fifteenth St,, NW, Washington, DC 20005 

(Certified Mail) 

Murray Battles, Esq,, Office of the Solicitor, U.S. Department of Labor, 

1929 9th Avenue, South Birmingham, AL 35205 (Certified Mail) 

468 
Dktl 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

Petitioner 

February 15, 1980 

Civil Penalty Proceeding 

Docket No. WILK 79-149-P 

A.C. No. 36-02011-03001 

STOUDT'S FERRY PREPARATION COMPANY, 

Respondent 

Stoudt's Ferry Preparation 

Plant 

ORDER APPROVING SETTLEMENT AND 

DIRECTING PAYMENT 

On February 11, 1980, Petitioner filed a motion to approve a 

settlement in the above-captioned proceeding. The Petitioner states 

that the amount of the original assessment is $470 and the amount of 

the settlement is $200. 

As grounds for its motion, the Petitioner states that the citation 

in question was issued for the operator's denial of entry to an authorized 

representative for the purpose of conducting an inspection. The third 

circuit, in Marshall v. Stoudt's Ferry Preparation Company, 602 F.2d 

589 (3rd Ai. 1979), determined that the company was covered by the Mine 

Safety and Health Act and that MSHA has jurisdiction over its operations. 

The Supreme Court denied certiorari. The company was not exercising bad 

faith in denying entry. Petitioner further states that lack of negligence justifies a reduction in penalty. 

Therefore, it is ORDERED that the motion to approve settlement is 

GRANTED and Respondent is ORDERED to pay $200 within 30 days of the date 

of this order. 

tJ1'"-~'7 .dicck.-t/l~I__ James A. Broderick 

' Chief Administrative Law Judge 

Distribution: 

Donald Brobst, Esq., Attorney for Stoudt's Ferry Preparation Company, 

Roseen, Jenkins & Greenwald, 15 South Franklin Street, Wilkes-Barre, 

PA 18711 

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

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

PA 19104 

Assessment Office, MSHA, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

469 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 1 9 1900 

CLIMAX MOLYBDENUM COMPANY, Application for Review 

Applicant 

v. Docket No. WEST 79-325-RM 

SECRETARY OF LABOR, Citation No. 333105; 7/27/79 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Climax Open Pit 

Respondent 

DECISION 

Appearances: W. Michael Hackett, Esq., Richard W. Manning, Esq., Climax 

Molybdenum Company, Golden, Colorado; 

Robert A. Cohen, Esq., Michael Bolden, Esq., Office of the 

Solicitor, Arlington, Virginia. 

Before: Judge Charles C. Moore, Jr. 

At 4:30 p.m. on July 18, 1979, Terry Carter, a 28-year old miner, lost 

his life in his M-120 Lectra-Haul haulage truck when 'it turned over while 

coming down the road that leads from Ceresco Ridge to the crusher. Joint 

Exhibit No. 1 1/ is a drawing of the area of the accident and has the victim's route from shoveling on Ceresco Ridge Road to the accident site marked 

thereon. No one disputes the fact that the victim lost control of the haulage truck after passing the lower 835 curve and that he turned over about 

2,000 feet farther down the hill in the vicinity of the K stockpile. As to 

the cause of the accident, there is complete disagreement. 

MSHA itself has two positions. The enforcement branch, that is the 

inspectors and the Solicitor's Office, contend that the accident was caused 

because both the dynamic brakes and the air hydraulic brakes failed and that 

they failed because of poor maintenance practices and that management knew or 

should have known of the condition of the brakes. An unwarrantable failure 

order was issued by the inspectors. MSHA's technical support branch, however, conducted an extensive examination of the haulage truck after the 

accident and concluded that both the dynamic brakes and the air hydraulic 

brakes were functioning. The State of Colorado, on the other hand, says the 

accident was caused by the poor training program conducted by Climax and 

Climax contends that the accident was caused by the driver's failure to 

operate the haulage rig and the two sets of braking devices properly. 

1/ The exhibit is attached to this decision. 

470 
The two sets of brakes on the Lectra-Haul M-120 haulage rig are a standard air-over hydraulic mechanical braking system and an electric dynamic 

retarding system. The air-over hydraulic system is sometimes referred to 

in the testimony as the "air brakes" and sometimes as the "service brakes," 

but they are not intended to act as the normal slowing system. The instructions given to the drivers and contained in the operator's manual are that 

unless there is an emergency, these brakes are not to be used when the 

vehicle is moving in excess of 3 miles per hour. They can be engaged by a 

foot pedal, by a knob on the instrument panel or by a lever on the floor. 

If they are not engaged by the foot pedal, the system is referred to as 

"dump brakes" (I gather from the testimony this is similar to parking 

brakes) or emergency brakes, but regardless of how actuated, the system 

involves air at a pressure in excess of 60 pounds per square inch actuating 

the hydraulic system which applies hydraulic pressure to cylinders which 

force brake pcuks (sometimes referred to in the testimony as "pads" or 

"brake linings") against the disks which are affixed to the wheels. The 

disks do not float laterally as in some braking systems where the hydraulic 

pressure is applied from only one side, but are firmly fixed and hydraulic 

pressure is applied from both sides of each disk. There are four disks in 

the rear section of a Lectra-Haul truck, two disks for each set of dual rear 

wheels. The devices containing the hydraulic cylinders and brake linings 

are called "calipers" and there are four cylinders and two brake linings to 

each caliper. One caliper is attached to each of the four disks in the 

rear section of the truck and to each of the two disks in the front section 

of the truck. These brakes would be damaged if used in excess of 3 miles 

per hour, but there is no dispute that they are capable of stopping the 

Lectra-Haul M-120 even if the dynamic braking system fails unless the rig is 

being operated at a speed in excess of 30 miles per hour (see testimony of 

Linda Knight). 

The dynamic brakes are designed to slow the rig down to 3 miles an hour, 

but will not actually stop it. The driving mechanism in this type of rig is 

similar to a diesel electric locomotive. A diesel engine runs a generator 

and the generator 'provides the power to operate the truck. There is an 

electric motor for each rear dual wheel and when the dynamic retarding pedal 

(a pedal similar to and located next to the air brake pedal) is depressed, 

the electric motors in the wheels create some kind of magnetic retardation 

that will slow the truck in ordinary circumstances to 3 miles per hour. 

Several witnesses explained that when the dynamic retardation pedal is 

pressed the electric motors turn into generators and generate electricity 

which is dispersed into grids, thus slowing the truck. I have no idea what 

that means or why dispersing electricity created by the generators would 

slow the truck, but I suspect that the electricity is used to actuate an 

electromagnet which acts against the movement of the rig. But in any event, 

there was no dispute about the fact that, if working properly, the dynamic 

system would slow the haulage rig to 3 miles per hour. 

There were 30 of these Lectra-Haul M-120 rigs at Applicant's mine. The 

No. 16 rig was the one in which Terry Carter lost his life on July 18, 1979, 

and there was considerable testimony that this was a troublesome piece of 

471 
equipment. Truck driver Linda Knight testified that she had driven rig 

No. 16 on several occasions and that the last time, on July 8, it had weak 

dynamic brakes. She testified that she was bringing it down unloaded from 

the Cirque Dump (see Joint Exhibit No. 1) on a route very similar to the 

one that Terry Carter had taken on July 18, and that she had had to use full 

dynamics to control the speed of the rig even though she had no load in the 

hopper. There was some documentary evidence indicating she had not driven 

the truck on July 8 but she was such an impressive witness that I believe 

her testimony rather than the entries in the documents. Mr. Miller is a 

truck driver trainer, that is, a truck driver who also trains new drivers. 

He testified that he had driven rig No. 16 on occasion and that he found 

the service brakes (air hydraulics) spongy and the dynamics bad. Carlos 

Archuleta testified that he was assigned regularly to rig No. 16 and that 

he had lost his dynamics approximately a month prior to the accident. He 

used his air hydraulic brakes to control the truck at that time. He stated 

that he did not like rig No. 16 because of the brakes and that he used 

several excuses to refuse it during the month before the accident. On the 

day of the accident when he heard that Terry Carter had been assigned to 

rig No. 16, he made a hand motion to Mr. Carter to refuse to drive the rig. 

Mr. Carter did not do so, however. Mr. William Harbuck testified that he 

had driven rig No. 16 on July 13 and that he noticed leaky brake hydraulics, 

poor suspension and weak dynamics. He had had to use his service brakes 

to control his speed and did not want to drive rig No. 16 anymore. During 

the accident investigation, however, the one conducted by MSHA shortly after 

the accident, he stated that the dynamics on rig No. 16 were as good as 

those of any of the other rigs. Truck driver Dries, on the other hand, who 

was the driver of rig No. 16 immediately preceding the shift during which 

the fatality occurred, stated that he was satisfied with rig No. 16 and that 

he had made eight trips using the same route as the victim without trouble, 

He did state, however, that because of a previous incident where a wheel fell 

off of a rig, he was extremely conscious of speed and never exceeded what he 

considered to be a safe speed with rig No. 16. 

The haulage rigs at this mine are equipped with two-way radios so they 

can inform the base coordinator of any problems and also so they can receive 

instructions from the base coordinator as to what functions they are to perform and where they are to perform them, Shortly before the accident, evidently within 2,000 feet of the accident scene itself, Mr, Carter transmitted 

a message to the base coordinator that he was having trouble with his dynamics, According to the base coordinator, Lee Heilman, he stated that he was 

losing dynamics, She asked for his location and he replied "upper K." She 

asked him if he could make it to the F stockpile and said that he replied in 

the affirmative, According to Linda Knight, he said either "I'm losing 

dynamics" or "I have lost dynamics," but she could not state exactly which 

he had said. Mr. Miller heard Mr, Carter say "I lost my dynamics." He heard 

someone else say "Hit your service brake" and then heard the statement "I 

tried," Mr. Archuleta heard Mr. Carter say "Hello, base, I have lost my 

dynamics." Then he heard something like "I can't 11 or "It won't work now," 

He did not hear the intervening conversation that would indicate what 

Mr. Carter was referring to and no one has been able to identify who stated 

472 
"Hit your service brake." No witness indicated there was panic in 

Mr. Carter's voice when he reported his service brake problem and while there 

is obviously a difference between losing dynamics and lost dynamics, there is 

no way to determine whether Mr. Carter had actually lost his complete dynamic 

braking system or whether it was not performing to his satisfaction. He was 

was obviously having trouble, but there was no indication that he was 

frightened. Like many radio communications, all statements were not heard 

in the same way by all of the people listening. A common feature of radio 

communication is having a transmission cut out by anothe~ transmission for 

one listener while another listener hears the original transmission intact. 

Someone heard Mr. Carter ask if he could use the service brakes, meaning the 

air hydraulic system. In a panic situation, I doubt that he would ask 

permission. 

Mr. Carter's location at the time he announced that he was losing or 

had lost his dynamics, can be fixed with reasonable accuracy. The route he 

was traveling from the No. 3 shovel (all of the areas which I am now discussing are depicted upon Joint Exhibit No. 1) to the accident scene involved 

first negotiating a sharp curve known as the 835 upper curve. According to 

Linda Knight, it was clear that his dynamics had been working when he 

negotiated this curve or he could not possibly have made it. At the lower 

835 curve, there is a road where, if the victim had been having trouble with 

his brakes, he could have turned up hill and thus stopped. It is therefore 

fairly clear that he had passed the lower 835 curve when he complained about 

his dynamics. He told Coordinator Heilman that he was in upper K, but all 

this means is that he was above the K stockpile where the accident occurred. 

But the transmission must have been made shortly after the victim went over 

the level spot at 835 lower curve and started down hill again on a grade 

that is between 8 and 9 percent. The location can also be fixed by the fact 

that Carlos Archuleta was driving the rig immediately preceding the one 

driven by Mr. Carter and was in the vicinity of the K stockpile when he heard 

the first transmission. H~ looked in his mirror and could not see rig 

No. 16, but when he turned around and looked directly back over his shoulder, 

he could see it and then when he turned ba~k to make sure that he was still 

in the proper part of the road, he could pick up rig No. 16 in his mirror 

and he observed it for a few seconds noting that it was going at an excessive rate of speed. There are lights on the front of these rigs which indicate whether the dynamic or air hydraulic braking systems are being actuated. 

He did not see either of these lights on. It was later determined that the 

lights are actuated by the pedals themselves and do not indicate whether the 

braking system is actually working, but merely whether the pedals are being 

depressed. It was also later agreed that sometime before the accident 

Mr. Carter probably ceased his efforts to stop the truck and was preparing 

to abandon it. The fact that the door was open at the time of the rollover 

lends credence to this proposition. It is also supported by the fact that 

pictures taken at the scene and the testimony as to the description of the 

tire tracks indicate that the air hydraulic brakes were working at one point, 

but that no braking was evident immediately before the area where the rig 

struck the berm on the K stockpile. The photographs themselves are not convincing, but they do support the testimony that was given. 

473 
Inspector Stoutenger issued the first citation, but shortly after the 

accident investigation began, he left town. Inspector Marti, who accompanied 

Inspector Stoutenger during the initial field investigation at the scene of 

the accident, after studying numerous records provided by the company, 

amended the citation to charge an unwarrantable failure. 'l:../ 

Inspector Marti relied on the radio communication from the victim as 

evidence of the failure of the dynamic brakes and he relied on his inspection 

of the left rear d~al after the rig was righted as evidence that the air. 

hydraulic brakes were not working. In issuing the modification to allege an 

unwarrantable failure he relied on the maintenance records that he examined 

for a total of about 40 hours as indicating that management knew or should 

have· known that the brakes were defective. 

There were a number of discrepancies between the two inspectors' testimony and the testimony of the company witnesses and they disagreed on the 

interpretation of the photographs that were offered in evidence. There was 

disagreement between the inspectors themselves as to when the photographs 

were taken and as to whether the inspectors were present when the rig was 

righted and when it was moved approximately 25 feet. There is disagreement 

as to how some air may have gotten into the left dual wheel hydraulic system. 

There is disagreement about whether damage was done to the braking system 

when Applicant was moving the rig to the shop area, but it is clear that one 

of the MSHA officials authorized the move. 

It is also clear that there was some tampering with the rig after the 

accident and before the physical investigation supervised by MSHA's technical 

support staff commenced. The throttle control lever was found to be hooked 

up improperly, in such a fashion that neither the dynamic braking system nor 

the electrical tramming system would work. It was therefore obvious, since 

the tramming system had worked during the climb to the No. 3 shovel and since 

the dynamic braking system must have been working when the rig came around 

the upper 835 curve, that someone for some reason'unhooked this particular 

device and then reattached it in the wrong place. But no motive was speculated upon by either side and the wheels and other components were padlocked 

to prevent tampering. In the absence of any indication as to the motive for 

tampering or how such tampering could have affected the final results of the 

inspection, I see no alternative but to disregard it. If the MSHA investigators or attorneys know something about this tampering that they did not 

wish to present in evidence before me, they may wish to present it in a 

criminal case, but since I have heard no evidence as to who did the tampering 

or why it was done, it will not affect this decision. 

2/ A key element of an unwarrantable failure citation is the absence of an 

imminent danger. If a violation causes the death of a miner, how can it be 

said that the violation did not create an imminent danger? The parties have 

not addressed this issue, however, so I will not pursue it further. 

474 
There are many other troublesome factors involved in this case. For 

example, batteries are important components of the dynamic braking system. 

If they are not fully charged, the system will be impaired. When the truck 

overturned, the battery electrolyte spilled and had to be replaced before 

the technical support tear-down and investigation could be completed. Also, 

since the rig had lost its air pressure as a result of the destruction of air 

hoses in the accident, the service or air hydraulic brakes were mechanically 

locked at the time the truck was righted. 

In order to remove it to the shop, it was necessary to back off on some 

nuts or bolts to release the spring pressure on the brakes because when all 

air is lost or when it goes below 60 pounds per square inch, the brakes are 

spring loaded to set automatically. Therefore, when the technical support 

inspectors were preparing for their inspection, they had to reset the spring 

loading bolts or nuts and thus were not inspecting the braking systems in 

the exact condition in which they were at the time of the accident. The 

technical support recommendation was that more care should be taken in the 

future to avoid destroying evidence while moving a piece of equipment. 

The technical support group nevertheless concluded that the dynamics 

and air hydraulic systems were working properly. When Mr. McGuire of the 

technical support group was testifying, there was an attempt to pin him down 

as to whether he meant the brakes were operable on the day of the accident 

or the day of the inspection and while he had apparently previously testified 

during the initial investigation that they were operable on July 18, he 

qualified this to say that they were operable on the date that he conducted 

the inspection. I think that is all that he could properly testify to. 

Inspector Marti relied on an entry in a document in Government Exhibit 

No. 9 to show that a dynamic complaint about rig No. 16 on an earlier date 

had been ignored. The entry on the document said "Could not fix, maybe next 

time." When Applicant's first class electrician, Mr. Valverde testified, 

however, and identified Applicant's Exhibit No. 12, it became absolutely 

clear that before the rig left the shop, Mr. Valverde fixed the dynamics. 

He did so by replacing one or more of the so-called "cards" which are in 

fact devices containing a printed circuit on one side and various electrical 

components such as condensors and transistors on the other side. These are 

plugged in at various places in the electrical.system of the M-120 rig and 

if certain ones heat up and fail, it affects the dynamics. Mr. Valverde 

replaced the particular one that concerned stabilizing the current and it 

appeared to work. He then tested the machine and released it. There was 

evidence in the case that this was all explained to Inspector Marti, but 

that he either ignored it or did not understand it, I noticed during the 

trial that Inspector Marti did have some trouble understanding questions put 

to him but I attribute this to the stress of being on the witness stand. 

It is to this same stress that I attribute his erroneous statement that no 

photographs were taken by MSHA after July 19 when it was perfectly obvious 

that at least one of the photographs was taken after the truck had been 

righted on July 20. His explanation was that he was talking about photographs he took and I believe him, but it was nevertheless his earlier 

475 
testimony that none of the MSHA officials had taken pictures of the rig at 

the accident site after July 19 (Tr. 336). Inspector Stoutenger at first 

stated that the pictures were taken on the 19th and that he was present when 

the rig was uprighted. He later agreed that he was not present when the rig 

was uprighted, but he was of the opinion that he and Inspector Marti had 

examined the left rear dual brakes on July 19 sometime after 1:30. Inspector 

Marti said that the examination had been on the next day and he is apparently 

correct since the rig was not righted until July 20. All these factors I 

attribute to the stress of being a witness, but in a case where both parties 

have conducted extensive discovery and have reviewed their notes in a serious 

manner, I am surprised that such discrepancies occurred. 

There was testimony that rig No. 16's suspension system was so bad that 

it "threw you all over the cab" when you were trying to drive it. There 

were complaints about its steering. Either the suspension system or the 

steering system may have caused Mr. Carter to lose control of rig No. 16, 

but that is not the charge that the Government has brought in this case. It 

has charged that he lost control of the rig because neither the dynamic 

braking system nor the air hydraulic braking system was working and that 

Climax knew or should have known that these systems were defective. I will 

not speculate as to whether the State of Colorado or Climax have the correct 

answer to the cause of this accident. There are certain facts, however, that 

convince me that the ~ause was not the cause alleged by MSHA. 

First, truck driver Dries had no trouble with either the dynamic system 

or the air hydraulic system on the previous shift. Second, as testified by 

Linda Knight, the dynamic system must have been working when rig No. 16 

negotiated the upper 835 curve on the afternoon of the accident. Third, skid 

marks on a portion of the distance between the lower 835 curve and the 

K stockpile supported by the testimony of two witnesses that upon examining 

the brakes during the technical support investigation, they found heat checks 

and glazed cracks indicating extremely heavy use of the mechanical braking 

system, and their further testimony that the components appeared to be almost 

new (brake linings thicker than required, disks thicker than required and 

calipers properly positioned) indicated to me that the air brakes were working. Fourth, two witnessess testimony that when the vehicle was righted and 

pulled off the berm on July 20, the rear brakes were set and locked and 

caused the tires to skid when the vehicle was moved. In addition, the 

vehicle could not be moved to the shop without loosening the bolts or nuts 

which are attached to the springloaded braking system. There was some evidence that Inspector Stoutenger saw company personnel attempt to move the 

rig back up the hill, but that does not overcome the fact that the wheels 

skidded when the attempt was made to move the vehicle forward; the direction 

it was traveling at the time of the accident. I cannot ignore these facts 

despite the sympathy I have for miners who may be driving rigs that they 

consider unsafe. If the M-120 Lectra-Haul truck is inherently unsafe for 

this type of mining operation MSHA should act to prohibit its use. In this 

case, however, I cannot find that Applicant's maintenance procedures were 

insufficient. I am also somewhat surprised that a complete autopsy was not 

performed. Although I understand the examining physicians declared neither 

476 
drugs nor alcohol were involved in the accident, there was no investigation 

as to whether a heart attack or other disabling condition could have 

developed during the course of the accident. 

The citation is VACATED. 

Distribution: 

Charles C. Moore, Jr, 

Administrative Law Judge 

W. Michael Hackett, Esq., Richard W. Manning, Esq., Climax Molybdenum 

Company, 13949 West Colfax Avenue, Golden, CO 80401 (Certified Mail) 

Robert A. Cohen, Esq., Michael Bolden, Esq., MSHA, Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, 

VA 22203 

John R. Tadlock, Esq., Oil, Chemical & Atomic Workers International 

Union, 1636 Champa Street, Denver, CO 80202 (Certified Mail) 

David A. Jones, Jr., President, Oil Chemical & Atomic Workers 

International Union, Local No. 2-24410, P.O. Box 949, Leadville, 

CO 80461 (Certified Mail) 

Edwin Matheson, Chairman, International Brotherhood of Electrical 

Workers International Local No. 1823, P.O. Box 102, Minturn, CO 

81645 (Certified Mail) 

477 
478 

..._ 

0 

x 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

fEB 1 9 1980 

CONSOLIDATION COAL .COMPANY, Application for Review 

Applicant 

v. Docket No. WEVA 79-351-R 

SECRETARY OF LABOR, Ireland Mine 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

DECISION 

Appearances: Michel Nardi, Esq. Consolidation Coal Company, Pittsburgh, 

Pennsylvania, for Applicant. 

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

Department of Labor, Philadelphia, Pennsylvania, for 

Respondent. 

Before: Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This a proceeding filed by Consolidation Coal Co. (hereinafter "Consol") 

under section 107 (e) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 817(e), to vacate an order of withdrawal due to imminent danger 

issued by a federal mine inspector employed by the Mine Safety and Health 

Administration (hereinafter "MSHA") pursuant to section 107 (a) of the Act. 

The parties filed prehearing statements and the case was heard in Pittsburgh, 

Pennsylvania, on January 8, 1980. 

479 
This matter involves a "fall" or "sag" of a concrete floor supporting 

an elevated conveyor belt in the preparation plant at the Ireland Mine. 

Consol concedes that there was a structural failure but contends that it had 

voluntarily corrected or abated the condition prior to the issuance of the 

order of withdrawal. Hence, Consol asserts that no imminent danger existed 

at the time the inspector issued the order in question. 

ISSUES 

The general issue is whether the issuance of the order of withdrawal due 

to imminent danger was proper. The specific issue is whether the voluntary 

correction or abatement of the. condition by the operator prior to the issuance of the withdrawal order precludes a finding of imminent danger. 

APPLICABLE LAW 

Section 107(a) of the Act, 30 U.S.C. § 817(a), provides as follows: 

If, upon any inspection or investigation of a coal or 

other mine which is subject to this Act, an authorized representative of the Secretary finds that an imminent danger 

exists, such representative shall determine the extent of the 

area of such mine throughout which the danger exists, and 

issue an order requiring the operator of such mine to cause 

all persons, except those referred to in section 104(c) to 

be withdrawn from, and to be prohibited from entering, such 

area until an authorized representative of the Secretary 

determines that such imminent danger and the conditions or 

practices which caused such imminent danger no longer exist. 

The issuance of an order under this subsection shall not 

preclude the issuance of a citation under section 104 or the 

proposing of a penalty under section 110. 

480 
Section 3(j) of the Act, 30 u.s.c. § 802(j), states: '"imminent danger' 

means the existence of any condition or practice in a coal or other mine 

which could reasonably be expected to cause death or serious physical harm 

before such condition or practice can be abated." 

STIPULATIONS 

The parties stipulated the following: 

1. Ireland Mine is owned and operated by Applicant, Consolidation 

Coal Company. 

2. Consolidation Coal Company and the Ireland Mine are subject to the 

jurisdiction of the Federal Mine Safety and Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction over this proceeding 

pursuant to Section 105 and Section 107 of the 1977 Act. 

4. The inspector who issued the subject Order was a duly authorized 

representative of the Secretary of Labor. 

S. A true and correct copy of the Subject Order was properly served 

upon the operator in accordance with Section 107(d) of the 1977 Act. 

6. Copies of the Subject Order and Termination are authentic and may 

be admitted into evidence for the purpose of establishing their issuance and 

not for the truthfulness or relevancy of any statements asserted therein. 

7. The alleged violation was abated in a timely fashion and the 

operator demonstrated good faith in attaining abatement. 

481 
8. Consolidation Coal Company agrees that a violation of the cited 

standard, 30 d.F.R. § 77.200 did exist on July 31, 1979. 

SUMMARY OF THE EVIDENCE 

The undisputed evidence shows that Consol operated a refuse conveyor 

belt through a gallery in its coal preparation plant at the Ireland Mine. 

The gallery in question was 23 years old and ran a distance of sixty feet 

from one wing of the vlant to another on a grade which caused the gallery to 

be elevated between 10 feet and 27 feet above ground. The conveyor belt 

carried refuse and the structure was hosed down twice a day. The conveyor 

belt was 30 inches wide and was contained in an 8-1/2-foot wide gallery 

structure. All four sides of ~hat structure were enclosed. The floor of 

the structure consisted of concrete reinforced with corrugated steel and 

steel wire mesh. On each side of the floor was a series of channels joined 

by plates which gave the appearance of an I beam. The channels were connected to steel angle bars which formed the sides of the gallery. The angle 

bars were covered with Transite which enclosed the structure. 

Sometime between 1:55 a.m. and 2:10 a.m. on July 31, 1979, a "fall" or 

"sag" occurred in the gallery structure. All witnesses agreed that approximately 15 feet of the 60-foot structure "fell" or "sagged" approximately 

1 foot. Shortly thereafter, Leon Heck, general foreman of the preparation 

plant was called to the site. He testified that he arrived at the plant at 

about 2:30 a.m. The conveyor belt was running but there was no material on 

the belt at the time of the occurrence. As to the structural failure 

itself, Mr. Heck observed that the channels forming one joint of the bottom 

482 
I beam failed. Six angle bars on each side of the structure separated from 

the floor during the occurrence. The area of the sag was identified as 

beginning approximately 10 feet from one wing of the plant and extending for 

a distance of approximately 15 feet. The sag was readily visible from the 

ground outside the structure. The I beam, constructed out of channels and 

cover plates, appeared to be bent. 

Mr. Heck testified that after he inspected the structure he thought that 

the condition was serious and he turned off the conveyor belt and called the 

general superintendent of the mine. Thereafter, a conference occurred 

between Mr. Heck, the general superintendent, the master mechanic, and the 

shop foreman. It was agreed that a crib should be constructed under the 

sagged area. The conferees felt that the remainder of the structure had stabilized. Although Mr. Heck conceded that other angle bars were rusted or 

deteriorated at the floor level, he thought that they were sufficiently 

strong to support the remainder of the structure. 

A work crew then constructed a crib out of 6-foot railroad ties. At the 

top of the crib, 10 foot railroad ties were used. A hydraulic jack was used 

to raise the structure 6-inches and lower it onto the crib. Although the 

inspector recalled seeing only one crib under the structure, Mr. Heck testified that a second smaller crib was constructed out of 30 inch railroad ties 

and situated adjacent to the first crib. Both cribs were constructed in 

approximately two hours. 

After the cribs were constructed, the miners expressed concern to 

Mr. Heck about the possibility of Transite falling from the sides of the 

483 
structure and falling debris from a hole in the wall of the structure. The 

hole in the wall occurred when the structure sagged. Mr. Heck agreed with 

the miners and ordered that the area under and around the structure be roped 

and "dangered off." However, he left a walkway in the area under the structure so that miners could enter and leave the plant. The gallery and conveyor belt were not "dangered off." At approximately 7:30 a.m. a Consol 

vice-president arrived at the site and ordered the employment of a structural engineer and contractor to determine what permanent repairs were necessary. Upon completion of construction of the cribs and "dangering off" the 

area under the gallery structure, _normal operations were resumed. 

At approximately 9:30 a.m. on the morning of July 31, 1979, MSHA inspector, Kenneth Williams, arrived at the Ireland Mine to conduct a regular 

inspection. At that time, two members of the union safety committee 

approached him, informed him that there was problem in the preparation 

plant and asked him to inspect it. These men informed him that the structure 

containing the conveyor belt fell during the prior shift and that although 

some repairs had been made, they were afraid of another fall. 'Thereupon, he 

entered the preparation plant and inspected the interior of the gallery. The 

conveyor belt was operating. He observed 20 angle irons on each side of the 

structure which formed the walls. Ten of these supports on the left side 

were deteriorated and separated from the beam at floor level. The walkway 

on each side of the conveyor belt was covered with wet debris of up to 1 foot 

in depth. The bottom support I beam appeared to be badly deteriorated as it 

was rusty and corroded. He entered the gallery from low side of the structure and he walked up to the high side on the left of the conveyor belt. He 

484 
testified that he did.not cross over to the right of the conveyor belt but 

that side appeared to be worse than the left side. There is evidence that 

two angle bars on the left side had been recently welded to the beam. However, 10 other angle bars had deteriorated to the point that they were no 

longer attached to the beam. He spent approximately 20 minutes inside the 

gallery and walked back and forth several times. He testified that he did not 

feel safe inside the gallery but that he is exposed to hazards as part of his 

job. 

Upon completion of his inspection of the interior of the building, 

inspector Williams went outside to complete his inspection. He observed that 

the I beam supporting the structure was bent. The structure had sagged to a 

depth of approximately 1 foot in an area extending for approximately 15 feet 

of the 60-foot structure. He observed one crib constructed out of railroad 

ties which was under part of the sagged area but not totally supporting it. 

The crib did not appear to eliminate the sag. There may have been two cribs 

close together but, if so, they gave the appearance of one crib. He denied 

the fact that the area under the structure had been "dangered off." The conveyor belt was operating at this time and the gallery structure was visibly 

vibrating. Although some vibration can be expected for a structure housing 

a conveyor belt, the inspector believed that the vibration he observed at 

that time was excessive and abnormal. He was afraid that the vibration 

would cause the crib to shake loose and of a total collapse of the structure 

due to its overall deteriorated condition. Inspector Williams testified 

that, "This is the worst deteriorated building that I've ever seen." If the 

structure collapsed, it would result in death or serious injury to miners. 

At that time he issued the order of withdrawal. 

485 
Consol called Leon Heck, general plant foreman, as its first witness. 

Mr. Heck testified that when he arrived at the preparation plant at about 

2:30 a.m. on July 31, 1979, he inspected the area that had sagged and concluded that the problem was serious and could not be corrected immediately, 

He closed down the conveyor belt. He observed that both ends of the structure were still tightly connected to the walls of the building, Although he 

agreed that many of the angle bars were deteriorated, he believed that there 

was sufficient strength to support the structure. He also believed that the 

collapse was due to the deterioration and rusting of the gallery. He made 

no notes or drawings covering the number of angle bars that were separated or 

deteriorated. None of the miners complained to him about the safety of 

operating the conveyor belt after the cribs were installed, The only safety 

concerns expressed by any of the miners related to a fear of falling refuse 

from a 6 to 8 inch hole in the wall of the structure and falling Transite 

from the wall itself. Mr. Heck also testified that the conveyor belt was 

closed down during part of inspector Williams inspection and that the inspector walked on both sides of the belt. Thereafter, it was reactivated when 

the inspector went outside, Mr, Heck acknowledged the fact that the structure vibrated but stated that he had seen other galleries vibrate more than 

the one in controversy here. In any event, Mr. Heck stated his opinion that 

the structure was not dangerous at the time the withdrawal order was issued. 

Consol next called Alan T. Olzer, an inspector escort employed by 

Consol, as a witness. Mr. Olzer essentially corroborated the testimony of 

Mr. Heck and added his opinions that the structure appeared to be stable 

prior to the arrival of the inspector and that he didn't believe anyone 

would be seriously injured, 

486 
The withdrawal order was terminated at 5:00 p.m. on July 31, 1979, after 

another crib was erected in the middle of the structure and two 85 pound 

rails were erected and welded under the higher side of the structure. On 

direct examination, Mr. Heck testified that the structure was subsequently 

replaced. 

EVALUATION OF THE EVIDENCE 

All of the testimony, exhibits, stipulations, and arguments of counsel 

have been considered. The evidence shows that in the early morning hours of 

July 31, 1979, the elevated structure housing the refuse conveyor belt at 

Consol's Ireland Mine failed. At a point approximately 20 feet above ground 

level, the concrete floor of the structure "fell" or "sagged" about 1 foot 

for one quarter of the length of the structure. The initial status of this 

condition was described by Consol's general plant foreman as serious. After 

consultation with other Consol employees, it was decided to support the 

structure by constructing two cribs under the structure. One crib was constructed out of 6 foot railroad ties and the adjoining crib was constructed 

out of 30-inch railroad ties. Since the overall appearance of the cribs was 

that of a single crib, I do not find any significant inconsistency in the 

inspector's testimony that he saw only one crib. 

The issue is whether an "imminent danger" existed after Consol completed 

voluntary repairs. It should be noted that for the purposes of this case, 

the definition of "imminent danger" in section 3(j) of the 1977 Act is 

identical to the definition of that term in the same section of the 1969 

487 
Federal Coal Mine Health.and Safety Act. Therefore, it is appropriate to 

look to decisions of the Circuit Courts and the Interior Board of Mine 

Operations Appeals which have construed that term. 

The Interior Board of Mine Operations Appeals, in a decision affirmed 

by the Seventh Circuit 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 Freeman Coal Mining Company v. Interior Board 

of Mine Operations Appeals, 504 F.2d 741, 745 (7th Cir. 1974). 

In a case involving an imminent danger order, the Fourth Circuit Court 

of Appeals stated: "[t]he 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 to a 

miner if normal mining operations were permitted to proceed in the area 

before the dangerous condition is eliminated."' Eastern Associated Coal 

Corporation v. Interior Boa~d of Mine Operations Appeal, 491 F.2d 277, 278 

(4th Cir. 1974), aff'g Eastern Associated Coal Corporation, 2 IBMA 128 

(1973). See also Old Ben Coal Corporation v. Interior Board of Mine 

Operations Appeals, 523 F.2d 25 (7th Cir. 1975). 

In UMWA District No. 31 v. Clinchfield Coal Company, 1 IBMA 31 (1971), 

the coal mine operator asserted that since it had voluntarily closed its 

mine prior to the issuance of an order of withdrawal, the order was of no 

488 
moment. This argument was rejected by the Board which stated, "The purpose 

of a withdrawal order is not only to remove the miners but also to insure 

that they remain withdrawn until the conditions or dangers have been eliminated." Id. at 41. 

In Eastern Associated Coal Corporation, 3 IBMA 303, 305 (1974), the 

Interior Board of Mine Operations Appeals held that "initiation of the 

abatement process on a voluntary basis, while laudable, does not in itself 

preclude the issuance of a section 104(a) [now section 107(a) under the 1977 

Act] closure order where an inspector observes a condition or conditions constituting imminent danger, as that term is defined in the Act." 

In the instant case, Consol had completed its voluntary temporary 

repairs to the gallery structure prior to the arrival of the MSHA inspector. 

The question to be decided is whether the condition of the structure, as 

repaired by Consol, constituted an imminent danger at the time the order of 

withdrawal was written. However, in order to properly evaluate the voluntary repairs, the underlying condition must be assessed. The undisputed 

evidence shows that there was a failure, "fall", or "sag" of the floor of an 

elevated structure at a coal preparation plant. This failure was initially 

evaluated by Consol's general plant foreman as serious. He ordered temporary repairs prior to an assessment by an engineer and a contractor whose 

employment was authorized by a Consol vice-president. The general plant 

foreman conceded that the failure was caused by deterioration and rusting 

inside the structure. Although two angle bars had been welded to the I beam 

after the failure, he admitted that there was additional-deterioration to 

other joints of angle bars and the I beam. Inspector Williams was more 

489 
precise in his testimony that of the 20 angle bars on the left side of the 

structure, half were deteriorated to the point that they had separated from 

the I beam on the floor. The cribs which had been constructed voluntarily by 

Consol did not fully support the sagged area. Inspector Williams testified 

to excessive vibration which was visible from ground level. During the 

initial failure, the wall of the structure broke causing a hole to open in 

the wall. There was a danger that refuse from the conveyor would fall 

through this hole. There was further danger that pieces of the Transite 

wall might fall. Inspector Williams testified that he believed the excessive 

vibration combined with the deteriorated condition of the structure could 

result in a total collap~e. He did not believe that the cribbing constructed 

by Consol would prevent such a·collapse. 

It is conceded that in normal operation of the plant, employees frequently are inside and under the structure. Consol agrees that it did not 

"danger o~f" the interior of the structure but asserts that it "dangered 

off" most of the area underneath the structure. However, it concedes that a 

walkway was maintained through the "dangered off" area so that miners could 

enter and leave the plant. Whether Consol "dangered off" the area as it 

alleged is not dispositive of the instant case. This is so because the test 

to be applied is whether "the condition or practice observed could reasonably be expected to cause death or serious physical harm to a miner if normal 

mining operations were permitted to proceed in the area before the dangerous 

condition is eliminated." (Emphasis supplied.) Eastern Associated Coal 

Corporation v. Interior Board of Mine Operations Appeals, 491 F.2d 277, 278 

490 
(4th Cir. 1974). Thus, ."if normal mining operations were permitted to proceed in the area," :niners going under the structure would be exposed to 

debris falling from a height of approximately 20 feet. 

The evidence establishes that a sudden and unexpected structural failure 

occurred in the early morning of July 31, 1979 at the Ireland Mine preparation plant. Consol voluntarily made some interim repairs pending a subsequent study by an engineer and a contractor. After completion of the repairs 

the condition of the structure was as follows: (1) ten of twenty welds 

between the angle bars and the beam on the left side of the gallery were 

broken; (2) the interior of the gallery was deteriorated and rusted; (3) 

there was a hole in the side wall of the gallery through which refuse from 

the conveyor could drop for a distance of twenty feet to the ground; (4) 

there was excessive vibration of the structure when the conveyor was operating; and (5) miners were required to be in and under the structure during 

normal mining operations. 

The MSHA inspector testified that the structure in question was the 

worst deteriorated one that he had seen. Because of the overall poor condition of the structure, the excessive vibration during operation, and the 

failure of the voluntary repairs to provide adequate support, he concluded 

that an imminent danger existed. Consol did not present any expert testimony to rebut these charges. Its primary witness, Leon Heck, testified that 

he had experience as an electrician but not as a construc.tion engineer. 

While Leon Heck and Alan Olzer testified that, in their opinion, the crib 

which Consol constructed provided adequate support for· the structure, I find 

491 
that the physical facts .support the opinion of the MSHA inspector that it 

was just as likely as not that death or serious physical harm would occur 

due to a total collapse of the structure or from falling debris. 

In conclusion, I find that MSHA has established, by a preponderance of 

the evidence, that an imminent danger existed at the time the order of withdrawal was issued. 

ORDER 

WHEREFORE, IT IS ORDERED that the Application for Review is DENIED and 

the subject withdrawal order is AFFIRMED. 

.. ·~~a 

Distribution Certified Mail: 

Michel Nardi, Esq., 1800 Washington Rd., Pittsburgh, PA 15241 

Marshall H. Harris, Esq., US Department of Labor, Office of the 

Solicitor, 3535 Market St., RM. 14480, Philadelphia, PA. 

19104 

Harrison Combs, Esq., UMWA, 900 15th St., NW, Washington, DC 

20005 

492 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

703-756-6230 

FEB 2 O 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. DENV 79-155-PM 

Petitioner A.C. No. 39-00055-05001 

v. 

Yates Shaft Mine 

HOMESTAKE MINING COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION 

Steven P. Kramer, Esq., Trial Attorney, Office of the 

Solicitor, Mine Safety and Health Administration, for 

Petitioner; 

Timothy M. Biddle, Esq., Crowell & Moring, Washington, 

D.C., and Robert Amundson, Esq., Amundson & Fuller, Lead, 

South Dakota, for Respondent. 

Judge Fauver 

This case was brought by the Secretary of Labor under section llO(a) of 

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

assessment of civil penalties for alleged violations of mandatorY-safety 

standards. The case was heard at Rapid City, South Dakota, on August 13, 

1979. Both sides were respresented by counsel, who have submitted their proposed findings, conclusions and briefs following receipt of the transcript. 

Having considered the evidence and contentions of the parties, I find 

that the preponderance of the reliable, probative, and substantial evidence 

establishes the following: 

FINDINGS OF FACT 

1. At all pertinent times, Respondent, Homestake Mining Company, operated a gold mine known as the Yates Shaft, in Lawrence County, South Dakota, 

which produced gold ore for sales in or affecting interstate commerce. 

Citation No. 328801 

2. On March 20, 1978, Iver Iverson, a federal mine inspector, accompanied by the relief foreman, Horace Randel, inspected Respondent's crushing 

493 
plant at the Yates Shaft~ The facility housed four conveyor belts in a 

large building about 10 stories high, 200 to 300 feet long, and 100 to 

150 feet wide. 

3. They traveled into the crusher room to the head of the No. 4 belt 

and walked down about 100 feet of steps that ran alongside the belt. At 

the bottom of these stairs was a cement floor and passages to the right and 

left. To the left was the No. 3 belt and to the right was a stairway down 

to the tail end of the No. 4 feeder belt. The tail pulley of the No. 4 belt, 

protected by a metal frame, was located in a small recessed area (about 

8 x 10 feet) and was about 4 feet directly in front of the stairway, which 

was the only means of access to this area. Just past the tail pulley was a 

dead end. 

4. The stairway consisted of three metal grating stairs and descended 

about 3 feet. Each step was about 10 inches wide and 40 inches long. On 

one side of the stairs was a handrail and on the other side a concrete wall. 

Overhead lighting was provided. 

5. The steps were covered with an accumulation of fine and loose rock 

pieces about 1 inch to 1-3/4 inches large. The accumulation covered the 

steps at about a 45-degree angle from the the bottom to the top. Only the 

metal of the bottom portion of .the middle step was at all visible through 

the accumulation of material. 

6. The loose material came from the No. 3 conveyor where it dumped 

onto the No. 4 belt. The manner in which the material had settled and was 

packed on the stairs indicated that it had been there for some time. The 

condition created difficulty in walking doW'n the stairs, and posed a hazard 

that someone using the steps might fall, including the hazard of falling 

forward into the metal frame around the tail pulley. 

7. At 2:15 p.m., Inspector Iverson issued a citation to Respondent, 

reading in part: 

Stairway leading to the bottom of No. 4 feeder belt 

Yates crusher was covered with loose rock, loose material 

covered each step from front to back at approximately 

45 degrees from horizontal. Three steps measured 10 inches 

wide, 40 inches long with each having a 8 inch drop, measured 

by a standard rule. Poor footing on step surface created a 

unsafe condition. Stairway was used by maintenance crew. 

The citation was abated the following day. 

8. There were three shifts per day, each with three men. One ran the 

crusher from the crusher platform, one removed chips from the belt, and the 

third did general cleanup work. In addition, from time to time crusher 

mechanics performed maintenance on the crusher and screens and greased the 

conveyors. 

494 
9. The cleanup man cleaned around the stairways and belts and through 

the travelways each shift. He would clean around the equipment in the cited 

area whenever he found it dirty. The crusher mechanics greased and checked 

the tail pulley about once a week. · 

10. Men used the plant's travelways routinely for maintaining the 

equipment, cleaning the travelways, and while supervising work activities. 

The travelways would also be used in the event of an injury to one of the 

crew. 

11. The cleanup man would try to keep the cited stairway free from 

accumulations of loose material; however, a spillage could occur within a 

matter of a few minutes if a rock became lodged in the conveyor. When the 

conveyor was in operation, some spillage was expected and occurred frequently. The frequency of spillages was unpredictable and sometimes 2 or 

3 hours could elapse without a spillage. 

12. Rocks would occasionally become caught in the conveyor and cause 

The excess load would ultimately 

When this occurred, the crusher's 

that debris was probably accumua back up or spillage at the tail pulley. 

trigger a mechanism to shut down the belt. 

panel lights would be activated, indicating 

lating around the tail pulley. · 

13. This type of blockage and spillage would occur several times per 

shift depending on the amount of moisture in the rock and on how many rocks 

became caught in the hopper; it was very difficult to prevent completely. 

14. The accumulation cited was left over from at least one prior shift. 

15. A preshift examination on each shift consisted of the foreman 

traveling all the walkways and passageways and checking for safety conditions. No record of these examinations was made. A preshift examination of 

the cited area had not been made pr~or to the citation because the Government inspection was already in progress when the supervisor, Gene Pfarr, 

arrived. 

16. Considering that the spillage was left over from at least one 

prior shift, management knew or reasonably should have known of the condition before it was found by the inspector. 

Citation No. 328810 

17. As part of its cut and fill mining sequence, Homestake constructs 

vertical shafts used as ore bins and adjacent manways between levels where 

mining is taking place. The purpose of the ore bins or "binlines" is to provide a vertical receptacle for loose ore to fall into as it is pulled to the 

top opening with a "slusher." The mouth of the shaft is 5 1 x 10' and of this 

the ore bin is 5' x 5'. The top of the ore bin is normally protected by 

two "grizzly bars" equally spaced across the opening; these prevent oversized pieces of ore from falling into the ore bin and act as a guard to 

495 
protect the miners from falling in. 

the ore bin, is a manway containing 

level where the ore is loaded. The 

landings about 20 feet apart. 

Also inside the shaft, and adjacent to 

ladders between the stope and the lower 

ladders are offset on a series of 

18. The manway is separated from the ore bin by a solid wall. At the 

top of the shaft the ore is kept from falling into the manway by a "yankee 

bin." This is a wooden platform that begins over part of the opening of the 

manway and slants down at about 45 degrees into the ore bin. Most of the 

remainder of the manway opening is protected by lagging. Normally, only 

about 18" of the manway entry is open when the manway is used as a travelway. 

19. As ore is mined in the stope, the height of the stope increases. 

Periodically, it becomes necessary to extend the ore bin and manway by adding 

a vertical extension at the top. This process, called "standing chimney 

timber," is performed by a small construction crew. After the chimney is 

installed backfill is placed around it to create a new working surface. 

20. On March 30, 1978, construction was underway to extend an ore bin 

and manway in the 34D stope above the 4250 level. The Government did not 

prove that any other activity was occurring in the stope at the time. 

21. The grizzly bars had been removed from the opening over the ore bin 

and all lagging boards had been removed from the opening above the manway. 

22. In this particular stope, the ore bin descended about 80 feet to 

the 4250 level, where the ore came out at the bottom of the bin and was 

loaded into mine cars. The manway in the shaft consisted of offset ladders 

between landings about 20 feet apart vertically. A cable had been strung 

across the passageway on the 4250 level which led to the bottom entry of the 

manway. The cable had a sign on it indicating that the manway was closed. 

At the top of the manway, which was the only other entry to the manway, the 

first section of ladder had been removed. 

23. At the time of the inspection, three of Respondent's employees were 

~hanging a broken cap at the top of the shaft in preparation for standing the 

chimney. As the shaft was being extended the top of the old timber would 

first be cleaned off. Six 11-foot, 1011 x 10" posts would be placed on top 

of the old frame and braced. Caps and ties would be placed on the top and 

then the posts would be laced up with lacing and cement. A platform on which 

the men could work would also be built. 

24. After all the muck was cleared out of the stope, the equipment 

would be torn down and the slusher would be placed in an area so that when 

the chimney was finished they could hoist it to the top before backfilling. 

The inspector estimated that it would take about 2 hours to change the broken 

cap, and the slusher would not have been used again until a new chimney section had been built and backfilled. There were several steps involved for 

backfilling and sometimes a stope would sit idle for quite a while. There 

496 
were about 100 chimneys at the Homestake mine. The chimney on the 34D stope 

was extended about once every 2 months and it required about three shifts to 

complete an extension. 

25. At the time of the inspection, the stope had already been cleaned 

out and the slusher had been pulled up. There were two 11-foot, 1011 x 

10" posts leaning vertically against each other at about a 45-degree angle. 

The grizzly bars had been removed from the ore bin and the first 8-foot 

section of ladder in the manway had been removed near the top. Both halves 

of the shaft top were uncovered. 

26. At 11:30 p.m., Inspector Iverson issued a citation (No. 328810) to 

the supervisor, which read in part: 

Miners were standing chimney timber over open raised top 

measuring 5 feet wide and 10 feet in length with an 18 inch 

by 5 foot manway opening on the north end, 30 feet to the 

4250 level manway landing. The muck in the raise was at a 

45 degree from horizontal which bottomed out 10 feet from 

the top of raise. Location of chimney & raise was in the 

34D stope 4250 level 9 ledge. 

1he condition was promptly abated by placing a 3-inch thick wooden covering over the opening. The Government proved the above-quoted factual 

allegations. 

27. It was the inspector's opinion that one of the 11-foot posts or 

broken material being handled by the workmen could have fallen down the 

unobstructed manway injuring someone on the 4250 level or inside the manway. 

He also believed that one of the men could have stumbled or fallen through 

the opening to the ore bin. There have been about three fatalities and 

three or four serious injuries (none while a chimney was under construction) 

when men, who were working around the opening or were passing over it, 

stepped backward or stumbled over a loose rock and fell into the opening. 

28. At the time of the inspection, the grizzly bars were not in place, 

the lagging boards had been removed, and the men were not using safety belts. 

This condition created a hazard to the miners working on the chimney 

construction. 

Citation No. 328401 

29. On April 4, 1978, Stanley Sims, a federal mine inspector, inspected 

Homestake's Yates shaft. In the area of the No. 3 borehole machine at the 

1700 level he cited Respondent for a violation of 30 CFR 57.12-18 as follows: 

"Principal Power Switches at the No. 3 borehole machine, 1700 level, 7 ledge, 

46 crosscut, were not labeled to show what units they control." 

30. At the time of this inspection, the drill was set up at the righthand side of the drift. There were three switch boxes on the opposite side 

497 
of the drift about 15 feet from the drill. The boxes were not marked to show 

the units they controlled. The middle box was much larger than the other 

two. It had two parallel lines of the same color that went from the bottom 

of the box to the power pack of the borehole machine~ but the path of these 

lines was not clear to the eye as going to the borehole machine. It also 

had a red plastic handle that controlled the power to the area. The box on 

the right, the welder's box, and the one on the left, a 110-volt transformer 

box that controlled the slusher lights, both fed off the large box. There 

were two other smaller boxes about the size of the welder's box in the drift 

about 6 feet from the power unit. At the location of the borehole machine, 

the drift was about 15 feet wide. In other respects, this was a standard 

size drift--about 90 feet high and 7 to 8 feet wide. 

31. There was a separate control panel next to the borehole machine. 

The buttons on the panel were properly labeled and were not the subject of a 

citation. A red stop button on the panel could deenergize the machine. 

Although it would stop the machine, the circuit to the power pack could be 

re-energized by pushing the start button again. If the stop button were 

inoperable, the main power box would have to be used to shut off the machine. 

The borehole machine had no "dead man" control. 

32. The inspector considered the switch boxes on the wall as the primary 

switches because they controlled the feed to the secondary controls. By 

sight, the inspector was unable to determine readily which units the boxes 

controlled. He assumed the larger box was the master because it usually was, 

and that the welding machine and slusher lights were controlled by the other 

two. 

33. There was a danger that, if the driller were in an emergency and 

unable to reach the drilling machine control panel, others might not know 

how to shut off the power at the wall immediately because the wall boxes 

were not marked. 

34. It was rare at this mine that a primary switch box would not be 

labeled to indicate which unit it controlled. 

35. The borehole machine would be moved into an area that had been 

mined out and it would normally take about 3 weeks to drill a 150-foot raise. 

The power unit had a 200-horsepower electric motor that powered two hydraulic 

pumps. The helper usually greased the machine, placed the rods in the 

rocker, and performed normal maintenance duties. He was usually present during periods of drilling. About 6 months of training would be required to 

become competent in running the drill. One of the first things a helper 

would learn was how to turn off the borehole machine. He would be the first 

to turn it on at the start of a shift and the first to turn it off by throwing the switch on the large circuit box on the wall. 

36. As of the day of the inspection, the Respondent had recently 

obtained another borehole machine and the crews were divided. The driller 

at the site had not yet chosen a permanent helper and was using laborers 

instead. No laborer had shown up for work that day. 

498 
37. The citation was abated. by placing a stencil label: "borehole" 

on the large circuit breaker box. 

DISCUSSION WITH FURTHER FINDINGS 

Citation No. 328801 

On March 20, 1978, Inspector Iverson charged Respondent with a violation of 30 CFR § 57.11-1, which provides: "Mandatory. Safe means of access 

shall be provided and maintained to all working places." The inspector 

observed that the stairway leading to the tail pulley of the No. 4 feeder 

belt was covered with loose material that created an unsafe condition. 

The basic issue as to this citation is whether section 57.11-1 applies 

to stairways such as the one involved here. 

Respondent contends that the standard applies only to travelways since 

section 57.11 is introduced by the heading, "Travelways and Escapeways." By 

definition, Respondent argues, for an area to be considered a travelway it 

must be used on a regular basis (which implies more than just being accessible). "Travelway" is defined in 30 CFR § 57 .2 as a "passage, walk or way 

regularly used and designated for persons to go from one place to another." 

Respondent states that "the evidence was clear that the stairs were used on 

an occasional basis for the sole purpose of access to the tail pulley for 

infrequent maintenance work** *·" 

Petitioner asserts that the stairway was a travelway within the meaning 

of section 57.2 because mechanics traveled the stairway to check and grease 

machinery in the course of their regular maintenance duties, supervisory 

personnel traveled this area, and cleanup people regularly traveled this 

area. 

Respondent also asserts that even if the stairway leading to the tail 

pulley was a travelway, section 57.11-1 was not violated because the alcove 

was not a "working place". "Working place" is defined in section 57.2 as 

"any place in or about a mine where work is being performed." Relying on the 

present tense of the definition, Respondent contends the standard applies 

only while work is in progress and notes that there was no evidence that at 

the time of the citation work activity was taking place or would be taking 

place in the area in the immediate future. 

Petitioner contends that an area in which regular maintenance, such as 

greasing and repair work, is performed is a "place in or about a mine where 

work is being performed." 

Finally, Respondent asserts that section 57.11-1 does not apply to the 

stairs because a more specific section, 57.11-8, applies. Section 57.11-1 

speaks generally of maintaining safe access to working places. Section 

57.11-8, which is not a mandatory standard, specifically applies to stairways. That section reads: "Ladderways, stairways, walkways, and ramps 

499 
should be kept free of loose rock and extraneous materials." Because section 57 .11-8 is n.ot a mandatory standard, Respondent contends, it cannot 

be enforced. 

Petitioner agrees that section 57.ll-8 is not a mandatory standard and 

states that it has since been revoked. Federal Register, August 17, 1979, 

Vol. 44, No. 161, p. 48530. Petitioner contends that section 57.11-1 was 

the proper standard to cite. 

I conclude that at the time of the inspection, 30. CFR § 57. ll-1 applied 

to the cited area. 

The stairway was used about once a week by the crusher mechanics to 

maintain and grease the tail pulley. It was also inspected by supervisors 

and traveled by cleanup men whenever they cleaned a spill or an accumulation 

of loose materials. Those activities satisfy the requirement of regular use 

within the meaning of 30 CFR § 57.2. The stairway, by its nature, was 

designed for people to gain access from one area to another and was, therefore, a "travelway" under that section. 

I also find that the tail pulley area was a "working place" as defined 

in 30 CFR § 57.2. During periods of maintenance and cleanup around the 

tail pulley, "work is being performed." In El Paso Rock Quarries, DENV 

79-139-PM (December 17, 1979), Judge Moore said: "Inasmuch as employees are 

required to go into the tunnel to clean and repair, it is a workplace within 

the meaning of the regulation." I find Respondent's characterization of 

section 57.11-1 as requiring a safe means of access only "while work is in 

progress" incorrect. 

Citation No. 328810 

On March 30, 1978, Inspector Iverson charged Respondent with a violation 

of 30 CFR § 57.11-12 for failing to guard openings above the manway and ore 

bin. Section 57.11-12 provides: "Mandatory. Openings above, below, or near 

travelways through which men or materials may fall shall be protected by 

railings, barriers, or covers. Where it is impractical to install such 

protective devices, adequate warning signals shall be installed." 

The threshold issue with respect to this citation is whether the manway 

was a travelway at the time of the inspection. Respondent asserts that the 

manway was not a travelway because at the time of the citation the manway 

was (1) closed at the top where construction was underway and an 8-foot section of ladder had been removed and (2) closed at the bottom by a cable with 

a danger sign. 

The inspector considered the manway to be a travelway within the meaning of 30 CFR § 56.11-12. He said the manway remained open around the top 

while construction was underway and the last step would be to close it off 

when backfilling started. He believed that while men were still working 

500 
around the top the manway could be used as a travelway. At the time of the 

citation, it had not yet been closed off, and although he would not have 

expected anyone to descend into the manway (without first replacing the 

8-foot section of ladder), he considered the manway subject to travel from 

above. There was no proof that such travel had ever occurred during this 

chimney extension or any other. The inspector did not inspect the bottom 

entry to the manway. 

I conclude that the Government failed to prove that the manway was a 

"travelway" at the time of the citation. Use of the manway as a travelway 

was effectively stopped at the top by the fact of ongoing construction of 

the chimney, the removal of the 8-foot ladder section, and the existence and 

actual use of one or more alternative travelways, such as the one used by 

the inspector to get to the construction site. Respondent's evidence made 

a prima facie showing that, at the bottom of the manway, entry to the manway 

was effectively closed by placing a cable across it and hanging a danger 

sign. The inspector did not inspect or investigate conditions at the bottom 

entry; the Government's evidence did not rebut the prima facie showing made 

by Respondent. There was no solid evidence that miners had ever crossed a 

cable and danger sign to enter the bottom of the manway, during this chimney 

extension or any other. 

Structurally, the 5 1 X 10' set of frame timber around which the construction crew was working consisted of two 5' X 5' openings. One of the 

openings was an ore bin; the other was what had been used as a manway and 

a Yankee bin. While the chimney was being extended, this half of the top 

portion became altered to a 5' X 5' opening that was not structurally or 

functionally intended to be a travelway. As mentioned, there was also a 

prima facie showing that, at the bottom of the manway, entry to the manway 

was effectively closed. 

The openings at the top of the shaft were a sine qua non of a construction activity: standing chimney timber. Before the 11-foott:"imbers could be 

put in and braced, the coverings had to be removed and could not be replaced 

until this activity was completed. 

The Government's evidence did show a dangerous construction activity 

(the absence of safety belts or lagging over a deep opening) but this did not 

prove a travelway violation as alleged in the citation. The safety standard 

on which the citation was based applied specifically to "openings above, 

below or near travelways." Because the construction sequence of standing 

chimney timber changed the structure and function of the manway to a construction site, there no longer existed a factual basis for the citation. 

Since the travelway standard did not apply to this activity, the relevant 

safety issue was whether the construction activity constituted an "imminent 

danger" under section 107(a). Since the Secretary did not allege an imminent 

danger, such issue is not before me. 

501 
Citation No. 328401 

On April 4, 1978, Inspector Sims charged Respondent with a violation of 

30 CFR § 57.12-8, which provides: "Mandatory. Principal power switches shall 

be labelled to show which units they control, unless identification can be 

made readily by location." The citation reads: "Principal power switches at 

the No. 2 borehole machine, 1700 level, 7 ledge, 46 X cut were not labelled 

to show what units they control." 

The controlling issues as to this citation are whether the three circuit boxes were principal power switches and, if so, whether the units 

they controlled could be readily identified by their location. 

Respondent asserts that there were two principal power switches at the 

location in question: The red "stop" button on the control panel controlled 

the hydraulic power for the borehole machine and the large circuit breaker 

box controlled the electrical power for the area. It contends that, by 

their location, these power switches were readily identifiable by "those 

miners who could reasonably be expected to be present when an emergency 

occurred and who might be called upon to stop the equipment." 

I find that each of the circuit breaker boxes was a principal power 

switch, that the units they controlled could not be readily identified by 

their location, and that this condition created a safety hazard. 

There were three circuit breaker boxes with power switches on the wall 

of the drift opposite the borehole machine and about 15 feet from the 

machine. The large box controlled three units--the borehole machine and the 

other two boxes; the two boxes controlled, respectively, the slusher lights 

and the welding machine. Each machine also had its own separate power 

switch. The borehole machine control panel included a prominent red stop 

or panic button to stop the machine immediately. 

None of the wall boxes was marked. In an emergency, the borehole 

machine operator could be in danger but unable to reach the borehole control 

panel. In such an event, his safety could depend on the swiftness with 

which another person (whether his helper or any other person) could turn off 

the power at the wall. The existence of three boxes without markings could 

confuse someone as to the right switch to pull to cut off the power to the 

borehole machine. Such delay could be significant in an emergency. 

CONCLUSIONS OF LAW 

1. The undersigned judge has jurisdiction over the parties and the 

subject matter of the above proceeding. 

2. Respondent violated 30 CFR § 57.11-1 by allowing loose material to 

accumulate on the stairway as alleged in Citation No. 328801. Based upon 

the statutory criteria fot assessing a civil penalty for a violation of a 

mandatory safety standard, Respondent is assessed a penalty of $100 for this 

violation. 

502 
3. Petitioner did not meet its burden of proving a violation as 

alleged in Citation No. 328810. 

4. Respondent violated 30 CFR § 57.11-18 by failing to label principal 

power switches as alleged in Citation No. 328401. Based upon the statutory 

criteria for assessing a civil penalty for a violation of a mandatory safety 

standard, Respondent is' assessed a penalty of $100 for the above violation. 

ORDER 

WHEREFORE IT IS ORDERED that (1) the charge based on Citation No. 328810 

is DISMISSED, and (2) Homestake Mining Company shall pay the Secretary of 

Labor the above-assessed civil penalties, in the total amount of $200, within 

30 days from the date of this decision. 

WILLIAM FAUVER, JUDGE 

Distribution: 

Steven P. Kramer, Esq., Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 40i5 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

Timothy M. Biddle, Esq., Crowell & Moring, 1100 Connecticut Avenue, 

NW., Washington, DC 20036 (Certified Mail) 

503 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

.February 20, 1980 

SECRETARY OF LABOR, Complaint of Discharge, 

MINE SAFETY AND HEALTH Discrimination, or Interference 

ADMINISTRATION (MSHA), 

ex rel Billy G~ne Kilgore, 

Applicant 

v. 

PILOT COAL COMPANY, 

Docket No. VA 79-144-D 

Respondent 

Appearances: 

Before: 

DECISION 

James H. Swain, Esq., and Kenneth L. Stein, Esq., 

Office of the Solicitor, U.S. Department of Labor, 

Philadelphia, Pennsylvania for Applicant; 

J. Robert Stump, Esq., Sturgill & Stump, Norton, 

Virginia for Respondent. 

Chief Administrative Law Judge Broderick 

Statement of the Case 

The complaint filed in this proceeding on September 20, 1979, 

alleges that Billy Gene Kilgore was discharged by Respondent on or 

about May 18, 1979, because of activity protected under section 105(c) 

of the Federal Mine Safety and Health.Act of 1977, 30 u.s.c. § 815(c). 

Pursuant to notice, a hea~ing on the merits was held in Norton, 

Virginia, on November 29, 1979. Billy Gene Kilgore and Donnie Brickley 

testified for the Applicant. Bruce Arwood, Darrell Baker, Mack Thacker 

and Kelly Fultz testified for the Respondent. Both parties were 

afforded the opportunity to submit post hearing briefs, To the extent 

that the contentions of the parties are not incorporated in this 

decision, they are rejected, 

Statutory Provision 

Section 105 of the Act provides in part: 

(c)(l) No person shall discharge or in any manner 

discriminate against or cause to be discharged or cause 

discrimination against or otherwise interfere with the 

504 
exercise of the statutory rights of any miner, representative of miners or applicant for employment in any coal or 

other mine subject to this Act because such miner, representative of miners or applicant for employment has filed 

or made a complaint under or related to this Act, including 

a complaint notifying the operator or the operator's agent, 

or the representative of the miners at the coal or other 

mine of an alleged danger or safety or health violation in 

a coal or other mine, or because such miner, representative 

of miners or applicant for employment is the subject of 

medical evaluations and potential transfer under a standard 

published pursuant to section 101 or because such miner, 

representative of miners or applicant for employment has 

instituted or caused to be instituted any proceeding under 

or related to this Act or has testified or is about to 

testify in any such proceeding, or because of the exercise 

by such miner, representative of miners or applicant for 

employment on behalf of himself or others of any statutory 

right afforded by this Act. 

(2) any miner or applicant for employment or representative of miners who believes that he has been discharged, 

interfered with, or otherwise discriminated against by any 

person in violtion of this subsecton may, within 60 days 

after such violation occurs, file a complaint with the 

Secretary alleging such discrimination, Upon receipt of 

such complaint, the Secretary shall forward a copy of the 

complaint to the respondent and shall cause investigation to 

be made as he deems appropriate. Such investigation shall 

commence within 15 days of the Secretary's receipt of the 

complaint, and if the Secretary finds that such complaint 

was not frivolously brought, the Commission, on an expedited 

basis upon appication of the Secretary, shall order the 

immediate reinstatement of the miner pending final order on 

the complaint. If upon such investigation, the Secretary 

determines that the provisions of this subsection have been 

violated, he shall immediately file a complaint with the 

Commission, with service upon the alleged violator and the 

miner, applicant for employment, or representative of miners 

alleging such discrimination or interference and propose an 

order granting appropriate relief. The Commission shall 

afford an opportunity for a hearing (in accordance with 

section 554 of title 5, United States Code, but without 

regard to subsection (a)(3) of such section) and thereafter 

shall issue an order, based upon findings of fact, affirming, modifying, or vacating the Secretary's proposed order, 

or directing other appropriate relief. Such order shall 

become final 30 days after its issuance. The Com.mission 

shall have authority in such proceedings to require a person 

committing a violation of this subsection to take such 

505 
affirmative action to abate the violation as the Commission 

deems appropriate, including, but not limited to, the 

rehiring or reinstatement of the miner to his former position with back pay and interest. The complaining miner, 

applicant, or representative of miners may present additional evidence on his own behalf during any hearing held 

pursuant to his paragraph. 

Issues 

1. Whether Applicant Billy Gene Kilgore was discharged by Respondent on or about May 18, 1979? 

2. If so, whether the discharge was because of activity protected 

under section 105 of the Act? 

3. If Applicant was not discharged but resigned, was his resignation a constructive discharge? 

4. If so, was it because of activity protected under section 105 

of the Act? 

Stipulation 

The parties made the following stipulation on the record: 

Number one, Pilot Coal Corporation is a coal mining 

corporation doing business in the Commonwealth of Virginia 

and maintains its principal offices in Wise, Virginia. 

Number two, the corporation, as of this date, operates 

one underground mine and one surface mine. Surface mine 

No. 2 employs approximately [eight] employees on one production shift per day. The mine operations of the Respondent 

would be classified as "small". Total daily tonnage from 

the underground mine is 100 tons and 200 tons from the 

surface mine. 

Number three, Respondent has never been found guilty 

civilly or criminally of a violation of the discrimination 

provisions of the Federal Mine Safety and Health Act (Coal 

Mine Health and Safety Act). 

Number four, the Complainant, after termination did 

not seek reinstatement with the Respondent, and the Respondent did nothing to hinder the resolution of the instant 

matter. 

Number five, if Clarence A. Goode were called to testify he would state: (A) I have been employed by MSHA 

506 
(MESA) since January of 1971. (B) I have been a special 

investigator since October, 1977. (C) As a special 

investigator I investigate complaints under Section 105(c) 

and Section 110 of the 1977 Act. (D) I have received 

extensive training totaling 240 hours in regard to the 

execution of my duties as a special investigator. Further, 

I have conducted to date approximately twelve discrimination cases and have supervised other investigations of 

discrimination complainst conducted by my staff. These 

supervised investigations total about 85 cases. 

Number six, in the instant case, from my investigation, I conclude that the alleged discrimination which may 

have taken place did not indicate a pattern or practice of 

any general discriminatory action by the Respondent. 

Seven, in the event that the maximum penalty authorized under this Act were assessed against the Respondent, 

the payment of said penalty would not significantly affect 

the Respondent's ability to continue in business. 

Number eight, if Respondent were called to testify, 

Kelly Fultz, corporation president, would testify that if 

the maximum penalty were assessed against the Respondent, 

it would significantly affect the Respondent's ability to 

continue in business. And that is the end of the 

stipulation. 

Findings of Fact 

1. The facts stated in the above stipulation are accepted and 

adopted as Findings of Fact. 

2. Applicant was hired by Respondent in or about January, 1978, 

primarily to operate a front-end loader, but also to operate dozers 

and haulers. 

3. On one occasion prior to May 1979, Applicant quit his job 

after spilling some oil on his person while waiting to fuel his frontend loader. After about a week, he returned, and was accepted back on 

the job. 

4. 

with its 

could be 

On May 14, 1979, the front-end loader was having problems 

turbo charger and was removed from service until a needed part 

procured. 

5. On May 15, 1979, Applicant was assigned to drive a 35 ton 

hauler truck. His only previous experience on such a vehicle was about 

7 years previously when he intermittently drove a truck for about a 

month. 

507 
6. On May 15, 1979, Applicant drove the hauler, most of the 

driving being on level ground. He complained of the brakes and brake 

fluid was added. Applicant did not have any other difficulties 

driving the hauler on that day. 

7. On May 16, Applicant was required to drive his truck up a 

newly-made incline to the loading point. Because there was not room to 

turn around at the loading point, the truck had to be backed up the 

incline. The road was soft and with an empty truck it was difficult to 

back up. Applicant was unable to back up the incline and was afraid of 

turning the truck over. After another driver hauled several loads, 

there was enough room to turn around at the loading point. 

8. Applicant then drove up forward and hauled approximately six 

loads. He testified that he was having difficulty with the retarder 

brakes and was unable to slow the truck sufficiently to successfully 

negotiate the curve coming down the incline. 

9. After he got his last load that day while turning, one wheel 

dropped into a hole and the other ran up on a rock. Applicant got out 

of the hauler and it was righted by another driver. 

10. Applicant then told the mechanic and the foreman that he did 

not think he could operate the hauler safely and he was quitting. 

11. The road was over 16 feet wide, had a berm on one side and 

the bank on the other. There was loose material where the road had 

been recently regraded. 

12. The foreman attempted to persuade Applicant not to quit, and 

offered to put him on sick leave for the remainder of the day. Applicant refused the offer. 

13. On May 18, 1979, Applicant returned to the mine, having filed 

a complaint with MSHA the previous day, and was told that the loader 

was not fixed and that driving the hauler was the only work available 

for him. 

14. Applicant was not told on May 16 or May 18 that he was discharged. 

15. Applicant Billy Gene Kilgore was not discharged from his 

employment by Respondent on or about May 18, 1979, but voluntarily left 

the employment. 

16. Applicant quit his job in part because he was afraid of driving the hauler up and down the incline. 

17. Neither the hauler nor the road were unsafe for normal 

operation. 

508 
18. The circumstances surrounding\ applicant's resignation did 

not constitute a constructive discharge. 

Conclusions of Law 

1. At all times relevant to this decision, Applicant and Respondent were subject to the provisions of the Federal Mine Safety and 

Health Act of 1977. 

2. The undersigned Administrative Law Judge has jurisdiction over 

the parties and subject matter of this proceeding. 

3. Applicant was not discharged, interfered with, or otherwise 

discriminated against because of activity protected under section 105 

of the Act. 

Discussion 

The evidence establishes that Kilgore was not discharged but 

voluntarily quit his job. The evidence further establishes that there 

were no safety hazards related to the road or'the hauler. He did not 

wish to continue work because he was fearful that he would be injured 

due to his lack of experience with the vehicle. I do not believe that 

refusal to work under these conditions is activity protected under 

105(c) of the Act, or that it can be construed as a discharge or discrimination by Respondent forbidden by that section. 

4. Since Respondent did not violate the Act as alleged in the 

complaint, no penalty is assessed. 

ORDER 

Based upon the above findings of fact and conclusions of law, the 

complaint is DISMISSED. 

,7 

/. () 14t.- e!--:5 

J James A. Broderick 

Chief Administrative Law Judge 

Distribution: 

J. Robert Stump, Esq., Attorney for Pilot Coal Company, Sturgill & 

Stump, P.C., 464 Park Avenue, Norton, VA 24273 (Certified mail) 

James H. Swain, Attorney, Office of the Solicitor, U.S. Department of 

JAB Labor, Room 14480 Gateway Building, 3535 Market Street, Philadelphia, 

PA 19104 (Certified mail) 

Mr. Billy G. Kilgore, Box 1241, Wise, VA 24293 

509 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COALTRAIN CORPORATION, 

Respondent 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11/12 FEB 2 1 1980 

Civil Penalty Proceeding 

Docket No. MORG 79-26-P 

A.O. No. 46-05452-03001 

No. 1 Strip Mine 

DECISION AND ORDER 

The parties have failed to show cause why the findings and conclusions 

contained in the attached Order of January 28, 1980, should not be entered 

as the decision and order of the Presiding Judge in this matter with 

respect to the seven citations in question. 

Accordingly, it is ORDERED that said findings as to liability and 

the penalties warranted be, and hereby are, CONFIRMED and incorporated 

herein. It is FURTHER ORDERED that the operator pay the penalty finally 

assessed, $280.00, on or before Friday, March 14, 1980, and that subject 

to payment the captioned matter be DIS~f~~ED. 

I 

/ 

/ 

/ 

Distribution: 

Leo McGinn, Esq., U.S. Department of Labor, Office of the Solicitor, 

4015 Wilson Blvd., Arlington, ·VA 22203 (Certified Mail) 

Glenn C. Larew, President, Coaltrain Corporation, P.O. Box 128, 

Newburg, WV 26510 (Certified Mail) 

510 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COALTRAIN CORPORATIOH, 

Respondent 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/11/12 

JAtJ 2 3 1980 

ORDER 

Civil Penalty Proceeding 

Docket No. MORG 79-26-P 

A.O. No. 46-05452-03001 

No. 1 Strip Mine 

The captioned petition for assessment of civil penalties 

was filed on November 22, 1978, and answered by the operator 

in a letter filed on December 21, 1978. Upon the operator's 

failure to fully comply with the requirements of the Pretrial 

Order of May 1, 1979, a default order issued assessing as 

final the reduced penalties recommended by counsel for the 

Secretary in his pretrial response filed May 25, 1979. The 

Commission directed the matter for review sua sponte, found there was 

no default, and by decision of November 30-;-1'979 remanded 

the matter to the Presiding Judge for further proceedings. 

On January 17, 1980, counsel for the Secretary responded to the 

order of December 11, 1979 directing that he address the 

defenses and mitigating circumstances raised by the operator. 

An independent evaluation and de novo review of the 

parties' submissions discloses that----Chere is no dispute 

as to the material facts, and that the record supports the 

following findings of fact and conclusions of law: 

1. Citation No. 015441 alleges failure to provide 

a working, audible reverse alarm on a front end loader 

as required by 30 CFR 77.410. The operator admits 

the fact of violation, but asserts in mitigation that 

the machine operator was the only person allowed in 

the pit so as to assure that no miner would possibly 

be harmed by the lack of an alarm. Counsel for the 

511 
Secretary does not dispute this. Thus, the record 

supports a finding that the violation occurred as 

charged, that the operator was ordinarily negligent, 

and that the violation was non-serious. Accordingly, 

and after considering the other statutory criteria, 

I conclude that a penalty of $100.00 is warranted 

for the violation found. 

2. Citation No. 015478 alleges failure to provide 

an approved sanitary toilet facility in a location 

convenient to the worksite as required by 30 CFR 71.500. 

The operator denies that a violation occurred, and 

maintains that a complete indoor bathroom was located 

within 50 feet of the haulage road leading to the 

worksite. The operator further claims that these 

facilities were approved by a previous inspector, and 

that they were also subsequently approved by the inspector 

who issued the instant Citation. Counsel for the 

Secretary does not deny this, but states merely that 

"the manner of compliance does not negate the existance 

of the violation," thus suggesting that a violation 

occurred solely because the facilities were not approved 

by the inspector at the time he issued the citation, 

notwithstanding his subsequent approval of the same 

facilities. I reject this contention. The record 

supports a finding that toilet facilities were provided 

in accordance with the requirements of the standard, 

and the citation should accordingly be vacated and the 

petition dismissed as to this charge. 

3. Citation No. 015479 alleges failure to provide berms 

or guards on the outer bank of an elevated roadway as 

required by 30 CFR 77.1605(k). Counsel for the Secretary 

asserts that although the lack of berms or guards can 

create a serious risk of injury or death if equipment 

were to topple from the roadway, the operator was not 

negligent because winter snows had washed out the existing 

berms. The operator does not deny the fact of violation, 

but asserts that there were ruts made by ~he trucks at 

least 12 inches deep for the entire length of the roadway. 

Thus, the record supports a finding that the violation 

occurred as charged and that the violation was serious, 

but that the operator was not negligent since the 

condition was beyond its control. Accordingly, and after 

considering the other statutory criteria, I conclude 

that a penalty of $100.00 is warranted for the violation 

found. 

512 
4. Citation No. 015480 alleges failure to provide first 

.aid equipment at or near a working place as required 

by 30 CFR 77.1707(a). Counsel for the Secretary asserts 

that although the operator was negligent i~ failing to 

provide such equipment, it is unlikely that serious 

injury or death would result from the violation. The 

operator does not deny the fact of violation, but states 

that the inspector arrived shortly after miners had 

moved to a new work site and that first aid equipment 

was located five minutes away at a previous site. Counsel 

for the Secretary does not dispute this. Thus, the 

record supports a finding that the violation occurred 

as charged and that the operator was negligent, but 

that the violation was non-serious. Accordingly, and 

after considering the other statutory criteria, I 

conclude that a penalty of $50.00 is warranted for the 

violation found. 

5. Citations Nos. 015481 and 015483 allege failure to 

post safety regulations in conspicuous locations throughout 

the mine as required by 30 CFR 77.1708. Counsel for 

the Secretary maintains that this failure could result 

in injuries to the miners, and that the operator should 

be aware of the requirement and was therefore ordinarily 

negligent. The operator maintains that the subject 

mine employs only five miners and that the safety 

regulations were posted at the company garage where 

all personnel saw them each day. Since the standard 

apparently contemplates that safety regulations be 

posted at more than one conspicuous location, I find 

that the violations alleged did in fact occur. However, 

the record supports further findings that the operator 

did in fact have the safety regulations conspicuously 

posted at one place, and that the violations are purely 

technical in nature involving no negligence on the part 

of the operator. Accordingly, and after considering 

the other statutory criteria, I conclude that a penalty 

of $5.00 is warranted for the two violations found. 

6. Citation No. 015487 alleges that compressed gas 

cylinders were lying on the ground and not secured in 

a safe manner as required by 30 CFR 77.208(d). Counsel 

for the Secretary maintains that failure to protect 

and secure these cylinders could result in serious 

injury, and that the operator was ordinarily negligent 

since the condition was obvious. The operator does not 

deny the fact of violation, but asserts that the cylinders 

were empty and not in use. Thus, the record supports 

findings that the violation occurred as charged, that 

513 
the operator was ordinarily negligent, and that the 

condition was non-serious and remote in that the only 

hazard presented was one of falling or tripping over the 

cylinders. Accordingly, and after considering the other 

statutory criteria, I conclude that a penalty of $25.00 

is warranted for the violation found. 

I further find that because there is no triable 

issue of fact, an evidentiary hearing is unnecessary 

to a prompt, just and practical disposition of this 

matter. Reliable Coal Co., 1 IBMA 50, 65 (June 10, 1971); 

Mitchell v. National Broadcasting Co., 533 F.2d 265, 

271 (2d Cir. 1977); Bell Telephone Company of Pa. 

v. FCC, 503 F.2d 1250, 1267, n. 25 (3rd Cir. 1974), 

cert. den. 422 U.S. 1026, reh. den. 423 U.S. 886 (1975). 

Accordingly, it is ORDERED that on or before Wednesday, 

February 13, 1980, the parties SHOW CAUSE why the foregoing 

findings as to liability and the penalties warranted should 

not be entered as the decision and order of the Presiding Judge 

in this matter with respect to the se~n citations in question. 

i/_71 /" / 

Distribution: 

I -·, ---y r :V~,,; . , --~ ph B. I<ennedy / 

Administrative La udge 

Leo McGinn, Esq., U.S. Department of Labor, Office of the 

Solicitor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

Glenn C. Larew, President, Coaltrain Corporation, P.O. Box 128, 

Newburg, WV 26510 (Certified Mail) 

514 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 

~E6 2 2 ,900 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

) 

) 

) Civil Penalty Proceeding 

Petitioner, 

v. 

ACME CONCRETE COMPANY, 

Respondent. 

) 

) 

) DOCKET NOS. WEST 79-214-M 

) and WEST 79-279-M 

) A/O Nos. 45-00572-05002 

) and 45-00572-05003 

) 

) 

) Mine: Acme Pit and Plant 

) 

~~~~~~~~~~~~~~~~~~~·) 

APPEARANCES: 

Rochelle Kleinberg, Esq., Office of Robert A. Friel, 

Regional Solicitor, United States Department of Labor, 

Seattle, Washington 

for the Petitioner, 

Kevin Bredesen, Safety Coordinator and E.J. Ziegler, 

Plant Supervisor, appearing pro se, 

for the Respondent. 

Before: Judge John J. Morris 

DECISION 

Petitioner charges Respondent failed to secure gas cylinders and 

failed to provide a backup alarm for its equipment. Petitioner asserts 

the cited conditions violate standards promulgated under the authority 

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

et~· (1976), (amended 1977). 

ISSUES 

The issue is whether any violations occurred. 

515 
CASE NO. WEST 79-214-M 

CITATION 345301 

This citation alleges a violation of 30 CFR 56.16-5.l/ 

The uncontroverted evidence establishes the following facts. 

1. Three oxygen cylinders were outsi~e Acme's grease storage 

building (Tr 20, Exhibit P6). 

2. One of the cylinders was unsecured; it could tip over, rupture, 

and rocket off (Tr 22). 

3. The cylinder, purchased commercially, was delivered by a vendor 

just prior to the inspection (Tr 35,46). 

4. The cylinders, 50 feet from the plant office, are to be secured 

by the vendor, however, the vendor had not secured them on two 

or three prior occasions (Tr 46,48). 

Acme contends the events involving unsecured cylinder were outside 

of its control.l./ 

I reject Acme's argument. The fact that the vendor left the two 

cylinders unsecured on two prior occasions are sufficient facts to alert 

Acme to the likelihood of a violation. The obligations imposed by the 

Federal Coal Mine Act cannot be delegated to another by contract, cf 

Frohlich Crane Service, Inc•, v OSHRC 521 F2d 628, (10th Cir., 1975); 

Ce~tral of Georgia Railroad Company v OSHRC 576 F2d 620, (5th Cir., 

1978) • 

. !/The cited standard reads as follows: 

56.16-5 Mandatory. Compressed and liquid gas 

cylinders shall be secured in a safe manner. 

l_/This conclusion was reached by the inspector and entered in his report 

(Tr 35,Rl). 

516 
CASE NO. WEST 79-279-M 

CITATION 345271 and 345272 

These citations allege violations of 30 CFR 56.9-87.1./ 

The uncontroverted evidence establishes the following facts. 

5. Acme's 980 loader was being operated without a backup alarm and 

without a person acting as an observer (Tr 9). 

6. On the loader, the driver sits to the front and the engine is 

to the rear (Tr 12,13). 

7. A driver in his position could not see a person as close as 3 

to 4 feet from the rear of the vehicle (Tr 16,19,P-5). 

8. The inspector observed one or two workers in the vicinity of 

the loader (Tr 12,23-24,36-37). 

9. The 966 loader was not equipped with a backup alarm nor was 

there an observer available (Tr 17). 

10. One or two workers were in the area of the 966 loader; the 

966 loader is similar in design but smaller than the 980 loader 

(Tr 17-18,24-27,36-37, P-5). 

Acme contends no violations occurred since the operator's view was 

not obstructed. In addition, Acme argues, in effect, that there was a 

lack of employee exposure since no employees, other than the operator, 

were working in the cited areas. 

1/The cited standard provides: 

56.9-87 Mandatory. Heavy duty mobile equipment· 

shall be provided with audible warning devices. 

When the operator of such equipment has an obstructed view to the rear, the equipment shall 

have either an automatic reverse signal alarm 

which is audible above the surrounding noise 

level or an observer to signal when it is safe 

to back up. 

517 
Ac~e's first contention is not supported by the record. The 

rebutted testimony of the compliance officer establishes the limitations 

of the operator's view (Fact's paragraph 7). In addition, photograph P-5 

confirms this testimony. 

Acme's second contention is rejected. Employee exposure to a 

prohibited hazard is an essential element of MSHA's proof. 

In the evidence presented here there is such exposure. 

Concerning the 980 loader: The loader operator, as well as Acme's 

truck drivers, can load in this area (Tr 44-46). Exposure arises when 

workers leave their trucks, an event observed "quite often" by the 

inspector (Tr 24-27). 

Concerning the 966 loader! A loader was stuck and the inspector 

observed a worker fastening a 10 foot cable to the disabled vehicle so 

it could be moved (Tr 25-26,32-34). Even though the operator of the 966 

loader would generally be isolated from any other workers, the described 

circumstances constitute exposure to the involved employee. 

JURISDICTION 

The parties concede jurisdiction (Tr 6). 

FINDINGS OF FACT 

I find the facts as outlined in Paragraphs 1 through 10 of this 

decision. 

CONCLUSIONS OF LAW 

1. Respondent violated 30 CFR 56.16-5 and Citation 345301, (Case 

No. West 79-214-M) should be affirmed. (Facts 1-4.) 

518 
2. Respondent violated 30 CFR 56.9-87 and Citations 345271 and 

345272, (Case No. West 79-279-M) should be affirmed. (Facts 

5-10.) 

Based on the foregoing findings of fact and conclusions of law, I 

enter the following: 

ORDER 

1. In Case No. West 79-214-M, Citation 345301 and the proposed 

penalty of $38 are affirmed. 

2. In Case No. West 79-279-M, Citations 345271 and 345272 and 

the proposed total penalty of $228 are affirmed. 

Law Judge 

Distribution: 

Rochelle Kleinberg, Esq., Office of the Regional Solicitor, U.S. Department 

of Labor, 8003 Federal Building, Seattle, Washington 98174 

Kevin Bredesen, Safety Coordinator, Acme Concrete Company, Box 2503 

Terminal Annex, Spokane, Washington 99220 

E. J. Ziegler, Plant Supervisor, Acme Concrete Company, Box 2503 Terminal 

Annex, Spokane, Washington 99220 

519 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, IOTH FLOOR 

5203 LEESBURG PIKE 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

FALLS CHURCH, VIRGINIA 22041 

FEB 2 5 1980 

Petitioner 

Civil Penalty Proceeding 

Docket No. HOPE 79-197-P 

A/O No. 46-01863-03003 

Pond Fork Mine 

ISLAND CREEK COAL COMPANY, 

Respondent 

DECISION 

Appearances: James H. Swain, Esq., Office of the Solicitor, U.S. Department 

of Labor, for Petitioner; 

William K. Bodell, II, Esq,, Island Creek Coal Company, 

Lexington, Kent~cky, for Respondent. 

Before: Judge Cook 

I) Procedural Background 

On January 16, 1979, the Mine Safety and Health Administration (Petitioner) filed a petition for assessment of civil penalty against Island Creek 

Coal Company (Respondent) in the above-captioned proceeding. The petition 

was filed pursuant to section llO(a) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 820(a)(l978)(1977 Mine Act), and alleges violations 

of two provisions of the Code of Federal Regulations, An answer was filed 

on February 12, 1979. 

Notices of hearing were issued on June 19, 1979 and July 13, 1979. A 

continuance was granted at the Respondent's request on July 5, 1979. The 

hearing was held on August 16, 1979 in Bluefield, West Virginia, Representatives of both parties were present and participated, 

A schedule for the submission of posthearing briefs was agreed upon 

after the presentation of the evidence, However, difficulties experienced by 

counsel necessitated a revision thereof. Under the revised schedule, briefs 

were due by October 19, 1979, and reply briefs were due by November 5, 1979. 

520 
The Respondent and the Petitioner filed posthearing briefs on 

October 19, and October 25, 1979, respectively. The Respondent filed a 

reply brief on November 5, 1979, and the Petitioner filed a response to the 

reply brief on November 13; 1979. l./ · 

II Violations Charged 

Citation No. 

20053 

21804 

Date 

6/19/78 

7/13/78 

III Evidence Contained in the Record 

A) Stipulations 

30 CFR 

Standard 

75.302-1 

75.200 

The stipulations entered into by the parties are set forth in the 

findings of fact, infra. 

B) Witnesses 

The Petitioner called as its witness Billy R. Browning, an MSHA 

inspector. 

The Respondent called as its witnesses Arvel Gartin, a section foreman 

at the subject mine; Tony Turyn, director of safety for the Respondent's 

Island Creek Division; and Douglas White, the day shift mine foreman at the 

subject mine. 

C) Exhibits 

1) The petitioner introduced the following exhibits into evidence: 

M-1 is a copy of both Citation No. 20053, June 19, 1978, 30 CFR 75.302-1 

and the termination thereof. 

M-2 is a document styled "Assessed Violation History Report-Two Year 

Summary by Mine" compiled by the Directorate of Assessments. This document 

1/ The Respondent argues that the Petitioner's brief should not be consid-

~red in making a decision in the instant case because it was not timely 

filed. (Respondent's Reply Brief, pg. 1). The Petitioner asserts that such 

action would be inappropriate because the Respondent has not alluded to 

having suffered prejudice as a result of the tardy filing. (Petitioner's 

Response to Respondent's Reply Brief, pg. 1) 

In light of the absence of demonstrable prejudice resulting from the 

late filing, the arguments raised in the Petitioner's posthearing brief will 

be considered in deciding the instant case. 

521 
contains information on the history of violations for which the Respondent 

had paid assessments between July 20, 1976 and July 19, 1978. 

M-3 is a copy of both Citation No. 21804, July 13, 1978, 30 CFR 75.200 

and the termination thereof. 

M-4 is a drawing produced during the hearing by Inspector Browning 

during, his testimony relating to Citation No. 21804, July 13, 1978, 

30 CFR 75.200. 

2) The Respondent did not introduce any exhibits into evidence. 

IV Issues 

Two basic issues are involved in the assessment of a civil penalty 

(1) did a violation of the 1977 Mine Act occur, and (2) what amount should be 

assessed as a penalty if a violation is found to have occurred? In determining the amount of civil penalty that should be assessed for a violation, the 

law requires that six factors be considered: (1) history of previous violations; (2) appropriateness of the penalty to the size of the operator's 

business; (3) whether the operator was negligent; (4) effect of the penalty 

on the operator's ability to continue in business; (5) gravity of the violation; and (6) the operator's good faith in attempting rapid abatement of the 

violation. 

V Opinion and Findings of Fact 

A) Stipulations 

1) Island Creek Coal Company owns and operates the Pond Fork Mine and 

both are subject to the jurisdiction of the 1977 Mine Act. (Tr. 5) 

2) The Administrative Law Judge has jurisdiction over this proceeding 

pursuant to section 105 of the 1977 Mine Act. (Tr. 5). 

3) Inspector Billy R. Browning was a duly authorized representative of 

the Secretary at all times relevant hereto (Tr.5). 

4) Island Creek Coal Company is a large operator and a civil penalty 

assessment herein will not affect its ability to continue in business. 

(Tr. 5). 

5) Island Creek Coal Company mines over ten million tons per year, and 

the Pond Fork Mine mines from fifty to sixty thousand tons a year. (Tr. 89). 

B) Occurrence of Violations, Negligence, Gravity and Good Faith 

1) Citation No. 20053, 6/19/78, 30 CFR 75.302-1 

MSHA Inspector Billy R. Browning conducted a spot inspection of the 

Respondent's Pond Fork Mine on June 19, 1978 (Tr. 10-12). He arrived at the 

522 
mine at approximitely 3:50 p.m. and entered the mine with the evening shift 

at approximately 4:00 p.m. (Tr. 12-13). He testified that the shifts at the 

Pond Fork Mine change at 4:00 p.m. (Tr. 13). He arrived on the section at 

approximately 4:30 p.m. (Tr. 21). At 4:55 p.m., he issued the subject 

citation alleging a violation of mandatory safety standard 30 CFR 75.302-1 

as follows: 

The line brattice and check curtain were not properly 

installed and maintained from the last open crosscut out to 

within 10 feet of the point of deepest penetration in the 

014-04 unit in that the line brattice was terminated 20 feet 

outby the point of deepest penetration in the No. 6 entry, 

27 feet outby the point of deepest penetration in the No. 5 

entry and the line brattice and check fly were nailed to the 

roof in the No. 3 and 4 entries. 

(Exh. M-1; see also Tr. 13). 

The inspector's testimony is in accord with the statements contained in 

the citation. (Tr. 13-14, 30-35). In addition, he testified that the check 

flies and line brattices were rolled ~ and nailed to the roof in the Nos. 3 

and 4 entries. (Tr. 31-33). As relates to the No. 3 entry, they were rolled 

up for a distance of approximately 32 to 34 feet (Tr. 31-32). His testimony 

indicates that line brattice had been installed to within 8 feet of the 

"toe of the coal." (Tr. 31). As relates to the No. 4 entry, they were 

rolled up for a distance of approximately 30 feet (Tr. 33-34). 

The ventilation plan identified the area as a working section (Tr. 13.) 

The testimony of both Inspector Browning and Mr. Arvel Gartin, the evening shift section foreman, establishes that coal was not being cut, mined or 

loaded from the working faces in any of the four subject entries between the 

time the inspector and the evening shift miners arrived on the section and 

the time the citation was issued. (Tr. 22, 29, 36, 43). In fact, there was 

no power on the section while the inspector was present (Tr. 36, 41-42). 

The first question presented is whether the above-stated facts establish 

a violation of 30 CFR 75.302-1 occurring on the June 19, 1978, second shift 

at the Pond Fork Mine. For the reasons set forth below, I answer this question in the negative. 

The Petitioner argues that an interrelationship exists between 30 CFR 

75.302-1 and 30 CFR 75.302(a) whereby the former must be interpreted as 

defining an area of the mine and not time periods during the mining process. 

The Petitioner correctly observes that 30 CFR 75.302(a) is merely a verbatim 

restatement in the Code of Federal Regulations of section 303(c)(l) of the 

Federal Coal Mine Health and Safety Act of 1969, 30 u.s.c. 863(c)(l) (1970) 

(1969 Coal Act). Section 303(c)(l) of the 1969 Coal Act was unchanged by 

the enactment of the 1977 Mine Act. Compare 30 u.s.c. § 863(c)(l) (1970) 

and 30 u.s.c. § 863(c)(l) (1978). According to the Petitioner, the statutory 

523 
provision requires the continuous use of line brattice inby the last open 

crosscut. The Petitioner then argues that the sole construction of 30 CFR 

75.302-1 consistent with the statutory language is that 30 CFR 75.302-1 

further clarifies the distance requirements for hanging line brattice in 

areas where coal is being cut mined or loaded. (Petitioner's Posthearing 

Brief, pp. 5-7). Thus, according to the Petitioner, a violation of 30 CFR 

75.302-1 can occur absent actual cutting, mining or loading operations at 

a given working face. 

The Respondent disagrees, arguing that 30 CFR 75.302-1 describes not 

only an area of the mine, but also specifies activities which must be in 

progress before the 10 foot rule applies. The Respondent argues that the 

regulation is clear and requires little interpretation. The Respondent 

submits that the purpose of the regulation is to assure that cutting, mining 

or loading, which constitute activities requiring greatest protection from 

dust and methane concentrations, are not conducted when curtains are farther 

than 10 feet from the face. According to the Respondent, the regulation 

seeks to assure proper ventilation at the face during these crucial operations, not at all times. (Respondent's Posthearing Brief, pp. 2-3; see also 

Respondent's Reply Brief). 

The Petitioner characterizes the Respondent's interpretation as misconstruing the intent of the two provisions and as directly contrary to the 

Congressional directive that newly promulgated regulations cannot reduce 

existing levels of protection. (Petitioner's Posthearing Brief, pg. 7 citing 

Sen. Rep. No. 95-181, 1977 U.S. Code Cong. and Admin. News 3401 at 3411); 

see also section 30l(a) of the 1969 Coal Act, 30 U.S.C. § 86l(a) (1970) and 

section 30l(a) of the 1977 Mine Act, 30 U.S.C. § 86l(a) (1978). 

Although an interrelationship exists between the two provisions, I disagree with the Petitioner's interpretation of that interrelationship. I 

conclude that the ten foot requirement contained in 30 CFR 75.302-1 applies 

only when coal is actually being cut, mined or loaded from the working 

face. 'l:_/ 

30 CFR 75.302 addresses ventilation of the working face and provides, in 

part, as follows: 

(a) Properly installed and adequately maintained line 

brattice or other approved devices shall be continuously used 

from the last open crosscut of an entry or room of each working section to provide adequate ventilation to the working 

faces for the miners and to remove flammable, explosive, and 

noxious gases, dust, and explosive fumes, unless the Secretary 

or his authorized representative permits an exception to this 

!) For a similar interpretation see United States Steel Corporation, MSHA 

and United Mine Workers of America, Docket Nos. BARB 79-276 and 79-277 

(August 10, 1979, Judge Forrest E. Stewart). 

524 
requirement, where such exception will not pose a hazard to 

the miners. When damaged by falls or otherwise, such line 

brattice or other devices shall be repaired immediately. 

30 CFR 75.302-1, addresses the installation of line brattice and other 

devices and provides, in part, as follows: 

(a) Line brattice or any other approved device used to 

provide ventilation to the working face from which coal is 

being cut, mined or loaded and other working faces so designated by the Coal Mine Safety Manager, in the approved 

ventilation plan, shall be installed at a distance no greater 

than 10 feet from the area of deepest penetration to which 

any portion of the face has been advanced unless a greater 

distance is approved by the Coal Mine Safety District Manager 

of the area in which the mine is located. 

Thus, the two provisions collectively establish the following general 

requirements: Properly installed and adequately maintained line brattice or 

other approved devices must be continuously used from the last open crosscut 

of an entry or room of each working section 3/ to provide adequate ventilation to the working faces. 4/ However, when-coal is actually being cut, 

mined or loaded from the wo"i:'."king face, the line brattice or other approved 

device used to provide ventilation to that working face must be installed at 

a distance no greater than 10 feet from the area of greatest penetration to 

which any portion of the face has been advanced. 

30 CFR 75.302-l(a) simply sets forth a detailed requirement for the 

installation of the line brattice in relation to working faces from which 

coal is actually being cut, mined or loaded. It cannot be concluded that 

the regulation, by delimiting its coverage to areas of actual cutting, mining 

or loading, violates the Congressional mandate prohibiting the promulgation 

of regulations according less protection to the miners than is provided by 

the interim mandatory safety standards. 

In view of the fact that neither cutting, mining nor loading of coal 

had occurred on the second shift, it cannot be found that a violation of 

30 CFR 75.302-1 occurred on the second shift. 5/ 

3/ " 1Working section 1 means all areas of the coal mine from the loading 

point of the section to and including the working faces." 30 CFR 75.2(g)(3). 

4/ "'Working face' means any place in a coal mine in which work of extracting coal from its natural deposit in the earth is performed during the 

mining cycle." 30 CFR 75.2(g)(l). 

5/ It is possible that a violation of 30 CFR 75.302(a) (statutory provision) 

;xisted. But it is unnecessary to decide such an issue because the petition 

for assessment of civil penalty does not allege a violation of the statutory 

provision. 

525 
The second question presented is whether the allegations contained in 

the petition for assessment of civil penalty are sufficient to charge a violation of 30 CFR 75.302-1 occurring on the June 19, 1978, day shift. 

The inspector testified that the cited conditions in the four subject 

entries had been present while coal was being produced on the June 19, 1978, 

day shift. He did not observe any mining activities .on the day shift 

because he was not present in the mine at that time. (Tr. 24). Rather, he 

testified as an expert basing his opinion on inferences drawn from observations in the four entries. (Tr. 14-15, 24-25, 27-28, 30-35). 

The Respondent contends that the allegations contained in the petition 

are inadequate to allege a violation occurring on the prior shift. 

(Respondent's Posthearing Brief, pp. 4-5). 

It is clear that the Petitioner's case centered on a violation allegedly 

occurring on the second shift as evidenced by both the evidence presented at 

the hearing and the arguments set forth in the Petitioner's posthearing 

brief. Counsel for the Petitioner argued only at the hearing that if actual 

cutting, mining or loading is required to support a violation of 30 CFR 

75.302-1, then the reasonable inferences drawn from the inspector's observations would support a finding that a violation had occurred on the prior 

shift. (Tr. 92-97). The argument is not specifically reasserted in the 

Petitioner's brief. 

The Interior Board of Mine Operations Appeals observed that timely and 

adequate notice is necessary to enable a mine operator "to determine with 

reasonable certainty the allegations of violations charged so that it may 

intelligently respond thereto and decide whether it wishes to request formal 

adjudication." Old Ben Coal Company, 4 IBMA 198, 208, 82 I.D. 264, 1974-1975 

OSHD par. 19,723 (1975). Additionally, section 5(b)(3) of the Administrative 

Procedure Act, 5 U.S.C. §554(b)(3) (1978), provides that "[p]ersons entitled 

to notice of an agency hearing shall be timely informed of * * * the matters 

of fact and law asserted." 

The Respondent was entitled to notice sufficient for it to determine 

with reasonable certainty the violation charged. 

The citation sets forth the time of issuance as 4:55 p.m., June 19, 

1978; i. e., approximately 55 minutes into the second shift. No statement is 

made in the citation alleging that cutting, mining or loading occurred on the 

day shift in the face areas of the four subject entries with the line brattices and check flys installed at a distance greater than ten feet from the 

area of deepest penetration. Since the allegations contained in the citation 

are incorporated by reference into the petition for assessment o·f civi 1 penalty, the petition can only be construed as alleging a violation occurring 

on the second shift. Indeed, the evidence adduced by the Respondent was 

directed toward disproving a violation on the second shift. A review of all 

the evidence reveals that the question of whether a violation occurred on the 

day shift was not tried with the express or implied consent of the parties. 

526 
Accordingly, the petition for assessment of civil penalty will be dismissed as relates to Citation No. 20053, 6/19/78, 30 CFR 75.302-1. 

2) Citation No. 21804, 7/13/78, 30 CFR 75.200 

MSHA inspector Billy R. Browning visited the Respondent's Pond Fork Mine 

on July 13, 1978 to begin a regular inspection of the mine (Tr. 55-56). He 

rode into the mine on a jeep and was accompanied by Mr. Douglas White, the 

day shift mine foreman. (Tr. 56, 75-76). As they were riding through the 

mine, the inspector observed that a roof fall had occurred in the crosscut 

in which stopping No. 34 was located (Tr. 57, 63). The roof fall had been 

corrected by the mine operator sometime prior to the inspector's arrival in 

the area. (Tr.59-60). The fall area was supported according to the minimum 

requirements of the roof control plan, but a new area of deterioration had 

developed (Tr. 71). The inspector observed indications that a fresh crack 

had developed, extending to a point 25 or 27 feet inby the fall area along 

the right rib. (Tr. 57-59, 65). He testified that the crack was tied 

"directly into the fall area" and that the roof over the track was a somewhat hazardous area as a result of the crack (Tr. 65). A visual estimate 

revealed that loose and broken roof was present for a distance of six to 

twelve inches beyond each side of the crack. (Tr. 69-70). The inspector's 

observations led him to conclude that additional support was required (Tr. 

60). The subject citation was. issued .at 9:30 a.m. encompassing both the 

roof over the track to the left of the fall area and the crack in the rib 

(Tr. 65), and states the following: 

The roof over the main line track was inadequately supported in the crosscut intersection located at the No. 34 

stopping in that loose and broken roof was present along the 

right side and signs of cutting was present for a distance 

of [25 or 27] feet. 

(Exh M-3; Tr. 58). 

The above-cited conditions observed along the track haulageway (Tr. 61) 

allegedly constitute a violation of 30 CFR 75.200, which provides, in pertinent part, as follows: "The roof and ribs of all active underground roadways, travelways, and working places shall be supported or otherwise controlled adequately to protect persons from falls of the roof or ribs." It 

is not alleged that the cited conditons constituted a violation of the 

Respondent's roof control plan. (Tr. 60). However, it is well established 

that where the evidence is sufficient to establish that the roof or ribs of 

a mine were not adequately supported to protect persons from falls, it is 

unnecessary to prove a violation of the roof control plan in order to sustain 

a violation of 30 CFR 75.200. In Zeigler Coal Company, 2 IBMA .216, 80 I.D. 

626, 1973-1974 OSHD par. 16,608 (1973), the Interior Board of Mine Operations 

Appeals held "that an operator is under a duty to maintain a safe roof irrespective of any roof control plan and that the failure to do so constitutes 

a violation of [30 CFR 75.200] ." 2 IBMA at 222. 

527 
There was no substantial disagreement between Inspector Browning and 

Mr. White as to the existence of the crack. In fact, Mr. White testified 

that the crack existed as designated by the inspector on Exhibit M-4, In 

additition, I am unable to detect any meaningful discrepancies in their 

testimony material to the issue of whether the conditions described by the 

inspector establish the area as one in need of additional support. The 

inspector testified that the crack was an indication of roof deterioration 

(Tr, 66), I find the inspector's assessment a credible one, especially in 

view of the presence of loose and broken roof for a distance of 6 to 

12 inches on each side of the crack, 

Mr. White candidly admitted that it would have been possible for the 

roof to collapse in the near future, but qualified his assertion by indicating that it would be difficult to affirmatively state that it would or would 

not have collapsed (Tr, 79). However, he testified that if he had observed 

the condition without the inspector present, he would have installed supports (Tr. 79). I interpret this testimony as a further indication that 

prudent mining practice required the installation of additional supports in 

the cited area, 

Therefore, I find that the conditions described by the inspector existed 

as set forth in both the citation and his above-noted testimony, and that the 

cited area was not supported or otherwise controlled adequately to protect 

persons from falls of the roof or ribs, 

Accordingly, I conclude that a violation of 30 CFR 75,200 has been 

established by a preponderance of the evidence. 

Negligence of the Operator 

The inspector testified that he did not feel that the condition existed 

as a result of a lack of due diligence or negligence on the operator's part 

(Tr. 60), He based his opinion on the apparent freshness of the crack. He 

did not believe that it had been in existence for a very long period of time 

(Tr, 61). Mr, White shared the inspector's view that the crack appeared 

fresh, basing his opinion on the absence of rock dust or float dust on it 

(Tr. 83), He could not express an opinion as to how long the condition had 

been present (Tr. 83), 

Operator negligence is established when the evidence or the inferences 

drawn therefrom establish that the operator knew or should have known of the 

condition. The testimony of both Inspector Browning and Mr. White fails to 

establish that the Respondent had actual knowledge of the condition. 

Mr. White testified that he did not know the crack existed prior to observing 

it (Tr. 77), In addition, the inspector testified that if the Respondent had 

known about the condition it would have undertaken corrective action. He 

based his opinion on his experience in inspecting the Pond Fork Mine (Tr. 

64-65). 

Accordingly, I conclude that there has not been a showing of negligence 

on the part of the Respondent, 

528 
Gravity of the Violation 

The length of the crack and the condition of the roof adjacent to the 

crack have been set forth previously, 

As noted previously,. the inspector testified that the crack in the rib 

was tied directly into the fall area (Tr. 65), The inspector testified that 

the area of the fall was not extremely large,' He testified that it was a 

normal roof fall, entry wide, 4 or 5 feet thick and ten or 15 feet long 

(Tr. 63), The fall area had been cribbed off (Tr, 63-64), Thus, the fall 

area was behind the cribs, not in the travelway (Tr, 62-63). Specifically, 

the inspector testified that when he arrived in the cited area he observed 

that three cribs had been installed and 3 to 5 additional crossbars had been 

installed across the roof with 5 by 7 or 6 by 8 square-sawed posts on the 

left side of the track (Tr, 59-60, 66-70, Exh M-4), The inspector further 

testified that this support had been installed at the time of the fall (Tr, 

59-60), 

Mr, White testified that the roof above the main track was in "pretty 

fair shape," (Tr, 7 8), He further testified that a hairline crack was present in the roof over the main track extending a bit past where the crossbars had been installed (Tr, 79). 

The inspector indicated that the condition was potentially serious, 

Defective roof is in itself, a dangerous condition (Tr, 61), 

The cited area was along a track haulageway, All persons entering the 

mine's underground workings via the track entry would have been exposed to 

the condition (Tr. 61). 

Accordingly, I conclude that the violation was very serious, 

Good Faith in Attempting Rapid Abatement 

The condition was abated by installing four 42-inch cribs along the 

right side of track and seven 5-inch by 7-inch by 14 foot headers against 

the roof over the track, The headers were supported by five-by 7-inch 

square-sawed posts located on the left side of the track (Exh M-3, Tr, 

58-59), The inspector oEined that management took extraordinary steps to 

abate the violation, based on the fact that Mr. White immediately ordered 

the supply crew to load, transport and install cribs, crossbars and posts 

·(Tr. 61-62), 

Accordingly, I conclude that the Respondent demonstrated good faith in 

attempting rapid abatement, 

C) History of Previous Violations 

Exhibit M-2 is a computer printout compiled by the Directorate of 

Assessments containing information on the history of previous violations 

for which the Respondent had paid assessments from July 20, 1976 to July 19, 

1978, as relates to the Pond Fork Mine, 

529 
During this two year period, the Respondent had paid assessments for 

113 violations. Forty-two occurred in 1976, 42 occurred in 1977 and 

29 occurred in 1978. 

D) Appropriateness of Penalty to Oper~tor's Size 

' Island Creek Coal Company Mines over 10 million tons per year, and the 

Pond Fork Mine mines from fifty to sixty thousand tons a year (Tr. 89). 

Furthermore, the parties stipulated that Island Creek Coal Company is a 

large operator (Tr. 5). 

E) Effect on Operator's Ability to Continue in Business 

The parties stipulated that the assessment of any penalty in this proceeding will not affect the Respondent's ability to continue in business 

(Tr. 5). Furthermore, the Interior Board of Mine Operations Appeals has 

held that evidence relating to whether a civil penalty will affect the operator's ability to remain in business is within the operator's control, 

resulting in a rebuttable presumption that the operator's ability to continue in business will not be affected by the assessment of a civil penalty. 

Hall Coal Company, 1 IBMA 175, 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. 

IV Conclusion of Law 

1. Island Creek Coal Company and its Pond Fork Mine have been subject 

to the provisions of the 1977 Mine Act at all times relevant to this proceeding. 

2. Under the Act, this Administrative Law Judge has jurisdiction over 

the subject matter of, and the parties to, this proceeding. 

3. MSHA Inspector Billy R. Browning was a duly authorized representative of the Secretary of Labor at all times relevant to the issuance of the 

citations which are the subject matter of this proceeding. 

4. The violation charged in Citation No. 21804, 7/13/78, 30 CFR 75.200, 

is found to have occurred as alleged. 

5. The violation charged in Citation No. 20053, 6/19/78, 30 CFR 

75.302-1 is found not to have occurred as alleged. 

6. All of the conclusions of law set forth in Part V of this decision 

are reaffirmed and incorporated herein. 

VII Proposed Findings of Fact and Conclusion of Law 

Petitioner and Respondent submitted posthearing briefs. Respondent submitted a reply brief, and Petitioner submitted a response to the reply 

530 
brief. Such submissions, insofar as they can be considered to have contained 

proposed findings and conclusions, have been considered fully, and except to 

the extent that such findings and conclusions have been. expressly or 

impliedly affirmed in this decision, they are rejected on the ground that 

they are, in whole or in part, contrary to the facts and law or because they 

are immaterial to the decision in this case. 

VIII Penalties Assessed 

Upon consideration of the entire record in this case and the foregoing 

findings of fact and conclusions of law, I find that assessment of a penalty 

is warranted as follows: 

Citation Date 

21804 7/13/78 

ORDER 

30 CFR 

Standard 

75.200 

Penalty 

$200 

The Respondent is ORDERED to pay a civil penalty in the amount of $200 

within 30 days of the date of this decision. 

IT IS FURTHER ORDERED that Citation No. 20053, 6/19/78, 30 CFR 75.302-1 

be, and hereby is VACATED and that the petition for assessment of civil 

penalty be, and hereby is, DISMISSED as relates to such citation. 

Distribution: 

n F. 

~~--~dministrative Law Judge 

James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor, 

Room 14480, Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

William K. Bodell II, Esq., Assistant Corporate Counsel, Island Creek 

Coal Company, 2355 Harrodsburg Road, P.O. Box 11430, 

Lexington, KY 40575 (Certified Mail) 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 

531 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52C..) LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR, 

MINE SAFETY AND HEAL TH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

HARMAN MINING CORPORATION, 

Respondent 

Civil Penalty Proceeding 

Docket No. NORT 79-63-P 

A/O No. 44-03614-03003 

No. 5-B Mine 

DECISION 

Appearances: Inga A. Watkins, Esq., Office of the Solicitor, U.S. Department of Labor, for Petitioner; 

Robert M. Richardson, Esq., Richardson, Kemper, Hancock & 

Davis, Bluefield, West Virginia, for Respondent. 

Before: Judge Cook 

I. Procedural Background 

On January 31, 1979, the Mine Safety and Health Administration (Petitioner) filed a petition for assessment of civil penalty against Harman 

Mining Corporation (Respondent) in the above-captioned proceeding. The 

~petition was filed pursuant to section llO(a) of the Federal Mine Safety 

and Health Act of 1977, 30 u.s.c. § 820(a) (1978) (1977 Mine Act), and 

alleged violations of two provisions of the Code of Federal Re~ulations. 

The Respondent filed its answer on March 5, 1979, 

Pursuant to notices, the hearing was held on July 17, 1979, in Beckley, 

West Virginia. Representatives of both parties were present and participated. Counsel for the Petitioner made two motions during the course of 

the hearing: First, to dismiss the petition for assessment of civil penalty 

as relates to Citation No. 321765, August 10, 1978, 30 CFR 75,523 (Tr. 4); 

second, to amend the petition for assessment of civil penalty as relates to 

Citation No, 321763, ·issued on August 10, 1978, to allege that the condition 

described therein constitutes a violation of both 30 CFR 75.523 and 30 CFR 

75.523-1 (Tr. 67). Both motions were granted (Tr. 4, 71), 

A schedule for the submission of posthearing briefs was agreed upon 

after the presentation of the evidence. However, subsequent events necessitated a revision thereof, The Petitioner and the Respondent filed posthearing briefs on November 14, 1979, and November 29, 1979, respectively. 

Neither party filed a reply brief. 

532 
II. Violations Char~ed 

Citation No. Date 30 CFR Standard 

321763 8/10/78 75.523 

75.523-1 

321765 8/10/78 75.523 y 

III. Evidence Contained in the Record 

A. Stipulations 

The stipulations entered into by the parties are set forth in the findings of fact, infra. 

B. Witnesses 

The Petitioner called as its witness James O. Vandyke, a Mine Safety and 

Health Administration (MSHA) inspector. 

The Respondent called as its witnesses Eugene Carter, a repairman and 

mechanical leader employed by the Respondent; and Paul Hurley, the Respondent's vice president of operations. 

C. Exhibits 

1. The Petitioner introduced the following exhibits into evidence: 

(a) M-1 is a copy of Citation No. 321763, August 10, 1978, 

30CFR75.523. 

(b) M-2 is a copy of the inspector's statement pertaining to 

M-1. 

(c) M-3 contains notes made by Inspector Vandyke. 

(d) M-4 is a computer printout compiled by the Directorate of 

Assessments listing the history of violations for which the Respondent had 

paid assessments beginning August 10, 1976, and ending August 10, 1978. 

2. The Respondent did not introduce any exhibits into evidence. 

IV. Issues 

Two basic issues are involved in the assessment of a civil penalty: 

(1) did a violation of 1977 Mine the Act occur, and (2) what amount should 

1/ As noted previously, the petition for assessment of civil penalty was 

dismissed as relates to this citation, 

533 
be assessed as a penalty if a violation is found to have occurred? In 

·determining the amount of civil penalty that should be assessed for a violation, the law requires that six factors be considered: (1) history of 

previous violations; (2) appropriateness of the penalty to the size of the 

operator's business; (3) whether the operator was negligent; (4) effect of 

the penalty on the operator's ability to continue in business; (5) gravity 

of the violation; and (6) the operator's good faith in attempting rapid 

abatement of the violation. 

V. Opinion and Findings of Fact 

A. Stipulations 

1. Harman Mining Corporation is a large operator, mining over 

500,000 tons of coal per year and employing approximately 300 employees_ 

(Tr. 4). 

2. The proposed penalty would not affect the operator's ability to 

continue in business (Tr. 4). 

B. Occurrence of Violation 

MSHA inspector James O. Vandyke visited the Respondent's No. 5-B Mine 

at approximately 9 a.m., August 10, 1978, to make a complete health and 

safety inspection (Tr. 16). He was accompanied on the inspection tour by 

Mr. Roy Owens, an employee of the Respondent (Tr. 16, 18; Exh. M-1). 

The inspector observed a canopy-equipped coal drill operating in the 

face area of the No. 2 entry of the 001 section (Tr. 18, 100, Exh. M-1). At 

the inspector's request, the coal drill operator tested the machine's deenergizing device at which time the inspector observed that the device would not 

deenergize the machine (Tr. 18). A close examination revealed the presence 

of a wooden cap wedge driven behind the device, propping it open (Tr. 18, 

73). The inspector testified that absent the wedge it would have been 

possible to cut the machine's electrical power by depressing the deenergizing 

device (Tr. 73). Accordingly, the inspector issued the subject citation 

alleging that "[t]he device being used to deenergize the coal drill on the 

001 section quickly in the event of an emergency was inoperative" (Exh. M-1). 

The petition for assessment of civil penalty, as amended, alleges that the 

condition sets forth a violation of 30 CFR 75.523 and 30 CFR 75.523-1. The 

latter regulation will be addressed first, and provides, in part, as follows: 

(a) Except as provided in paragraphi (b) and (c) of 

this section, all self-propelled electric face equipment 

which is used in the active workings of each underground 

coal mine on and after March 1, 1973, shall, in accordance 

with the schedule of time specified in paragraphs (a)(l) 

and (2) of this section, be provided with a device that 

will quickly deenergize the tramming motors of the equipment in the event of an emergency. The requirements of 

this paragraph (a) shall be met as follows: 

534 
(1) On and after December 15, 1974, for self-propelled 

cutting machines, shuttle cars, battery-powered machines, 

and roof drills and bolters; 

(2) On and after February 15, 1975, for all other types 

of self-propelled electric face equipment. [~] 

The coal drill was trammed by two hydraulic tramming motors. A pump 

turned by an electric motor provided the hydraulic pressure necessary to 

operate the tramming motors. It pumped hydraulic fluid at the rate of 

approximately 15 to 18 gallons per minute at a pressure of 1,200 to 

1,400 pounds. After leaving the pump, the pressurized hydraulic fluid was 

transmitted to a control box, or valve bank, and, in turn to the hyraulic 

motors (Tr. 73-74, 129, 139-141). All hydraulic levers, including those 

used to operate the tramming motors, were self-centering (Tr. 130), meaning 

that the levers automatically returned to a neutral position when released 

by the machine operator (Tr. 28, 112-113, 130). Releasing the tramming motor 

levers would stop the flow of hydraulic fluid to the tramming motors and thus 

stop the movement of the machine, assuming the levers self-centered (Tr. 

29-30, 37, 75-76). Machine movement would be arrested almost instantaneously 

(Tr. 112, 132). However, the electrically-powered pump would still be in 

operation, providing pressure to the valve bank (Tr. 81). The lever could 

then accidentally be pushed again starting movement of the drill. 

The Respondent sets forth essentially two arguments germane to the 

question of whether a violation of 30 CFR 75.523-1 occurred: First, the 

regulation applies solely to electrical tramming motors and has no application to hydraulic tramming motors. Second, the coal drill was equipped with 

a device that would quickly deenergize the tramming motors in the event of 

2/ The exceptions set forth at 30 CFR 75.523-l(b) and (c) provide as 

follows: 

"(b) Self-propelled electric face equipment that is equipped with a 

substantially constructed cab which meets the requirements of this part, 

shall not be required to be provided with a device that will quickly 

deenergize the tramming motors of the equipment in the event of an 

emergency. 

"(c) An operator may apply to the Assistant Administrator-Technical 

Support, Mine Safety and Health Administration, Department of Labor, 

4015 Wilson Boulevard, Arlington, Va. 222203 for approval of the 

installation of devices to be used in lieu of devices that will quickly 

deenergize the tramming motors of self-propelled electric face equipment 

in the event of an emergency. The Assistant Administrator-Technical Support may approve such devices if he determines that the performance thereof 

will be no less effective than the performance requirements specified in 

§ 75.523-2. 11 

The coal drill in question was canopy-equipped and thus not within the 

30 CFR 75.523-l(b) exception to the general requirement. The Respondent 

presented no evidence establishing the applicability of 30 CFR 75.523-l(c). 

535 
an emergency as required by 30 CFR 75.523-1. (Respondent's Posthearing 

Brief, pp. 5-6). I disagree with both arguments. The purported distinction 

between electrical tramming motors and hydraulic tralUIIling motors is superficial in view of the presence of the electrically-powered pump on the 

hydraulic system. This electric motor was the primary source of power for 

the hydraulic system. Any deenergizing device meeting 30 CFR 75.523-l(a)'s 

requirement for "a device that will quickly deenergize the tramming motors 

of the [self-propelled electric face equipment which is used in the active 

workings] in the event of an emergency" must, of necessity, deenergize the 

electric pump motor. 

Additionally, 30 CFR 75.523-l(a) must be read in conjunction with the 

requirements of 30 CFR 75.523-2(a), which provides as follows: 

(a) Deenergization of the tramming motors of selfpropelled electric face equipment, required by paragraph (a) 

of § 75.523-1, shall be provided by: 

(1) Mechanical actuation of an existing pushbutton 

emergency stopswitch, 

(2) Mechanical actuation of an existing lever 

emergency stopswitch, or 

(3) The addition of a separate electromechanical 

switch assembly. 

This regulation mandates the use of one of three types of switches in 

order to meet the requirements of 30 CFR 75.523-l(a). The term "switch" is 

defined in Paul W. Thrush (ed.), A Dictionary of Mining, Mineral, and Related 

Terms (Washington D.C.: U.S. Department of the Interior, Bureau of Mines) 

0968) at page 1111 as: "A mechanical device for opening and closing an 

electric circuit; a mechanism for shifting a moving body in another direction." Given the context of electric face equipment, a "switch" must be 

construed as referring to a mechanical device for opening and closing an 

electric circuit. 

It is clear from the evidence contained in the record that the coal 

drill's self-centering hydraulic levers were not "switches" within the 

meaning of 30 CFR 75.523-2(a), since they did not open and close an electric circuit. It would be accurate to state that they opened and closed a 

hydraulic circuit, but as such were inadequate to provide complete 

deenergization of the tramming motors. That could only be achieved through 

the deenergization of the electrically-driven pump. 

In addition we find that 30 CFR 75.523-2 went on to provide further 

performance requirements for such deenergization equipment by providing as 

follows in subsections (b) and (c): 

(b) The existing emergency stopswitch or additional 

switch assembly shall be actuated by a bar or lever which 

536 
shall extend a sufficient distance in each direction to 

permit quick deenergization of the tramming motors of selfpropelled electric face equipment from all locations from 

which the equipment can be operated. 

(c) Movement of not more than 2 inches of the actuating 

bar or lever resulting from the application of not more than 

15 pounds of force upon contact with any portion of the 

equipment operator's body at any point along the length of 

the actuating bar or lever shall cause deenergization of the 

tramming motors of the self-propelled electric face equipment. 

Such panic bar did exist on the subject equipment but a wooden wedge 

had been driven behind it to stop it from functioning. It is clear from 

30 CFR 75.523-2 that such a panic bar is what was contemplated by the 

regulations in question. 

In light of these considerations, it cannot be concluded that the 

levers were adequate to meet the requirements of 30 CFR 75.523-l(a). 

Accordingly, the Respondent's arguments are not persuasive on the issue 

of whether a violation occurred. 

The presence of the wooden cap wedge is, however, determinative. I 

read 30 CFR 75.523-l(a) as requiring an operable emergency deenergizing 

device on the coal drill. Since the evidence establishes that the placement of the wedge rendered the device inoperable, it must be found that a 

violation of 30 CFR 75.523-l(a) has been established by a preponderance of 

the evidence. 

In view of this finding, it is unnecessary to determine whether the 

above-stated facts establish a violation of 30 CFR 75.523. 

c. Negligence of the Operator 

Mr. Carter te.stified that the machine had been purchased as used mine 

equipment from Mercer Welding in Bluefield, West Virginia. He did not know 

whether the emergency deenergizing device had been installed by the original 

manufacturer but his testimony indicated that it had been installed prior 

to the purchase by the Respondent (Tr. 126). 

The testimony of both Inspector Vandyke and Mr. Carter indicates that 

the deenergizing device had been rendered inoperative through the placement 

of the wooden cap wedge in order to compensate for the device's poor design 

and installation. This design and installation deficiency rendered it 

virtually impossible to dperate the machine without blocking-out the 

deenergizing device, as attested to by the inspector's conversation with 

the coal drill operator: 

Q. Mr. Vandyke, were any statements made to you by 

the operator or any of the miners concerning this alleged 

violation? 

537 
A. Well, the operator of the machine said that the 

device, when it was operative and not being blocked out, 

would, in the normal functions of the machine, in tramming the machine from one face to another, the vibrations 

and so on, and being that the deck was narrow, he said 

that he was required to lean into close proximity of the 

device and he said that he would bump it off several times 

because of the design of the working deck of the machine. 

(Tr. 24). 

I find this hearsay testimony entitled to great probative weight 

because the testimony of Mr. Carter confirms, in part, the assertions of 

the hearsay declarant. Mr. Carter testified that he could understand why 

the wedge had been used to render the deenergizing device inoperable (Tr. 

120). During cross-examination, he testified as follows: 

THE WITNESS: [The deenergizing devices] are trouble. 

They are balanced out. A rough botton [sic] or vibration 

will knock them off; shut you down. I mean, you will 

working [sic] and all of a -sudden it will de-energize the 

machine a~it will stop. If you want to stop, turn loose 

your lever; it will stop. 

They're not supposed to do it, but sometimes the operator will -- I suppose that's the way it got there. I don't 

think it got there by accident; it may have. 

(Tr. 119). 

It can be inferred that the deficiency had existed for a considerable 

period of time. Corrective action should have been taken at the .time of 

purchase or as soon as the deficiency was apparent. Given the nature of the 

deficiency, the Respondent should have foreseen the miners blocking out the 

device in order to perform their assigned mining tasks. 

Additionally, the condition should have been detected during the weekly 

examinations of electric equipment required by 30 CFR 75.512-2. 

Accordingly, I conclude that the Respondent demonstrated far more than 

ordinary negligence. 

D. Gravity of the Violation 

The No. 5-B Mine has an uneven surface with water and mud in various 

locations (Tr. 16, 124). The inspector testified that the machine operator 

requires the ability to deenergize the machine in emergency situations to 

prevent striking another control lever prior to regaining his composure (Tr. 

20). According to Inspector Vandyke, the coal drill operator could lose 

control of the machine due to the uneven surface and, in a state of fright 

538 
or panic, pull the wrong levers (Tr. 21). The machine could pin him against 

a rib, timber, or another machine (Tr. 21, 97). The uneven surface could 

also result in a loss of control while tramming to another working face. 

Pulling the wrong lever could result in injuries to other miners (Tr. 21). 

Additionally, the machine operator could encounter other persons or another 

machine while traveling through one of the fly curtains used to help ventilate the working faces (Tr. 21-22). 

The inspector indicated that all miners on the section would have been 

exposed to the hazard, a figure placed at approximately eight men (Tr. 18, 

22). However, he testified that only one person would sustain injury during a given occurrence (Tr. 22). Anticipated injuries ranged from broken 

bones and contusions to death (Tr. 97). 

These considerations, standing alone, point to a very serious violation. 

However, an appropriate assessment of the gravity of the violation requires 

that consideration be accorded to the characteristics of the self-centering 

hydraulic levers bearing upon safety. Messrs. Carter and Hurley testified 

that the machine moved at approximately 70 to 75 feet per minute, i.e., 

slowly (Tr. 112, 132). Releasing the levers would cause the machi;-e-to stop 

in less than 1 foot, depending on the conditions (Tr. 132), and also lock 

the wheels (Tr. 117). Thus, according to Mr. Hurley, the machine would stop 

quickly in the event of an emergency (Tr. 131). 

It should be noted that the machine could coast for approximately 6 to 

10 feet by leaving the hydraulic lever in the forward position with the 

pump motor deenergized (Tr. 133). However, I find it unlikely that such an 

event would occur in the event of an emergency if the levers self-centered 

properly. There was no evidence adduced establishing that they were defective in any manner. Once the lever is self-centered there is the possibility that it could be accidentally pushed forward again. 

Considering all apsects, I conclude that the violation was moderately 

serious. 

E. Good Faith in Attempting Rapid Abatement 

The Respondent abated the violation in 15 minutes (Tr. 18, Exh. M-1). 

Accordingly, it is found that the Respondent demonstrated good faith in 

attempting rapid abatement. 

F. History of Previous Violations 

The history of previous violations at the Respondent's various mines 

for which the Respondent had paid assessments during the 24 months prior to 

August 10, 1978, is set forth as follows: 

Violations of 

30 CFR 

All Sections 

Section 75.523-1 

Year 1 

8/11/76 - 8/10/77 

176 

8 

539 

Year 2 

8/11/77 - 8/10/78 

89 

2 

Totals 

265 

10 
G. Appropriateness of Penalty to Operator's Size 

The parties stipulated that Harman Mining Corporation is a large 

operator, mining over 500,000 tons of coal per year and employing over 

300 employees (Tr. 4). 

H. Effect on Operator's Ability to Continue in Business 

The parties stipulated that the proposed penalty would not affect the 

operator's ability to continue in business (Tr. 4). Furthermore, the 

Interior Board of Mine 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 (19~ 

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. Harman Mining Corporation and its No. 5-B Mine have been subject 

to the provisions of the 1977 Mine Act at all times relevant to this 

proceeding. 

2. Under the 1977 Mine Act, the Administrative Law Judge has jurisdiction over the subject matter of, and the parties to, this proceeding. 

3. MSHA inspector James o. Vandyke was a duly authorized representative of the Secretary of Labor on August 10, 1978. 

4. The oral determination made at the hearing granting the Petitioner's motion to dismiss the petition for assessment of civil penalty 

as relates to Citation No. 321765, August 10, 1978, 30 CFR 75.523, is 

AFFIRMED. 

5. The oral determination made at the hearing granting the Petitioner's motion to amend the petition for assessment of civil penalty as 

relates to Citation No. 321763, issued on August 10, 1978, to allege a 

violation of both 30 CFR 75.523 and 30 CFR 75.523-1 is AFFIRMED. 

6. The condition set forth in Citation No. 321763, issued on 

August 10, 1978, is found to have occurred and to constitute a violation 

of 30 CFR 75.523-1. 

7. All of the conclusions of law set forth in Part V of this decision are reaffirmed and incorporated herein. 

VII. Proposed Findings of Fact and Conclusions of Law 

Both parties submitted posthearing briefs. Such briefs, insofar as they 

can be considered to have contained proposed findings and conclusions, have 

540 
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: 

Citation No. Date 30 CFR Standard Penalty 

321763 8/10/78 75.523-1 $175 

ORDER 

A. The oral determination made at the hearing granting the Petitioner's 

motion to dismiss the petition for assessment of civil penalty as relates to 

Citation No. 321765, August 10, 1978, 30 CFR 75.523, is AFFIRMED. 

B. The oral determination made at the hearing granting the Petitioner's 

motion to amend the petition for assessment of civil penalty as relates to 

Citation No, 321763, issued on August 10, 1978, to allege a violation of both 

30 CFR 75.523 and 30 CFR 75.523-1 is AFFIRMED. 

C, The Respondent is ORDERED to pay a civil penalty in the amount of 

$175 within 30 days from the date of this decision, 

D, IT IS FURTHER ORDERED that Citation No, 321765, August 10, 1978, 

30 CFR 75.523, be, and hereby is, VACATED and that the petition for assessment of civil penalty, be, and hereby is, DISMISSED as relates to said 

citation. 

Distribution: 

Inga A, Watkins, Esq,, Office of the Solicitor, U,S, Department of 

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

Robert M, Richardson, Esq., Richardson, Kemper, Hancock & Davis, 

P,0, Box 411, Bluefield, WV 24701 (Certified Mail) 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 

541 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 2 5 \Q~ 

CLIMAX MOLYBDENUM COMPANY, 

A division of AMAX, Inc., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Respondent 

Petitioner 

CLIMAX MOLYBDENUM COMPANY, 

A division of AMAX, Inc., 

Respondent 

Contest of Citat.ion and Order 

Docket No. WEST 79-92-RM 

Citation No. 334415 

April 18, 1979 

Order No. 33417 

April 18, 1979 

Climax Mine 

Civil Penalty Proceeding 

Docket No. WEST 80-108-M 

A.O. No. 05-00354-05032R 

Climax Mine 

DECISIONS 

Appearances: W. Michael Hackett, Esquire, Golden, Colorado, and 

Todd D. Peterson, Esquire, Crowell & Moring, 

Washington~ D.C., for contestant-respondent Climax 

Molybdenum Company; 

Robert A. Cohen, Attorney, Office of the Solicitor, 

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

petitioner-respondent MSHA. 

Before: Judge Koutras 

Statement of the Proceedings 

These consolidated proceedings concern a section 104(a) citation and 

subsequent 104(b) order issued by MSHA pursuant to the Federal Mine Safety 

and Health Act of 1977, charging Climax Molybdenum Company with a violation 

of section 103(a) of the Act for its refusal to permit MSHA inspectors to 

bring cameras on its mine property in the course of their inspections for 

the purpose of documenting violations of the Act and safety and health 

542 
standards promulgated thereunder. The parties waived an evidentiary heari~, and submitted the case for decision on the record, which includes the 

pleadings and legal arguments presented in the proposed findings, conclusions, and supporting briefs filed by the parties. 

There does not appear to be any dispute as to the facts which precipitated the controversy at issue in these proceedings. On April 18, 1979, MSHA 

inspectors commenced a regular safety and health inspection of the Climax 

Mine. The inspectors carried with them ins.tamatic cameras with flash attachments for the purpose of recording potential violations of the Federal Mine 

Safety and Health Act of 1977. Climax spokesman David Helmer refused to permit the MSHA inspectors to bring the photographic equipment along on the 

inspection. Climax's refusal of permission was based upon a uniform company 

policy that prohibits non-employees from using photographic equipment on 

Climax property and upon Climax's belief that MSHA was not statutorily permitted to use the equipment for the purpose of documenting violations. 

As a result of the refusal, inspector Richard H. White issued a section 

104(a) citation, No. 334415, which alleged a violation of section 103(a) of 

the Act. Subsequently, Inspector White issued a section 104(b) order, 

No. 334417, for failure to abate the citation. Climax subsequently filed a 

contest under section 105 of the Act in order to challenge the citation and 

order, and based on a stipulation of the facts, and at the request of the 

parties, I cancelled the scheduled hearing and ordered the parties to file 

briefs. 

Petitioner's pleadings filed in the civil penalty proposal (Docket No. 

WEST 80-108-M) states that Citation No. 334415 was issued pursuant to section 104(a) of the Act, and that the specific standard cited was "30 CFR 

103(A) ." A copy of the citation attached to the pleadings and proposal 

reflects that it was issued on April 18, 1979, at 10:03 a.m., by MSHA 

inspector Richard H. White, and the condition or practice alleged to be 

a violation is described as follows on the face of the citation: "A 

spokesman for the company in the pre-inspection confe.rence would not let 

MSHA inspector carry cameras underground for the purpose of taking pictures of violations which were to be a citation or order." 

The inspector fixed the abatement time as 10:33 a.m., April 18, 1979, 

and at 10:45 a.m. that same day he issued a section 104(b) order of withdrawal citing a violation of section 103(a) of the Act, and the condition 

or practice is again described as follows: "The spokesman for the company 

still will not allow MSHA inspectors to take cameras underground for the 

purpose of taking pictures of violations." The area required to be closed 

by- the withdrawal order is described as "none." 

In its answer filed in response to the proposal for assessment of a 

civil penalty for the alleged violation, Climax states that there was no 

violation of section 103(a) because there is no authority under the Act 

or its regulations for MSHA to utilize photographic equipment during the 

course of regular health and safety inspections. In contesting both the 

citation and order, Climax asserts that: 

543 
1. The provisions of § 103(a) of the Mine Act, cited 

by the inspector as the basis for the issuance of the citation/ order, do not authorize the use of photographic equipment in underground mines during the course of regular 

health and safety inspections conducted by the MSHA 

inspectors. 

2. MSHA has no specific regulatory authority which 

justifies the use of photographic equipment during regular 

health and safety inspections of underground mines. 

3. The use of photographic equipment underground by 

MSHA inspectors may actually expose miners to unsafe 

conditions. 

4. The use of photographic equipment on Climax company 

property by non-employees is in violation of Climax policy. 

5. The use of photographic equipment by MSHA inspectors is in violation of the interim rules of the Commission 

concerning the proper manner for taking discovery in administrative litigation cases. 

6. Utilization of photographic equipment by MSHA 

inspectors creates the potential for disclosure of information which is proprietary in nature, and thus would divest 

Climax of the right to have this information remain outside the domain of public knowledge. 

7. The improvement of safety is not advanced by the 

utilization of photographic equipment during the course of 

MSHA regular health and safety inspections. 

Applicable Statutory and Regulatory Provisions 

1. The Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

~~· 

2. Section 103(a) of the Act provides, in pertinent part: 

Authorized representatives of the Secretary or the Secretary of Health, Education, and Welfare shall make frequent 

inspections and investigations in coal or other mines each 

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

and physical impairments originating in such mines, (2) 

gathering of 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 

544 
any citation, order or decision issued under this title or 

other requirements of this Act** *· For the purpose of 

making any inspection or investigation under this Act, 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. [Emphasis added.] 

Section 103(b) states in pertinent part: 

For the purpose of making any investigation of any 

accident or other occurrence relating to health or safety 

in a coal or other mine, the Secretary may, after notice, 

hold public hearings, and may sign and issue subpoenas for 

the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and administer oaths. 

Section 103(e) provides: 

Any information obtained by the Secretary or by the 

Secretary of Health, Education, and Welfare under this Act 

shall be obtained in such a manner as not to impose an 

unreasonable burden upon operators, especially those operating small businesses, consistent with the underlying 

purposes of this Act. Unnecessary duplication of effort 

in obtaining information shall be reduced to the maximum 

extent feasible. 

Section 104(a) provides: 

If, upon inspection or investigation, the Secretary or 

his authorized representative believes that an operator of 

a coal or other mine subject to this Act has violated this 

Act, or any mandatory health or safety standard, rule, 

order, or regulation promulgated pursuant to this Act, he 

shall, with reasonable promptness, issue a citation to the 

operator. Each citation shall be in writing and shall 

describe with particularity the nature of the violation, 

including a reference to the provision of the Act, standard, 

rule, regulation, or order alleged to have been violated. 

In addition, the citation shall fix a reasonable time for 

the abatement of the violation. The requirement for the 

issuance of a citation with reasonable promptness shall 

not be a jurisdictional prerequisite to the enforcement of 

any provision of this Act. 

Issues Presented 

1. Does section 103(a) of the Act grant MSHA inspectors the authority to take cameras into or onto mine property for the purpose of taking 

545 
photographs of alleged conditions or practices which they believe constitute 

violations of mandatory safety or health standards? 

2. Can MSHA inspectors use photographic equipment during a regular 

heal th and safety inspection irrespective of formal Secretarial rulemaking 

authorizing the use of cameras by MSHA personnel? 

3. Can a mine operator be cited under section 103(a) of the Act for 

refusal to permit MSHA inspectors to take photographic equipment with them 

underground? 

Additional issues raised by the parties are discussed in the course of 

these decisions. 

DISCUSSION 

Contestant's Arguments 

In support of its position, Climax asserts that since the Climax Mine 

is private property, and since freedom from unreasonable Government intrusion is one of the fundamental guarantees of the Constitution, in the 

absence of any statutory authority to the contrary, Climax may regulate 

the Government's entry and activity in the mine. lb.us, if the Government 

seeks to transgress upon the established privacy rights of Climax, it must 

at the very least, possess some explicit statutory authority to do so. 

Assuming, arguendo, that there exists such statutory authority, Climax 

asserts that it is found in section 103(a) of the Act, and that from its 

point of view, the issue here is whether that section of the Act unequivocally authorizes MSHA to intrude upon Climax's privacy and property rights 

by taking photographs solely for use as evidence at trial in a contested 

proceeding. 

In further support of its arguments, Climax asserts that the strictness or liberality with which the words of section 103(a) are construed 

must be determined by reference to the nature of that particular section 

as it applies to the issue in this case, and that it is well settled that 

a remedial statute may be broadly construed for most purposes, yet strictly 

construed where it is punitive or treads close to constitutionally-protected 

areas. 3 C. Sands, Sutherland Statutory Construction, §§ 58.03, 6J.04 

(1973). Even though the substantive provisions of the Act, as remedial 

legislation, may be construed liberally, Climax argues that the proper focus 

in the context of the present case is not upon the nature of the Act as a 

whole, but rather on the specific statutory provision at issue, as it 

impacts upon the parties in this case. lb.us, the effect of section 103(a) 

alone must determine the nature of the construction given that provision. 

Foremost among the factors justifying a strict construction of section 

103(a), argues Climax, is the danger that MSHA's use of photographic equipment, particularly in the context of a warrantless inspection, would further 

encroach upon Climax's constitutionally-protected right of privacy. The 

fourth amendment guarantees of freedom from unreasonable searches applies to 

546 
Climax as it does to any homeowner, and the Supreme Court has consistently 

refused to uphold otherwise unreasonable searches simply b.ecause commercial 

establishments were the subject of the search. Go-Bart Importing Company 

v. United States, 282 U.S. 344 (1931); Amos v. United States, 255 U.S. 313 

(1921); Silverthrone Lumber Company v. united States, 251 U.S. 385 (1920). 

"The businessman, like the occupant of a residence, has a constitutional 

right to go about his business free from unreasonable official entries upon 

his private connnercial property." See v. City of Seattle, 387 U.S. 541, 

543 (1967), accord, Marshall v. Barlow's, Inc., 436 U.S. 307, 311-12 (1978). 

Climax argues that the Supreme Court has specifically emphasized that 

fourth amendment rights must be protected by limitations on the right of 

the Government to invade premises during an administrative search. Camara 

v. Municipal Court, 387 U.S. 5223 (1967); See v. City of Seattle, supra; 

Marshall v. Barlow's, Inc., supra. Since MSHA inspections may result in 

criminal as well as civil liability (see, e.g., section llO(d) of the Act), 

Climax asserts that the full range of constitutionally-based self-protection, 

as well as privacy guarantees, shield the Climax Mine from unreasonable 

Government intrusion, Camara v. Municipal Court, supra, 387 U.S. at 520, 

and that "[i]f the government intrudes upon a person's property, the privacy interest suffers whether the government's motiviation [sic] is to 

investigate violations of criminal laws or breaches of other-st"atutory or 

regulatory standards," Marshall v. Barlow's, Inc., supra, 436 U.S. at 312-

13. 

Climax suggests that the danger of unreasonable Government interference 

is even greater in the case of a warrantless search, and even asstnning that 

the warrantless search of its mine did not run afoul of the fourth amendment, the warrantless nature of the search created greater dangers for 

invasion of Climax's constitutionally-protected privacy, and in such a setting, the Supreme Court has always strictly limited the scope of permissible 

warrantless searches, citing Michigan v. Tyler, 436 U.S. 499 (1978), a case 

in which fire officials had made repeated warrantless entries of a building 

in order to search for evidence of arson. The Court held that fire officials 

needed no warrant to enter a burning building because entry to extinguish a 

fire was "reasonable." The Court further held that once in the building, 

the fire fighters could remain for a reasonable time to take only evidence 

in plain view and to investigate the cause of the fire. After the initial 

exigency, however, any further reentry to investigate required either a warrant or the consent of the property owner. Tilus, Climax asserts that the 

scope of a permissible warrantless search is restricted by the fourth amendment privacy rights of the property owner, and even where a warrantless 

search is permitted, the scope of the authorized search is exceedingly narrow; citing Chimel v. California, 395 U.S. 752 (1969) (searches incident to 

arrest); Terry v. Ohio, 392 U.S. 1 (1968) (pat-downs for weapons); and even 

where the courts have upheld the right of MSHA to conduct warrantless 

searches, they have recognized that the searches must be limited in scope, 

Marshall v. Nolichuckey Sand Corporation, 606 F.2d 693 (6th Cir. 1979). 

547 
Climax asserts that to grant the inspector wide latitude to engage in 

activities not expressly authorized would result in an unwarranted and 

unreasonable intrusion upon Climax's constitutionally-shielded right of privacy, and that the problem is exacerbated in the case of photographs for a 

number of reasons. Photographs have the great potential of revealing trade 

secrets or other proprietary information, and MSHA could unwittingly reveal 

sensitive information about Climax's production or mining practices. The 

creation of a permanent pictorial record of Climax's private mining facilities thus compounds the invasion of privacy severalfold; it opens up Climax 

property not only to the inspector, but effectively to all who might see the 

photographs. This multiplier effect therefore enhances Climax's need for 

protection and justifies a close reading of MSHA's statutory powers on this 

specific issue. 

Climax argues further that the impact on its privacy and proprietary 

operations is further increased by the fact that the use of photographic 

equiμnent and its accompanying flash attachments could distract miners whose 

attention must be focused entirely on the safe operation of massive machinery 

in confined underground spaces. Thie mere presence of Government inspectors 

is distracting enough to Climax's miners; taking pictures with a flash has 

much greater potential for disrupting normal operations and diminishing 

safety during the•mining process. This factor simply reinforces Climax's 

protected privacy interest in avoiding added MSHA intrusion into its 

property. 

Finally, Climax asserts that strict construction is even more appropriate where there is no explicit regulation or formal MSHA action authorizing 

the use of photographic equipment, and points to the fact that by contrast, 

OSHA inspectors are specifically authorized by regulation to take photographs 

during the course of an inspection, 29 CFR 1903.7(b), and which may be used 

in a subsequent enforcement hearing. MSHA, however, has no comparable regulation; in fact, there appears to be no official MSHA authorization at all 

for the attempted use of photographic equipment by Inspector White. In the 

absence of a formal authorizing regulation, MSHA inspection practices ought 

to be strictly limited. Since MSHA has not officially sanctioned the use 

of photographic equipment, the informal practices of· individual inspectors 

or district managers are not entitled to great deference. Particularly in 

an area where privacy rights are implicated, the scope of an inspector's 

informal power, unauthorized by specific regulation, ought to be carefully 

circumscribed. 

In addition to its fourth amendment arguments, Climax asserts that 

section 103(a) of the Act contains no explicit authorization to take 

photographs, and that any such authority must be inferred from the general inspection power. The photographs, and the use to which they are put, 

must achieve in some direct and concrete manner one of the four statutorilyprescribed purposes for MSHA inspections. If the photographs are not reasonably calculated to achieve one of the four-stated purposes, then their 

use is not authorized by the statute. 

548 
Climax asserts that the purpose for which MSHA intends to use photographs taken in the course of an inspection was made clear in a recent case 

involving the same parties, Climax Molybdenum v. MSHA, DENV 78-581-M (Judge 

Cook; hearing date, January 31, 1979), where MSHA inspector James Enderby 

testified as follows: 

Well, since our first meeting here in November, the 

District Manager has issued cameras as inspection equipment 

to every inspector in the district. We are instructed as a 

policy from now on, from that point forward, if we think we 

are going to have a citation that we write or whatever, 

that could come into litigation, to take a picture of that 

particular violation. 

* * * * * * * 

Now, anytime we write a violation that we think will 

be, or has a possible chance of being litigated, to take a 

picture of it in all the surrounding circt.nllstances. 

Climax argues that this testimony makes it clear that MSHA inspectors 

in this district are attempting to use photographic equipment in preparation 

for potential litigation, and that the sole conceivable justification is to 

develop evidence for use at trial. In these circt.nllstances, Climax believes 

that the inspector ceases to be an enforcement officer of MSHA and instead 

becomes an agent of the Solicitor to aid the lawyer in preparing his case, 

and in this context his inspection is not for violations; but a form of 

extrajudicial pretrial discovery. In support of its arguments, Climax 

asserts that the taking of photographs to be used as evidence in a later 

hearing does not further any of the statutorily-enumerated purposes of section 103(a) and therefore is not authorized by the Act. The first two purposes clearly do not apply to the present situation. The use of photographs 

as evidence in a hearing does not involve "obtaining, utilizing, and disseminating information relating to health and safety conditions, the causes 

of accidents, and the causes of diseases and physical impai~nents originating 

in such mines." This section is aimed at the generation of publicity and 

public information relating to mine safety and health, not to the development of evidence for use in a hearing. Thus, while it might authorize the 

taking of photographs for the purpose of studying some specific condition 

or disseminating information to the public, it does not justify the use of 

photographic equipment for the purpose of corroborating an inspector's 

testimony at a hearing. 

The second statutory purpose, "gathering information with respect to 

mandatory health or safety standards," grants power to conduct resear.ch in 

order to develop effective regulations for the protection of safety and 

health. It does not contemplate use in an enforcement proceeding of the 

information gathered pursuant to its provisions. Thus, it cannot authorize 

the taking of photographs for use as evidence in an enforcement hearing. 

549 
The third and fourth purposes authorize inspections only for "determining whether an imminent danger exists" and "determining whether there is 

compliance with the mandatory health and safety stand.ards * * * ." Simply 

stated, this section authorizes an inspector to travel the mine to assure 

himself that no imminent dangers exist and that the operator is complying 

with the mandatory standards. It does not authorize an inspector to do 

whatever is helpful to the Solicitor's Office for the purpose of persuading 

an administrative law judge that a violation existed when the inspector 

visited the mine. 

Photographs for use in a hearing are not taken to help the inspector to 

determine whether a violation or innninent danger exists; rather, the photographs are used later to support the Solicitor's case that a violation did 

exist. Thus, the taking of photographs is distinguishable from the taking 

of air samples, measurements, or other physical evidence where the evidence 

is used by the inspector to determine whether a standard has been violated 

rather than as corroboration of the inspector's judgment that a violation 

existed. The section does not authorize unlimited sleuthing solely for the 

purpose of preparation for trial. The development of trial evidence is more 

properly within the scope of prehearing discovery and is therefore outside 

the ambit of the explicit authority granted by section 103(a). 

Climax asserts that when Congress intended MSHA to have evidencegathering capabilities similar to pretrial discovery, it explicitly granted 

such authority in very limited instances. Pursuant to section 103(b) of 

the Act, MSHA is empowered to take testimony and compel production of documents in the course of an investigation, but no such powers are authorized 

for use during an inspection. Thus, although the Solicitor could take 

depositions and compel production of documents in preparation for a hearing on a challenged citati0n, MSHA inspectors are not authorized to gather 

such evidence during the course of an inspection. This provision confirms 

the division between those activities that are required in order to enable 

an inspector to determine the existence of a violation and those activities 

that are solely for the purpose of gathering evidence for trial. Citing 

the legislative history of both the 1969 and 1977 Acts, Climax asserts that 

nowhere is there any indication that Congress authorized inspectors to 

gather, in the course of a warrantless inspection, evidence to be used at 

a later trial, and the only authority granted is the power to determine 

whether the inspector believes there is a violation of the Act. 

Finally, Climax argues that any statutory authority granted by section 

103(a), must be strictly construed in light of the important privacy rights 

at stake, and it does not include the power to take photographs solely for 

the use as evidence at trial. Such evidence is not necessary to make a 

determination that a violation exists, rather, it is more appropriately considered a part of pretrial discovery that is best carried out under some 

form of judicial supervision, as for example, Commission Procedural Rule 57, 

29 CFR 2700.57, which specifically provides that good cause must be shown to 

obtain an order to permit, inter alia, "photographing of designated documents 

or objects, or to permit a party or his agent to enter upon designated land 

to inspect and gather information." 

550 
~sHA' s Arguments 

MSHA argues that section 103(a) of the Act authorizes frequent mine 

inspections for the purpose of obtaining information concerning compliance 

with mandatory heal th or safety standards, and that section 103( e) mandates 

that this be done in such a manner as to not impose unreasonable burdens 

upon mine operators. MSHA points out that the basic method utilized by an 

inspector to determine compliance is by visual observations of mine conditions and practices. However, since there are many occasions when an 

inspector is required to use certain types of equipment or testing devices 

to determine if an operator is in compliance, the equipment could include 

methane detectors, respirable dust-sampling equipment, and smoke tubes. 

Here, the MSHA inspector sought to bring a camera with him as part of his 

regular equipment in order to better establish the existence of certain 

conditions, and any photograph taken would have been a part of the regular 

inspection process. Since there is little doubt that an inspector has the 

right to take and remove from a mine air and dust samples, MSHA asserts 

that the use of a camera to take photographs to support his belief that a 

violation has occurred is also appropriate, and in fact, necessary to adequately perform his duties. 

In support of its position, MSHA argues that inherent in the inspector's duty to gather information under the Act is the right to preserve 

that information in a form in which it can be used at a later time if the 

inspector's enforcement actions are contested. Since the Act sets forth 

a procedure for contesting MSHA's enforcement actions, an inspector should 

be allowed to support his findings by any means which are consistent with 

section 103(a). While inspectors' notes and drawings of conditions 

observed are helpful, photographs taken at the time violations are cited 

can be especially useful in doctunenting findings that have previously been 

made, and the use of cameras by MSHA personnel to support enforcement 

actions will be helpful in resolving credibility questions which arise 

when citations are contested by mine operators. 

MSHA asserts further that the Act requires all underground mines to 

be inspected at least four times a year, and because of the limited ntunber 

of inspectors available to carry out the mandate of the Act, an inspector 

may be in an area of a mine where he is required to take some enforcement 

action for only a short period of time. If a particular enforcement 

action is contested by an operator, an inspector may not have the opportunity to revisit the mine prior to a hearing before an administrative law 

judge. Any hearing of a contested violation may take place many months 

after the initial enforcement action was taken by the MSHA inspector. All 

of these factors may result in the testimony of MSHA inspectors being found 

too vague when it comes to describing the conditions they actually observed 

prior to issuing a citation or withdrawal order. Operators who are seeking 

to contest MSHA enforcement actions may have similar problems when presenting evidence to support their position. Mine management personnel who 

appear at hearings frequently base their testimony concerning contested 

conditions on hearsay statements of other employees who are not available 

551 
for cross-examination. 'Th.is type of testimony can result in difficult 

credibility problems which must be resolved by an administrative law judge 

before he can determine if a violation of the Act has occurred. 

MSHA takes the position that the use of photographs would serve to 

reduce the amount of time spent by its inspectors, as well as mine operators, in exploring the circumstances under which a violation has occurred. 

MSHA states that many times a judge is not fully apprised of the severity 

of a violation because of the inability of an inspector to accurately 

describe all of the conditions which lead to the issuance of his enforcement action. However, since courts have generally upheld the use and 

admission of photographs to give the trier of facts a better understanding of conditions at the scene of an accident, Louisville & N.R. Company 

v. Brown, 127 Ky. 732, 746, 196 S.W. 795, 798 (Ky. 1908), MSHA asserts 

that the same rationale which makes the use of photographs admissible in 

accident cases in supporting the testimony of witnesses is directly applicable to their use by MSHA inspectors to support their judgments that a 

violation of the Act has occurred. Under certain circumstances, the use 

of photographs will be able to convey to an inspector's supervisor, an 

assessment officer, or to an administrative law judge, a better impression 

as to whether or not a violation of the Act has occurred than could the 

inspector's verbal description of the conditions he observed. Of course, 

said photographs must usually be taken at the time the violation is 

observed. Recognizing the fact that before a photograph can be introduced 

at a hearing, it has to be authenticated that the photograph is substantially accurate and purports to represent accurately the condition or 

practice that it is seeking to portray, MSHA emphasizes that a photograph 

will not itself establish a violation of the Act, but will merely be 

used to support an inspector's testimony in those situations where conflicts in testimony arise. Any photograph which is not material to the 

condition or practice sought to be established by the inspector will be 

subject to objection for reasons of relevancy and materiality. 

With regard to Climax's contention that the Secretary has not formally 

conducted any rulemaking with respect to the use of cameras as part of 

MSHA's enforcement scheme, similar to the OSHA regulation cited by Climax, 

MSHA asserts that Climax ignores the fact that administrative agencies are 

not required to resort to formal rulemaking in order to develop all policies 

.and procedures necessary to aid in the enforcement process, and cites Human 

Resources Management, Inc. v. Weaver, 442 F. Supp. 241, 251 (1978), and 

the Supreme Court's holding that: "Absent constitutional constraints· or 

extremely compelling circumstances administrative agencies should be free 

to fashion their own rules of procedure and to pursue methods of inquiry 

capable of permitting them to discharge their multitudinous duties. 

Vermont Yankee Nuclear Power Corp. v. NRDC, 55 L.Ed 2nd 460, 479 (1978) ." 

In further support of its position, MSHA states that it is clear that 

the Act authorizes a mine entry by its inspectors to observe conditions in 

the mine, and that the use of a camera to preserve those conditions underground is a natural extension of the right of entry since a photograph is 

552 
a mere picture of those conditions already observed, and the act of taking 

a photograph cannot support a claim for invasion of privacy. MSHA further 

believes that when an inspector uses a camera to support his judgments made 

with respect to the enforcement provisions of the Act, he is engaging in an 

efficient recognized method of inquiry. No individual rights of mine operators are affected, nor is the authorizing of the use of cameras by MSHA 

inspectors as part of their equipment, a substantive rule or policy that 

relates to the public and therefore must be published in the Federal 

Register. Therefore, no new rulemaking is necessary. 

MSHA has submitted a copy of an April 30, 1979, policy memorandtml from 

its Metal and Nonmetal Mine Safety and Health Administrator addressed to 

its Metal and Nonmetal Mine Safety and Health District Managers, regarding 

the use of cameras by inspectors during mine inspections. Tiiat memorandum 

states as follows: 

Pursuant to section 103(a) of the Mine Act, inspectors make 

frequent inspections of mines for purposes of (1) obtaining 

information relating to health and safety conditions, and 

the causes of accidents, (2) gathering information with 

respect to mandatory health or safety standards, (3) determining whether an irrnninent danger exists, and (4) determining whether there is compliance with the mandatory health 

or safety standards or other requirements of the Mine Act. 

Inasmuch as the Mine Act establishes the purposes of inspections, it follows that an inspector may take into the mine 

the equipment necessary to accomplish his mission. 

This equipment could include, in appropriate circumstances, 

methane detectors, torque wrenches, additional lights, and 

a camera. Hence, if an inspector, in his judgment, needs 

a particular piece of equipment to accomplish his statutory 

mission, the Mine Act implicitly authorizes him to use such 

equipment. 

Frequently, inspectors feel that taking photographs of the 

scene of an alleged violation, irrnninent danger or accident 

would be of great assistance in verifying and correcting 

the conditons or practices resulting in the violation, 

danger, or accident. The use of cameras may also be of 

great assistance in subsequently resolving differences of 

opinion between the mine operator and the inspectors as to 

the conditions present at the time of citation. Such photographs could also be of benefit to both parties by expediting assessment and review proceedings by providing a 

pictorial illustration of the s~ene of a violation. 

Accordingly, when the use of a camera would be necessary or 

helpful in an inspection, the District Manager or Subdistrict Manager may authorize such use during inspections of 

metal and nonmetallic mines subject to the following special 

restrictions: 

553 
1. All non-gassy metal and nonmetallic mines - none. 

2. All gassy metal and nonmetallic mines - tests for 

methane will be performed prior to any use of a 

camera. If methane is present at levels in 

excess of 1%, or if the inspector has reason to 

believe methane is present, only photographic 

equiment approved for use in gassy mines by 

Approval and Certification Center shall be used. 

3. All gilsonite mines - prohibited. 

Because questions have arisen in the past regarding the use 

of cameras, .I am initially requiring District Manager's or 

Subdistrict Manager's approval of the use of cameras in 

each instance. I want you and the Subdistrict Managers to 

exercise discretion in the approval of the use of cameras. 

You should also be sure the inspectors are instructed in the 

use of cameras. The inspectors should make a record of the 

physical conditions under which the photographs are taken 

and the date and time and place. 

A refusal to permit the inspector to carry a camera in.to the 

mine will be considered a violation of section 103(a) of the 

Act and could also be considered an interference or hindrance 

of the inspector in carrying out the provisions of the Act. 

If there is a refusal of permission to take a camera into 

the mine, the inspection should nevertheless be completed 

and a record made of any special reasons for taking the 

camera into the mine. 

The Solicitor's Office has reviewed this memorandtnn and concurs with the position taken. 

In view of the policy memorandmn regarding the use of cameras, MSHA 

maintains that since it restricts the use of cameras in certain gassy mines 

and in all gilsonite mines, the safety problems resulting from their use in 

underground mines have been minimized and that unless Climax can demonstrate 

that there are important overriding circumstances why MSHA's use of cameras 

in specific situations should not be permitted underground, inspectors should 

be free to perform their duties using the best investigative tools available. 

With respect to the alleged violation of section 103(a) for Climax's 

refusal to permit the use of cameras on its mine property, MSHA argues that 

section 104(a) authorizes the issuance of a citation or withdrawal order for 

violations of the Act as well as any mandatory safety or health standards. 

MSHA believes that~e refusal of Climax to allow an inspector to carry a 

camera underground during an inspection amounts to hindering and impairment 

by an operator of MSHA's ability to carry out its duties specified under 

554 
section 103 of the Act, and Climax should not be allowed to dictate to an 

inspector the type of equipment which he may use underground. The gathering of information to determine compliance with the requirements of the Act 

must proceed in an atmosphere free from attempts to intimidate or limit the 

ac~ivities of the inspector during the course of his duties, and given the 

remedial nature of the Act, an inspector must be allowed broad latitude and 

discretion in carrying out his duties, St. Mary's Sewer Pipe Company v. 

Director of the United States Bureau of Mines, 262 F.2d 378, 381 (3d. Cir. 

1959); Freeman Coal Mining Company v. Interior Board of Mine Operations 

Appeals, 504 F.2d 741, 744 (7th Cir. 1974). Should Climax claim that the 

use of an individual photograph by MSHA violates a company trade secret or 

some other rights, it would be free to challenge the use of that particular 

photograph. However, that potential challenge by.Climax should not be persuasive in supporting a general refusal to permit the use of cameras in 

underground mines. Thus, anytime an operator prevents an inspector from 

carrying out his investigatory functions, he violates the provisions of 

section 103 and can be cited accordingly. 

Reply Brief Arguments 

Contestant 

In its reply brief, Climax views the issue in this case to be the narrow question of whether MSHA is statutorily authorized to take photographs 

during a warrantless inspection solely for use as evidence in an enforcement hearing. Climax does not view the issue to include whether MSHA may 

ever use photographic equipment; nor does it believe that the case calls 

for a determination as to whether photographs may be used as evidence in 

an enforcement hearing. Climax's position is that the taking of photographs for use in a hearing is explicitly contemplated by the Connnission's 

Rules of Procedure, 29 CFR 2700.57, but the photographs must be taken as 

part of the judicially-supervised pretrial discovery process. Climax makes 

no objection to the gathering of evidence in this specifically-authorized 

and well-regulated manner. Climax does, however, object to the gathering 

of photographic evidence under the pretense of an inspector's determination whether to issue a citation. This form of extra-judicial discovery 

infringes upon Climax's pr~vacy rights and is unauthorized by the Act. 

Regarding MSHA's reliance on section 103(a), Climax asserts that this section is not relevant because the conference report demonstrates that it 

deals only with recordkeeping requirements, S. Rep. No. 461, 95th Cong., 

1st Sess. 45 (1977). 

Climax reiterates its strict construction arguments, and conceding the 

fact that substantive provisions of the act should be liberally construed in 

order to effectuate the remedial purposes of the Act, it maintains that the 

warrantless inspection provision should be strictly construed to avoid conflict with Climax's constitutionally-protected right of privacy, and it 

distinguishes the cases of St. Mary's Sewer Pipe Company v. Director of the 

United States Bureau of Mines, 262 F.2d 378 (3d. Cir. 1959), and Freeman Coal 

Mining Company v. Interior Board of Mine Operations Appeals, 504 F.2d 741 

555 
(7th Cir. 1974), relied on by MSHA for its liberal construction arguments. 

Climax points out that these cases dealt with substantive provisions directly 

related to safety precautions that are readily distinguishable from the provisions of the Act in issue in the instant proceedings. Since the inspection 

provisions of section 103(a) authorize warrantless entry and impinge directly 

on Climax's constitutionally-protected right of privacy, Climax asserts that 

the effect of this particular provision, not the Act as a whole, is the key 

to the type of construction that should be applied in this case. The extent 

to which MSHA may invade Climax's protected privacy rights must be construed 

strictly in order to avoid any unnecessary infringement of Climax's privacy 

rights. Climax points out that MSHA's policy memorandum was issued after 

the citations in these proceedings were issued, and that contrary to MSHA's 

arguments, there is no suggestion in these proceedings that MSHA inspectors 

were intimidated in any way. Climax officials simply requested that they 

not use photographic equipment in what Climax believed to be an unauthorized 

manner. Further, Climax asserts that MSHA assumes that the burden is on 

Climax to demonstrate "over-riding circumstances" in order to prevent the 

use of photographic equipment, and that implicit throughout MAHA's arguments is the assumption that an inspector can enter a mine and do whatever 

he pleases, regardless of whether there is specific statutory authorization 

for his actions. 

Climax believes that the MSHA approach is best illustrated in its 

analysis of the statutory foundation of an inspector's right to take photographs. Commenting on MSHA's argument that the use of a camera during an 

inspection "is a natural extension of the right of entry," Climax agrees 

that the use of cameras to develop evidence for trial extends the right of 

entry, but it is ·an extension that is unjustified by the specific language 

of section 103(a). In fact, states Climax, MSHA makes no effort to cite 

specific statutory language in support of its position; its arguments are 

all based on general assertions as to what is helpful or convenient for 

MSHA, and the essence of its argument is that inspectors may develop 

photographic evidence for trial during the course of a regular inspection 

in that it would be helpful to MSHA to have pictures to introduce at' a 

hearing, and the regular inspection is the most convenient time to take 

the photographs. Even if the above were true, maintains Climax, it would 

not mean that MSHA is statutorily authorized to obtain photographic evidence at the time of an inspection. First, the fact that photographs may, 

in general, be useful does not mean that photographs are statutorily authorized. The whole point of the fourth amendent is to prevent the Government 

from taking actions that would be useful in the Government's enforcement 

efforts, but would infringe upon a citizen's protected right of privacy. 

In this case, the general usefulness of photographs at trial does not 

indicate that they may be taken as part of an inspection, and in fact, 

Climax believes the Act authorizes an inspector only to do that which is 

necessary in order to determine whether to issue a citation. Photographs 

are not required in order to make that determination, and their use may be 

distinguished from methane detectors, smoke tubes, and dust sampling devices. 

Moreover, even assuming that photographs would be helpful at a hearing, the 

556 
Act does not authorize the extra-judicial gathering of such evidence in the 

course of a warrantless inspection. The inspector's statutorily-prescribed 

role is to determine whether a violation exists; photographs do not further 

that goal. If the Solicitor desires to obtain photographic evidence for a 

hearing, he should follow the explicit Commission procedures that have been 

established for that type of pretrial discovery. See 29 CFR 2700.57. 

MSHA 

Addressing contestant's warrantless search arguments, MSHA cites two 

recent U.S. Circuit Court decisions concluding that MSHA's warrantless 

inspections and enforcement procedures are reasonable with respect to 

gaining access to the nation's mines, Marshall v. Nolichuckey Sand Company, 

Inc., 606 F.2d 693 (6th Cir. 1979), and Marshall v. Stoudt's Ferry Preparation Company, 602 F.2d 589 (3rd Cir. 1979), cert. denied, No. 79-614 

(January 7, 1980). MSHA takes the position that once it has been determined 

that a Federal inspector has a lawful right to gain access to a mine without 

a warrant, the warrantless search and right of privacy issues become moot. 

MSHA asserts that the real issue in this case concerns the investigatory 

methods an inspector may use to preserve evidence and document his findings, 

after he has gained access to the premises. Since mining has been a heavilyregulated industry for' a number of years, MSHA argues that Congress intended 

that MSHA's right to make warrantless searches be interpreted broadly, and 

cites the following excerpt from the legislative history: 

Safety conditions in the mining industry have been 

pervasively regulated by Federal and state law. The Committee intends to grant a broad right-of-entry to the Secretaries or their authorized representatives to make 

inspections and investigations of all mines under the 

Act without first obtaining a warrant. s. R. No. 95-181, 

95th Cong., 1st Session, p. 27 

In further support of its arguments, MSHA asserts that its broad rightof-entry not only applies to the actual entry itself, but also to what an 

MSHA inspector may do during the course of his inspection. The fact that 

he gains access to a mine without a warrant does not in any way limit or 

restrict his investigatory duties under the Act, and the use of a camera to 

preserve evidence and to document his findings are clearly reasonable and 

important parts of his investigatory functions. The actual taking of a 

photograph does not enlarge MSHA's original right-of-entry, since an 

inspector already has the right to visually observe all conditions in a 

mine which a photograph could depict. 

In response to Climax's privacy arguments, MSHA points out that inspectors are at the Climax Mine on almost a daily basis, and citing United States 

v. Biswell, 406 U.S. 311 (1972), argues that the court there held that owners 

of highly-regulated industries have little expectation of privacy since Federal regulation of these industries serves an important Governmental interest. 

Since a photograph merely preserves a visual picture of what an inspector has 

already observed, MSHA suggests that no privacy rights of Climax are affected. 

557 
Regarding Climax's characterization of an inspector as an "agent" of 

the Solicitor's Office, MSHA states that this is absurd since the same 

argument could be made about an inspector who takes good notes or makes 

detailed drawings of conditions he observes in a mine. Moreover, the 

Solicitor's Office only becomes involved in a small percentage of the total 

enforcement actions taken by MSHA. It is clear that photographs can serve 

many important functions in assisting MSHA in carrying out the Congressional 

mandate, aside from litigation preparation; and photographs are frequently 

used in resolving credibility problems and therefore may actually serve to 

eliminate the need for litigation in a particular situation. MSHA concludes 

that Climax's reliance on a narrow interpretation of MSHA's right-of-access 

to its mine should be rejected. 

Findings and Conclusions 

Warrantless Searches 

The authority of Government officials to conduct inspections for law 

enforcement purposes is limited by the fourth amendment to the Constitution 

which proscribes unreasonable searches and seizures. As a general rule, to 

conduct a search, a law enforcement official must first obtain a warrant 

based on probable cause, See v. City of Seattle, 387 U.S. 541 (1967). Where 

authorized by Congress, however, warrantless searches without probable cause 

may be conducted for legitimate regulatory purposes, United States v. Biswell, 

406 U.S. 311 (1972). Although the courts in the past have deferred to the 

discretion of the legislature in granting administrative investigative 

powers, recent decisions indicate that the courts may not be hesitant to 

prevent the abuse of these powers or to discharge their role as protectors 

of individual rights. 

Two cases decided by the Supreme Court in 1967 dealt with the administrative searches by non-federal Government officials, and both found administrative searches sufficiently significant intrusions to require prior 

judicial authorization. In Camara v. Municipal Court, 387 U.S. 523 (1967), 

a case cited by Climax, a public health inspector sought to make a routine 

annual inspection of appellant's premises for possible violations of a local 

housing code. Without requiring that a search warrant be obtained, a local 

municipal ordinance provided that inspectors should have the right to enter 

at reasonable times to permit such inspections, and refusal to permit entry 

was subject to a fine and jail sentence. Upon refusal by the appellant to 

permit a warrantless inspection of his premises, he was arrested and charged 

with a violation of the local ordinance. Noting that even a law-abiding 

citizen has a strong interest in preserving the sanctity of his home from 

official intrusion, the Court rejected the notion that the fourth amendment 

interests at stake in inspection cases are merely "peripheral" and held that 

the constitutional guarantee applies with full force to such searches, and 

further found administrative searches sufficiently significant to require 

prior judicial authorization. 

·sss 
In See v. Seattle, supra, a municipal ordinance authorized compulsory 

warrantless inspections of certain buildings, except the interior of dwellings, as often as necessary to discover violations of the city's fire code. 

The Court ruled that there is no justification for relaxing fourth amendment 

safeguards simply because the inspection is of commercial premises, since a 

businessman's constitutional right to be free from unrestricted official 

entries is of no less significance than that of a private resident. The 

Court applied the warrant procedure outlined in Camara to commercial inspections, and while noting that each demand for entry should be measured against 

a flexible standard for reasonableness, noted that "the decision to enter and 

inspect should not be the product of unreviewed discretion of the enforcement 

officer in the field."- 387 U.S. at 544-45. 

Although Camara and See involved local municipal administrative searches 

and may arguably be distinguishable from Federal administrative agencies on 

the basis of the subject matter regulated, it would seem that for the most 

part, the interests generally advanced for Federal agency searches are no 

more compelling than those at issue in the cases concerning local, state, 

and municipal agencies. As a matter of fact, as pointed out by Climax in 

the cases footnoted at page 7 of its initial brief, the issue of warrantless 

searches, insofar as it may affect Climax's constitutionally-protected right 

of privacy, is not free of doubt, particularly in the context of the metal 

and nonmetal mining industry. 

The issue of warrantless searches pursuant to section 103(a) of the 

Act was previously raised in two Commission proceedings decided by Judge 

Broderick in MSHA v. Waukesha Lime and Stone Company, Inc., VINC 79-66-PM, 

June S, 1979, and MSHA v. Halquist Stone Company, VINC 79-118-PM, June 8, 

1979. Addressing the general proposition that an administrative agency 

does not have the power to rule on constitutional challenges to an organic 

statute of an agency, Weinberger v. Salfi, 422 U.S. 749 (1975); Johnson v. 

Robison, 415 U.S. 361 (1974); Public Utility Commission v. United States, 

355 U.S. 543 (1958); Spregel, Inc. v. FfC, 540 F.2d 287 (7th Cir. 1976), 

Judge Broderick nonetheless ruled that it is the responsibility of an 

administrative agency to determine whether a provision of the statute it 

administers may constitutionally be applied to the facts found by the 

agency, that construction of its organic statute is peculiarly the duty 

of the agency, and that a cardinal rule of construction requires that if 

possible, a statute be construed to avoid conflict with the Constitution, 

NLRB v. Home Center Management Corporation, 473 F.2d 471 (8th Cir. 1973). 

Judge Broderick concluded that the mining industry is a pervasivelyregulated industry, and that as such, warrantless nonconsensual inspections are mandated by the Act and do not constitute unreasonable searches 

prohibited by the fourth amendment to the Constitution. I agree with his 

conclusions. 

In disposing of the constitutional challenges on the warrantless search 

issues raised in Waukesha Lime and Halquist Stone, Judge Broderick relied on 

the requirements of section 103(a) that MSHA inspectors make frequent inspections of mines, and the Senate Committee Report stating that the language 

559 
"shall have a right of entry to, upon, or through any coal or other mine" 

was intended by the Committee "to be an absolute right of entry without need 

to obtain a warrant." S. Rep. No. 95-181, 95th Cong., 1st Sess., 14 '(19770_ 

note 3 at 615. Further, Judge Broderick relied on recent court decisions 

holding that warrantless searches of coal mines authorized by the Act do 

not contravene the fourth amendment. Youghiogheny & Ohio Coal Company v. 

Morton, 364 F. Supp. 45 (S.D. Ohio, 1973); accord United States v. Consolidation Coal Company, 560 F.2d 214 (6th Cir. 1977), vacated and remanded, 

436 U.S. 942, 98 S. Ct. 2481 (1978), reinstated, 579 F.2d 1011 (1978). 

I believe it is clear from the legislative history of section 103(a) 

that Congress intended to confer on the Secretary broad inspection authority 

over the mining industry under his jurisdiction for the purpose of insuring 

compliance with mandatory health and safety standards. This authority 

granted by Congress includes the right-of-entry to a mine without advance 

notice and without the necessity of obtaining a warrant. The authority 

granted the Secretary under section 103(a) permits mine entry and access by 

MSHA to places from which it would normally be otherwise excluded by persons having fourth amendment rights in such places. Further, it seems 

clear to me that in order to carry out an effective enforcement program, 

Congress deemed it necessary to confer on the Secretary the right-of-entry 

for the purpose of ascertaining and insuring compliance with the Act and 

the promulgated mandatory health and safety regulations. As the Supreme 

Court noted in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978): 

[C]ertain industries have such a history of government oversight that no reasonable expectation of privacy could exist. 

Thus, there is a well-established exception to the search 

warrant requirements of the Constitution, Fourth Amendment, 

* * * for 'pervasively regulated businesses' * * * and for 

'closely regulated' industries 'long subject to close supervision and inspection' * * * Idem, quoting from United 

States v. Biswell, 406 U.S. 3TI-;-316 (1972), and Colonnade 

Catering Corp. v. United States, 397 U.S. 72, 74 (1970). 

In Marshall v. Nolichuckey, supra, the district court observed that 

since Congress determined that the mining industry is such a closelyregulated industry, regulation of that industry falls within the BiswellColonnade exception to the fourth amendment's warrant requirements, and 

the court cited the legislative history of the 1977 Act which noted that 

"[s]afety conditions in the mining industry have been pervasively regulated by Federal and State law." 3 U.S. Code Cong. & Admin. News (1977), 

p. 3427. The court also took note of the fact that: 

[A]s to the coal mining industry, it has been determined in 

this circuit that such industry has a history of close federal regulation under the aegis of the commerce clause, 

United States v. Consolidation Coal Co., 560 F.2d 214, 220 

(6th Cir. 1977), vacated and remanded (1979) U.S. 

56 L.ed 783, Judgment and opinion reinstated Q;l"i;emand,~~ 

560 
579 F.2d 1011 (1978), Youghiogheny and Ohio Coal Company v. 

Morton, 364 F. Supp. 45, 49 (n.c. Ohio 1973). 

On appeal and affirmance, the Sixth Circuit in Nolichuckey, observed 

as follows at 606 F .2d 693, slip .££·, page 7: 

We conclude that the enforcement needs in the mining 

industry make a provision for warrantless inspections reasonable. The Act also contains priv-acy guarantees which 

are sufficient. As construed by this court, Section 20l(a) 

and (b) of the Act permits warrantless inspections only of 

the "active workings" of coal mines. A warrant is required 

for the inspection of offices and other areas where the 

operator has a general expectation of privacy. See United 

States v. Consolidation Coal Co., 560 F.2d 214, 217 (6th 

Cir. 1977), vacated and remanded, 436 U.S. 942 (1978), 

judgment reinstated, 579 F.2d 1011 (1978). The same limitation would apply to sand and gravel "mines." Further, the 

statute provides for participation in all inspections by a 

representative of the operator. Finally, refusal of an 

operator to permit an inspection does not lead to summary 

imposition of sanctions. The Act provides for institution 

of a civil action by the Secretary of Labor seeking an 

injunction or other appropr~ate order. 

In Marshall v. Stoudt's Ferry Preparation Companx, supra, the Fourth 

Circuit stated as follows at 602 F.2d 593-94: 

Mindful of the Supreme Court's reluctance to foreclose 

the incremental protection afforded a proprietor's privacy 

by a warrant, we are persuaded that the Mine Safety Act's 

enforcement scheme justifies warrantless inspections and 

its restrictions on search discretion satisfy the reasonableness standard reasserted in Barlow's. Although the Mine 

Safety Act's coverage of enterprises has been broadened from 

that of the predecessor Coal Mine Safety Act to include other 

than coal mining, the statute is still much more limited 

than OSHA and is aimed at an industry with an acknowledged 

history of serious accidents. Moreover, unlike OSHA, the 

Mine Safety Act mandates periodic inspections and is specific in that no advance warning is to be given when the 

inspection is to determine whether an imminent danger exists 

or whether there is compliance with mandatory health and 

safety standards or with any citations, orders, or decisions 

outstanding, 30 u.s.c.A. § 813(a). 

In another recent Fourth Circuit decision, Marshall v. Charles T. Sink, 

d/b/a Sink Coal Companx, No. 77-2614, January 24, 1980, the court affirmed 

the district court's decision upholding the warrantless routine inspection 

of a mine, and relied on Barlow's, the Colonnade-Biswell exception, Stoudt's 

561 
Ferry, Nolichuckey, and Youghiogheny. See also, Marshall v. Texoline Com-

~' Civil No. CA 4-78-49, Northern District of Texas, March 23, 1979, 

where the court upheld the Secretary's warrantless search of a limestone 

mine on the basis of Barlow's, Colonnade-Biswell, and Youghiogheny. I take 

note of the court's observation in Sink that the Secretary must seek an 

injunction when he is refused entry~a mine and that this procedure permits operators to present their objections to a district court before an 

inspection takes place to any sanctions that are imposed. This statement 

by the court is not altogether accurate since the injunction provision of 

30 U.S.C. § 818 is permissive and not mandatory, and refusal of entry may 

result in a citation or closure order pursuant to section 104(a). 

It seems clear to me from the aforementioned decisions, that the courts 

have accepted the strong presumption of the constitutionality of the warrantless inspection provisions of section 103(a), as well as the proposition 

that the Barlow's situation regulating business in general is readily distinguishable from the enforcement scheme fashioned by Congress under the 

1977 Mine Safety and Health Act which relates to a single mining industry 

which has had a history of close Federal regulation and supervision, a fact 

specifically recognized by the Supreme Court in Barlow's. 

May An MSHA Inspector Use A Camera To Document Conditions Or Practices Which 

He Believes Constitutes Violations Of Mandatory Health Or Safety Standards? 

In my view, the taking of a photograph by an inspector at the time the 

condition or practice which he believes constitutes a violation of a mandatory standard is observed is no different than an inspector taking notes, 

making diagrams of the scene, making measurements with a rule or tape, or 

otherwise documenting the conditions observed by him with the naked eye. 

If a citation results from such an inspection, the inspector's concern 

should be to fully document the conditions and to describe them in such a 

manner so as to put the mine operator on full and fair notice as to what 

is required to achieve abatement so as to timely correct the hazard. If 

this is done, the inspector not only achieves compliance with the least 

amount of friction, but is also in a position to back up his citation with 

credible evidence in the event the citation is challenged. During the initial inspection, if a citation should issue, the inspector does not at that 

point in time know that it will be formally challenged through the hearing 

proceis, and in this setting, Climax's suggestion that he is acting as an 

agent of the Solicitor's Office is somewhat farfetched. The taking of a 

photograph merely docwnents the inspector's visual observations, and I 

conclude that it is an extension of his inspection and the camera is merely 

a tool to aid him in that inspection. In my view, a pocket instamatic or 

similar camera carried by the inspector during his inspection rounds, so 

long as it is confined to that use while making observations of conditions 

or practices which he believes constitute a violation, is no different than 

a pad of paper and pencil on which the inspector records notes and other 

observations. 

562 
I believe that the use of cameras by an inspector may, under the circumstances discussed above, serve as a useful tool to resolve credibility 

questions surrounding routine violations which may involve judgment calls 

on the part of the inspector which are at odds with those of mine management officials who may view the same conditions and come to different conclusions. The use of a camera is particularly useful and critical in 

situations involving imminent dangers, accidents resulting from violations, 

and situations where the conditionf are likely to change after the occurrence of the event which prompted the citation or order. Further, the use 

of a camera cuts both ways; for just as an inspector may use a photograph 

to support a violation,. a mine operator is free to use a camera to establish the lack of a violation. As an example, I cite the following three 

OSHA cases, recognizing the fact that OSHA has a specific regulation 

authorizing the use of cameras by its compliance officers.· 

In Beall Construction Company, 1971-1973 CCH OSHD 15,223, the judge 

observed that conflicting testimony as to the condition of a ladder on a 

construction site could have been easily resolved by a photograph. The 

Secretary's failure to submit a photograph resulted in his failure to 

prove a violation. 

Marino Development Corporation, 1971-1973 CCH OSHD 15,478, concerned 

an unshored trench cave-in fatality, and one of the witnesses called by the 

Secretary was a police' sergeant who was called to the scene and who took 

pictures within minutes after the occurrence of the event. The judge 

found the pictures to be of great value in determining the weight and 

credibility to be given to the testimony of the witnesses with respect to 

the critical issue of the depth and width of the trench as well as other 

prevailing conditions. 

W. J. Lazynski, Inc., 1971-1973 CCH OSHD 15,184, concerned a case in 

which the judge concluded that the Secretary had failed to establish by 

his evidence that two nonserious violations had occurred as a result of 

the alleged presence of debris in a working area in violation of a mandatory standard. Photographs taken by the respondent, coupled with the 

testimony of the company president, convinced the judge that the materials 

cited were not "debris," but in fact materials stored and stacked for reuse. 

The judge found no violation. 

The use of photographs in proceedings before the Department of the 

Interior and the Commission pursuant to the 1969 and 1977 statutes has 

been an ongoing practice by both MSHA and mine operators, and as far as I 

know, no prior objections or questions have been raised as to the right of 

an inspector or a mine operator to use a camera to support their respective 

positions with respect to the fact of a violation. Of course, the use of 

photographs has been limited to questions of their admissibility at the hearing pursuant to the established rules of evidence; see, ~·~·> Mountaineer 

Coal Company, 6 IBMA 308 (1976), where the judge attributed no weight to 

an operator's photographs of a mine area submitted to establish that 

float coal dust did not exist as alleged in the notice of violation on the 

563 
ground that the photographs distorted the true prevailing conditions. 

See also, my decision of July 3, .1979, in MSHA v. Lone Star Industries, 

VINC 79-21-PM, July 3, 1979, where photographs taken and submitted by the 

mine operator were extremely useful in resolving credibility problems concerning certain alleged unguarded pinch points on a conveyor belt system. 

In Lone Star, a number of photographs were taken by the operator to support its conclusions that the locations cited were adequately guarded, and 

at the hearing MSHA utilized some of th~ photographs (with the consent of 

the mine operator's counsel) to establisn some of the citations, while 

others were used as the basis for vacating several citations. 

In Climax Molybdenum Company v. MSHA, DENV 78-581-M, an imminent 

danger review proceeding decided by Judge Cook on December 28, 1979, MSHA 

sought to introduce as evidence at the hearing, photographs of a piece of 

equipnent taken by an MSHA inspector after the case was in litigation. Tiie 

withdrawal order was issued on August 31, 1978, Climax filed its application 

for review on September 28, 1978, and the hearings were conducted between 

November 28, 1978, and February 1, 1979, The pictures were taken by the 

inspector on December 13, 1978, while at the mine lawfully during the 

course of his normal inspection duties. 

Climax strenuously objected to the admission of the photographs into 

evidence in the proceeding and noted that the issue presented was not 

whether the photographs were accurate representations of what the inspector 

observed at the tinie they were taken, but rather, Climax framed the issue 

as "whether photographs or other evidence obtained after litigation on a 

citation or order is begun can properly be admitted when those photographs 

are not obtained in compliance with the Discovery Rules" (Cook decision, 

p. 8). Quoting from Climax's brief, its argument as posed to Judge Cook, 

was as follows: 

Climax has no right of access to either interview 

inspectors or obtain copies of inspector's notes outside of 

the context of the Discovery Rule. MSHA must be required 

to follow those rules also and the only suitable means for 

requiring that is to exclude from evidence all documents, 

photographs, or similar materials which are obtained outside the bounds of the Commission's Discovery rules. Tiiis 

is not to say that MSHA inspectors should be prohibited 

from returning from the scene of alleged violations after 

a citation has been issued is [sic] a part of determining 

whether abatement has been accomplished. It is to say however that if that matter is in litigation that any photographs or statements taken by an inspector after the application for review has been filed or any documents which are 

obtained by inspector requests after litigation has been 

initiated should not be admitted into evidence unless those 

documents are obtained through the Discovery processes provided for in the Rules. To rule otherwise would establish 

an unfair and arbitrary scheme which cannot be sustained, 

564 
particularly in view of the presence of the Discovery Rules. 

Climax is obligated to comply with the Commission's Rules 

and MSHA must comply with them as well. It would clearly 

be inappropriate to give MSHA this unfair advantage in 

administrative litigation. 

No effort was made to comply with the Discovery Rules 

in taking the photographs. Because litigation was pending 

and those rules were not complied with, and further because 

in addition Climax was given no opportunity to have either 

a knowledgeable electrician or its attorneys involved in 

the taking of the photographs, Exhibits M-14 [sic] through 

M-17 inclusive should not be admitted into evidence. 

MSHA's arguments concerning the admissibility of the photographs were 

that (1) there was no showing that Climax was in any way prejudiced by the 

introduction of the photographs, which were offered solely as an aid to the 

court in perceiving the work area of the mine involved; (2) the taking of 

photographs did not involve an attempt to question Climax's agents without 

the presence of counsel; and (3) at the time the photographs were taken, 

MSHA personnel were present in the mine lawfully during the course of 

their normal inspection duties. 

In overruling Climax's objections and admitting the photographs, Judge 

Cook cited McCormick, Handbook of the Law of Evidence, section 214 at 530-

31 (2nd ed., E. Cleary, 1972), which discussed the use of photographic evidence in judicial proceedings as follows: 

The principle upon which photographs are most commonly 

admitted into evidence is the same as that underlying the 

admission of illustrative drawings, maps, and diagrams. 

Under this theory, a photograph is viewed merely as a 

graphic portrayal of oral testimony, and becomes admissible 

only when a witness has testified that it is a correct and 

accurate representation of relevant facts personally observed 

by the witness. Accordingly, under this theory, the witness 

who lays the foundation need not be the photographer nor need 

he know anything of the time, conditions, or mechanisms of 

the taking. Instead he need only know about the facts represented or the scene or objects photographed, and once this 

knowledge is shown he can say whether the photograph correctly and accurately portrays these facts. Once the 

photograph is thus verified it is admissible as a graphic 

portrayal of the verifying witness' testimony into which it 

is incorporated by reference. [Footnotes omitted.] 

Relying on the aforesaid passage from McCormick, Judge Cook concluded 

that a· photograph serves merely as a graphic portrayal of a witness' oral 

testimony, into which the photograph is incorporated by reference, and that 

unlike evidence submitted under an exception to the hearsay rule, a photograph is not introduced ordinarily as independent proof of the truth of 

565 
the matters asserted therein. Noting that the photographs were offered as 

graphic aids in interpreting what the MSHA inspectors observed at the time 

the order issued, Judge Cook reasoned that to the extent that they set forth 

an accurate graphic portrayal of the conditions obs.erved by the witnesses at 

the time of the event in question, they were relevant to the subject matter 

of the hearing within the meaning of Commission Interim Rule 29 CFR 2700.50, 

which was then in effect and which provided that "[a]ny relevant evidence 

may be received at the discretion of the Judge. The Judge may exclude evidence which he finds to be unreliable or unduly repetitious." Judge Cook 

also took note of the fact that the record did not support the conclusion 

that the inspector who took the photographs attempted to interrogate Climax's 

agents, and that since the photographs merely related back to conditions 

already observed at the time the order issued, he concluded further that 

the taking of the photographs did not amount to an interrogation of Climax's 

agents. 

Commenting on MSHA's failure to comply with Commission Rule 29 CFR 

2700 .46, which provided in part, "For good cause shown, the Judge may order 

a party to produce and permit inspection, copying or photographing of designated documents or objects relevant to the proceeding," Judge Cook nonetheless observed that: 

[W]e are now faced with an accomplished fact and a consideration of whether evidence which would be helpful to the 

ultimate determination of the case should now be received in 

evidence. It could be argued that MSHA's request for admission of the pictures in evidence is in effect a motion for 

ratification of the act of obtaining discovery by photographing of objects. 

He concluded that Climax had not been prejudiced by the admission of the 

photographs and that they were helpful in understanding the issues presented 

in the case (Cook Decision, pp. 10-11). 

Climax requests that I take official notice of the recor.d adduced in 

the case before Judge Cook (Initial Brief, p. 11), and it seems obvious 

that it wishes me to take official notice of the fact that the photographs 

in that case were taken in the midst of litigation while the hearings were 

in recess. I have noted this fact, and I conclude that there is a distinction in a situation where an inspector takes pictures after the fact and 

while the case is in litigation without notice to the operator, and the 

facts presented in the instant proceedings where Climax apparently seeks to 

deny MSHA the right to take pictures at any time. In Judge Cook's situation, 

I may have sustained Climax's objections to the introduction of photographs 

taken after the citation was issued and while the case was in a litigation 

and hearing posture without notice to Climax's attorneys. In other words, 

although Climax may arguably be correct in its conclusion that photographs 

taken after litigation is begun is in the nature of discovery and may only 

be introduced in compliance with the Commission's discovery rules, the question of whether photographs in general are permissible at all is, in my 

566 
view, a question of first impression to be decided by me on the basis of the 

record presented in the instant proceedings. 

In a series of OSHA cases involving alleged violations of fourth amendment rights for failure by OSHA's compliance officers to properly identify 

themselves by displaying their credential~ or affording the respondent the 

opportunity to accompany the inspector on his inspection rounds, both of 

which were statutory requirements, both the Commission and the courts, on 

the facts presented, viewed these requirements as procedural defects which 

did not prejudice the respondents or otherwise violate their fourth amendment rights. See Accu-Namics, Inc. v. OSHRC, 515 F.2d 828 (5th Cir. 1975); 

Hoffman Construction Company v. OSHRC, 546 F.3d 281 (9th Cir. 1976). 

In United States v. Minton, 488 F.2d 37 (4th Cir. 1973), the court 

affirmed the conviction of a defendant for violation of certain liquor laws 

which was based on evidence seized as a result of observations of illegal 

activities through binoculars and the subsequent seizure of evidence without the benefit of a search warrant resulting from those observations. The 

court there ruled that the illegal activity was in "plain view," and that 

in these circtn11stances there was no reason for expectation or privacy and 

no requirement for a search warrant. 

In Environmental Utilities Corporation, 1977-1978 OSHD 21,709, April 4, 

1977, an OSHA inspector entered the premises for the purposes of an inspection, and after observing certain conditions which he believed were violations of safety regulations, returned to his car to get a camera. Upon his 

return, he photographed the alleged violative conditions and testified that 

photographs were required because there was an innnediate possibility that 

working conditions would change. The photographs were taken at a time when 

a company representative was not present, and the Commission rejected the 

company's fourth amendment arguments that the inspector had not identified 

himself as an inspector and did not afford the company an opportunity to be 

present when the photographs were taken. The Commission noted that the 

nature of the work practices in effect at the time the violation was cited 

supported the inspector's belief that immediate action was necessary to 

preserve evidence. 

Minotte Contracting & Erection Corporation, 1978 OSHD 22,551, 

February 7, 1978, concerned a case where an OSHA inspector took photographs of certain conditions which he believed were violations from a 

public roadway prior to presenting his credentials to the company upon 

his arrival on the premises. The citations based on these photographs 

were affirmed by the Commission, and it rejected the company's fourth 

amendment argtn11ents seeking t9 exclude the photographs and it did so on 

the ground that the conditions were in "plain view," that the company was 

not prejudiced, and that in the circtn11stances, the company could not claim 

a reasonable expectation of privacy protected by the fourth amendment 

particularly where the worksite was open to public view. 

567 
In Laclede Gas Company, 1979 OSHD 24,007, October 31, 1979, the Connnissioni rejected a company's assertion that photographs taken by an OSHA compliance officer by means of a telephoto lens camera from a highway prior to 

his arrival on the premises and displaying his credentials should be excluded 

as evidence of any violations, and it did so on the basis of the ''plain 

view'' doctrine, and its prior decisions in Environmental Utilities Corporation and Minotte Contracting, supra. 

Although I recognize the fact that in these OSHA cases the Commission's 

application of the "plain view'' doctrine involved situations where the worksite and the resulting violations were in effect in the public domain, I 

see little distinction in a situation where an MSHA inspector has a statutory right of access to mine property without the necessity of a warrant 

and while there in the course of his authorized inspection duties observes 

conditions which he believes violate the law. Although an underground mine 

area is not necessarily in the public domain, the fact is that the conditions 

observed by an inspector are in his plain view, and in these circumstances, 

I conclude that an operator may not at that point in time reasonably claim 

any right of privacy insofar as the docl.IIIlentation of those conditions are 

concerned. Just as the inspector is free to take notes, measurements, and 

make sketches and diagrams of the scene, I believe he is also free to record 

the conditions observed by means of a camera. Any subsequent use to be made 

of those photographs is a matter which I believe should be left to the adjudicatory discretion of the judge on a case-by-case basis. Since Congress 

and the courts have recognized the fact that the mining industry is a 

pervasively-regulated industry, I am not convinced that the use of cameras 

to assist the Secretary in his regulation of that industry is a practice 

which should generally be proscribed by the fourth amendment or the Act. 

There is one area of contention in these proceedings which I believe 

the Secretary should take serious note of and take some corrective action. 

This concerns Climax's argument that the Secretary has engaged in no formal 

rulemaking to fix the circumstances and guidelines under which cameras are 

to be used. As pointed out by Climax, OSHA has a specific regulation authorizing the use of cameras and has also published detailed instructions to 

its compliance officers with respect to the circumstances under which they 

are to be used. Climax's argtnnents that the lack of specific guidelines 

gives rise to possible abuses and unwarranted intrusions into its mining 

business and operations are well taken. While I do not believe that its 

arguments may serve as a basis for interdicting the general use of cameras 

during an inspection, I believe that reasonable ground rules should be 

established by the Secretary and communicated to the industry in order to 

preclude potential abuses and to ensure even-handed enforcement. The practice of some MSHA districts using cameras, while others do not, and the 

practice of using them to regulate one class of mining.operations as opposed 

to another, may in certain ci<cumstances result in arbitrary and confused 

enforcement practices which I believe should not be permitted. For example, 

MSHA's reliance on its April 30, 1979, memorandum to support its contention 

that cameras are authorized and used throughout its inspector force is somewhat suspect because that memorandum is addressed only to metal and nonmetal 

568 
district managers, and not to coal districts, and its effective date is 

after the refusal incident which prompted the instant proceedings. If distinctions are to be made, MSHA should address this question head on and 

communicate this to the industry as a whole. Care should also be taken 

that in this process, MSHA does not put itself in the position of having 

its inspectors act as trial lawyers. Further, it should be readily apparent 

to MSHA that reasonable precautions should be taken to insure that hazardous 

conditions will not be created by flash or spark-producing camera equipment. 

Inspectors should be adequately trained in the use of camera equipment, and 

they should insure that the taking of pictures are not done in such a manner 

as to distract the workforce while they are engaged in their mining duties. 

Such distractions may expose a miner to hazards and potential injuries which 

he otherwise would not have been exposed to but for the presence of an 

inspector armed with camera equipment. 

After careful consideration of all of the arguments presented, I conclude that Climax's suggestions that the taking of photographs is~~ 

prohibited must be rejected. Of course, if an operator can establish that 

the inspector abused his authority by taking photographs unrelated to a 

citation, that the taking of a photograph posed a mine safety or health 

hazard in a given situation, or that the taking of photographs unduly 

interferes with or disrupts the mining process, he can raise this with the 

judge on a case-by-case basis, and seek remedial action for such enforcement 

practices. In the instant proceedings, Climax does not assert that this is 

the case. Rather, it seeks a general exclusion of the use of cameras by 

MSHA's inspectors during the course of their mine inspection. 

I recognize the fact that Climax has a legitimate right to protect the 

confidentiality of its mining processes as well as any unwarranted disclosure of any trade secrets which may result from an entry by an inspector to 

its mine property and the subsequent taking of pictures which may end up as 

part of a public record in any subsequent adversary litigation. However, 

the possibility of this happening may not, in my view, serve as a general 

prohibition of the use of cameras or the taking of pictures by an inspector 

during the course of an authorized inspection of the mine for the purpose 

of insuring compliance with mandatory health and safety standards. 

In my view, the use of cameras should be limited to the specific condition or practice which the inspector believes is a violation. If the taking of the photograph exposes the operator to a possible disclosure of trade 

secrets and mine procedures which he believes should be protected from public disclosure, he is free to seek an appropriate protective order or to 

request an "in-camera" limitation on the use of such photographs. This was 

precisely the method used in several OSHA-reported cases which held that the 

appropriate method for protecting such secrets was the use of protective 

orders. See: American Can Company, November 30, 1979, 7 Occupational Safety 

and Health Reporter, 1947, noted in 48 L.W. 2431, January 1, 1980; OwensIllinois, Inc., 1978 OSHD 23,218. 

569 
May An MSHA Inspector Use A Camera And Take Photographs After Litigation 

Is Begun Solely For The Purpose Of Use At A hearing Without Prior Discovery Notice ·civen To the Operator? 

In its reply brief, Climax seemingly concedes that MSHA is not forever 

precluded from using photographic equipment or from introducing photographs 

as evidence in a hearing. Climax views the "sole issue" to be whether MSHA 

is statutorily authorized to take photographs during a warrantless inspection solely for use as evidence in an enforcement hearing, and in support 

of this argument takes the position that the taking and use of photographs 

for hearing purposes must be governed by the Connnission's discovery rules, 

29 CFR 2700.57, and must be authorized and regulated by the presiding judge. 

Climax's argument seems to be that photographs taken by an inspector during 

his initial inspection, and which are limited to documenting the conditions 

he observes is permissible, but if the photographs are to be taken after 

litigation begins, their taking and use must be specifically authorized and 

regulated by the judge pursuant to the normal discovery rules. 

As indicated earlier, I have concluded that the use of cameras and 

photographs taken at the time the inspector initially observes conditions and 

practices which he believes constitute violations of the Act or any mandatory 

safety standards is within the authority granted an inspector under the rightof-entry provisons of section 103(a) of the Act, and it matters not that the 

photographs will at some future time be used by the Solicitor to establish a 

contested violation at the hearing. However, on the facts presented in these 

proceedings before me, there is no indication that the inspectors attempted 

to take photographs after the start of litigation and solely for use at the 

hearing as was the situation in the prior Climax case before Judge Cook. As 

a matter of fact, the stipulation entered into and filed by the parties in 

the instant proceedings on October 17, 1979, is limited to the question of 

whether MSHA inspectors may use cameras and take photographs during the 

course of regular mine inspections, and the stipulated facts reflect that 

MSHA inspectors were refused the right to bring their instamatic cameras 

with them onto mine property when they ap;,P 1.·,~J f,-,.. l·<\~nlar inspections. 

The citation and order at issue in these proceedings resulted from Climax's 

refusal to permit the inspector to use a camera in the mine to document any 

violations which may result from his routine inspection. 

Climax's counsel has attempted to expand the factual situation in these 

proceedings to those which were presented in the case before Judge Cook by 

expanding his legal arguments in the brief and reply brief to the question 

of whether photographs taken solely for the purpose of use at an adversary 

hearing are permissible. The problem with this approach is that there are 

no facts· present in these proceedings which lead me to conclude that the 

inspectors attempted to use cameras solely for litigation purposes when they 

appeared at the mine on April 18, 1979, for the purpose of conducting a 

regular mine inspection. The fact that I have taken note of the prior 

litigation before Judge Cook cannot serve as the basis for my deciding an 

issue which was before him and not before me. It seems to me that Climax 

should have preserved its appeal rights by filing an appeal of Judge Cook's 

570 
decision addressing the very issue which Climax is attempting to address 

here by means of legal arguments based on proposed stipulated facts which 

·are not before me. Under the circumstances, my findings and conclusions in 

these proceedings are limited to the question of whether MSHA inspectors 

may generally use cameras and take photographs of conditions and practices 

alleged to be violations at the time of their •initial inspections. I have 

answered this question in the affirmative, but I make no findings or conclusions as to whether the use of cameras or the taking of photographs after 

litigation is begun solely for the purpose of use at a hearing without 

notice or without resort to the appropriate discovery rules of the Commission is permissible under the Act, and I have declined to do so because 

those facts are not before me. 

May A Mine Operator Be Cited Under Section 103(a) Of The Act For Refusal To 

Permit MSHA Inspectors To Take Photographs Of Mine Conditions Which They 

Believe Constitute Violations? 

In view of my finding and conclusion that the use of cameras by MSHA 

inspectors is not an invasion of privacy prohibited by the fourth amendment 

but merely an extension of the inspection specifically authorized by section 103(a), without the need for a warrant, I conclude that Climax's 

refusal to permit the use of cameras, while not directly a refusal of the 

right-of-entry, does constitute a violation of that section for which a 

civil penalty may be assessed. The amount of such a penalty must, however, 

be determined on the facts of each case, and my findings and conclusions on 

this issue follow. 

As indicated earlier in this decision, the civil penalty proceeding has 

been consolidated with the contest filed by Climax. MSHA takes the position 

that the refusal of Climax to permit the use of cameras constitutes a violation of section 103(a), and that pursuant to section 104(a), which mandates 

a civil penalty for violations of the Act, Climax may be assessed a civil 

penalty for a violation of section 103(a). In support of its argument, MSHA 

asserts that the refusal by Climax to permit the use of cameras amounts to 

hindering and impairing MSHA's ability to carry out its inspection duties 

under section 103(a). MSHA equates this refusal by Climax to allow the 

taking of photographs to intimidation of the inspector. Climax takes the 

position that there is no evidence of intimidation or harrassment of the 

inspector, and the record is devoid of any facts to suggest that this 

occurred in this case. I agree. There is no evidence of record to support the conclusion that that inspector was refused entry or was otherwise 

prohibited from conducting his normal inspection. The inspector was simply 

advised that he could not use a camera, and there is nothiug to suggest that 

he was otherwise limited in the manner in.which he conducted his inspection 

on the day in question. 

MSHA's initial proposed civil penalty was for $500. The Assessment 

Office "worksheet" which is part of MSHA' s pleadings, simply reflects a proposed penalty of $500, and no assessment "points" were assigned for any of 

the six statutory criteria set forth in section llO(i), of the Act. Since 

571 
it is well settled that any civil penalty assessment levied by me is de novo, 

without regard to. any assessment formula utilized by MSHA in its initial--

evaluation of the penalty, I will assess a penalty based on the facts of 

record. 

The parties filed supplemental briefs addressing the question of an 

appropriate civil penalty for Climax's refusal to permit the use of cameras. 

MSHA takes the position that Climax's refusal to permit the use of cameras 

hindered its ability to carry out its duties under the Act and that the 

violation was serious. MSHA also believes that since the violation resulted 

from Climax's intentional conduct to test -the extent of MSHA's inspection 

authority, Climax was negligent, and since an order resulted from Climax's 

refusal to abate the citation, MSHA concludes that no finding of good faith 

is warranted. MSHA also cites Climax's moderate history of prior violations 

and now seeks a civil penalty assessment of $150. 

Climax concedes that it is a large mine operator and that MSHA's proposed penalty will have no effect on its ability to continue in business. 

However, Climax argues that its refusal to permit the use of cameras was 

based solely on its desire to administratively challenge MSHA's use of 

photographic equipment, and that it in no way harrassed, intimidated or 

otherwise disturbed the inspectors. In fact, Climax asserts that it 

cooperated with the inspectors with respect to the remainder of the 

inspection and made known to the inspectors the purpose of its objection 

to the use of photographic equipment. In these circumstances, Climax 

argues that it should not be penalized for exercising its right administratively to challenge the validity of an MSHA procedure by the imposition 

of a severe civil penalty. Further, since the application of the six statutory criteria of section llO(i) are specifically designed for the purpose 

of deterrence, and since operators should not be deterred from bringing 

genuine test cases, Climax asserts that the statutory criteria should be 

disregarded in favor of the imposition of a nominal or token penalty of no 

greater than $10. 

After careful review of the arguments presented, including the record 

here presented, I conclude that Climax has the better part of the argument 

and I agree with its position with respect to the assessment of a civil 

penalty on the basis of the facts presented in these proceedings. I cannot 

conclude that Climax intimidated or otherwise harrassed the inspectors in 

this case. To the contrary, I conclude that Climax's refusal to permit the 

use of cameras on its mine property was based on what it honestly believed 

to be a constitutionally-protected right of privacy and its desire to challenge MSHA's assertions to the contrary. As correctly pointed out by Climax 

in its arguments, it must first exhaust its administrative remedies before 

seeking court review of its asserted right to be left alone, and the initial 

step in this administrative review process is to provoke the issuance of a 

citation. Absent any credible evidence that Climax harrassed the inspector 

or otherwise impeded him in the conduct of his inspection, I cannot conclude that the refusal to permit him to use a c·amera constituted a refusal 

of entry~~ warranting a substantial civil penalty assessment. Since 

572 
this case is a case of first impression, and considering the prior proceeding before Judge Cook, I am convinced that Climax's refusal to permit the 

use of a camera was based on its desire to provoke a "t.est case," rather 

than to deliberately obstruct the right of the inspector to go about his 

normal inspection duties. This is not the first enforcement proceeding 

involving Climax Molybdenum Company, and to my knowledge, it has never 

refused an MSHA inspector the right-of-entry on its mine property for the 

purpose of conducting an inspection. 

MSHA's argument regarding the severity of the violation, including its 

arguments and conclusions that the refusal to permit the use of cameras is 

~~ harrassment and intimidation of its inspectors, are rejected. While 

the refusal by an operator to permit an inspector.to take with him equipment 

directly related to safety may be considered serious, on the facts in this 

case, I cannot categorically characterize a camera as a safety-oriented 

piece of equipment. For example, while a methanometer, anemometer, and 

noise-measuring devices directly measure compliance or noncompliance with a 

specific mandatory safety standard, the use of a camera during the inspectioin is in the final analysis an additional tool to aid the inspector in 

pictorially preserving conditions he observes. Those conditions may or may 

not amount to a violation, and in this context, the value of a camera is in 

the credibility it lends to any testimony by the inspector in a contested 

case. 

Climax concedes that the citation resulted from its intentional conduct 

to test MSHA's authority to use cameras during an inspection. While this 

may amount to negligence in the ordinary sense, given the factual setting 

which provoked the citation in the first place, I cannot conclude that an 

increase in any civil penalty is warranted because of the negligence factor. 

I take note of the fact that in this case, once the citation was issued 

and an abatement time fixed, the inspector issued a withdrawal order based 

on Climax's continued objections to the use of a camera and he specifically 

noted on the face of the order that no area of the mine should be closed. 

Under the circumstances, I fail to understand the rationale in issuing an 

order. The order did nothing to achieve compliance. It simply documented 

Climax's continued refusal to permit the use of cameras after being put on 

notiuce that the inspector believed he had a right to use a camera. In my 

view, the use of an order ·in these circumstances was inappropriate. However, since it did not close down mining operations, I can find no prejudice 

to Climax and I consider the order as simply a further documentation and 

indication of Climax's continued refusal to permit the use of cameras and 

do not believe that its mere issuance should serve as a basis for increasing 

any civil penalty assessment resulting from the violation. On the basis of 

the entire record here presented, I find that a civil penalty of $10 is 

appropriate. 

Conclusion and Order 

In view of the foregoing findings and conclusions, the citation and 

order issued in these proceedings are AFFIRMED, and Climax is assessed a 

573 
civil penalty in the amount of $10 for its refusal to perm.it the use of a 

camera in its underground mine by an MSHA inspector during the course of 

an inspection, and Climax is ordered to pay that amount within thirty 

(30) days of the date of these decisions. 

Distribution: 

CY! /?. // -r-- ...7 /'fL~J-£--- /t 1 c~c,v~ f.:'G~rge_;;tA. Koutras 

Administrative Law Judge 

W. Michael Hackett, Esquire, Climax Molybdentnn Company, 13949 West 

Colfax Avenue, Golden, CO 80401 (Certified Mail) 

Todd D. Peterson, Esquire, Crowell & Moring, 1100 Connecticut Avenue, 

NW., Washington, DC 20036 (Certified Mail) 

Robert A. Cohen, Attorney, Office of the Solicitor, U.S. Department of 

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

James H. Barkley, Attorney, Office of the Regional Solicitor, U.S. 

Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver, 

CO 80294 (Certified Mail) 

David A. Jones, Jr., President, Oil, Chemical & Atomic Workers International Union, Local No. 2-24410, P.O. Box 949, Leadville, CO 

80641 

Edwin Matheson, Chairman, International Brotherhood of Electrical 

Workers, Local Union No. 1823, P.O. Box 102, Minturn, CO 81645 

(Certified Mail) 

574 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 2 6 1980 

LOCAL UNION #6594, DISTRICT 17, 

UNITED MINE WORKERS OF AMERICA, on 

behalf of: Willard Newsome, 

Kyle Cline, Keith McCoy, 

Charles R. Stover, Walter Cooper, 

Orville Napier, Jack Matney, 

Robert Fields, Isaac Bryant, 

Frank Evans, Alvin Chapman, 

Bruce Cooley, Gregory Boggs, 

Andrew Miller, Phillip Springer, 

Bobby Robinson, Earl Hall, 

Tennis Canterbury, George Tiller, 

Larry Lester, William Workman, 

Kirby Cisco, Mearl Fields, 

Philip Jones, Danny Mahon, 

Kenneth Whited and Taby Cooley 

Applicants 

v. 

FMV COAL CORPORATION, 

Respondent 

Application for Compensation 

Docket No. HOPE 77-128 

No. 1 Mine 

DECISION 

Appearances: 

Before: 

Peter Mitchell, Esq., United Mine Workers of America, 

Washington, D.C., for the Applicant. 

Judge Cook 

I. Procedural Background 

On January 24, 1977, Local Union #6594, District 17, United Mine Workers 

of America (Applicant) filed an application for compensation in the abovecaptioned proceeding pursuant to section llO(a) of the Federal Coal Mine 

Health and Safety Act of 1969, 30 u.s.c. § 801 ~~· (1970) (1969 Coal 

Act). The application was filed with the Office of Hearings and Appeals of 

the United States Department of the Interior and the proceeding was pending 

on the effective date of the Federal Mine Safety and Health Act of 1977, 

30 U .s.c. § 801 ~ ~· (1978) (1977 Mine Act). Accordingly, the case is 

before the undersigned Administrative Law Judge of the Federal Mine Safety 

and Health Review Commission for decision. 30 u.s.c. § 961 (1978). The 

remainder of the procedural history subsequent to the filing of the application for compensation is set forth below. 

575 
On February 18, 1977, the Applicant filed a photocopy of a post office 

return receipt indicating that service of the application for compensation 

had been made upon FMV Coal Corporation (Respondent). Additionally, on the 

same day, the Applicant filed a motion to permit late filing of interrogatories to the Respondent in conjunction with copies of the proposed interrogatories. This motion was granted by an order dated March 3, 1977. 

On March 9, 1977, the Applicant moved for an order to show cause why 

judgment in default should not be entered. On March 11, 1977, the Respondent 

filed a motion to file a late answer but failed to submit an answer in conjunct ion with the motion. The Applicant filed a statement in opposition to 

the Respondent's motion on March 21, 1977. Additionally, on March 21, 1977, 

the Respondent filed a letter in response to the Applicant's March 9, 1977 

motion stating its opposition to the entry of a default judgment. 

On March 25, 1977, a notice of hearing was issued setting the matter for 

hearing on April 21, 1977, in addition to an order granting the Respondent's 

motion to file a late answer and denying the Applicant's motion for an order 

to show cause why judgment in default should not be entered. The Respondent 

was accorded 10 days in which to file its answer. The answer was subsequently filed on April 4, 1977. 

Pursuant to a mutual agreement by counsel for the parties, an order was 

issued on April 15, 1977, cancelling the hearing scheduled for April 21, 

1977. The order noted that a telephone conference would be conducted on 

May 9, 1977, to determine whether a hearing would be necessary and, if so, 

to agree upon the date thereof. 

The May 9, 1977, telephone conference was conducted as scheduled. It 

was agreed that the Respondent would mail answers to the Applicant's interrogatories by May 13, 1977. It was also agreed that a telephone conference 

would be held on June 20, 1977, absent a request by the parties for an 

alternate date. This agreement was reflected in an order dated May 9, 1977. 

The answers to interrogatories were filed on May 16, 1977. 

The June 20, 1977, telephone conference was conducted as scheduled 

during which counsel for the Applicant stated that he contemplated the filing 

of further interrogatories and a request for admissions. Counsel for the 

Applicant further stated that he would consider the filing of a motion for 

summary decision depending upon the response received to the interrogatories 

and request for admissions. Counsel for the parties agreed to participate in 

a telephone conference on July 15, 1977, to determine both the status of the 

case and whether a hearing would be necessary. These matters were reflected 

in an order dated June 20, 1977. 

The Applicant's requests for admissions were filed on July 1, 1977, and 

the Respondent's reply was filed on July 15, 1977. 

The July 15, 1977, telephone conference was held as scheduled. Counsel 

for the Applicant indicated that he was considering the filing of a motion 

576 
for summary decision. Accordingly, counsel for the parties were informed 

that no further telephone conferences would be held absent a specific request 

from either party, and that no further action would be taken by the undersigned Administrative Law Judge until either the receipt of such a request 

or the filing of a motion for summary decision or the filing of a request for 

a hearing. 

Approximately 6 months elapsed during which no communications were 

received from the parties as to the status of the case. On January 17, 1978 

and February 6, 1978, the undersigned Administrative Law Judge sent letters 

to counsel for the Applicant, with copies sent to the Respondent, requesting 

a written statement as to what further action the Applicant contemplated taking so that the disposition of the case could be expedited. On February 24, 

1978, a communication was received from counsel for the Applicant stating 

both his reasons for the delay and that he would be filing a motion for 

summary decision. This motion was subsequently filed on April 14, 1978. On 

May 15, 1978, the motion was denied without prejudice to the right of the 

Applicant to renew a motion which would be properly documented. 

On August 11, 1978, a letter was sent to counsel for the Applicant 

stating the necessity of taking action, either in the form of a motion for 

summary decision or a request for a hearing, in order to expeditiously bring 

the case to a conclusion. On September 1, 1978, counsel for the Applicant 

filed a letter which apprised the Judge that consultations with counsel for 

the Respondent had disclosed matters that could only be resolved at a hearing. Accordingly, a notice of hearing was issued on September 7, 1978, 

scheduling the case for hearing on the merits on November 21, 1978, in 

Charleston, West Virginia, contingent upon the Applicant's filing an amended 

application for compensation by October 16, 1978. 

On October 17, 1978, the Applicant filed a motion for production of 

documents. On October 31, 1978, the Applicant filed a communication indicating that he was pursuing informal avenues to obtain the information sought 

by the motion for production of documents and suggested that a ruling on the 

motion be held in abeyance. Counsel further indicated that he would either 

withdraw or renew the motion upon completion of the informal steps previously 

undertaken. Additionally, counsel indicated that a postponement of the hearing would be needed by both parties. 

On November 6, 1978, an order was issued continuing the hearing indefinitely and scheduling a telephone conference for November 22, 1978, which 

conference was he1d as scheduled. It was agreed that the following three 

steps would take place: First, the Applicant's attorney was to file an 

amended application for compensation after receiving certain information 

from the Respondent's attorney and from other sources. Second, the Respondent's attorney was to be accorded time to file an answer to the amended 

application. The attorney for the Respondent was to communicate with the 

attorney for the Applicant within 2 weeks after receipt of the amended 

application to indicate whether he would stipulate that the Applicant could 

file a second motion for summary decision in spite of the fact that a notice 

577 
of hearing had already been issued. Third, the Applicant's attorney was to 

either file a motion for summary decision or request the Judge to set the 

matter for hearing. This agreement was reflected in an order issued on 

November 28, 1978. 

A telephone conference was held on or around April 30, 1979, to determine the status of the case since no communication had been received from 

either party subsequent to the issuance of the November 28, 1978, order. The 

parties agreed to make arrangements for the receipt of certain information so 

that the Applicant's attorney could file an amended application by May 21, 

1979. It was understood that the remaining two steps outlined in the 

November 28, 1978, order then would be executed as expeditiously as possible. 

On May 11, 1979, the Applicant served interrogatories and a request 

for admissions on the Respondent. Copies were filed with the Judge on 

May 14, 1979. 

As of June 25, 1979, 7 weeks following the above-noted telephone conference, the amended application had not been filed. Therefore, counsel for 

the Applicant was requested to apprise the Judge of the status of the 

amended application by July 5, 1979. 

On July 6, 1979, the Applicant filed a document styled "Amended 

Application for Compensation .and to Show Cause Why Default Judgment Should 

Not Be Entered." On August 13, 1979, an order was issued addressing issues 

relating to the Applicant's May 14, 1979, and July 6, 1979, filings and 

setting forth a schedule stating, in part, as follows: 

On May 14, 1979, the Applicant filed copies of interrogatories to Respondent and a request for admissions along 

with a certificate of service stating that copies of such 

documents had been mailed on May 11, 1979, to the SecretaryTreasurer of the FMV Coal Corporation as well as the Office 

of the Solicitor of the Department of Labor. However, the 

certificate of service did not show that it was mailed to 

the Respondent's attorney. 

On July 6, 1979, the Applicants filed an amended Application for Compensation and a request that an order be issued 

to the Respondent to show cause why judgement in default 

should not be entered in Local Union 6594's favor, on the 

application as amended, since the Respondent had not replied 

to either the interrogatories or the requests for admissions. 

The certificate of service attached to such document states 

that copies were mailed to the attorney for the Respondent as 

well as other persons. No response to such amended application or request for order to show cause has been received 

from the Respondent and the time permitted for response to 

such motions has expired. In addition, it has now been 

578 
somewhat over 30 days since the amended Application for 

Compensation was served and no answer to that amendment has 

been filed by the Respondent. 

In view of the regulations relating to discovery, it is 

not considered that an order to show cause for default 

judgment is proper at this stage of the proceedings. However, in view of the facts contained in the record, it is 

considered good cause has been shown for the completion of 

discovery procedures beyond the time limitations set forth 

in the regulations applicable to these proceedings. 

Accordingly, IT IS ORDERED that the Respondent reply to 

such interrogatories and requests for admissions referred to 

above by August 31, 1979. 1/ As relates to the amendment to 

the application, such amendment is accepted as partial fulfillment of the directions contained in my order of May 15, 

1978, which pointed out that the applicable regulations 

required the application to set forth the total amount of 

compensation claimed as well as the period for which such 

compensation is claimed. However, the period of the claim 

as set forth in paragraph 4 of the amended application filed 

July 6, 1979, is not sufficiently definite. Therefore, after 

the interrogatories have been answered, a further amendment 

to such application will be necessary to definitely set forth 

the specific days for which compensation is claimed. 

Accordingly, the Applicant will have until September 20, 

1979, for the filing of such amendment to the application. 

Thereafter the Respondent will have until October 20, 

1979, to answer the application as amended. 

Thereafter the hearing in this matter will commence at 

9:30 a.m., October 30, 1979, unless agreement has been 

reached by the parties as to the right of the Applicants to 

file a motion for summary decision if such is in order at 

that time. 

Footnote No. 1, supra stated that: "In view of the fact that the 

certificate of service relating to such documents did not show service upon 

the Respondent's attorney a copy of each of these two documents is attached 

as Append ix A." 

On October 1, 1979, an order of continuance was issued stating the 

following: 

The hearing in the above-captioned case is now set for 

October 30, 1979. In the order setting such hearing, the 

date was premised upon the occurrence of two steps which had 

579 
to occur prior to the hearing. They were the filing of an 

amended application which would specifically set forth the 

dates for which compensation is claimed by each of the miners 

involved, and thereafter the passage of 30 days after service 

of such amended application upon the respondent, during which 

the respondent could answer such amended application. 

Since the above referred to amendment to such application has not been served or filed, the time schedule will not 

permit the commencement of the hearing on October 30, 1979. 

In view of the fact that the Respondent did not respond 

to the interrogatories and requests for admissions served by 

the Applicant, a telephone conference was arranged by the 

undersigned Administrative Law Judge with the attorneys for 

the Applicant and the Respondent on September 24, 1979. 

During such telephone conference the attorney for the 

Respondent stated that the Respondent no longer desired that 

an attorney represent it because of financial problems. The 

result is that the Respondent's attorney apparently will not 

be filing answers to said interrogatories and requests for 

admissions. During such conference the Administrative Law 

Judge stated that the procedures for the subpoena of Respondent 1 s officers for the purpose of a deposition could be 

carried out by the Applicant's attorney if such was necessary 

for the purpose of serving and filing an amended application. 

The attorney for the Applicant stated that some action 

would be forthcoming, as to an amended application, in the 

near future as to the service of an amended application. 

Accordingly the hearing in this case is CONTINUED 

INDEFINITELY pending the filing of the amended application 

and the passage of 30 days for answer thereto by the 

Respondent. · 

As soon as action is taken by the Applicant as to such 

amended application, an order will be issued setting the 

matter for hearing. 

On October 25, 1979, the Applicant filed a document styled "Supplemental 

Application for Compensation." The Respondent failed to file answers to 

either the July 6, 1979, amended application for compensation or the 

October 25, 1979, supplemental application. 

An amended notice of hearing was issued on November 8, 1979, scheduling 

the case for hearing on the merits on December 18, 1979, i~ Logan, 

West Virginia. Subsequent thereto, the Applicant requested that the hearing 

be changed to a date in January, 1980. Amended notices of hearing were 

issued on November 27, 1979, and January 15, 1980, scheduling the case for 

580 
hearing on the merits to commence at 10 a.m., January 30, 1980, in Bluefield, 

West Virginia. Additionally, on January 15, 1980, a prehearing order was 

issued advising the parties that a 5 day transcript would be ordered and that 

the time for filing any proposed findings of fact, conclusions of law or 

briefs would expire 10 days after each party ordering a copy of the transcript received its copy from the reporter. 

The hearing was conducted as scheduled. The Applicant was represented 

by counsel. No one appeared to represent the Respondent (Tr. 5-6). lf 

During the course of the hearing, the Applicant moved to amend the 

caption to reflect the names of all miner-claimants and also moved to amend 

the supplemental application for compensation to conform with the proof. 

Both motions were granted (Tr. 49, 51-56). 

The Applicant also moved for the entry of a default (Tr. 9, 58). However, in view of the decision in Rushton Mining Company v. Morton, 520 F.2d 

716 (3rd Cir. 1975), discussed infra, it is deemed inappropriate to dispose 

of this case by way of a default. 

The Applicant filed proposed findings of fact and conclusions of law on 

Febr~ary 19, 1980. No posthearing filings were made by the Respondent. 

Additionally, on February 19, 1980, the Applicant filed proof that on 

October 24, 1979, a copy of the October 25, 19789, Supplemental Application 

for Compensation was served on both Mr. T. I. Varney, the Respondent's 

Secretary-Treasurer, and John M. Richardson, Esq., the Respondent's then 

counsel of record. 

II. Witness and Exhibits 

(A) Witness 

The Applicant called as its witness Richard C. Cooper, a safety inspector for the United Mine Workers of America. 

(B) Exhibits 

The Applicant introduced the following exhibits into evidence: 

];/ It should be noted that the Respondent was represented by counsel during 

the prehearing stage of the proceeding. On November 9, 1979, counsel for 

the Respondent filed a motion for permission to withdraw his appearance. In 

spite of repeated requests, no certificate of service was filed prior to the 

hearing showing service of the motion on the Applicant. The motion was 

granted on the record after counsel for the Applciant acknowledged receipt 

of a copy of the motion and after counsel stated that he had no objection to 

the granting of the motion (Tr. 6-8). 

581 
A-1 is the affidavit of Fred T. Casteel, Subdistrict Manager in 

the Madison, West Virginia Subdistrict Office of the Mine Safety and Health 

Administration. 

A-2 is the affidavit of Helen o. Mockabee, Chief of the Docket 

Section of the Federal Mine Safety and Health Review Commission. 

A-3 is a copy of Order No. 1 GRB, December 13, 1976, 30 c.F.R. 

§ 75 .1101-5. 

A-4 is a copy of Order No. 2 GRB, December 13, 1976, 30 C.F.R. 

§ 75.1103-4(a). 

A-5 is a copy of Order No. 3 GRB, December 13, 1976, 30 C.F.R. 

§ 75.1100-2(b). 

A-6 is a copy of Order No. 4 GRB, December 13, 1976, 30 C.F.R. 

§ 75.200. 

Ill. Issues 

(1) Whether the miner-claimants are entitled to compensation under that 

portion of section llO(a) of the 1969 Coal Act which provides as follows: 

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

order issued under section 104 of this title for an 

unwarrantable failure of the operator to comply with any 

health or safety standard, all miners who are idled due to 

such order shall be fully compensated, after all interested 

parties are given an opportunity for a public hearing on 

such compensation and after such order is final, by the 

operator for lost time at their regular rates of pay for such 

time as the miners are idled by such closing, or for one 

week, whichever is the lesser. 

(2) If the miner-claimants are entitled to compensation under the 

above-noted provision of section llO(a), then what is the amount of compensation due each miner-claimant? 

IV. Opinion and Findings of Fact 

On December 13, 1976, George Bowman, an authorized representative of 

the Secretary of the Interior, issued to the Respondent the following orders 

of withdrawal at the Respondent's No. 1 Mine: 1 GRB, December 13, 1976, 

30 C.F.R. § 75.1101-5; 2 GRB, December 13, 1976, 30 C.F.R. § 75.1103-4(a); 

3 GRB, December 13, 1976, 30 C.F.R. § 75.1100-2(b); and 4 GRB, December 13, 

1976, 30 C.F.R. 75.200. The first three orders were issued at 9:45 a.m. and 

582 
the remaining order was issued at 10:30 a.m. All four orders were issued 

pursuant to section 104(c)(l) of the 1969 Coal Act 2/ alleging violations of 

the above-noted mandatory safety standards caused by an unwarrantable failure 

on the Respondent's part to comply with the respective standards. (Exhs. 

A-1, A-3, A-4, A-5, A-6; Applicant's Requests for Admissions, Nos. 6, 7, 8, 

9, 13, 14, 15, 16, filed July 1, 1977, and Respondent's Reply thereto, filed 

July 15, 1977). No modifications were issued as relates to any of the four 

orders and the four orders remained in full force and effect until their 

termination in March, 1977 (Exh. A-1). The records of the Federal Mine 

Safety and Health Review Commission were searched, and failed to show that 

the Applications for Review were filed by the Respondent as relates to the 

four orders (Exh. A-2). 

The Respondent's No. 1 Mine had one coal producing section during 

December, 1976, and each of the four orders of withdrawal effectively idled 

the entire mine from the moment of their issuance. (See, Applicant's 

Requests for Admissions, No. 2, filed July 1, 1977 and Respondent's Reply 

thereto, filed July 15, 1977; Application for Compe~tion, Paragraph 

No. XII, filed January 24, 1977 and Respondent's Answer, Paragraph XII, 

filed April 4, 1977). --

Between December 1, 1976, and December 10, 1976, the Respondent operated 

two daily production shifts at the No. 1 Mine, the 7 a.m. to 3 p.m. shift and 

the 3 p.m. to 11 p.m. shift. (See, Applicant's Requests for Admissions, 

No. 3, filed July 1, 1977 and Respondent's Reply thereto, filed July 15, 

1977.) There were no non-production shifts. (See, Applicant's Interrogatories to Respondent, No. 6, filed February 18,-r9'77 and Respondent's Answers 

thereto, filed May 16, 1977). --

2/ Section 104(c)(l) of the 1969 Coal Act provides: 

"(c)(l) If, upon any inspection of a coal mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory health or safety standard, and if he also finds that, while the 

conditions created by such violation do not cause imminent danger, such violation is of such nature as could significantly and substantially contribute 

to the cause and effect of a mine safety or health hazard, and if he finds 

such violation to be caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, he shall include such 

finding in any notice given to the operator under this Act. If, during the 

same inspection or any subsequent inspection of such mine within ninety days 

after the issuance of such notice, an authorized representative of the 

Secretary finds another violation of any mandatory health or safety standard 

and finds such violation to be also caused by an unwarrantable failure of 

such operator to so comply, he shall forthwith issue an order requiring the 

operator to cause all persons in the area affected by such violation, except 

those persons referred to in subsection (d) of this section, to be withdrawn 

from, and to be prohibited from entering, such ~rea until an authorized 

representative of the Secretary determines that such violation has been 

abated." 

583 
The Respondent's No. 1 Mine is a bituminous coal mine whose operations 

or products affect interstate commerce. (See, Applicant's Requests for 

·Admissions, No. L, filed July 1, 1977 and Respondent's Reply thereto, filed 

July 15, 1977). 

The Applicant seeks one week's compensation on behalf of 27 miners idled 

by the above-noted orders of withdrawal. Compensation is sought under that 

portion of section llO(a) of the 1969 Coal Act, which provides that: 

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

order issued under section 104 of this title for an 

unwarrantable failure of the operator to comply with any 

health or safety standard, all miners who an.idled due to 

such order shall be fully compensated, after all interested 

parties are given an opportunity for a public hearing on 

such compensation and after such order is final, by the 

operator for lost time at their regular rates of pay for 

such time as the miners are idled by such closing, or for 

one week, whichever is the lesser. 

As noted by the Court in Rushton Mining Company v. Morton, 520 F.2d 716, 720 

(3rd Cir. 1975), compensation under this portion of section llO(a) is 

explicitly predicated on the order's being held valid after a hearing.'}_/ 

3/ The pertinent portions of the Court's analysis of the compensation provisions of the 1969 Coal Act are set forth as follows: 

"Reading § 820(a) in its entirety, one sees that clause [l] concerns 

withdrawal orders issued under§ 814(a) or (b); clause [2] concerns withdrawal orders which the inspector has certified, under§ 814(c)(l), to be 

caused by "an unwarrantable failure of [the] operator to comply with ••• 

mandatory health or safety standards;" and clause [3] concerns situations in 

which the operator "violates or fails or refuses to comply with any order 

issued under" § 814. Compensation of idled miners varies with the three 

situations covered by the three clauses. Miners idled by § 814(a) and (b) 

withdrawal orders are entitled under clause [l] to compensation for the 

balance of the shift during which the withdrawal order was issued, and half 

of the next shift, if that shift also was idled. Where there has been a 

§ 814(c)(l) certification, clause [2] provides the basis for giving the idled 

miners full compensation up to one week, but only after a hearing and after 

the withdrawal order has become "final." If the operator fails to comply 

with the withdrawal order, clause [3] gives the miners double compensation 

for the time during which they should have been idled, through the point at 

which the withdrawal order is "complied with, vacated, or terminated." 

"We believe that it is clear that in drafting § 820(a) Congress understood the difference between an order which is ultimately upheld and one 

which is ultimately vacated, that in clause [2] Congress intended to compensate miners only where the order is ultimately upheld, but that in clauses 

[l] and [3] Congress intended to compensate miners even where the order is 

ultimately vacated. Any other reading of the section would be inconsistent 

584 
Bearing these principles in mined it must be concluded that the Applicant's prima fac.ie case in the instant proceeding consists of three basic 

elements: First, the existence of the underlying 104(c)(l) notice of violation must be established. Second, it must be established that one or more 

of the 104(c)(l) orders was served on the operator or his agent, and that the 

condition or practice set forth in such order or orders constituted a violation of the cited mandatory safety standard caused by an unwarrantable failure on the Respondent's part to comply with such standard. See generally, 

Kentland-Elkhorn Coal Corporation, 4 IBMA 166, 82 I.D. 234, 1974-1975 

OSHD par. 19,633 (1975). Finally, the Applicant must establish the amount of 

compensation due each miner idled by such order or orders of withdrawal. 

In Zeigler Coal Company, 7 IBMA 280, 84 I.D. ·127,.1977-1978, 

OSHD par. 21,676 (1977), the Interior Board of Mine Operations Appeals 

(Board) set forth the governing test for unwarrantable failure. The Board 

held that a violation of a mandatory standard is caused by an unwarrantable 

failure to comply with the standard where "the operator involved has failed 

to abate the conditions or practices constituting such violation, conditions 

or practices the operator knew or should have known existed or which it 

failed to abate because of a lack of due diligence, or because of indifference or lack of reasonable care." 7 IBMA 295-296. 

At the outset, it is found that the Applicant has made a prima facie 

showing of the existence of the underlying 104(c)(l) notice of violation. 

Each of the four subject orders makes reference to the notice. (Exhs. A-3, 

A-4, A-5, A-6). F~rthermore, it is significant to note that Paragraph IX 

of the application for compensation, filed on January 24, 1977, alleged, in 

part, that "[n]o known Orders to date have modified or terminated Unwarrantable Failure Withdrawal Order Nos. 1 GRB, 2 GRB, 3 GRB or 4 GRB." Paragraph 

No. IX of the Respondent's answer, filed on April 4, 1977, states that ''[t]he 

Respondent denies Paragraph IX and states that all orders and notices that 

were issued have been abated as of March 29, 1977." (Emphasis added). This 

statement in the Respondent's answer seems to imply that the underlying 

104(c)(l) notice was issued,. and, when read in conjunction with the statements contained in the subject orders, confirms a prima facie showing of its 

existence. 

In view of the times for issuance of the four withdrawal orders, if any, 

one of the orders were found valid a basis for 1 week's compensation would 

be established. 

Certain questions arise as to the validity of some of the orders, however, there is no question as to the adequacy of a prima facie case concerning the validity of Order No. 3 GRB, December 13, 1975, 30 C.F.R. § 1100-2(b). 

fn. 3 (continued) 

with the section's overall design, since it would ignore the fact that 

clause [2] explicitly predicates compensation on the order's being held valid 

after a hearing, whereas clauses [l] and [3] have no such requirement. 

520 F.2d at 719-720. 

585 
Accordingly, we will discuss that order. 

Order No. 3 GRB, December 13, 1976, 30 C.F.R. § l100-2(b), states that 

"[o]nly one (1) outlet valve was installed in the water line that [paralleled] the Nos. 1, 2 and 3 belt conveyors for a distance of about 

1,650 feet and fittings suitable for connection was not provided at the one 

outlet valve. This condition was observed after a fire was extinguished at 

the No. 3 belt conveyor drive." (Exh. A-5). Mandatory safety standard 

30 C.F.R. § 75.1100-2(b), provides as follows: 

(b) Belt.conveyors. In all coal ·mines, waterlines 

shall be installed parallel to the entire length of belt 

conveyors and shall be equipped with firehose outlets with 

valves at 300-foot intervals along each belt conveyor and 

at tailpieces. At least 500 feet of firehose and fittings 

suitable for connection with each belt conveyor waterline' 

system shall be stored at strategic locations along the belt 

conveyor. Waterlines may be installed in entries adjacent 

to the conveyor entry belt as long as the outlets project 

into the belt conveyor entry. 

The waterline in question should have been equipped with outlets with 

valves at 300-foot intervals along each belt conveyor and at the tailpieces. 

However, the cited waterline was provided with only one outlet valve for a 

distance of approximately 1,650 feet. In light of the nature of the condition, the Respondent should have known of its existence. Accordingly, it is 

found that a violation of mandatory safety standard 30 C.F.R. § 75.1100-2(b), 

existed, and that such violation was caused by an unwarrantable failure on 

the Respondent's part to comply with the mandatory safety standard. The 

order of withdrawal was valid within the meaning of section llO(a) of the 

1969 Coal Act. 

In view of the foregoing, it is found that miners idled by the issuance 

of Order No. 3 GRB, December 13, 1976, 30 C.F.R. •§ 75.1100-2(b) are entitled 

to one week's compensation at their regular rate of pay under section llO(a) 

of the 1969 Coal. 4/ The idled miners and the amount of compensation to 

which each miner is entitled are identified as follows: 

4/ It is found that the dates and hours the miners would have worked during 

the one week period following the issuance of the order are as set forth 

in. the supplemental application for compensation as amended to conform with 

the proof. (See, Tr. 49-56 and references cited ·therein). These time 

periods are s-;;-forth for the individual miner-claimants as follows: 

"(A) Keith McCoy, Water Cooper, Taby Cooley, Gregory Boggs, Jack Matney 

and Danny Mahon were idled from 9:45 a.m. until 3:00 p.m. on December 13, 

1976, and for all of their shift on December 14, 15, 16, and 17, 1976, and 

from 7:00 a.m. until 9:45 a.m. on December 20, 1976. 

"(B) George Tiller, Charles Stover, Larry Lester, William Workman, 

Orgille Napier, Kirby Cisco, Andrew Miller, Mearl Fields, Robert Fields, 

Philip Springer and Bobby Robinson were idled for all of the second shift on 

December 13, 14, 15, 16, and 17, 1976. 

586 
NAME HOURLY Decemberz 1976 

WAGE 13 14 15 16 17 20 TOTAL 

Keith McCoy 7.59 39.85 60. 72 60. 72 60. 72 60.72 20.87 303.60 

Walter Cooper 7.59 39.85 60.72 60.72 60.72 60. 72 20.87 303.60 

Taby Cooley 7.59 39.85 60. 72 60.72 60.72 60.72 20.87 303.60 

Gregory Boggs 7.59 39.85 60.72 60.72 60.72 60.72 20.87 303.60 

Jack Matney 7.59 39.85 60.72 60. 72 60. 72 60. 72 20.87 303.60 

Danny Mahon }.} 7.59 39.85 60.72 60.72 60.72 60.72 20.87 303.60 

George Tiller 8.145 65.16 65.16 65 .16 65.16 65.16 325.80 

Charles Stover 8.145 65 .16 65 .16 65 .16 65 .16 65 .16 325.80 

Larry Lester 8.145 65 .16 65.16 65.16 65.16 65.16 325.80 

William Workman 8.145 65.16 65 .16 65.16 65 .16 65 .16 325.80 

Orville Napier 7.74 61.92 61.92 61.92 61.92 61.92 309.60 

Kirby Cisco 7.74 61.92 61.92 61.92 61.92 61.92 309.60 

Andrew Miller 7.74 61.92 61.92 61.92 61.92 61.92 309.60 

Mearl Fields 8.145 65 .16 65.16 65 .16 65 .16 65.16 325.80 

Robert Fields 7.74 61.92 61.92 61.92 61.92 61.92 309.60 

fn. 4 (continued) 

"(C) Frank Evans, Kyle Cline, Alvin Chapman and Kenneth Whited were 

idled from 9:45 a.m. until 3:00 p.m. on December 13, 1976, and for all of 

their shift on December 14, 15, 20, and 21, 1976, and from 7:00 a.m. until 

9:45 a.m. on December 22, 1976. 

"(D) Earl Hall was idled for all of the second shift on December 13, 

14, 15, 60, and 21, 1976. 

"(E) Willard Newsome and Tennis Canterbury were idled from 9 :45 a.m. 

until 3:00 p.m. on December 13, 1976, and for all of the first shift on 

December 14, 15, 16 and 20, 1976, and from 7:00 a.m. to 9:45 a.m. on 

Dec.ember 21, 1976. 

"(F) Bruce Cooley was idled from 9:45 a.m. until 3:00 p.m. on 

December 13, 1976, and for all of the first shift on December 20, 21, 22, 

and 23, 1976, and from 7:00 a.m. until 9:45 a.m. on December 24, 1976. 

"(G) Philip Jones was idled for the second shift on December 13, 20, 

21, 22, and 23, 1976. 

"(H) Isaac Bryant was idled for all of the first shift on December 14, 

15, 16, 17, and 20, 1976." 

5/ The May 16, 1977 answers to interrogatory Nos. 8 and 9 contain information as relates to all miner-claimants except Danny Mahon. The Respondent 

expressly admitted that Danny Mahon was a regular day shift miner at the 

No. 1 Mine. (Application for Compensation, paragraph XIII filed January 24, 

1977, and Answer thereto filed April 4, 1977). Additionally, the Respondent 

is deemed to have admitted the averment that Mr. Mahon's hourly wage was 

7.59 per hour, as set forth in the Supplemental Application for Compensation, 

due to the Respondent's failure to file an answer to said pleading denying 

the allegation. See 29 C.F.R. 2700.l(b), reported at 44 Fed. Reg. 38227 

(1979), Rules 8(d) and 15(a), of the Federal Rules of Civil Procedure. 

587 
Phillip Springer 7.74 61.92 61.92 61.92 61.92 61.92 309.60 

Bobby Robinson §_/ 7.59 60 .72 60 .72 60.72 60 .72 60. 72 303.60 

December 13 14 15 20 21 22 

Frank Evans 7.59 39.85 60 .72 60.72 60.72 60.72 20.87 303.60 

Kyle Cline 7.59 39.85 60. 72 60.72 60.72 60.72 20.87 303.60 

Alvin Chapamn 7.995 41.97 63.96 63.96 63.96 63.96 21.99 319.80 

Kenneth Whited 8.145 42.76 65.16 65.16 65.16 65 .16 22.40 325.80 

Earl Hall 8.145 65 .16 65 .16 65 .16 65 .16 65 .16 325.80 

December 13 14 15 16 20 21 

Willard Newsome 7.59 39.85 60.72 60. 72 60.72 60.72 20.87 303.60 

Tennis Canterbury 7.995 41.97 63.96 63.96 63.96 63.96 21.99 319.80 

December 13 20 21 22 23 24 

Bruce Cooley 7.995 41.97 63.96 63.96 63.96 63.96 21.99 319.80 

Phillip Jones 8 .145 65.16 65.16 65 .16 65 .16 65.16 325.80 

December 14 15 16 17 20 

Isaac Bryant 7.59 60. 72 60 .72 60. 72 60. 72 60.72 303.60 

(See, Applicant's Interrogatories to Respondent, Nos. 8 and 9, filed 

February 18, 1977 and Applicant's Responses thereto, filed May 16' 1977). 

Interest computed at the rate of 6 percent per annum will be awarded 

covering the periods from the dates of idlement, commencing December 14, 

1976, to the date upon which the compensation is paid. Local Union 5869 v. 

Youngstown Mines, 1 FMSHRC 990, 1979 OSHD par. 23,803 (1979). 

The Applicant seeks an award of costs and attorneys fees based upon the 

"Respondent 1 s flagrant refusal to respond to the process and jurisdiction of 

this Court" (Applicant's Proposed Findings of Fact and Conclusions of Law, 

pg. 9). Section 110(b)(3) of the 1969 Coal Act expressly permits the successful applicant in a discrimination proceeding to recover reasonable costs 

and reasonable attorney's fees. Section llO(a) accords no such right to the 

successful applicant in a compensation case. Accordingly, the Applicant's 

request must be denied. Accord, Local Union 9856, District 15, United Mine 

Workers of America v. CF&I Steel Corporation, Docket No. DENV 73-111 

(October 4, 1973). 

6/ The May 16, 1977, answers to 

Robinson's hourly wage as $7.74. 

compensation for Mr. Robinson at 

be based on the hourly wage rate 

interrogatory Nos. 8 and 9 list Bobby 

Since the Applicant has sought one week's 

the rate of 7.59 per hour, the award will 

of $7.59. 

588 
V. Conclusions of Law 

1. The parties have been subject to the provisions of the 1969 Coal 

Act and the 1977 Mine Act at all times relevant to this proceeding. 

2. Under the Acts, the Administrative Law Judge has jurisdiction over 

the subject matter of and parties to thts proceeding. 

3. Order No. 3 GRB, December 13, 1976, 30 C.F.R. § 75.1100-2(b) is 

valid within the meaning of section llO(a) of the 1969 Coal Act. Such order 

remained in full force and effect until terminated in March, 1977, and the 

Respondent never sought administrative review of ~uch order. 

4. 'All oral determinations made at the hearing granting various motions 

are affirmed. 

5. All of the conclusions of law set forth in Part IV of this decision 

are reaffirmed and incorporated herein. 

VI. Proposed Findings of Fact and Conclusions of Law 

The Applicant filed proposed findings of fact and conclusions of law. 

Such submission, insofar as it can be considered to have contained proposed 

findings and conclusions, have been considered fully, and except to the 

extent that such findings and conclusions have been expressly or impliedly 

affirmed in this decision, they are 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. 

ORDER 

The Respondent is ORDERED to pay compensation to the individual miners 

as set forth below, with interest computed at the rate of 6 percent per annum 

for the period commencing on the day following the day each amount was due 

in December of 1976, and ending on the date when the compensation is paid: 

NAME HOURLY December~ 1976 

WAGE 13 14 15 16 17 20 TOTAL 

Keith McCoy 7.59 39.85 60 .72 60.72 60.72 60.72 20.87 303.60 

Walter Cooper 7.59 39.85 60. 72 60. 72 60.72 60. 72 20.87 303.60 

Taby Cooley 7.59 39.85 60. 72 60 .72 60.72 60.72 20.87 303.60 

Gregory Boggs 7.59 39.85 60.72 60. 72 60. 72 60. 72 20.87 303.60 

Jack Matney 7.59 39.85 60. 72 60 .72 60. 72 60.72 20.87 303.60 

Danny Mahon 7.59 39.85 60. 72 60. 72 60. 72 60.72 20.87 303.60 

George Tiller 8.145 65.16 65.16 65 .16 65 .16 65.16 325.80 

Charles Stover 8.145 65.16 65.16 65.16 65 .16 65.16 325.80 

Larry Lester 8.145 65 .16 65 .16 65 .16 65 .16 65.16 325.80 

William Workman 8.145 65 .16 65 .16 65.16 65.16 65.16 325.80 

Orville Napier 7.74 61.92 61.92 61.92 61.92 61.92 309.60 

589 
Kirby Cisco 7.74 61.92 61.92 61.92 61.92 61.92 309.60 

Andrew Miller 7.74 61.92 61.92 61.92 61.92 61.92 309.60 

Mearl Fields 8.145 65 .16 65.16 65.16 65.16 65.16 325.80 

Robert Fields 7.74 61.92 61.92 61.92 61.92 61.92 309.60 

Phillip Springer 7.74 61.92 61.92 61.92 61.92 61.92 309.60 

Bobby Robinson 7.59 60.72 60.72 60. 72 60.72 60.72 303 .60 

December 13 14 15 20 21 22 

Frank Evans 7.59 39.85 60.72 60.72 60. 72 60.72 20.87 303.60 

Kyle Cline 7.59 39.85 60.72 60.72 60. 72 60.72 20.87 303.60 

Alvin Chapamn 7.995 41.97 63.96 63.96 63.96 63.96 21.99 319.80 

Kenneth Whited 8.145 42.76 65.16 65.16 65 .16 65.16 22.40 325.80 

Earl Hall 8.145 65 .16 65.16 65 .16 65.16 65 .16 325.80 

December 13 14 15 16 20 21 

Willard Newsome 7.59 39.85 60.72 60.72 60.72 60. 72 20.87 303.60 

Tennis Canterbury 7.995 41.97 63.96 63.96 63.96 63.96 21.99 319.80 

December 13 20 21 22 23 24 

Bruce Cooley 7.995 41.97 63.96 63.96 63.96 63.96 21.99 319.80 

Phillip Jones 8.145 65 .16 65.16 65 .16 65 .16 65 .16 325.80 

December 14 15 16 17 20 

Isaac Bryant 7.59 60 .72 60.72 60.72 60 .72 60.72 303.60 

Distribution: 

Peter Mitchell, Esq., United Mine Workers of America, 900-15th Street, 

NW., Washington, DC 20005 (Certified Mail) 

T. I. Varney, Secretary-Treasurer, FMV Coal Corporation, No. 1 Mine, 

P.O. Box 154, Matewan, WV 25678 (Certified Mail) 

Thomas A. Mascolino, Esq., Assistant Solicitor, Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

590 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52C3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

fEB 2 6 1sao 

ITNANN COAL COMPANY, Contest of Order 

Contestant 

v. Docket No. HOPE 79-307 

SECRETARY OF LABOR, Order No. 0662348 

MINE SAFETY AND HEALTH February 26, 1979 

ADMINISTRATION (MSHA), 

Respondent Itmann No. 3 Mine 

UNITED MINE WORKERS OF AMERICA, 

Respondent 

Appearances: 

Before: 

DECISION 

Karl T. Skrypak, Esq., Consolidation Coal Company, Pittsburgh, 

Pennsylvania, for Contestant; 

Leo J. McGinn, Esq., Office of the Solicitor, U.S. Department 

of Labor, Arlington, Virginia, for Respondent MSHA; 

Joyce A. Hanula, Legal Assistant, UMWA, Washington, D.C., 

for Respondent UMWA. 

Judge Stewart 

On March 14, 1979, Itmann Coal Company filed for review of Order No. 

0662348, dated February 26, 1979, pursuant to the provisions of section 

105(d) of the Federal Mine Safety and Health Act of 1977 (hereinafter, the 

Act). MSHA and United Mine Workers of America (UMWA) subsequently filed 

answers admitting the issuance of the order but denying the other allegations 

set forth in the contest of order. The hearing in this matter was held on 

August 29, 1979, in Charleston, West Virginia. The parties chose to present 

oral argument at the conclusion of the hearing. 

On February 23, 1979, inspector Claude R. Hall issued a section 104(a) 

citation to Contestant at its Itmann No. 3 Mine in the course of a safety 

and health inspection. The inspector alleged a violation of 30 CFR 

75 .1103-4(a) and described the condition or practice as follows: "The 

automatic fire sensor and warning device system was not provided with a 

device between the Nos. 2 and 2-1/2 Bee Tree Belts to identify a fire within 

each belt flight." Section 75.1103-4(a) requires that automatic fire sensor 

and warning device systems shall provide identication of fire within each 

591 
belt unit operated by a belt drive. The sensor is a device approximately 

5 inches long, 2 inches wide and 1-1/2 inches thick. Each device has a 

plug and a socket by which it is connected to the sensor line. A single 

sensor line extends for the entire lengtn of the belt system. As noted on 

the citation, the inspector observed that only one such device had been provided for the Nos. 2 and 2-1/2 belts. He directed that the condition be 

abated by 8 a.m. on February 26, 1979. 

On Friday, February 23, at quitting time, Cecil Farley, a maintenance 

foreman at the No. 3 Mine, was charged by Contestant's chief electrician 

with the responsibility for correcting the condition. He was to correct it 

during the Saturday shift. On Saturday morning, Mr. Farley gave a sensor 

to an electrician and instructed him to install the device in the fire sensor 

line at the belt drive of the No. 2-1/2 belt. Because he was unaware on 

Saturday that a plug and socket were not located in the sensor line at the 

intersection of the Nos. 2 and 2-1/2 belts, Mr. Farley did not mention the 

necessity of splicing a plug and socket into the sensor line. The electrician walked along the belt in an outby direction until he located a plug and 

socket approximately two crosscuts outby the No. 2-1/2 belt drive. He 

connected the sensor at that location. 

Mr. Farley did not see the electrician again that Saturday. He did not 

question the electrician or examine his work. As a consequence, he did not 

learn of the misplacement until Monday morning when the electrician informed 

him that he had installed the sensor two crosscuts outby the drive. 

Mr. Farley thereupon notified Denny Smith, a belt foreman, that the box had 

been installed at the wrong location so that Mr. Smith could, in turn, 

notify the inspector. 

1he inspector returned to the affected area on Monday, February 26, 

1979, and was informed by Mr. Smith, that the sensor had been installed at 

a point along the belt a number of crosscuts outby the intersection of the 

two belts. The inspector thereupon issued order of withdrawal No. 0662348, 

pursuant to section 104(b) 1/ of the Act. He described the condition or 

practice which led to the order as follows: "Not enough effort has been 

made to install a device between Nos. 2 and 2-1/2 Bee Tree Belts on the 

sensor line to identify a fire within each belt flight." Order No. 0662348 

1/ Section 104(b) of the Act reads as follows: 

"If, upon any follow-up inspection of a coal or other mine, an authorized representative of the Secretary finds (1) that a violation described in 

a citation issued pursuant to subsection (104(a)) has not been totally abated 

within the period of time as originally fixed therein or as subsequently 

extended, and (2) that the period of time for the abatement should not be 

further extended, he shall determine the extent of the area affected by the 

violation and shall promptly issue an order requiring the operator of such 

mine or his agent to immediately cause all persons, except those persons 

referred to in subsection (c), to be withdrawn from, and to be prohibited 

from entering, such area until an authorized representative of the Secretary 

determines that such violation has been abated." 

592 
was terminated 70 minutes later at 1:20 p.m., after the requisite device was 

installed between the Nos. 2 and 2-1/2 belts. 

In order to abate the condition, the operator cut a plug and socket from 

a roll of cable, cut the existing sensor line at the drive, spliced the plug 

and socket into the sensor line, plugged in the monitoring device at the 

drive, and unplugged the device located two crosscuts outby. The spool of 

sensor cable from which the plug and socket_ used to abate the condition were 

taken had been ordered on Friday, February 23. It arrived at the mine on 

Monday. 

Darrel Worley, a miner operator at the No. 3 Mine, testified that the 

materials necessary to abate the condition were available elsewhere. He 

observed available materials 1 week before the issuance of the order. These 

materials were located in an adjacent and accessible, but technically 

separate mine--the No. 4 Mine. Mr. Worley testified that materials could be 

and were regularly obtained from the No. 4 Mine for use in the No. 3 Mine 

Inspector Hall related a conversation that he had with Mr. Beard, one 

of Contestant's superintendents. The inspector quoted Mr. Beard as admitting 

that there were "plugs all over the mine." 2/ The inspector also testified 

that he was told by another of Contestant's-superintendents that the necessary materials were available in the mine. 

Section 104(b) of the Act requires that an inspector shall issue an 

order under that subsection when he finds that a violation described in a 

citation issued pursuant to section 104(a) has not been totally abated within 

the time specified and that the time for abatement should not be further 

extended. Contestant admitted, through counsel, that the 104(a) citation 

was properly issued. That is, the monitoring device was not located at the 

belt drive as required. Moreover, it was clearly established that the device 

had not been installed at the No. 2-1/2 belt drive on Monday when the inspector issued the subject order. Counsel for Contestant asserted the following 

at the hearing: "The only reason for this hearing is whether or not the 

circumstances justified the issuance of the (b) order, whether or not 

(Contestant) made a reasonable effort under the circumstances." 

The test as to whether a 104(b) order was properly issued was enunciated 

by the Board of Mine Operations Appeals in United States Steel Corporation, 

7 IBMA 109, 116 (1976). 1J It was stated therein that "the inspector's 

'{/ Throughout the transcript the term "plug" was used to refer to both 

sockets and plugs. 

3/ The Board was addressing section 104(b) of the Federal Coal Mine Health 

and Safety Act of 1969, 30 u.s.c. § 801 ~~· (1970), which reads as 

follows: 

"Except as provided in subsection (i) of this section, if, upon any 

inspection of a coal mine, an authorized representative of the Secretary 

593 
determination to issue a section 104(b) order must be based on the facts 

confronting the inspector at the time he issued the subject withdrawal order 

regarding whether an additional abatement period should be allowed." The 

critical question is whether the inspector acted reasonably in failing to 

extend the time for abatement and in issuing the subject order. 

At the outset, it must be noted that the violation was nonserious in 

nature. The No. 2 belt was 1,360 feet in length, while the No. 2-1/2 belt 

was 1,852 feet long, for a total of 3,212 feet. When the violation was 

first noted, the Nos. 2 and 2-1/2 belts were monitored by a single device. 

This device would have warned of a fire which occurred anywhere along these 

two belts, but would not have distinguished between the two belts. 

The placement of the sensing device two crosscuts outby the belt drive 

would have warned of any fire which occurred along the No. 2-1/2 belt and 

160 feet of the No.2 belt. The sensor located at the No. 2 belt drive 

would have warned of any fire occurring along the No. 2 belt except for the 

most inby 160 feet. 

The length of time specified for abatement by the inspector was more 

than adequate. The inspector estimated that the length of time needed to 

install the device would be 20 minutes. Darrell Worley estimated that the 

installation should take 30 minutes. Seventy minutes actually elapsed 

between the issuance and termination of the order. As noted above, the 

inspector allotted almost 3 full days for abatement. 

Contestant interposed the argument that the materials with which to abate 

the condition were ordered on Friday, but were not on hand until Monday. 4/ 

fn. 3 (continued) 

finds that there has been a violation of any mandatory health or safety 

standard but the violation has not created an imminent danger, he shall issue 

a notice to the operator or his agent fixing a reasonable time for the abatement of the violation. If, upon the expiration of the period of time as 

originally fixed or subsequently extended, an authorized representative of 

the Secretary finds that the violation has not been totally abated, and if 

he also finds that the period of time should not be further extended, he 

shall find the extent of the area affected by the violation and shall 

promptly issue an order requiring the operator of such mine or his agent to 

cause immediately all persons, except those referred to in subsection (d) of 

this section, to be withdrawn from, and to be prohibited from entering, such 

· area until an ·authorized representative of the Secretary determines that the 

violation has.been abated." 

1his section of the 1969 Act and section 104(b) of the 1977 Act are 

substantially similar with respect to the requirements each imposes on an 

inspector confronted with an operator's failure to abate a violation within 

the time specified. 

4/ Parenthetically, Contestant's assertion that materials were not on hand 

to abate the condition is at odds with its assertion that the failure to 

594 
This argument is rejected. The testimony of the inspector and Mr. Worley 

established that plugs and sockets were available. Al,though the plug and 

socket which were·used for abatement were taken from a fresh spool of sensor 

wire, they could have been obtained within the mine during the 3 days set for 

abatement. For instance, a suitable plug and socket were located on the 

sensor line two crosscuts outby the No. 2-1/2 belt drive, at the point where 

the electrician connected the monitoring device on Saturday. Other plugs and 

sockets were located on the sensor line at intervals of 250 feet. 

Contestant also maintained that reasonable efforts had been made to abate 

the condition prior to the issuance of the order--a superintendent ordered 

Mr. Farley to correct the situation and Mr. Farley had, in turn, directed 

an electrician to place a sensor at the No. 2-1/2 belt drive. The inference 

that these actions absolved Contestant of fault in the failure to abate is 

rejected. Blame for the failure cannot be laid entirely to the electrician. 

Mr. Farley did not know that the sensor line did not contain a socket and 

plug at the belt drive, and he could not, therefore, fully inform the electrician of the actions necessary for abatement. In addition, he did not 

question the electrician or examine his work afterwards. In sum, mine 

management did not adequately supervise the electrician's efforts. Applicant 

did not demonstrate that it made reasonable efforts to abate the condition 

prior to the issuance of the order. 

Despite the fact ~hat the condition was nonserious and rendered even 

less serious by Contestant's abatement efforts, the inspector reasonably 

exercised his authority in refusing to extend the time specified for abatement. The abatement effort requested by the inspector was appropriate and 

the time specified for abatement was ample. Although an extension of time 

might be appropriate when mine management through no fault of its own is 

unable to abate a condition within the time as originally set or extended, 

an extension in this instance would have amounted to condonation of Contestant's inadequate abatement efforts. 

The facts with which the inspector was confronted on February 26, 1979, 

did not warrant an extension of time for abatement. The issuance of Order 

No. 662348 was, therefore, entirely proper. 

ORDER 

It is ORDERED that the above-captioned contes~ of order is hereby 

DISMISSED. 

fn. 4 (continued) 

Forrest E. Stewart ' 

Administrative Law Judge 

abate was the fault of a non-management employee rather than management. 

Contestant is asserting on the one hand that it was aware of a lack of 

materials necessary for abatement and, on the other hand, that management 

absolved itself by ordering an electrician to abate the condition on 

Saturday morning, but that he failed to abate the condition as ordered. 

595 
Distribution: 

Karl T. ·Skrypak, Esq., Consolidation Coal Company, Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241. (Certified Mail) 

Leo McGinn, Trial Attorney, Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail) 

Joyce A. Hanula, Legal Assistant, UMWA, 900 15th Street, NW., 

Washington, DC 20005 (Certified Mail) 

596 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE or ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

AMHERST COAL COMPANY, 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 2 6 t980 

Petitioner 

Respondent 

Civil Penalty Proceedings 

Docket No. HOPE 79-128-P 

A/O No. 46-03773-03003V 

Docket No. HOPE 79-129-P 

A/O No. 46-03773-03004V 

MacGregor No. 8 Mine 

DECISION 

Appearances: Inga A. Watkins, Esq., Office of the Solicitor, U.S. Department 

of Labor, for Petitioner; 

Edward I. Eiland, Esq., Eiland & Bennett, Logan, West Virginia, 

for Respondent. 

Before: Judge Cook 

I. Procedural Background 

On November 22, 1978, the Mine Safety and Health Administration 

(Petitioner) filed petitions for assessment of civil penalty in the abovecaptioned proceedings pursuant to section llO(a) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 820(a) (1978) (1977 Mine Act). The 

petitions collectively allege two violations of provisions of the Code of 

Federal Regulations. Answers were filed by Amherst Coal Company (Respondent) on December 12, 1978. 

A notice of hearing was issued on June 5, 1979, scheduling the cases 

for hearing on the merits on July 19, 1979, in Beckley, West Virginia. The 

hearing was held as scheduled with representatives of both parties present 

and participating. 

A schedule for the submission of posthearing briefs and proposed findings of fact and conclusions of law was agreed upon after the presentation 

of the evidence. · The briefing schedule was subsequently revised at the 

Petitioner's request. Under the revised schedule, posthearing briefs and 

proposed findings of fact and conclusions of law were due on September 28, 

1979. Reply briefs were due by October 12, 1979. The Petitioner's brief 

was filed on September 28, 1979. The Respondent did not file a brief. 

597 
II. Violations Charged 

A. Docket No. HOPE 79-128-P 

Citation No. Date 30 CFR Standard 

29736 4/4/78 75.1725 

B. Docket No. HOPE 79-129-P 

Order No. Date 30 CFR Standard 

29738 4/4/78 75.1725 

III. Evidence Contained in the Record 

A. Stipulations 

The parties entered into various stipulations which are set forth in 

the findings of fact, infra. 

B. Witnesses 

The Petitioner called as its witness Henry J. Keith, a Mine Safety and 

Health Administration (MSHA) inspector. 

The Respondent called as its witnesses Ernest Marcum, company safety 

inspector for the Respondent; Shirley Adkins, a·miner whose duties included 

the repair and inspection of electrical equipment at the subject mine in 

April 1978; Virgil Damron, chief electrician at the subject mine; Edward L. 

Chafin, a miner at the subject mine serving as chairman of the mine safety 

committee for his local union; and Charle.s Rhodes, a section foreman at the 

subject mine. 

C. Exhibits 

1. The Petitioner introduced the following exhibits in evidence: 

M-1 is a copy of Citation No. 29736, April 4, 1978, 30 CFR 75.1725 

and a copy of the termination thereof. 

M-2 is a two-page document containing photographs of a scoop. 

M-3-A is a copy of Order No. 29738, April 4, 1978, 30 CFR 75.1725 

and a copy of the termination thereof. 

M-3-B is a copy of a modification of M-3-A. 

M-4 is a diagram of a coal drill. 

598 
M-5 is a computer printout compiled by the Directorate of Assessments listing the history of previous violations for which the Respondent 

had paid assessments beginning April 4, 1975, and ending April 4, 1978. 

2. The Respondent introduced the following exhibits in evidence: 1/ 

0-1 through 0-8 are photographs of the subject scoop. 

0-9 through 0-15 are photographs of the subject coal drill. Jj 

0-17 is a document styled "Examination of Electrical Equipment." 

IV. Issues 

Two basic issues are involved in the assessment of a civil penalty: 

(1) did a violation of the 1977 Mine Act occur, and (2) what amount should 

be assessed as a penalty if a violation is found to have occurred? In 

determining the amount of civil penalty that should be assessed for a violation, the law requires that six factors be considered: (1) history of 

previous violations, (2) appropriateness of the penalty to the size of the 

operator's business; (3) whether the operator was negligent; (4) effect of 

the penalty on the operator's ability to continue in business; (5) gravity 

of the violation; and (6) the operator's good faith in attempting rapid 

abatement of the violation. 

V. Opinion and Findings of Fact 

A. Stipulations 

During the course of the hearing, the parties entered into the following stipulations: 

1. The Amherst Coal Company is the owner and operator of the MacGregor 

No. 8 Mine and, as such, is subject to the jurisdiction of the 1977 Mine 

Act (Tr. 5, 8, 9). 

2. The copies of the subject citation, order, termination and the 

modification of the order were properly served on Amherst Coal Company (Tr. 

5, 8). 

1/ Exhibit 0-16, a schematic diagram of the controls of the scoop, was withdrawn by the Respondent (Tr. 365). 

2/ Exhibit 0-11, a photograph of a coal drill, was not received from the 

reporter when the exhibits received at the hearing were forwarded with the 

transcript in this case. The attorney for the Respondent, who had introduced 

the exhibit, in a letter dated February 11, 1980, stated that he was willing 

to have the case decid.ed in the absence of Exhibit 0-11. The attorney for 

the Petitioner made a similar statement in a letter dated February 19, 1980. 

599 
3. Henry J. Keith is a duly authorized representative of the Secretary 

of Labor and wa~ so during April, 1978 (Tr. 5, 8). 

4. Amherst Coal Company exhibited good faith in attempting to rapidly 

abate the subject citation and order (Tr. 5, 8). 

5. Amherst Coal Company is a large company (Tr. 5, 8). 

6. The proposed penalty will not affect Amherst Coal Company's ability 

to continue in business (Tr. 5, 8, 9). 

7. Amherst Coal Company's total tonnage dur~ng 1978 at all mines was 

1,377,448 tons of coal (Tr. 9). 

B. Opinion and Findings of Fact 

1. Docket No. HOPE 79-128-P: Citation No. 29736, April 4, 1978, 

30 CFR 7 5 .1725 

Occurrence of Violation 

MSHA inspector Henry J. Keith arrived at the Respondent's MacGregor 

No. 8 Mine at approximately 8 a.m. on April 4, 1978, to conduct a spot 

inspection (Tr. 19). Mr. Ernest Marcum, the Respondent's safety inspector, 

accompanied Inspector Keith during the inspection (Tr. 20). At approximately 10:45 a.m., the subject citation was issued alleging a violation of 

mandatory safety standard 30 CFR 75.1725 in that the S & S scoop located 

in the 001 section: 

[W]as not maintained in a safe operating condition in that 

the emergency switch on the control bo~ was frozen and 

inoperative. The power lead to the battery was damaged 

with exposed wire. The inner parts of the rear light was 

missing with wire leads exposed. Exposed moving universal 

was not guarded, no fender over left drive wheel to protect 

persons from injury. 

(Exh. M-1). 

Mandatory safety standard 30 CFR 75.1725 provides, in part, that: 

"(a) Mobile and stationary machinery and equipment shall be maintained in 

safe operating condition and machinery or equipment in unsafe condition 

shall be removed from service immediately." 

The inspector's testimony is in accord with the statements contained 

in the citation. His testimony establishes the existence of the four cited 

defects on the S & S scoop and also establishes that the defects rendered 

the machine unsafe within the meaning of the subject regulation (Tr. 22-26, 

28-39, 73, 75-76, 79, 84-86, 91, 241-242). Additionally, the inspector 

observed the machine in operation (Tr. 22, 71, 92-96). 

600 
The testimony of Inspector Keith is at variance with the testimony of 

the Respondent's .witnesses on two key points: (1) the condition of the 

emergency switch, and (2) the condition of the power lead to the battery. 

Messrs. Marcum and Chafin testified that the disconnect switch on the 

scoop was frozen and inoperative (Tr. 108-109, 195). The testimony of both 

witnesses collectively asserts that both the panic bar and the emergency 

switch were properly functioning (Tr. 129, 195). 

The inspector testified that the power lead mentioned in the citation 

connected the battery to the power circuits (Tr. 76). According to the 

inspector, the power lead extended above the surface of the frame of the 

scoop on the operator's side. Some of the insulation had been torn off 

exposing the cable's metal wires (Tr. 31-32, 76-77). 

Messrs. Marcum and Chafin disagreed, testifying that the exposed cable 

was inside the meta~ bell, or plug, which served to attach the cable to the 

battery. According to both witnesses, it was necessary to depress the cable 

and peer inside the bell in order to see the exposed cable (Tr. 113, 194, 

204). Both witnesses testified that they did not see any exposed cable outside the bell (Tr. 113, 194) and indicated that Inspector Keith depressed 

the cable in order to see the exposed wire (Tr. 133, 204). However, the 

inspector testified that he did not have to depress the cable and peer under 

the bell in order to see bare wire (Tr. 79). 

Numerous inconsistencies in the evidence presented by the Respondent 

serve to impeach the credibility of the Respondent's witnesses in those 

areas in which their testimony is at stark variance with the testimony of 

Inspector Keith. These inconsistencies cast a cloud over their testimony 

in all such areas depriving it of probative value. The major areas are 

set forth below. 

First, Mr. Marcum, the company safety inspector, and Mr. Damron, the 

chief electrician, disagreed as to the identity of the disconnect switch on 

Exhibits 0-6 and 0-7 (Tr. 110-111, 172-173). Second, an inconsistency is 

present in the testimony of Mr. Marcum and Mr. Chafin as relates to the 

exposed universal. According to Mr. Marcum, the inspector issued this portion of the citation to obtain guarding on a rounded disc located near the 

universal, not to obtain a covering for the universal itself (Tr. 115, 138). 

However, Mr. Chafin indicated that this portion of the citation was issued 

because both the disc and the universal were uncovered (Tr. 208). Third, 

the conduct of Mr. Marcum at the time the citation was issued is inconsistent with his testimony on a crucial point. According to Mr. Marcum, the 

panic bar and emergency switch were in working order. He testified that 

Inspector Keith indicated that he was issuing the citation for the frozen 

disconnect switch (Tr. 129-130). However, the citation served to Mr. Marcum 

clearly states that "the emergency switch on the control box was frozen and 

inoperative" (Exh. M-1)~ (Emphasis added.) There is no indication that 

Mr. Marcum mentioned this to the inspector at the time and, in fact, he 

testified that he expected the inspector to give testimony at the hearing 

601 
concerning the disconnect switch, not the emergency switch (Tr. 129). In 

view of the clear statement contained in the citation, I find it highly 

improbable that Mr. Marcum would not have sought a clarification from the 

inspector at the time as to why the emergency switch was cited when the 

alleged conversation at the machine clearly indicated that another switch 

was being cited. Additionally, Mr. Damron testified during cross-examination 

that the emergency switch was repaired on April 4, 1978, subsequent to the 

inspection (Tr. 180-181). However, he retracted this testimony during 

redirect examination (Tr. 182-183). 

Although Messrs. Marcum, Damron, and Chafin all claimed that the panic 

bar and emergency switch worked properly there was· considerable inconsistency 

in their testimony as to (1) whether the panic bar was checked at all, 

(2) who checked it, (3) who was present, and (4) whether the power was turned 

on when it was checked. 

On .the first and second points Mr. Chafin said first that he checked the 

panic bar with no power on (Tr. 195), then later he said that no request was 

made for a test of the panic bar and he saw no one test it (Tr. 218). However, Mr. Marcum said the inspector tested it (Tr. 146). On the other hand, 

Mr. Damron said that he himself tested it (Tr. 174). 

On the third point, Mr. Marcum and Mr. Chafin said Virgil Damron came 

to the scoop and told the inspector that the frozen switch was a disconnect 

switch (Tr. 129, 195). However, Mr. Damron, the chief electrician, said that 

he did not know where the inspector was when he tested the panic bar. He 

said that the inspector could have been there but he had no idea who was 

there and that he did not know if the inspector was present (Tr. 184-186). 

The inspector had stated that he did not see an electrician at the time of 

the scoop inspection (Tr. 75, 237, 250-251). 

As to the fourth point, Mr. Marcum and Mr. Chafin said no power had 

been used on the scoop during the test of the panic bar (Tr. 146, 195). 

However, Mr. Damron said he tested the panic bar and emergency switch with 

the power on (Tr. 174). 

Accordingly, I conclude that the conditions set forth in the citation 

existed as alleged and rendered the S & S scoop unsafe within the meaning 

of the regulation. A violation of 30 CFR 75.1725 has been established by 

a preponderance of the evidence. 

Gravity of the Violation 

The MacGregor No. 8 Mine was wet and muddy and possessed an irregular 

bottom contour (Tr. 21). Float coal dust was suspended in the air due to 

dry drilling being performed with a coal drill in the nearby face (Tr. 30). 

The miners working in the area had wet hands and clothing (Tr. 32). Sparks 

were observed emanating from the broken rear light while the machine was in 

operation (Tr. 22, 33-34). The condition of the rear light and the condition of the battery cable could have resulted in miners sustaining electrical burns or electrical shocks and, due to the float coal dust, could have 

602 
resulted in a mine fire or explosion (Tr. 23, 30-35, 177-178, 181-182). 

Four miners were exposed to the former hazard while eight to nine miners 

were exposed to the latter hazard (Tr. 33, 35). 

The inspector testified that the inoperative emergency switch exposed 

the machine operator and miners working in the vicinity of the machine to 

injuries ranging from lacerations to a fatality and that the wet and muddy 

conditions and irregular bottom contour could contribute to an occurrence 

(Tr. 25-29). However, it is significant to note that the machine was 

equipped with a footbrake (Tr. 74). Four or five miners were exposed to 

this hazard. 

The inspector testified that it is customary in the mining industry for 

miners to transport rock dust, half headers, wedges, bolts, and bolt plates 

on the frames of scoops (Tr. 24, 36-37). He testified that materials of this 

type were observed on the body of the subject scoop on April 4, 1978 (Tr. 83, 

97). According to the inspector, an object could fall against the universal 

during the operation of the scoop and become a flying projectile. This could 

result in the loss of an eye or other serious injury. Four miners were 

exposed to the hazard (Tr. 23-24, 35-36). 

The inspector testified that the absence of a fender over the left rear 

wheel made it possible for a miner to maneuver his body between the wheel 

and the frame in order to connect the cable to the battery. A similar condition had resulted in a fatality at another mine (Tr. 24, 84-86). 

Based on the foregoing, I conclude that the violation was very serious. 

Negligence of the Operator 

The cited conditions were readily observable and should have been 

detected by the section foreman (Tr. 52-60). Accordingly, I conclude that 

the Respondent demonstrated ordinary negligence. 

Good Faith in Attempting Rapid Abatement 

The parties stipulated that the Respondent exhibited good faith in 

attempting rapid abatement (Tr. 5). 

2. Docket No. HOPE 79-129-P: Order No. 29738, April 4, 1978, 

30 CFR 75.1725 

Occurrence of Violation 

The subject order of withdrawal was issued by Inspector Keith during the 

course of his April 4, 1978, spot inspection of the Respondent's MacGregor 

No. 8 Mine (Tr. 259). The citation alleges, in pertinent part, that the coal 

drill in the 001 section "was not maintained in a safe operating condition 

in that * * * the stop and start switch was damaged and not connected to the 

deenergizing device. The coal drill could not be deenergized quickly in the 

603 
event of an emergency" (Exh. M-3-A), in violation of mandatory safety standard 30 CFR 75.1725. The coal drill was in operation at the time (Tr. 

269-270, 298). 

The testimony of the inspector differs radically from the testimony of 

the Respondent's witnesses as relates to the condition of the coal drill on 

the date in question. According to the inspector, the butterfly-type stop 

and s·tart switch was damaged in such a manner that a piece of wire, extending from the top part of the switch to the leg of the coal drill's canopy, 

was being used to hold the switch in the "on" position (Tr. 261, 275, 

294-295). Additionally, he testified that the deenergizing device, or 

panic bar, was supposed to be connected to the stop and start switch, but 

that it was not so connected (Tr. 262, 275, 277). 'According to the inspector, a bolt used to hold the panic bar in line down the side of the machine 

was missing, thus causing the end of the bar to drop (Tr. 289, 296). 

Accordingly, the end of the bar was lowered beyond the point where it made 

the connection with the start and stop switch (Tr. 351-352). 

The Respondent's witnesses contradicted the inspector on both points. 

Mr. Marcum testified that he did not observe any wire around the panic bar 

(Tr. 315), and Mr. Chafin testified that the sole function of the wire 

observed by the inspector was to operate the light switch. Mr. Chafin also 

testified that wire was not used on the panic bar (Tr. 334-335). However, 

it is significant to note that the inspector's testimony addressed the 

presence of wire around the stop and start switch and not on the panic bar. 

According to Messrs. Marcum and Damron, the panic bar was connected to 

the switch by an assembly consisting of a ~od, a swivel sleeve and a spring. 

The rod was attached to the panic bar proper and the swivel sleeve was 

attached so as to operate the switch. The spring was located inside the 

swivel sleeve. The end of the rod was inserted into one end of the swivel 

sleeve and rested against the spring when the assembly was properly connected 

(Tr. 304-307, 329-330). 

Messrs. Marcum and Chafin indicated that the panic bar had been rendered 

inoperative by the actions of Inspector Keith. According to Mr. Marcum, the 

inspector raised the panic bar causing the assembly to come apart. The 

swivel sleeve dropped and the spring fell out onto the deck of the machine. 

According to Mr. Marcum, the inspector thereupon indicated that the panic bar 

was not functioning adequately. Mr. Marcum also testified that Inspector 

Keith proceeded to replace the spring inside the sleeve and replace the panic 

bar in its proper position (Tr. 299, 308). This account was in accord with 

the testimony of Mr. Chafin (Tr. 333-334, 339). 

Inspector Keith refuted this testimony. He testified that he did not 

touch or raise the bar in any manner because the defect was readily visible 

(Tr. 351). He testified that the spring and bar were already out when he 

commenced his inspection of the machine and that he did not repair it in any 

manner (Tr. 351). Additionally, he testified that he did not observe wire 

attached to the light switch (Tr. 352). 

604 
I am unable to accord probative value to the testimony of the Respondent's witnesses. insofar as it conflicts with the test·imony of Inspector 

Keith. Some of Respondent's witnesses were not in a position to know exactly 

what the inspector first observed as to the condition of the panic bar. The 

witness who appears to have been in the best position to see showed a marked 

incons.istency in his testimony as to what actually happened. At one point 

his testimony actually substantiated the position of the inspector. An 

example of inconsistency in testimony is found in the following statements 

of Mr. Marcum during cross-examination wherein he momentarily admitted that 

the rod, swivel sleeve and spring assembly was apart when the inspector 

arrived: 

Q. Didn't you state it by pulling it up'in an upward 

motion that that would render it inoperative, and at that 

time the spring fell out? 

A. Yes , ma' am. 

Q. And you are not saying that by doing that Mr. Keith 

broke it? 

A. It wasn't together in the first place. 

Q. So the spring was not there prior to Mr. -- it was 

not intact with the entire panic bar and stop-start switch 

prior to the inspection; is that correct? 

A. Yes -- no. It was there, because it fell out when 

he pulled it up. 

Q. I said "intact," sir. 

A. No, ma'am. It was not intact, no. 

(Tr. 312). 

Additionally, the credibility of the Respondent's witnesses is further 

weakened by the assertion that the inspector proceeded to repair the panic 

bar assembly. I find it inconceivable that a federal mine inspector would 

engage in such conduct instead of confining his activities to identifying 

violations of mandatory standards and ordering their abatement (Tr. 351). 

Based on the foregoing, I conclude that the conditions cited by the 

inspector existed as alleged and that the conditions constituted a violation of 30 CFR 75.1725. 

Gravity of the Violation 

The cited conditions would have prevented the machine operator from 

stopping the machine quickly should it have become necessary to do so (Tr. 

262-263). Anticipated injuries to persons outside the machine ranged 

605 
from severe lacerations to death (Tr. 263-264, 266). An occurrence was 

classified as probable (Tr. 264). 

Accordingly, I conclude that the violation was very serious. 

Negligence of the Operator 

The inspector testified that the missing bolt could have been removed 

by someone or could have simply fallen out during the shift due to machine 

vibration (Tr. 290). However, the conditions were readily visible (Tr. 

265-266) and Mr. Charles Rhodes, the section foreman, was in the area (Tr. 

223-224). Under these circumstances, the Respondent should have known of 

the conditions. 

Accordingly, I conclude that the Respondent demonstrated ordinary 

negligence. 

Good Faith in Attempting Rapid Abatement 

The parties stipulated that the Respondent exhibited good faith in 

attempting rapid abatement (Tr. 5). 

History of Previous Violations 

The history of previous violations at the Respondent's mines for 

which the Respondent had paid assessments between April 4, 1975, and 

April 4, 1978, is summarized as follows: 

30 CFR Standard Totals 

Ali sections 1,961 

75.1725 23 

(Exh. M-5). (Note: All figures are approximations). 

Size of the Operator's Business 

The parties stipulated that Amherst Coal Company is a large company 

(Tr. 5), and that Amherst Coal Company's total tonnage for 1978 at all 

mines was 1,377,448 tons of coal (Tr. 9). 

Effect on Operator's Ability to Continue in Business 

The parties stipulated that the proposed penalty will not affect 

Amherst Coal Company's ability ~o continue in business (Tr. 5). 

VI. Conclusions of Law 

1. Amherst Coal Company and its MacGregor No. 8 Mine have been subject to the provisions of the 1977 Mine Act at all times relevant to these 

proceedings. 

606 
2. Under the 1977 Mine Act, the Administrative Law Judge has jurisdiction over the subject matter of and the parties to these proceedings. 

3. MSHA inspector Henry J. Keith was a duly authorized representative 

of the Secretary of Labor at all times relevant to the issuance of the citation and order of withdrawal which are the subject matter of these 

proceedings. 

4. The violations charged in the subject citation and order of withdrawal are found to have occurred as alleged. 

5. All of the conclusions of law set forth in Part V, supra, are 

reaffirmed and incorporated herein. 

VII. Proposed Findings of Fact and Conclusions of Law 

The Petitioner filed a posthearing brief, the Respondent did not. 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 grounds that they are, in whole or 

in part, contrary to the facts and law or because they are immaterial to the 

decision in these cases. 

VIII. Penalty Assessment 

Upon consideration of the entire record in these cases and the foregoing 

findings of fact and conclusions of law, I find that the assessment of penalties is warranted as follows: 

A. Docket No. HOPE 79-128-P 

30 CFR 

Citation No. Date Standard Penalty 

29736 4/4/78 75.1725 $1,000 

B. Docket No. HOPE 79-129-P 

30 CFR 

Order No. Date Standard Penalty 

29738 4/4/78 75.1725 $1,000 

ORDER 

Respondent is ORDERED to 

assessed in these proceedings 

pay the civil penalties in the amount of $2,000 

within 30 days of the date of this decision. 

---a;~c:j-. F.Coo~ ~ 

Law Judge 

607 
Distribution: 

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

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Edward I. Eiland, Esq., Eiland & Bennett, Suite 508, National Bank 

Building, P.O. Box 899, Logan, WV 25601 (Certified Mail) 

Administrator for Coal Mine Safety and Health, U.S. Department of 

Labor 

Standard Distribution 

608 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

FEB 2 S \980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

CONSOLIDATION COAL COMPANY, 

Respondent 

Docket No. PENN 79-113 

A.C. No. 36-00965-030411 

Westland Mine 

DECISION 

Appearances: James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia, Pennsylvania, for Petitioner; 

William H. Dickey, Jr., Esq., Pittsburgh, Pennsylvania, for 

Respondent. 

Before: Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This is a proceeding filed by the Secretary of Labor, Mine Safety and 

Health Administration (hereinafter MSHA) under section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a), to assess a 

civil penalty against Consolidation Coal Company (hereinafter Consol) for 

violation of a mandatory safety standard. The petition alleges a violation of 30 C.F.R. § 75.1725(a), failure to immediately remove from service 

machinery or equipment in a~ unsafe condition. A hearing was held in 

609 
Pittsburgh, Pennsylvania, on January 23, 1980. Joseph F. Reid testified 

on behalf of MSHA. Richard Checca, Hugh Briggs, John Poskon, and David 

Cole testified on behalf of Consol. Both parties waived their rights to 

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

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

The matter involves the alleged violation of _30 C .F .R. § 75 .1725(a), 

failure to immediately remove from service machinery or equipment in an 

unsafe condition on October 3, 1978, at the Westland Mine loading ramp. 

This incident resulted in a miner suffering a disabling injury when he was 

squeezed between a moving mine car and a stationary shuttle car. Consol 

contends that it was engaged in "troubleshooting" at the time and did not 

violate the -regulation. 

ISSUES 

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

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

APPLICABLE LAW 

30 C.F.R. § 75.1725(a) provides as follows: "Mobile and stationary 

machinery and equipment shall be maintained in safe operating condition and 

machinery or equipment in unsafe condition shall be removed from service 

immediately." 

STIPULATIONS 

The parties stipulated the following: 

610 
1. The Westland Mine is owned and operated by respondent, Consolidation 

Coal Company. 

2. The Westland Mine was subject to the jurisdiction of the Federal 

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

and is subject to the jurisdiction of the Federal Mine Safety and Health 

Act of 1977, Pub. L. 91~173, as amended by Pub. L. 95-164 (Act). 

3. The Administrative Law Judge has jurisdiction over this proceeding 

pursuant to section 109 of the Coal Act and section 301 of the 1977 Act. 

4. The subject notice and any modification, extensions and terminations thereof, were properly served by a duly authorized representative of 

the Secretary of Labor upon an agent of respondent at the dates, times and 

places stated therein, and may be admitted into evidence for the purpose 

of establishing their issuance and not for the truthfulness or relevancy 

of any statements asserted therein. 

5. The assessment of a civil penalty in this proceeding will not 

affect the respondent's ability to continue in business. 

6. The appropriateness of the penalty, if any, to the size of the 

coal operator's business should be determined based on the fact that in 

1978 the Westland Mine had an annual tonnage of 68,768 and the controlling company, Consolidation Coal Company, had an annual tonnage in excess 

of 10 million tons. 

7. The alleged violation was abated in a timely fashion and the operator demonstrated good faith in attaining abatement. 

611 
8. An accident occurred on October 3, 1978, involving one man, John 

Corey, who suffered a disabling injury. 

SUMMARY OF THE EVIDENCE 

The undisputed evidence shows that a serious accident occurred at 

Consol's Westland Mine on October 3, 197b. John A. Corey, a miner, sustained a disabling injury in that accident. No representative of MSHA 

was present at the time of the accident. 

The testimony of the eyewitnesses to the accident, who testified on 

behalf of Consol, established that on October 3, 1978, at approximately 

6:15 a.m., section foreman Hugh Briggs was notified that the car spotter 

was not operating. The car spotter is a device which moves mine cars in 

the loading ramp area so that coal is evenly loaded from shuttle cars into 

mine cars. Mr. Briggs examined the car spotter and confirmed the fact that 

it was not operable. A mechanic, Richard Checca, was dispatched to the loading ramp area. After he was unable to activate the car spotter switch, he 

crossed the tracks to the car spotter tank and opened it. The car spotter 

tank contained the electrical panel and controls for the car spotter switch. 

At all times, mechanic Checca was accompanied by foreman Briggs. 

At this time, in addition to foreman Briggs and mechanic Checca, the 

following miners were present: John Corey, a roof bolter helper; John 

Poskon, a roof bolter; and David Cole, a miner helper. There were several 

mine cars on the tracks. Two shuttle cars were loaded and placed one behind 

the other or "piggy-back" on the opposite side of the tracks from the car 

spotter tank. 

612 
Mechanic Checca spent 5 to 10 minutes "troubleshooting." He was unable 

to identify the problem. However, when he used a wooden wedge to manually 

lift the armature or contactor inside the car spotter tank, the mine cars 

moved forward on the tracks. During this entire period, foreman Briggs 

remained at his side but issued no orders to withdraw equipment or men. 

In fact, foreman Briggs testified that he did not know the whereabouts of 

any of the three other members of his crew who were in this area. Mechanic 

Checca testified that he manually lifted the armature three to five times. 

As the cars moved, the conveyor belt of the shuttle car was activated and 

coal was loaded in the mine car. John Poskon testified that when he observed 

the mine cars move, he activated the shuttle cars' conveyor belts to load 

coal into the mine cars. He did this so that the mine cars would not be 

as likely to derail as they would if they were half full. No one told him 

to activate the loading apparatus. Mechanic Checca saw the mine car fill 

up and he testified as follows: 

I noticed it was--it was going to dump the coal all over 

the tracks and pile everything up, so I just run the spotter 

and tried to get it through so it wouldn't cause a big pile 

of coal, you know, that everything would--well, whatever it 

did; but I tried to run the car through as far as I could to 

get the coal in the other car. That's when I guess Corey 

noticed that the--no one was operating the buggy, and he 

went across. 

(Tr. 49). 

Foreman Briggs testified that he was "surprised" when the conveyor on 

the shuttle car was activated and it began to dump coal into the mine car. 

David Cole, a miner helper, testified that at the time the cars moved and 

613 
coal began to be loaded, he was standing next to John Corey on the same 

side of the tracks as were foreman Briggs and mechanic Checca but on the 

opposite side of the tracks from the shuttle cars and John Poskon. - As 

coal from the shuttle cars began to spill out of the mine car, David Cole 

testified that "everyone started to yell." Someone yelled to shut off the 

shuttle car. No one saw John Corey cross the tracks. All of the witnesses 

assumed that John Corey ran across the tracks to shut off the shuttle car. 

At that point, everyone heard John Corey yelling and he was found to be 

squeezed between the mine car and the shuttle car. The shuttle car was 

moved and the victim was removed. 

On October 3, 1978, at about 7:30 a.m., MSHA inspector Joseph F. Reid 

was conducting a regular inspection of the Westland Mine when he was informed 

by Consol management of the occurrence of a serious accident. At about 

9 a.m., he arrived on the section where the accident occurred. Two Consol 

employees told him what happened. None of the parties involved in the accident was present. He found no violations evident at that time. He did not 

issue a citation. He returned to his regular inspection. 

On October 11, 1978, the president of the local United Mine Workers of 

America submitted a written request to MSHA to investigate the instant accident. Inspector Reid was assigned this investigation. During the next 

5 days, he made two trips to the mine and obtained statements from John 

Poskon, Hugh Briggs, and Richard Checca. Inspector Reid testified that he 

was told that a wooden wedge was used to "block out" the contactors causing 

the car spotter to operate continuously. As noted, supra, witnesses Poskon, 

Briggs, and Checca deny making any such statement. He wrote a citation for 

614 
a violation of 30 C.F.R. § 75.1725(a) for failure to remove unsafe equipment 

from service. He.also issued a "safeguard" to the victim, John Corey, for 

not seeking refuge in a manhole or shelter while there was moving traffic 

on the track. To abate the violation, management met with the miners concerning reinstruction on removing unsafe equipment from service. Marshall 

Hunt, Consol's assistant superintendent, gave Inspector Reid a copy of 

Consol's report of its investigation of the accident (Exh. G-4). 

In a Consol memorandum dated October 3, 1978, from Stanley R. 

Kretoski, Sr., to Joseph Kristoff, Jr., the facts of the accident in question 

are set forth. The memo concludes, in pertinent part, as follows: 

Those of you who have been around for a few years are aware 

that this is not the first time this kind of accident has 

happened in our mines, and there will be others if safe 

haulage practices are not adhered to. With this thought 

in mind, the following recommendations are made: 

1. Absolutely no one is to cross between moving mine cars. 

2. When trips are being changed or maintenance work is 

being performed on the car spotter, shuttle cars are 

to be kept at least 8' away from the mine cars. 

3. Only those people whose work duties require their presence at the ramp. area shal 1 be there. 

4. The practice of "piggy-backing" is to stop unless both 

shuttle cars are attended. 

(Exh. G-4). 

EVALUATION OF THE EVIDENCE 

All of the testimony, exhibits, stipulations, and arguments of counsel 

have been considered. The evidence shows that on October 3, 1978, the car 

615 
spotter in the loading ramp area of 10 East Section of Consol's Westland 

Mine was not ope·rable. Although the car spotter was not in safe operating condition, it was not removed from service. At that time, foreman 

Briggs was present and he permitted "troubleshooting," involving the 

movement of mine cars, to proceed without taking any precaution to avoid 

injury to miners. Moreover, after the mine cars started to move, he took 

no action to prevent or stop the loading of coal while "troubleshooting" 

was being performed by the mechanic. I find this conduct to be a violation of 30 C.F.R. § 75.1725(a) as charged by MSHA. 

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

In assessing civil monetary penalties, the Com.~ission 

shall consider the operator's history of previous violations, 

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

business, the gravity of the violation, and the demonstrated 

good faith of the person charged in attempting to achieve 

rapid compliance after notification of a violation. 

Consol's prior history shows 490 violations at the Westland Mine in the 

2 years prior to the instant violation. Of that number, only one violation 

was of regulation 30 C.F.R. § 75.1725(a) in controversy here. 

Consol is a large operator. The assessment of a civil penalty will 

not affect its ability to continue in business. 

Consol was negligent in failing to remove from service the car spotter 

which it knew was defective and unsafe. It was also negligent in permitting 

normal loading of mine cars while its mechanic was "troubleshooting." Moreover, by Consol's own admission, it had actual knowledge of the prior 

616 
occurrence of "this kind of accident" but failed to produce any evidence of 

a safety program to prevent the instant accident. Under these circumstances,· 

Consol is chargeable with a high degree of negligence. 

In determining the gravity of this violation, consideration must 

include the following: (1) the likelihood ot injury; (2) the number of 

workers exposed to the potential injury; and (3) 'the severity -of potential 

injuries. In this case, the facts show that mining cars were moving on 

the tracks at irregular intervals without warning. Foreman Briggs testified that he did not know the whereabouts of three members of his crew at 

the time the car spotter was manually activated. Under these conditions, 

death or serious physical injury could be expected to result. In fact, 

victim John Corey sustained a disabling injury. I conclude that the violation was severe. 

After notification of the violation, Consol discussed the hazards of 

this accident with its employees at the mine. Consol demonstrated good 

faith to achieve rapid compliance. 

In conclusion, the evidence establishes a violation of 30 C.F.R. 

§ 75.1725(a) in that the car spotter was neither in safe operating condition nor was it removed from service. An accident involving serious 

physical injury resulted because mine cars were being loaded with coal 

during the time that the car spotter was defective. The accident could 

have been prevented by the exercise of the degree of care mandated by 

the Act and regulations. The operator's negligence was of a high degree 

and the gravity was severe. Based upon all of the evidence of record and 

617 
the criteria set forth in section llO(i) of the Act, I conclude that a 

civil penalty ·of $7 ,500 should be imposed for the violation which was 

found to have occurred. 

ORDER 

Therefore, IT IS ORDERED that respondent pay the sum of $7,500 within 

30 days of the date.of this decision as a civil penalty for the violation 

of 30 C.F.R. § 75.1725(a). 

A. Laurenson, Judge 

Distribution by Certified Mail: 

James H. Swain, Esq., Office of the Solicitor, U.S. Department of 

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

Philadelphia, PA 19104 

William H. Dickey, Jr., Esq., Consolidation Coal Company, 

1800 Washington Road, Pittsburgh, PA 15241 

U.S. GOVERMENT PRINTING OFFICE 1980 -)-311-143 •3452 

618