OCTOBER 1979 

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

Secretary of Labor, MSHA v. Freeman United Coal Mining Co., 

VINC 78-395-P; (Judge Cook, August 30, 1979) 

Secretary of Labor, MSHA v. Pacer Corporation, DENV 79-257-PM; 

(Judge Michels, August 28, 1979) 

Secretary of Labor, MSHA v. Davis Coal Company, HOPE 79-195-P, etc.; 

(Judge Moore, September 21, 1979) 

Secretary of Labor, MSHA v. Co-Op Mining Company, DENV 79-1-P; 

(Judge Koutras, October 16, 1979) 

Secretary of Labor, MSHA v. Sewell Coal Company, WEVA 79-31; 

(Judge Kennedy, September 20, 1979) 

Secretary of Labor, on behalf of Arnold J. Sparks, Jr., v. Allied 

Chemical Corporation, WEVA 79-148-D; (Judge Kennedy, September 27, 1979) 

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

Secretary of Labor, MSHA v. Swope Coal Company, HOPE 78-644-P, etc.; 

(Judge Stewart, August 27, 1979) 

Local Union No. 1124, UMWA v. Old Ben Coal Company, LAKE 79-197-C, 

Petition for Interlocutory Review. 

Westmoreland Coal Company v. Secretary of Labor, MSHA, HOPE 78-236 

was remanded to an administrative law judge from the U.S. Court of 

Appeals for the Fourth Circuit. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 9, 1979 

PITTSBURGH COAL COMPANY (DIVISION OF 

CONSOLIDATION COAL COMPANY) 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

DECISION 

Docket No. PITT 76-123-P 

IBMA No. 77-6 

This appeal was pending before the Interior Department Board of 

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

the Commission for decision. 30 U.S.C.A. §961 (1978). 

In its petition for assessment of civil penalty filed under section 

109(a) of the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. 

§801 et ~· (1976) (amended 1977) ["the Act"], the Secretary alleged 

that Pittsburgh Coal Company, a division of Consolidation Coal Company, 

violated 30 CFR 75.1405. That mandatory standard requires, in pertinent 

part, that "All haulage equipment •.. shall be provided with automatic 

couplers which couple by impact and uncouple without the necessity of 

persons going between the ends of such equipment." The administrative 

law judge found the company had violated the regulation and assessed a 

civil penalty of $5,000. The company appealed. For the reasons set 

forth below, we affirm the judge's decision. 

On April 11, 1974, a fatal accident occurred at the company's 

Monitor No. 4 Mine. An employee of the company was fatally injured 

attempting to uncouple two haulage cars. At the mine, clearance differed 

along the two sides of the track. One side, the "tight side," had a 

clearance of 3 feet. The other side, the "wide side," had a clearance 

of 6 feet. All haulage cars had disconnect levers on the wide side. In 

addition, some, including the car the victim was attempting to uncouple, 

also had levers on the tight side. The parties stipulated that all of 

the uncoupling devices on the wide side were operable, but that some of 

the levers on the tight side were inoperable. When the victim attempted 

to uncouple the cars from the tight side, and the uncoupling device did 

not work, the victim reached between the ends of the cars to manually 

disconnect them. Unaware that the victim was between the cars, the 

locomotive operator started the train and the victim was crushed. 

79-10-4 

1468 
The company argues that by equipping its mine cars with operable 

uncoupling devices on the wide side, it complied with the standard. We 

disagree. The purpose of the standard is to prevent miners who must 

couple and uncouple haulage equipment from subjecting themselves to 

injury by going between the ends of haulage cars. This purpose is best 

effectuated by requiring that all uncoupling devices be maintained in 

operable condition. An inoperable device might induce a miner to go 

between the ends of the haulage equipment to attempt manual uncoupling. 

Here, a miner died ·going between the ends of the haulage cars after 

unsuccessfully attempting to use an inoperable device. The standard is 

designed to prevent exactly this type of accident. The judge properly 

interpreted 30 CFR 75.1405, and his finding of a violation is affirmed. 

The company also contests the penalty assessed as excessive. We 

have reviewed the company's arguments in this regard and find them 

without merit. We conclude that the penalty assessed for the violation 

was reasonable and in accord with the statutory criteria specified in 

the Act. 

Accordingly, the decision of the judge is affirmed. 

Jer~e R. Waldie, Chairman 

'A. E. Lawson, Commissioner 

~\\~~~ Marian Pe~rlman NeaSe;'cornmissioner 

) 

1469 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SOUTHERN OHIO COAL CO. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 19, 1979 

v. Docket No. VINC 79-98 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

DECISION 

This case is before the Commission on interlocutory review. On 

June 19, 1979, we directed review of an order of continuance entered by 

the administrative law judge. We reverse and remand for further proceedings consistent with this opinion. 

On December 5, 1978, the Secretary of Labor issued a citation under 

section 104(a) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. §801 et~· (1978) ["the 1977 Act"] to Southern Ohio Coal Company. The citation alleged that Southern Ohio had driven the 008 

Section of its Raccoon No. 3 Mine adjacent to the abandoned Lawler No. 7 

Mine in· a manner that violated 30 CFR §75.1701. ll Later that same day, 

the Secretary issued to Southern Ohio a withdrawal order under section 

104(b) when it allegedly failed to abate the violation alleged in the 

citation. ];/ Southern Ohio then closed the 008 Section in accordance 

with the order. 

Southern Ohio sought review of both the citation and the withdrawal 

order. An administrative law judge held a pre-hearing conference with 

Southern Ohio and the Secretary on January 11, 1979. At the conference, 

1/ That section requires in part the drilling and the maintaining of a 

0 borehole or boreholes" in advance of a working face that approaches (1) 

within 200 feet of an abandoned area of the mine that cannot be inspected and may contain dangerous accumulations of water or gas, or (2) 

within 200 feet of any workings of an adjacent mine. 

2/ Section 104(b) provides for the issuance of a withdrawal order 

during a follow-up inspection of a mine where: (1) the violation described 

in the citation has not been totally abated within the time period 

originally fixed, and (2) the inspector finds that the abatement time 

should not be further extended. 

79-10-10 

1470 
the parties st.ipulated that Dr. Kelvin K. Wu, a .technical expert from 

the Secretary's Mine Safety and Health Administration, would conduct an 

on-site evaluation of Southern Ohio's Raccoon Mine, and that he would 

report his findings to Southern Ohio, the United Mine Workers, and 

the judge. On February 15, 1979, Dr. Wu submitted his report. The 

report stated that there was "no hard evidence" to indicate that the 

Raccoon Mine and the Lawler Mine were within 200 feet of each other. 

Dr. Wu's report also stated, however, that the 008 Section of the Raccoon 

Mine had a water problem and that, with respect to the water's source, 

the Lawler Mine was the "prime suspect". 

On March 30, 1979, a status hearing was held. The hearing opened 

with the judge's recitation of the "understanding" reached during a 

preceding two hour off-the-record discussion before the judge. The 

judge stated that by a certain date Dr. Wu was to submit his proposal 

for the taking of core samples at the Raccoon Mine in order to determine 

the extent of the saturation of the coal in the 008 Section. The judge 

further stated that after Dr. Wu submitted his proposal, the parties 

would stipulate to a method for conducting the core sample testing, or 

that, in the alternative, Southern Ohio was to submit a counter-proposal. 

In the latter event, the judge stated that he would then determine the 

method for conducting the test. Following the judge's recitation of the 

agreement, counsel for both Southern Ohio and the Secretary stated that 

they understood its terms and that they had no objection to it. At the 

conclusion of the hearing, the judge ordered that the terms of the 

agreement were to be carried out by a designated time. 

In early April of 1979, Dr. Wu submitted his proposal for the 

taking of the core samples. Dr. Wu proposed the horizontal drilling of 

four 60-foot probe holes into the working face of the No. 3 Entry of the 

008 Section and one 60-foot probe hole into the right rib of that entry. 

In response to Dr. Wu's proposal, Southern Ohio notified the judge that 

it "elected not to undertake the drilling of [the probe holes]." 

Reiterating its earlier expressed views, Southern Ohio stated that the 

results of the core sample testing would be irrelevant to the issue of 

whether the two mines were within 200 feet of each other and that it had 

already provided substantial evidence that it was not in violation of 

the standard. 

On April 26, 1979, the judge issued an order finding that Southern 

Ohio had "chosen to dishonor its conunitment to cooperate in the development of a plan to test for saturation core samples". The judge continued the case until Southern Ohio "cures its deliquency". Southern Ohio 

1471 
then sought interlocutory review of this order. We granted Southern 

Ohio's petition for interlocutory review to determine whether the judge 

erred in using an indefinite continuance as a sanction for a failure to 

comply with a discovery commitment. ]_/ 

The last sentence of section lOS(d) of the 1977 Act requires the 

Commission to "take whatever action is necessary to expedite proceedings 

for hearing appeals of orders issued under section. 104." This provision 

evinces a congressional concern that contests of withdrawal orders be 

expeditiously heard, at least where, as here, the underlying violation 

has not been abated. !!._/ The congressional concern with prompt disposition 

of withdrawal order contests under the 1977 Act makes inappropriate the 

use of a continuance as a sanction here. We therefore conclude that the 

judge erred. In so concluding, however, we hold only that an indefinite 

continuance is not an appropriate sanction in contests of withdrawal 

orders. We leave to the judge the question of whether any other sanction 

may be imposed. 

Accordingly, the judge's order of April 26, 1979, is reversed and 

the case is remanded for further proceedings consistent with this 

opinion. 

r 

We do not at this time 

A. E. Lawson, Commissioner 

~~'~bw%@ Marian Pear man rease, Commissioner 

pass upon the ~~hjr issues raised by the 

parties. 

!!_/ See, also, S. Rep. No. 95-181, 95th Cong., 1st Sess. 48 (1977) 

("Committee strongly believes that it is imperative that the Commission 

strenously avoid unnecessary delay"), reprinted in Senate Subcommittee 

on Labor, Committee on Human Resources, 95th Cong., 2nd Sess., Legislative 

History of Federal Mine Safety and Health Act of 1977, at 636 (1978). 

1472 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA) 

October 23, 1979 

v. Docket No. MORG 75-393 

EASTERN ASSOCIATED COAL 

CORPORATION 

IBHA No. 76-55 

DECISION 

This appeal was pending before the Interior Department Board of 

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

the Commission for disposition. 30 U.S.C.A. §961 (1978). 

On May 15, 1975, a Hine Enforcement and Safety Administration inspector observed a track-mounted, self-propelled personnel carrier (a 

jitney) with an inoperable parking brake. The condition violated 30 CFR 

75.1403. The inspector issued a notice of violation and gave the 

company until the following morning to abate. The abatement period was 

then extended to Hay 20, 1975, based upon the fact that the company had 

expressed a need for more time to repair the brake and had placed a 

danger sign on the jitney. On May 20 the danger sign was, still on the 

machine, but nothing had been done to repair the jitney or to otherwise 

eliminate the danger posed by the inoperative brake. The inspector 

determined that the time for abatement should not be further extended 

and thereupon issued a withdrawal order under section 104(b) of the 

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

(1976)(amended 1977). 1/ 

±_/ Section 104(b) of the 1969 Act provided, in pertinent part: 

•.. if, upon an 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 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 ••• promptly issue 

an order requiring the operator of such mine to cause immediately 

all persons, •.. to be withdrawn from, such area ••.• 

1473 79-10-11 
The company sought review of the order. In his decision, the 

administrative law judge vacated the order. He found that a roof fall 

on the track haulage made it impossible to remove the jitney to the 

maintenance shop for repair and that the risks of attempting to repair 

the jitney in any place other than the shop outweighed the danger of 

postponing the repair because the machine had been tagged out of service. 

He therefore held that placing the danger tag on the equipment constituted abatement of the violation prior to the issuance of the order. 

We do not agree. 

It is undisputed that the inoperable parking brake was a violation. 

For a violation such as this, there are two basic ways to abate - repair 

or withdrawal from service. Assuming that the jitney could not have 

been repaired safely in the time set for abatement, the question in this 

case is whether a danger tag alone constitutes withdrawal from service. 

We hold that tagging the jitney was not sufficient to withdraw the 

jitney from service because the danger tag did not prevent the use of 

the defective piece of equipment. The jitney was still operable and the 

danger tag could have been ignored. 1/ To abate under these circumstances, the jitney should have been made inoperable. There is no 

suggestion in the record that the jitney could not have been rendered 

inoperable safely, thus eliminating the danger posed within the abatement period. 

The company also argued, and the judge held, that the time set for 

abatement was unreasonable in view of the difficulties involved in 

repairing it. However, as noted above, there is no evidence that the 

jitney could not have been made inoperable within the abatement period. 

We therefore find that the time set for abatement was reasonable. 

1/ The judge cited Plateau Mining Company, 2 IBMA 303 (1973), in 

support of his finding that the company had abated the violation prior 

to the issuance of the order of withdrawal. There the Board of Mine 

Operations Appeals held that if an operator establishes that the equipment in question is under repair, has not been used, and will not be 

used until repaired, no violation exists. Without passing judgement on 

the merits of that decision, we note that unlike the jitney in this 

case, the equipment in Plateau (a pneumatic drill) had been rendered 

inoperable through removal of the plug on the cable that connected it to 

its power source. 

1474 
The decision of the judge is reversed, and the withdrawal order is 

reinstated. 

Jerome R. Waldie, Chairman 

A. E. Lawson; Commissioner 

\\\\o.:~~llcl'\ ~-~~Jllli~ ')DMQ Marian Pearlman Nease, Commissioner 

/ 

1475 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 25, 1979 

PONTIKI COAL CORPORATION 

v. Docket No. PIKE 78-420-P 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

DECISION 

This penalty proceeding arises under section 109(a) of the Federal 

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

(amended 1977). 

The Secretary seeks penalties for violations alleged in three 

orders of withdrawal issued under section 104(c)(2) of the Act.±./ The 

company did not seek review of the orders. At the hearing the Secretary 

offered evidence as to the existence of the violations and as to the 

statutory criteria to be considered when determining the amount of the 

civil penalties. The Secretary did not offer evidence as to the underlying section 104(c)(l) notice and order which served as a foundation 

for the three section 104(c)(2) orders. The judge found the violations 

occurred as alleged. However, due to the Secretary's failure to present 

evidence regarding the underlying notice and order, he vacated the three 

section 104(c)(2) orders. Because the orders were vacated he mitigated 

the penalties for the violations set forth in the orders. 

We granted petitions for discretionary review filed by both parties. 

Two issues are before us: whether a violation of 30 CFR 75.200 occurred, ]:_/ 

and whether the validity of an order of withdrawal is properly at issue 

in a civil penalty proceeding. 

1_/ Section 104(c)(2) of the Act provided, in relevant part: 

"If a withdrawal order with respect to any area in a mine has been 

issued pursuant to paragraph (1) of this subsection, a withdrawal 

order shall promptly be issued by an authorized representative of 

the Secretary who finds upon any subsequent inspection the existence 

in such mine of violations similar to those that resulted in the 

issuance of the withdrawal order under paragraph (1) of this subsection. . .• " 

2/ Review was not ,sought for the judge's finding that the two other 

violations existed. 

79-10-13 

1476 
As to the first issue, the company's approved roof control plan 

allowed a maximum width of 20 feet for entries and crosscuts. ]_/ The 

inspector testified that he measured widths exceeding 23 feet at six 

entries and one crosscut, with, as the judge found, "the longest measure 

averag[ing] 24 feet 9 inches." The company urges us to overturn the 

judge's finding of a violation because the measurements of the inspector 

were faulty. It argues that some of the inspector's measurements 

included the depth of undercuts which existed at the bottom of the ribs. !!_/ 

The company asserts that entry and crosscut widths should be measured 

exclusive of such undercuts. The judge accepted the testimony of the 

company's assistant superintendent that the depths of the undercuts were 

6 to 12 inches. If we assumed arguendo that the undercuts should be 

excluded, any measurement over 22 feet, (excluding two maximum undercuts 

of 12 inches each), would be in violation of the 20 foot width allowed 

by the approved plan. Thus, at least some of the widths exceeded those 

allowed in the,approved plan even if undercuts are excluded. There is, 

therefore, substantial evidence to support the judge's finding that a 

violation of 30 CFR 75.200 occurred, and we affirm it. 'i_/ 

Next, we turn to the question of whether the validity of a withdrawal order may be at issue in a civil penalty proceeding. We decided 

this question in Wolf Creek Collieries Company, PIKE 78-70-P (March 26, 

1979), where we concluded it was error to vacate a withdr'awal order in a 

penalty proceeding. We therefore reverse the judge with respect to his 

vacation of the three withdrawal orders. 

Accordingly, the finding of a violation of 30 CFR 75.200 as set 

forth in order No. 7-0106, 2 FDG, 12/06/77 is affirmed. The vacation of 

order Nos. 7-0106, 2 FDG, 12/06/77; 7-0081, 1 TE, 12/05/77; and 7-0088, 

1 MM, 12/05/77, is reversed and the orders are reinstated. The case is 

ll 30 CFR 75.200 provides, in pertinent part: 

A roof control plan and revisions thereof suitable to the roof 

conditions and mining system of each coal mine and approved by the 

Secretary shall be adopted .•.. 

!±_/ The company used a conventional mining system. As its cutting 

machine moved across the face, the cutting bar at times protruded too 

far to the left or right and thus undercut the ribs. 

,'l/ Because certain widths exceeded the maximum width permitted by the 

ro,j'f control plan in any event, we need not reach the company's argument 

th~t undercuts should not be included in measuring entry and crosscut 

widths. 

1477 
remanded for reassessment of penalties for the violations contained in 

the reinstated orders without consideration of the vacated orders as a 

mitigating factor. ii 

Waldie, Chairman 

ii Because the trial judge retired on July 30, 1979, remand is directed 

to the Chief Administrative Law Judge -so that the case may be reassigned. 

1478 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

B.B. & W. COAL CO., INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 25, 1979 

Docket Nos. PIKE 77-48-P 

PIKE 77-88-P 

IBMA No. 78-6 

DECISION 

The administrative law judge's decision is affirmed. 

A. 

Commis sioner1 

79-10-14 

1479 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 29, 1979 

SECREI'ARY OF LABOR, 

MINE SAFErY AND HEALTH 

AIMINISTRATION (MSHA) , IOcket No. VINC 79-119 

v. 

OLD BEN COAL Ca.1PANY 

DOCISION 

The issue in this case is whether Old Ben Coal Corrpany (Old Ben) is 

responsible for a violation of the Federal Mine Safety and Health Act of 

1977 1/ corrmitted by its contractor, ANSCO, Inc. (ANSCO). In his 

decis1on, Chief Administrative I.aw Judge Broderick found mat Old Ben 

violated a provision of the Act and assessed a $750 penalty for the 

violation. For the reasons that follow, we affinn. 

The material facts are not in dispute. ANSCO contracted with Old 

Ben to construct a building at Old Ben's No. 2 strip mine near Petersburg, Indiana. On April 12, 1978, a Mine Safety and Health Administration (MSHA) inspector conducted an inspection of Old Ben's mine. The 

MSHA inspector was accompanied by Old Ben's safety inspector and a 

representative of the United Mine Workers of America. During the 

inspection, the MSHA inspector observed.an ANSCO employee working on an 

I-beam 15 to 20 feet above the ground. The employee was not wearing a 

safety belt. Believing that there was a danger of the employee falling, 

the MSHA inspector informed Old Ben's safety inspector that he was 

issuing a citation for violation of 30 CFR §77.1710(g). 2/ Old Ben's 

inspector requested the ANSCO employee to come down and the employee 

complied. The citation was issued to Old Ben • 

.v 

y 

30 u.s.c. §801 et seq. (1978) (hereafter "the 1977 Act" or the 

Act"). - --

This standard, in pertinent part, provides: 

§77-1710 Protective clothing; requirements. 

E.ach employee 'W'Orking in a surface coal mine or in the surf ace 'W'Ork 

areas of an underground coal mine shall be required to wear protective clothing and devices as indicated below: 

(g) Safety belts and lines where there is a danger of 

falling •••• 

79-10-17 

1480 
Old Ben does not argue that a violation of _the standard did not 

occur. Rather, Old Ben argues that as a ma.tter of law under the 1977 Act 

it is neither absolutely liable nor jointly and severally liable for a 

violation of the Act comuitted by its contractor. Old Ben urges the 

Cormri.ssion to hold that ANSCO, as an independent contractor, was the 

operator solely responsible for the violation at issue. The Secretary 

of labor argues that under the 1977 Act an owner-operator is absolutely 

and vicariously liable for violations attributable to its independent 

contractors. The Secretary further argues that his decision to proceed 

against an owner-operator for a contractor's violation is exempt from 

judicial review. In the alternative the Secretary argues that, if his 

decision to proceed solely against Old Ben is reviewable by the Conmission, 

it should be upheld because it resulted from a rationally based interim 

policy. 

The 1977 Act defines "operator" as "any owner, lessee, or other 

person who operates, controls or supervises a coal or other mine or any 

independent contractor performing services or construction at such 

mine." 30 u.s.c. §802(d). The enforcement provisions of the Act all 

speak in terms of operator: the Act provides for the issuance of 

citations and orders to the operator for violations of mandatory standards 

and irmri.nent dangers (30 U.S.C. §§814, 817); requires the assessment of 

civil penalties against the operator of a mine in which a violation 

occurs (30 U.S.C. §820(a)); and provides for the compensation by the 

operator of miners idled by withdrawal orders. 30 U.S.C. §821. Analogous 

provisions under the Federal Coal Iviine Health and Safety Act of 1969 

have been construed to permit the irllpOsition of liability on owner 

operators, for violations occurring in their mines "regardless of who 

violated the Act or created the danger requiring withdrawal". Bituminous 

Coal Operators' Assoc., Inc. v. Secretary of Interior ("BCOA v. Secretary") 

547 F.2d 240, 246 (4th Cir. 1977); Republic Steel Corp., 1 FMSHRC 5, 9 (1979), 

pet. for rev. filed, No. 79-1491, D.C. Cir., May 11, 1979; Kaiser Steel 

Corp., 1 FMSHRC 343 (1979); Consolidation Coal Co., 1 FMSHRC 347 (1979). 

See Republic Steel Corp. v. IBr•lOA, 581 F. 2d 868, 870 n. 5 (D.C. Cir. 

1978) • For tJie reasons stated in those decisions, the same conclusion is 

warranted under the 1977 Act. 

The amendment of the 1969 Act's definition of "operator" to include 

"any independent contractor performing services or construction at such 

mine" does not require a different result. On its face, the additional' 

language in the 1977 Act's definition of "operator" does not affect the 

question of an owner's responsibility for contractor violations. Rather, 

the amendment simply appears to settle an uncertainty that arose under 

the 1969 Act, i.e., whether certain contractors are "operators" within 

the meaning of the Act. See, e.g., Association of Bituminous Contractors, 

Inc. (ABC) v. Ivbrton, No. 1058-74 (D.D.C., May 23, 1975), rev'd sub norn. 

ABC v. Andrus, 581 F. 2d 853 (D.C. Cir. 1978); BCOA v. Secretary, supra; 

COWin and Co., Inc., 1 FMSHRC 20 (1979). 

To the extent that the legislative history concerning the amended 

definition bears on the question of owner responsibility for contractor 

violations, it supports the imposition of such liability. The Senate 

1481 
Committee Report on the 1977 Act explained the amended definition as 

follows: 

••• [T]he definition of mine "operator" is expanded to include 

"any independent contractor performing senrices or construction 

at such mine". It is the Committee's intent to thereby include 

individuals or firms who are engaged in construction at such 

mine, or who nay be, under contract or otherwise, engaged in 

the extraction process for the benefit of the owner or lessee 

of the property and to make clear that the employees of such 

individuals or firms are miners within the definition of the 

[1977 Act] •. In enforcing this Act, the Secretary should be 

able to assess civil penalties against such independent 

contractor as well as against the owner, operator, or 

lessee of the mine. The Corrmittee notes that this concept 

has been approved by the federal circuit court in Bituminous 

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

(C.A. 4, 1977). 

s. Rep. No. 95-181, 95th Cong., 1st Sess., at 14 (1977), reprinted in 

Senate SUbcorrrnittee on Lal:or, Committee on Hunan Resources, 95th Cong., 

2d Sess., Legislative History of the Federal Mine Safety and Health Act 

of 1977, at 602 (1978) ["1977 Act Legis. Hist."]. 

The Conference Committee Report stated the following regarding the 

amended definition: 

The Senate bill rrodified the definition of "operator" to 

include independent contractors performing services or 

construction at a mine. This was intended to permit 

enforcement of the Act against such independent contractors, and to permit the assessrrent of penalties, 

the issuance of withdrawal orders, and the imposition 

of civil and criminal sanctions against such contractors 

who nay have a continuing presence at the mine. 

S. Conf. Rep. No. 95-461, 95th Cong., 1st Sess., at 37 (1977); 1977 Act 

Legis. Hist. at 1315. 

We read these passages simply as a rrore corrplete explanation of that 

which was accorrplished by the amendment to the definition, i.e., a clarification that certain contractors are operators under the Act. The 

addition of independent contractors to the definition of operator was done 

solely to dispose of any remaining doubt that independent contractors can 

be held liable as mine operators. It was not the intention of the Congress 

to limit the number of persons who are responsible for the health and safety 

of the miner, nor to dilute or weaken the obligation imposed on those persons. 

Viewed in this light, the citation in the Senate Report to the Fourth Circuit's 

BCOA decision is explainable as a reference to that portion of the BCOA 

decision holding that certain contractors were operators under the 1969 Act. 

In view of the approving reference to the BCOA decision in the Senate 

Report, however, we cannot conclude that the drafters were unaware of that 

decision's further holding that owners can be held solely responsible 

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

wit11drawal". 547 F. 2d at 246. Given this fact, and the fact that the 

1482 
1977 Act and the legislative history are otherwise silent on this 

irrportant question of.law, we conclude that Congress endorsed the conclusion that owners can be held solely responsible for contractor violations. 

Cf. National Industrial Sand Assoc. v. ~.iarshall, 601 F.. 2d 689, 702-703 

(3rd Cir. 19 7 9) • 

For these reasons, we find that, as a matter of law under the 1977 

Act, Old Ben, as an owner-operator, can be held responsible without 

fault for the violation of the Act corrnnitted by its contractor. 4/ 

When a mine owner engages a contractor to perform construction or 

services at a mine, the duty to maintain compliance with the Act regarding the contractor's activities can be irrposed on lx>th the owner and 

the contractor as operators. This reflects a congressional judgment 

that, insofar as contractor activities are concerned, lx>th the owner and 

the contractor are able to assure compliance with the Act. Arguably, 

one operator may be in a better position to prevent the violation. 

However, as we read the statute, this issue does not have to be decided 

since Congress permitted the irrposition of liability on lx>th operators 

regardless of who might be better able to prevent the violation. 

We emphasize that our conclusion regarding an owner's liability 

does not affect a contractor's duty to corrply with the Act or its liability for violations that it commits. The amendment of the definition 

of operator in the 1977 Act makes it clear that contractors can be 

proceeded against and held responsible for their violations. Indeed, 

as discussed rrore fully below, direct enforcement against contractors 

for their violations is a vital part of the 1977 Act's enforcement 

scheme. 

Our inquiry in the present case does not end with the conclusion that 

as a matter of law Old Ben can be held responsible for its contractor's 

violation. The Secretary's argument that Commission review of his 

decision to proceed against Old Ben is precluded by 5 U.S.C.§701 because 

it is a matter corrmitted entirely to his discretion by law is without 

rrerit. 5/ The structure and intent of the detailed administrative review 

provisions of the 1977 Act compel the conclusion that the Secretary's 

decision may be reviewed by the Commission. 

First, section 507 of the 1977 Act provides: 

Except as otherwise provided in this Act, the 

provisions of ••• sections 701-706 of title 5 

4/ In view of our conclusion, it is unnecessary to reach the Secretary's 

argument that a mine owner is vicariously liable for a contractor's violation 

because the contractor is an "agent" of the owner under section 3(e) of the 

1977 Act, 30 u.s.c. §802(e). 

5/ 5 U.S.C. §701, in pertinent part, provides: 

- (a) This chapter applies, accordingly to the provisions thereof, 

except to the extent that 

(1) statutes preclude judicial review; or 

(2) agency action is commited to agency discretion 

by law. 

1483 
of the United States Code shall not apply to the 

rcaking of any order, notice, or decision made 

pursuant to this Act, or to any proceeding for 

the review thereof. 

The 1977 Act does not otherwise make 5 U. S.C. §701 applicable t o Comnission / 

proceedings. Therefore , the authority the Secretary cites as controlling 

on the question of reviewability is not even applicable. 

Second, we reject the Secretary's attempt to equate the Corrmission with 

a court of appeals and have the judicial review provisions of the Administrative 

Proced.ure Act, including 5 U. S.C. §701, applied to Ccmnission proceed.ings 

by analogy. The Comrnission stands in a fundarrentally different position 

in relation to the Secretary than does a court of appeals. The Comnission 

was established as the "ultimate administrative review body" under the 

Act due to the recognition that "an independent Comnission is essential to 

provide administrative adjudication which preserves due process and 

instills much rrore confidence in the program" . 1977 Act Legis. Hist. 

at 601, 635. The Comnission is corrprised of persons who "by reason of , .. training, education, or experience" are qualified to carry out its 

specialized functions under the Act. Section 113(a). The Corrmission -.is authorized to review, on a discretionary basis, decisions of its 

administrative law judges on statutorily specified grounds, including 

whether the decision presents a "substantial question of ••. policy", 

is "contrary to . . • Commission policy", or presents a "novel question 

of policy" . Section 113 (d) (2) (A) and (B). The Corranission' s authority 

to review judge 's decisions extends even to cases in which no person 

has filed. a petition for review. Section 113(d) (2) (B). These J?OWers 

were given to the Conmission to enable it to "develop a unifonn and 

corrprehensive interpretation of the law", providing "guidance to the 

Secretary in enforcing the Act and to the mining industry and miners 

in appreciating their responsibilities under the law". 6/ These 

provisions derronstrate that the Corrmission was intended-to play a 

najor role under the 1977 Act by reviewing the Secretary's enforcement 

actions and formulating mine safety and health policy on a national 

basis. Thus, the Act provides a clear basis for distinguishing the 

Corranission' s role from that of a oourt reviewing agency action, there- by rendering application of 5 u.s.c. §701 by analogy inappropriate. Cf. Brennan v . Gilles & Cotting, Inc., 504 F. 2d 1255 (4th Cir. 1974). 

The Corrrnission 's review authority extends to "determining operator -responsibility and liability" for violations of the Act. 1977 Act 

Legis. Hist. at 89. 

For these reasons, we conclude that the Secretary's decision to 

proceed against an owner- operator for a contractor' s violation 

is reviewable by the Corrmission. 

6/ Nomination Hearing, Members of Federal Mine Safety and Health Review 

O::mmission Before the Senate Conmittee on Ht.nna.n Resources, 95th Cong. , 2d 

Sess. 1 (1978) (staterrent of Senator Harrison A. Williams, Jr., Chairman). 

1484 
Having decided that in a contested case the Secretary's decision 

to institute enforcement proceedings against an owner for its contractor's violations is reviewable by the Cormnission, we must determine 

an appropriate standard of review. The Secretary argues that, if his 

decision is reviewable, the appropriate standard of review is that 

set forth in section lO(e) of the Administrative Procedure Act, 

5 U.S.C. §706 (2) (A). This provision, in pertinent part, provides that 

"[t]he reviewing court shall ••• hold unlawful and set aside agency 

action, findings, and conclusions found to be arbitrary, capricious, an 

abuse of discretion, ©r @therwise n@t in acCG>rdance with law". As noted 

above, however, section 507 of the 1977 Act specifically provides that 5 

u.s.c. §706 is not applicable to Conmission proceedings. 

In reviewing this case, some latitude must be given to the Secretary's 

determination as to how to enforce the Act for contractor violations. 

The Secretary, by virtue of his enforcem2Ilt responsibilities, has direct 

experience with the nature of the working relationships of owners and 

contractors on the jobsite. The experience makes it possible for the 

Secretary to be apprised of the diverse economic and technical considerations that should be taken into account in formulating a policy on 

liability for contractor's violations. Also, the Secretary's enforcement 

policy must be coordinated arrong hundreds of inspectors in the field. 

These considerations require that the Cormnission not errploy a broad 

standard of review in this case. Thus, in these circumstances i:,ve believe 

that an appropriate inquiry is for the Cormnission to determine whether 

the Secretary's decision to proceed against an owner for a contractor's 

violation w~<;i~ __ c "' . ,:· for.. rea::;ons consistent with the purp<Jse and policies - · of the 1977 A.ct. · · '" 

We turn now to examining the record in the case before us. It is 

clear from the record that j:Jlg J2.~t:i,_c::.-glg,r. facts of .. this . c;:,c;t.s~ .. had. no 

bearing on;tbeSecretary's decision to issue the-citation to.Old Ben. 

1fie·-secretary concedes that Old Ben was proceeded against under an 

agencywide policy to directly enforce the Act against only owner-operators 

for contractor violations. The record is far from clear as to the basis 

of this policy. The Secretary admits that the policy, in part, represents 

a continuation of past practice under the 1969 Act • The policy under the 

1969 Act of citing only owner-operators for contractor violations 

had its roots in the district court's decision in ABC v. Morton, supra, 

holding that contractors were not "operators" under the 1969 Act. On 

February 22, 1978, however, the district court's decision was reversed 

in ABC v. Andrus, supra, and after that date it was clear that the 

Secretary could enforce the Act directly against contractors. More 

irrportantly, when the 1977 Act becarre effective on March 9, 1978, any 

doubt concerning the Secretary's ability to proceed directly against 

contractors was dispelled. Therefore, 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. !>brton, there wuuld be no 

doubt that his decision was improper. Cf. Republic Steel Corp. v ~ Il3MJA, 

581 F. 2d 868 (D.C. Cir. 1978). ~ 

The Secretary, however, has provided another reason explaining his 

1485 
decision to proceed against Old Ben for its contractor's violation. The 

Secretary asserts that, although Old Ben was proceeded against in accordance 

with a Secretarial policy of directly enforcing the Act only against 

owners, this policy is an interim one pending adoption of regulations 

providing guidance to inspectors in the identification and citation of 

contractors. In the Secretary's view, this interim policy is necessary 

to avoid the "unpredictability, confusion, and potential unfairness" 

that v.Duld result if each of rrore than 1,600 inspectors detennined the 

appropriate operator to proceed against on an individual ad hoc basis. 

On October 23, 1978, MSHA made public a draft of proposed regulations in::licating its intent to enable inspectors to proceed directly 

against contractors for their violations. On August 14, 1979, the 

proposed regulations were published. 44 Fed. Reg. 47746-47753 (1979). 

The proposed regulations provide a finn indication of the Secretary's 

intent to enforce the Act directly against contractors for violations 

that they comnit. 

We note that the interim policy being pursued by the Secretary is 

not in line with the view expressed in his proposed regulations of how 

best to enforce the 1977 Act. Also, we have doubts concerning the 

necessity of the Secretary's blanket "owners only" enforcement policy 

even on an interim basis. In many circumstances, as in the present 

.case, it should be evident to an inspector at the time that he issues a 

citation or order that an identifiable contractor created a violative 

condition and is in the best position to eliminate the hazard and prevent 

it from recurring. Thus, we fail to see the overriding need for adherence 

to a uniform policy in instances where it is clear that proceeding 

against a contractor is a rrore effective method of protecting the safety 

and health of miners. Nevertheless, we recognize that it takes some 

time for the development of new policies and procedures by a departrrent 

newly assigned the enforcement of a major program designed to protect 

the health and safety of miners. 7/ Therefore, because the Secretary's 

decision to proceed against Old :sell was grounded on considerations of 

consistent enforcement, it was made for reasons consistent with the 

purposes and policies of the 1977 Act and we will not disturb his choice. 

We emphasize, however, as the Secretary has recognized in his 

proposed regulations, that the amendment of the 1977 Act's definition of 

operator to include independent contractors was intended to accomplish a 

specific purpose, i.e., to clearly reflect Congress' desire to subject 

contractors to direct enforcement of the Act. The Secretary has also 

recognized in his proposed regulations that enforcement against owners 

for contractor violations, although a legally permissible method of 

effecting miner safety and health, oftentimes proves to be an inefficient 

and unsatisfactory manner of achieving the Act's purposes. See also AOC 

v. Andrus, supra, 581 F. 2d at 863. We note that there is no indication 

of when the interim policy will be replaced by a new one. If the Secretary 

.. unduly prolongs a policy that prohibits direct enforcement of the Act 

againstcofrErcrctors, he will be disregarding the intent of Congress. In 

view of the Secretary's express recognition of the wisdom and effectiveness 

2/ The 1977 Act became effective on 1'1arch 9, 1978. The citation in this case 

was issued to Old Ben on April 12, 1978. 

1486 
of subjecting contractors to direct enforcerrent, continuation of a 

policy that forecloses such enforcement will provide evidence that the 

current policy is grounded solely on .irrproper considerations of administrative convenience, a basis that w::>Uld riot be consistent with the -:~ c ' 

· k::t:'·s pU:tpose--ana·palicies. The ability to proceed against owners for 

contractor violations was intended to provide an effective tool for 

protecting the safety and health of miners. To use this tool as a mere 

administrative expedient w::>uld be an abuse. 

For these reasons, the decision of the administrative law judge 

finding that Old Ben violated the Act is affinned. 

~Cr1=~ ~i'1 Pearlman Nease, Comnissioner 

·-· 

Backley, Corrrnissioner, dissenting: 

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

1977 (1977 Act), but poses the sarce question as was presented to the 

Ccmnission in Republic Steel Corporation (Republic), 1/ a case that was 

decided under the Federal Coal r.tine Health and Safety-Act of 1969 (1969 

Act). Under the 1969 Act, the tenn "independent contractor" was not 

included.in the statutory definition of "operator". 2/ H~ver, oourt 

decisions, in interpreting that word, held that under the definition of 

"operator" in the 1969 Act an independent oonstruction oontractor oould 1 

re oonsidered a coal mine operator. 3/ In the enactment of the 1.977 Act, 

Congress, noting with approval such ]udicial interpretation, 4/ amended 

the definition of "operator" to include independent contractors perfonning 

services or construction at a mine. 

2/ 

3/ 

Secretary of Labor v. Republic Steel Corporation, Docket Nos. 

IBMA 76-28, MJRG 76-21, IBMA 77-39, M:>RG 76X95-P, Camt. 

No. 79-4-4. 

30 u.s.c. §802 (d). 

Bituminous Coal Operators' Association v. Secretary of the Interior, 

541 F.2d 240 (4th Cir. 1977), (s::DA); Association of Bituminous 

Contractors Inc., (ABC) v. Andrus, 581 F.2d 852 {D.C. €ir. 1978). 

The Senate camri.ttee Report specifically cites the ECOA decision. 

S. Rep. No. 95-181, 95th Cong., 1st Sess. 14 (1977)-. -

1487 
Accordingly, under both Acts an independent contractor can be held 

liable as a mine operator. The under 1 ying question thus presented in 

both Republic and the instant case is under what circumstances should 

liability of the contractor attach. Today's majority opinion sheds 

little light on this question. As in Republic, the majority has-.he:l,d 

the owner-operator liable on a theory of absolu~e or _strict liability 

without any consideration of the action or inactlonof .the"independent 

contractor. 5/ 

H~ver, it is apparent that the majority has retreated from its 

rigid :i;:osition, as enunciated in Republic, of approving without meaningful 

review the Secretary's imposition of absolute liability on the CM!leroperator and nCM considers such :i;:olicy of the Secretary to be "permissive" 

dependent u:i;:on the Secretary's promulgation of regulations discussed 

later herein. The fact remains, however, that the majority has disregarded 

the facts presented in this case and, accordingly, has deferred to the 

Secretary's present ill-founded :i;:olicy of citing only the owner-operator. 

Accordingly, I must dissent. 

As in Republic, I do not dissent from the court sup:i;:orted pro:i;:osition 

that the statutory language permits the imposition of absolute liability 

on owner-operators for independent contractor violations. Hc:Mever, the 

Secretary of Labor and this Commission have an obligation to determine 

under what circumstances imposition of the statutorily permissible 

concept of absolute liability will best pronote the safety and health of 

miners. Thus the thrust of my dissent, both in Republic and in the 

instant case, goes to the question of whether the owner-operators, under 

the facts presented to us, should be held liable for the violations of 

their contractors. I submit that the answer to the latter question 

depends on the factual situation presented in each case :rreasured against 

a standard of preventative control. §I 

6/ 

In lieu of the term "absolute liability", the majority finds 

Old Ben can be held res:i;:onsible "as a matter of law ••• without 

fault ••• ". The phrase, "a distinction without a difference," 

I believe, is appropriate. 

While conceding that "one operator may be in a better :i;:osition to 

prevent the violation," the majority then, surprisingly, proceeds 

to reason that that "issue" need not be decided, attributing such 

reasoning to Congress. It would appear that the ability to prevent 

a violation from taking place v-Duld do rrore for the pronotion of 

health and safety, then the blind assertion that Congress allows 

"the im:i;:osition of liability on both operators" regardless of their 

relative position insofar as a violation is concerned. The 

rationale that Congress "endorsed the conclusion that owners can 

be held solely res:i;:onsible for contractor violations" does not 

sup:i;:ort the conclusion that they should. This leap in logic ignores 

safety, for to hold one party liable who is in a lesser :i;:osition to 

prevent violations provides little comfort for the miners. 

1488 
Thus, as I indicated in Republic, I 'l;<.Duld impose liability on the 

person rrost able to prevent the violation and to correct it quickly 

should it occur. In my opinion that person would be the party who has 

functional control of, or supervision over, the work activity in that 

portion of the mine where the violation occurred. 

Accordingly, I submit that there rrust be, at a minimum, some rational 

relationship between the owner-operator and the wrongdoing alleged in 

the citation before the CMner-operator should be held legally responsible 

for the violation. Such relationship does not exist under the facts of 

this case as examined below. Therefore, I conclude that Old Ben should 

not be held liable for the violation corrmitted by its independent contractor. 

Application of the concept of absolute liability of the owner-operator 

regardless of the facts can produce only unreasonable results as this 

case clearly derronstrates. 

An inspection of the Old Ben No. 2 Strip Mine was ma.de by Deparbnent 

of Labor inspector Joseph Hensley on April 10, 11 and 12, 1978. During 

the inspection employees of an independent construction contractor, 

ANSCO, Inc. , were working at two different locations on the mine property. 

ANSCO had been contracted by Old Ben to construct a structure to be used 

in repairing the dragline shovel buckets used at the No. 2 strip mine. 

ANSCO employees were also on mine property constructing an addition to 

the tipple. 

On April 11th, Inspector Hensley visited the construction site at 

the tipple and observed four men working in an elevated position with 

neither safety belts nor scaffolding. Hensley pointed out this safety 

hazard to Dale Wools, the Old Ben representative accompanying him, who 

asked the men to "come dCMn. 11 Hensley and Wools then contacted William 

Wagner, ANSCD' s superintendent of construction at the No. 2 mine. 

Inspector Hensley explained to Mr. Wagner "at that time what the law 

said about safety belts and what was required for his men to do when 

working on an elevated platfonn and he assured me [Hensley] at that time 

that he would have none of his men working from an elevated position 

again unless they were 'VVearing safety belts." (TR. 20) 

On April 12th Inspector Hensley was again accompanied on the continuation of his inspection by Old Ben's representative, Dale Wools. 

While driving by the bucket building construction site with Mr. Wools, 

the inspector observed an employee of ANSCO working 15 to 20 feet in the 

air standing on an I-beam. The employee, who was welding, was not 

wearing a safety belt and was not using scaffolding which was available 

at the site. The inspector instructed the Old Ben representative to have 

the man come to the ground, which he did. When the employee descended 

the inspector considered the violation to be abated. (TR. 32) There 

were no other Old Ben hourly employees or supervisors in the inmediate 

vicinity of the construction site. ANSCO's construction supervisor, 

Mr. Wagner, was on the mine property but he was not at the bucket. 

building construction site at the time of the violation. (TR. 34, 35) 

1489 
The ANSCO employee who was cited for failure to wear the safety 

belt stated to Inspector Hensley at the time of the violation "that he 

knew that he was required to wear safety belts but he was instructed" by 

Mr. Wagner "that he had to get the job done and that there were no belts 

available for him so he went up" without the safety belt. (TR. 37) The 

ANSCO employee had further explained that "he had just a quick job. His 

foreman was in the office waking a phone call and he thought he would 

get the job done right away while the foreman was gone and have it done 

when he got back." (TR. 50) 

Inspector Hensley also testified that he issued the citation to Old 

Ben under the unwarrantable failure provisions of section 104(d) 7/ because 

he had previously explained the safety belt requirements to the ANSCO 

supervisor and because the ANSCO employee admitted that he knew he was 

violating a safety standard. (TR. 35) 

The contract between Old Ben and A."l\JSCO provided that ANSCO was to 

erect the building for a fixed sum according to certain specifications. 

The administrative law judge made a finding that under the tenns of the 

contract and in carrying it out, ANSCO was independent of any control by 

Old Ben. He further found that ANSCO' s employees were supervised by its 

CMn supervisor and Old Ben did not hire, fire, direct or control them in 

their duties. (Dec. p. 2, 3) The employee in question was not directly 

or indirectly under Old Ben's control. (Dec. p. 4) 

Thus under these facts, Old Ben has been assessed a civil penalty 

of $750.00 as a result of the poor safety practices of a construction 

company's employee over which they had no practical control. Furthermore, 

Old Ben's No. 2 Strip Mine was subjected to the potential closure sanctions 

of the unwarrantable provisions of section 104(d) of the Act not because 

of any action or inaction of Old Ben, but, according to the testirrony of 

the inspector, because of the laxity of supervision by ANSCO and the act 

of the ANSCO employee in flagrantly corrmitting the violation. 

The transcript of the evidentiary hearing in this case indicates 

that the inspector felt he had been placed in an awkward position by the 

MSHA policy as enunciated by counsel at the hearing. In response to a 

question from the Judge as to why the inspector did not cite J:oth the 

owner-operator and the independent contractor, the Secretary's counsel 

stated that "there are no regulations out now that state we can cite 

independent contractors for violations." (TR. 7) Counsel further 

stated: 

"The present practice of the Secretary is to cite 

the owner-operators of all violations that are 

conmitted on the (mine) property ••. " (TR. 8) 

The inspector was clearly aware of this policy to cite only CMneroperators and not independent contractors. However, his testirrony 

indicates that he sensed he was citing an improper party, but was helpless 

to remedy the situation because of the restrictions placed upon him. 

7/ 30 USC §814(d) 

1490 
Inspector Hensley was asked at the evidentiary hearing why Old Ben 

was cited instead of ANSCO. He replied as follows: 

"I had no provisions to cite ANSCO at that time. We 

were aware of the law, the '77 Act that they were 

trying to promulgate laws for construction people to 

get them to stand on their o..vn :rrerits but at the time, 

there were no laws in effect at which there is not yet, 

as far as I am aware of, maybe there is but as far as I 

am aware of there is no law governing contractors. 

They still came under the jurisdiction of the mine 

while they are on mine property. If you will note on 

my citation, I did write in the body of the citation 

that it was ANSCO." (TR. 28) 

There is, of course, a "law governing contractors." What does not 

exist, hTMever, is a rational application of that law -- only a policy 

of what can best be described as one based principally on administrative 

convenience. 

As noted by the majority, the Secretary made public in October 1978, 

a draft of proposed regulations establishing criteria by which independent 

contractors vvould be designated operators. On August 14, 1979, 17 m:mths 

and 5 days after the effective date of the Act the revised proposed 

rules were published by the Secretary. In both the draft version and 

the final 8/ proposed version of the rules,-the preambles make it clear 

that in determining liability as between the o..vner-operator and the 

independent contractor, the pararrount concern is improved safety and 

health conditions for miners. I am in full agreement with that underlying 

premise. The preamble to the proposed rules published in August further 

states that ".MSHA's experience under the 1969 Coal Act and the 1977 Act 

has been that persons controlling a mine are generally in a position to 

act rrore responsibly and effectively with regard to safety and health 

conditions at the mine." (F.R. p. 47747) I believe that conclusion of 

the enforcement arm of the Secretary is rrost important and should be 

given careful consideration. So as to fulfill the Congressional mandate 

to rrost effectively prorrote the health and safety of the miner, the 

Secretary then concludes as follows: 

Accordingly, under the proposed rule the primary 

criterion for identification of independent 

contractors as operators would be whether the 

contractor will have effective control over an 

area of the mine during the performance of its 

work. 

8/ The proposal of August 14, 1979, provides for a 60-day corrment 

period. Accordingly the finality of the proposal is, at this 

point, tenuous. 

1491 
In Republic, I set forth criteria I would utilize in detennining 

the responsible party. Those criteria have much in com:ron with what the 

Secretary proposes. What I fail to understand is why the implementation 

of principles with which the Secretary agrees would rrore effectively 

prorrote the safety and health of the miners must await this interim 

period of formal departmental rulernaking with all of its delays, some 

inherent and some not. No satisfactory answer to this question has been 

advanced. I do not believe there is one. 9/ 

Certainly, administrative convenience, in and of itself, is an 

inadequate reason to sacrifice miners' safety. But the Secretary argues 

that continuation of the policy of prosecuting ONner-operators for 

independent contractors violations is not only rational but necessary. 

The Secretary states: 

If each inspector were to exercise the Secretary's 

prosecutorial discretion without guidelines, as the 

inspector saw fit, the resulting unpredictability, 

confusion, and potential unfairness would hann the 

Secretary's enforcement program and, potentially, 

disrupt the mining industry. (Brief of Secretary, 

p. 27, Monterey Coal Ccrnpany v. Secretary of Labor 

HOPE 78-469, et al.) 

I believe that the Secretary has overstated the practical difficulties which inspectors encounter at the mine site in the vast majority 

of situations involving violations of independent contractors. The 

portions of the record cited arove in the instant case serves to 

illustrate this point. The record reveals an inspector who knew through 

experience which party should have been held responsible, but who was 

unable to exercise this expertise as a result of the Secretary's interim 

policy. 

The majority opinion correctly, in my view, outlines the Corrmission's 

role vis-a-vis that of the Secretary in reviewing the latter's enforcement 

policy. In this regard, I agree with the majority's statement that 

" ••• The Corrmission was intended to play a major role under the 1977 Act 

by reviewing the Secretary's enforcement actions and fonnulating mine 

safety and health policy on a national basis." [Emphasis supplied] 

Unfortunately, having said that, my colleagues defer again to the 

Secretary in this case, notwithstanding the facts.of this case, let 

alone their own well articulated description of their roles as members 

of the Commission. One can only hope, in reading their decision, that 

their patience is growing thin insofar as the Secretary's failure to 

establish a policy that allcws the enforcement of the Act against the 

9/ While this issue is not before us, the question as to why one class 

of "operator" must be further defined beyond the statutory 

definition, gives me some problems. The Secretary's regulations 

will condition liability in the case of independent contractors but 

not in the case of an owner-operator. I find no such distinction 

in the Act. 

1492 
"other operator," the independent contractor. Even rrore .llnportant it 

remains to be seen what their position will be if the Secretary continues 

to be dilatory in his promulgation of such a :i;olicy. Nothing in their 

opinion suggests an ~r to this question. 

For the reasons set forth herein and in Republic, I would reverse 

the decision of the administrative law judge. 

~~ Richard v. Ba&rey;camI\iSSiOir 

149.1 
FEDERAL MINE SAFETY AND HEALTH REVIE\V COMMISSION 

PEABODY COAL COMPANY 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 31, 1979 

Docket Nos. VINC 77-12-P 

VINC 77-13-P 

IBMA No. 77-57 

DECISION 

This appeal was pending before the Interior Department Board of 

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

the Connnission for decision. 30 U.S.C. §961 (1978). Peabody is appealing the decision of an administrative law judge finding that it violated 

two mandatory standards of the Act, 30 CFR 77.404(a) and 30 CFR 

77 .1713(a). 1./ 

The two notices of violation were issued following a fatal accident 

at Peabody's Lynneville Mine. On June 18, 1975, the foreman assigned 

two mechanics to change a flat tire on a coal haulage truck. After the 

mechanics removed the tire from the truck, it was transported with a 

forklift to a storage area. They then lifted the new 2,500 pound tire 

onto one of the tines of the forklift and transported it back to the 

truck to install it. When the mechanics began to put the new tire on 

the truck they realized that two of the studs on the wheel were broken. 

They backed the forklift away from the hub of the wheel and parked it. 

One of the mechanics went to advise the foreman, who had left the 

vicinity, that a nut had to be welded on a stud before the tire could be 

replaced. The victim came and welded a nut to the stud. While the weld 

cooled, the victim and the mechanics took a coffee break. The foreman 

returned to the area while the men were on their break. He observed the 

parked forklift and saw the tire suspended 18 inches from the ground. 

When the men returned from their break, one of the mechanics noticed the 

forklift tines had descended so that the bottom of the tire was resting 

on its treads on the ground. As the mechanics and the victim approached 

the forklift the tire fell on its side, striking the victim and fatally 

injuring him. 

The accident investigation revealed that during the time the tire 

was on the forklift its tines were slowly descending toward the ground 

due to hydraulic leakage. The leak was internal and not visible. It 

caused the tines to descend at a rate of approximately one inch per 

minute. 

1:_/ Two additional alleged violations of 30 CFR 77.1708 and 30 CFR 

77.208 were dismissed by the judge and are not at issue in this appeal. 

79-10-20 

1494 
In August 1973, a similar fatal accident occurred at Peabody's Hill 

Scarlett Mine. During a tire changing operation a tire toppled off the 

tines of a forklift fatally injuring a mechanic. 2:_/ The foreman knew of 

the prior fatality. 

The judge held that Peabody violated 30 CF~ 77.404(a), which provides: "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 irnnediately." He found "the 

operator was in violation of the section because of the internal hydraulic 

leakage" and assessed a penalty of $6,000 for the violation. 

We affirm the judge's finding of a violation of 30 CFR 77.404(a). 

The regulation imposes two duties upon an operator: (1) to maintain 

machinery and equipment in safe operating condition, and (2) to remove 

unsafe equipment from service. Derogation of either duty violates the 

regulation. The company admitted the presence of the hydraulic leak. In 

doing so, it admitted the forklift was not maintained in "safe operating 

condition." The existence of the violation was established. The company 

argues it could not violate the regulation without knowledge of the 

leak, and it would have us condition liability upon prior knowledge. 

This we cannot do. The regulation requires that operators maintain 

nachinery and equipment in safe operating condition and imposes liability 

upon an operator regardless of its knowledge of unsafe conditions. What 

the operator knew or should have known is relevant, if at all, in determining the appropriate penalty, not in determining whether a violation 

of the regulation occurred. 

The judge also determined that Peabody violated 30 CFR 77.1713(a). 11 

The judge acknowledged that the foreman did not know of the leak, but 

based on his knowledge of the past fatality, and the proximity of the 

tire and forklift to the truck, the foreman "should have realized that 

the lives and safety of the miners were dependent upon the integrity of 

the hydraulic system of the forklift truck." A penalty of $6,000 was 

assessed by the judge. 

We also affirm the judge's holding that the company violated 30 CFR 

77.1713(a). The regulation is broadly worded and requires, among other 

things, that a designated certified person examine working areas f.or 

hazardous conditions as often as is necessary for safety and that any 

conditions noted be corrected by the operator. In this instance the 

foreman assigned the miners the task of changing the tire. He observed 

the unsecured tire hanging from the forklift in a working area. The 

Jj See MESA v. Peabody Coal Company, vrnc 74-927-P (Hay 3, 1976). 

11 Section 77.1713(a) provides: 

At least once during each working shift, or more often if aecessary 

for safety, each active working area and each active surface 

installation shall be examined by a certified person designated by 

the operator to conduct such examinations for hazardous conditions 

and any hazardous conditions noted during such examinations shall 

be reported to the operator and shall be corrected by the operator. 

1495 
foreman knew of the prior accident. He should have known that the 

practice of changing tires with a forklift was potentially hazardous. 

The failure to correct the hazard by, for example, insuring that the 

hydraulic system was functioning properly, or by securing the tire,' or 

by removing it from the working area constituted a violation of the 

regulation. 

Finally, Peabody's contention that the judge erred in assessing 

penalties of $6,000 for each of the violations is without merit. The 

penalties assessed are appropriate and will not be disturbed. 

Accordingly, the judge's decisio~rmed. 

Marian Commissioner 

Waldie, Chairman, and Backley, Commissioner, co~curringin part and dissenting 

in part: 

While we concur with the majority in affi:tming the administrative 

law judge's finding of a violation of 30 CFR §77.404(a), we must dissent 

from their conclusion regarding the violation of 30 CFR §77.1713(a). We 

do so because the findings of the judge as set out on page 6 of his 

decision do not support a violation of that regulation, 1/ the key to 

which is the "examination for hazardous conditions" and the reporting 

thereof. 

1/ The Administrative Procedures Act requires the decision to include 

such support. 5 U.S.C. 557(c) reads, in pertinent part: 

"All decisions ••• are part of the record and shall 

include a statement of--

(A) findings and conclusions, and the 

reasons or basis therefor, on all the 

material issues of fact, law, or discretion 

presented on the record; ••• " 

1496 
Either the majority has misinterpreted the findings of the judge or 

has rewritten them to conform to the record so as to support a violation 

of the regulation in question. Regarding the "hazardous condition" 

requirement of the standard, the judge found that the "lives and safety 

of the miners were dependent upon the integrity of the hydraulic system" 

(emphasis added). He went on to hold that, although the foreman had no 

personal knowledge of this hazard, such knowledge could be imputed to 

the operator. Evidently, the judge imputes this knowledge from the 

recognized fact that "hydraulic systems do occasionally leak" and the 

operator's "past experience with a similar fatality." However, the 

"similar fatality" to which he refers did not result from a hydraulic 

leak, the basis of the judge's findings, but involved similar tire 

changing procedures which produced the unfortunate results to which the 

judge refers. Accordingly, we find it difficult to impute knowledge of 

a hydraulic leak where there is no basis for such imputation in the 

record. 

If the judge had made the findings attributed to him by the majority, 

we would have little problem in affirming him. However, such is not the 

case. The judge based his finding solely on imputed knowledge of the 

hydraulic leak, the fact of which, the record discloses, the foreman was 

unaware. The judge' found no breach of the duty to inspect the forklift 

nor did he find any breach of the duty to report the hazardous conditions 

as to the latter. The judge specifically found that the foreman "did 

not know it [the forklift] was hazardous because he did not know of the 

hydraulic leak." Having said that, he then imputes knowledge of such 

leak based, in part at least, on a faulty premise--the operator's past 

experience with a similar fatality which did not involve a hydraulic 

leak. ]:_/ We do not believe such imputation is contemplated, permitted 

or warranted under the cited standard, yet alone the facts. 

Furthermore, the majority opinion fails to address a major argument 

of the applicant. Counsel's brief argues that under the findings of the 

judge, a violation of §77.1713(a) is duplicative of a violation of 

§77.404(a) and the imposition of a penalty for each constitutes an 

unreasonable multiplication of violations and assessments. The judge 

found a violation of §77.404(a) on the basis that the hydraulic leak 

demonstrated that the operator failed to properly maintain the forklift 

and failed to remove it from service when it became unsafe. The judge 

then imputes to the operator the knowledge that maintenance and inspection 

2/ It is far from clear as to the finding of a violation of §77.1713(a) 

is concerned, what role, if any, "common knowledge that hydraulic 

systems do occasionally leak" played. The opinion, as written, 

does not refer to this "fact" in support of the violation in question, 

but to the violation of §77.404(a). 

1497 
of the forklift was not taking place and finds a violation of §77.1713(a) 

for failure of the operator to di~cover and correct the condition of the 

forklift in the course of the on-shift examination. In summary, the 

appellant has argued that an operator should not be sanctioned twic~ for 

what, in essence, is the same conduct--failure to discover the condition 

of the forklift. We agree. The majority refuses to disassociate itself 

fro}li the finding of the judge that the "hazardous condition" necessary 

for a violation of §77.1713(a) consisted of the leaking hydraulic system 

on the forklift. In so doing, today·' s decision fails to cure what 

appears to-us to be duplicative findings of the judge. 

One final comment is in order. We do not believe that Congress 

intended our role as a reviewing body to include the authority to substitute our findings for that of the trial judge unless such findings 

are unsupported by substantial evidence of record. Section 113(d)(2)(A)(ii), 

Federal Mine Safety and Health Act of 1977. 

The majority opinion provides no analysis as to whether the judge's 

findings upon which he bases his conclusion that §77.1713(a) was violated 

are supported by substantial evidence of the record. On the contrary, 

in order to support the violation, the majority provides supposition and 

example, none of which are part of the findings. 

Accordingly, we would reverse the judge as to his conclusion that a 

violation of §77.1713(a) is supported by the findings of record. 

Jer~aldie, ~t_0&:4· Chairma~ 

oner 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 31, 1979 

CLIMAX MOLYBDENUM COMPANY, 

a division of AMAX INC. 

v. Docket Nos. DENV 79-102-M 

through 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION 

(MSHA), 

and 

OIL, CHEMICAL, AND ATOMIC 

WORKERS' INTERNATIONAL UNION, 

LOCAL 2-24410 

DENV 79-105-M 

ORDER 

On September 21, 1979, the Commission granted a petition for discretionary review, filed by Climax Molybdenum Company, of an administrative law judge's decision. Climax has filed its brief on review of 

that decision and has also filed a motion to accept attachments to its 

brief "as part of the record". The attachments are a deposition of an 

MSP..A inspector, with an outline of the deposition; and a Mine Safety and 

Health Administration (MSHA) document purporting to interpret and 

explaining MSHA's enforcement of the silica dust standard. Climax 

states that the material would support its arguments in its brief, and 

that the Secretary of Labor would not be prejudiced by the granting of 

the motion, because attorneys for the Secretary were present at the 

deposing of the inspector and received copies of the deposition 

transcript, and because the Secretary supplied the MSHA document. 

Section 113(d)(2)(C) of the Federal Mine Safety Health Act of 1977, 

30 U.S.C. §801, states what constitutes the record on review of a 

judge's decision: the record upon which the decision of the judge was 

based, the rulings on the parties' proposed findings and conclusions, 

the judge's decision, the petition for discretionary review and responses thereto, the direction for review, and the parties' briefs on 

review. The section also states that "[n]o other material shall be 

considered by the Commission upon review .... If the Commission 

determines that further evidence is necessary on an issue of fact it 

shall remand the case for further proceedings before the administrative 

law judge." These provisions evince the Congress' view that the 

79-10-21 

1499 
adjudication process is best served if the administrative law judge is 

first given the opportunity to admit and examine all the evidence before 

making his decision. The motion to accept the attachments is therefore 

denied; the attachments will not be considered by the Commission. See 

Helvetia Coal Co., 1 FMSHRC 26, 1 BNA MSHC 2070 (1979). 

We note that Climax's brief relies upon the material attached to 

its brief. References to this material appear on pages 4, 5 and 12 

of the brief. Within 15 days of the issuance of this order, Climax 

may either file revisions of those pages or a new brief that does 

not cite or rely upon the excluded material. 

The Secretary of Labor has filed a motion requesting an extension 

of time for filing its response brief from November 5, 1979 to 

November 19, 1979. In view of the need for modifications in Climax's 

brief, the Secretary's brief is due within 20 days after Climax's 

new brief or revisions are served upon the Secretary. 

Chairman 

Richard V. Backley, 

A. E. Lawson, Commissioner 

\~bUw~ww\lorμq Marian Pearlman Nease, Commissioner 

1500 
ADMINISTRATIVE LAW JUDGE DECISIONS. 

OCTOBER 1 - 31, 1979 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 1, 1979 

SECRETARY OF LABOR Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. DENV 79-29-P 

A.G. No. 05-003001-03001F 

v. 

Dutch Creek No. 1 Mine 

MID-CONTINENT COAL AND COKE 

COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION 

James Abrams, Esq. and James Barkley, Esq., Office 

of the Solicitor, Department of Labor, Denver 

Colorado, for Petitioner; 

Edward Mulhall, Jr., Esq., Delaney and Balcomb, 

Glenwood Springs, Colorado, for Respondent. 

Chief Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

This proceeding was heard on the merits before Judge Malcolm P. 

Littlefield, in Denver, Colorado, on June 12 and June 13, 1979. 

Judge Littlefield retired from Federal service on June 30, 1979, 

before he was able to issue a decision in the case. With the consent 

of counsel, the matter was assigned to me for decision b.ased upon the 

record made before Judge Littlefield and the contentions of the parties. Posthearing briefs were filed on behalf of both parties. To 

the extent of the proposed findings and conclusions are not incorporated in this decision, they are rejected. 

Philips Gibson, Jr. and Freeman Staples, Federal mine inspectors, 

testified on behalf of Pestitioner. Donald Ford and John Turner 

testified on behalf of Respondent. 

The case arises under the Coal Mine Health and Safety Act of 

1969, 30 u.s.c. § 801 et seq. The Act was amended by the Federal Mine 

Safety and Health Act Of 1977 which became effective March 9, 1978. 

The amendments do not affect this case. 

1501 
STATUTORY PROVISION 

Section 109 of the Coal Mine Safety Act provides in part: 

The operator of a coal mine in which a violation 

occurs of a mandatory health or safety standard * * * 

shall be assessed a civil penalty * * * [of] not more 

than $10,000 * * *· In determining the amount of the 

penalty, the Secretary shall consider the operator's 

history of previous violations, the appropriateness of 

such penalty to the size of the business of the operator 

charged, whether the operator was negligent, the effect 

on the operator's ability to continue in business, the 

gravity of the violation, and the demonstrated good faith 

of the operator charged in attempting to achieve rapid 

compliance after notification of a violation. 

REGULATORY PROVISION 

30 CFR 75.1725(a) provides: "Mobile and stationary machinery 

and equipiment shall be maintained in safe operating condition and 

machinery or equipment in unsafe condition shall be removed from 

service immediately." 

ISSUES 

1. Whether Petitioner established that the violation charged 

in the notice occurred; more specifically whether the Respondent 

was shown to have failed to maintain the hoist assembly and wire 

rope used in raising and lowering the ventilation door on the inby 

end of the No. 50 crosscut between No. 6 and No. 7 slopes in the 

subject mine in safe condition on January 17, 1978? 

2. If a violation occurred, what is the appropriate penalty 

and with respect to the questions of gravity and negligence, was 

the violation related to the fatality which occurred on January 17, 

1978? 

MOTION TO REOPEN RECORD AND ADMIT EXHIBIT 

On September 4, 1979, Petitioner moved to reopen the record for 

the purpose of admitting into evidence Petitioner's Exhibit G-2, a 

computer printout of the history of violations of the operator at 

the subject mine from January 18, 1976 to January 17, 1978. Respondent has not filed a reply. The motion is GRANTED and Petitioner's 

Exhibit G-2 is received in evidence. 

1502 
FINDINGS OF FACT 

1. Respondent, Mid-Continent Coal and Coke Company, on January 17, 

1978, and prior thereto, was the operator of a coal mine in Petkin 

County, Colorado, known as The Dutch Creek No. 1 Mine, I.D. No. 

46-01477. 

2. The record does not contain evidence concerning the size of 

Respondent's business. 

DISCUSSION 

Petitioner's posthearing brief states that "this firm registered 

over 1-1/2 million production tons per year when the proposed assessment was issued." I have not found evidence in the record to support 

this statement either by way of testimony, exhibits, stipulations or 

otherwise. I can assume from Exhibit G-2 showing the number of prior 

violations that the operator is not small. In the absence of more 

specific evidence on this issue, I will treat the size of the business 

of Respondent as moderately large. 

3. There is no evidence that the assessment of a penalty herein 

will affect Respondent's ability to continue in business, and therefore, I find that it will not. 

4. Exhibit G-2 shows a total of 419 paid violations occurring 

at the subject mine between January 18, 1976 and January 17, 1978, 

including eight violations of 30 CFR 75.1425. I find this to be a 

substantial history of prior violations and if a penalty is assessed 

herein, it will reflect this finding. 

5. The evidence establishes that Respondent showed good faith 

in promptly abating the condition after the notice was issued. 

6. On January 17, 1978, a fatal accident occurred at the subject 

mine. The driver of a battery-powered scoop tractor was killed when 

his chest was crushed by a partially opened airlock door located on 

the inby end of the No. 50 crosscut between No. 6 and No. 7 slope in 

the subject mine. 

7. On January 17, 1978, Philip R. Gibson, a coal mine inspector 

and a duly authorized representative of the Secretary, issued Respondent a notice in which he alleged a violation of 30 CFR 75.1725(a). 

VIOLATION 

8. On January 17, 1978, one of the two wire ropes used to 

lift the airlock door was frayed and abraded; four of its six strands 

were broken. The frayed portions of the cable would not pass through 

the pulley system used in lifting the door. 

1503 
9. On January 17, 1978, the "keys" in the griphoist cranking 

lever used to raise the airlock door were missing and were replaced 

by a nail and a screw. It was necessary for one operating the lever 

to hold the nail and screw in place while operating the cranking 

lever with his other hand. 

10. The condition found in Finding of Fact No. 8 was unsafe, in 

that it could result in injuries to miners if the cable broke. 

11. The conditions found in Findings of Fact No. 8 and No. 9 

were unsafe in th~t it rendered raising the door more difficult 

and required more physical exertion. 

GRAVITY 

12. Three employees were potentially exposed to the unsafe conditions found to exist in Findings of Fact No. 10 and No. 11, one on 

each shift. 

13. The employees referred to above were material handlers who 

carried supplies to the working section. When such employees reached 

the door, they were required to leave their vehicles, open the outby 

door, drive through the door, lower the door and repeat the process 

for the inby door, thereby maintaining an airlock and preventing 

disruption in mine ventilation. 

14. The door in question was 4 feet high, and 13 feet 9 inches 

wide with a 6 inch flap on each side. It was constructed of 1/4 inch 

plate steel, and weighed over 850 pounds. The capacity for lifting 

materials of the griphoist mechanism in question was 2,000 pounds. 

15. The crosscut in question was 20 to 22 feet wide and 7 to 

8 feet high. 

16. On January 17, 1978, an employee of Respondent, the driver 

of a battery-powered scoop tractor was killed when his chest was 

crushed by the inby airlock door as he was driving through. There 

were no witnesses to the accident. 

17. The tractor headlight was damaged, indicating that the 

vehicle struck the door in proceeding through the opening before 

the fatal injury. 

DISCUSSION 

Much of the testimony at the hearing and much of the discussion 

in the posthearing briefs of counsel is directed to the question of 

the cause of the fatality. Whether in fact the alleged safe.ty violation caused the fatality is not per se an issue in this proceeding. 

However, if the alleged safety violation did or could have contributed 

1504 
to a fatal injury, it would of course be important in determining the 

gravity of the violation. The evidence of record would not support a 

finding that the fatal injury was in fact the result of the conditions 

found herein to exist in Findings of Fact No. 8 and No. 9. However, 

the record does show, and I find that the conditions just referred to 

could have resulted in or contributed to serious injuries to miners 

including fatal injuries. The conditions were very serious. 

NEGLIGENCE 

18. The conditions of the wire ropes described in Finding No. 8 

and of the griphoist cranking level described in Finding No. 9, were 

evident to visual inspection. They were or should have been known 

to Respondent's management as the result of preshift examirtations. 

The conditions had existed at least for some days prior to January 17, 

1978. 

CONCLUSIONS OF LAW 

1. Respondent on January 17, 1978, and prior thereto, was subject to the provisions of the Coal Mine gealth and Safety Act of 

1969, with respect to the operation of the subject mine. 

2. As an Administrative Law Judge of the Mine Safety and Health 

Review Commission I have jurisdiction of the parties and subject 

matter of this proceeding. 

3. The conditions found in Findings of Fact Nos. 8 and 9 constituted a violation of the mandatory safety standard contained in 

30 CFR 75.1725(a). 

4. The violation described in Conclusion No. 3 was very serious 

and was the result of Respondent's negligence. 

5. Based on the above findings of fact and conclusions of law 

and considering the criteria in section 109 of the Act, I determine 

that an appropriate penalty for the violation is $7,000. 

ORDER 

Respondent is ordered to pay, within 30 days of this decision, 

the sum of $7,000 as a civil penalty for the violation of the mandatory safety standard in 30 CFR 75.1425(a) on January 17, 1978. 

4<:1 11u:--~ -· w: /:./ ck-v? ~/c .·· James A. Broderick 

L..-· Chief Administrative Law Judge 

1505 
Sh. F·· ~~:; .\/ ~:._~~~ ~) ~=~ ::;~/~~ ~--~- ~~~ i·~: ~~: \/ ~ L~: VJ CC·~\:~~'->~ e SS~C;N 

OFFICE OF ADi\fil~i~~;1RJ~TiVt:: L! .. VJ ~UDGES . 

4015. Vv'ILS01~ ~30ULEV,_\h:D 

ARLiNGTON, vm.,; INll\ 2.2203 

SECRETARY OF LABOR> Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

AD.MINISTRATION (HSHA), 

Petitioner 

Docket No. BARB 79-61-PM 

A.O. No. 40-00840-05001 

v. 

Knoxville Quarry 

rm.AL CEMENT COMPANY. 

Appearances: 

Before: 

Respondent Docket No. BARB 79-267-P.M 

A.O. No. 40-00840-05002 

Knoxville Hine & Hill 

DF.CISlONS 

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

Le1bor> Nashville> Tennes~~ce, for the petitioner; 

Norman H. WiJJiams, Esq., Knoxville, Tennessee, 

for the respondent. 

Judge Koutras 

Statement of tlie Cases 

These proceedings concern proposals for assessment" of civil penalties filed by the petitioher against the respondent on October 26, 

1978, and January 31, 1979, pursuant to section llO(a) of the Federal 

Mine Safety and Health Act of 1977, chaq~ing the respond~nt with 

eight alleged violations of certain mandatory safely standards set 

forth in Part 56, Title 30, Co9e of Federal Regulations. 

Respondent filed timely answers to the proposals, a hearing was 

convened at Knoxville, Tennessee, on Hay 23, 1979, and the parties 

appeared by and through counsel. Respondent filed posthearing proposed findings and conclusions, but petitioner did not. 

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 in these proceedings, and, if so, 

1506 
(2) the appropriate civil penalties that should he assessed against 

the respondent for the alleged violations based upon the criteria 

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

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) ~~ether 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 cifter notification of the 

violation. 

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

30 u.s.c. § 801 ~ ~· 

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

3. Commission Rules, 29 CFR 2700.1 et seq. 

Discussion 

Docket No. BARB 79-61-PM 

The proposals for assessment of civil penalties filed in this 

docket allege seven violations set forth in the following citations: 

Citation No. 107001, March 14, 1978, 30 CFR 56.9-87, states as 

follo~..-The ai::itomaticr~verse alarm for the b w 15 quarry haulage 

truck did not function properly \.'hen the truck was backing up to 

be loaded by the shovel in the quarry." 

Petitioner's Testimoi:iy 

MSHA inspector Donald F. Downs testified that respondent operates 

a quarry where material is extracted and hauled approximately half a 

mile out of the quarry to the primary crusher y;here it is sized and 

processed through more crushers, mills, slurry tanks, kilns, and then 

to the bagging system. Some of the ingredients for the cement product 

come from gyps11m, limestone, clay, and iron, and after the ingredients 

are combined, the cement is bagged and loaded on flatbed trucks and 

hauled to or loaded into railroad cars. 

The inspector confirmed that on March 14, he issueG Citation No. 

107001 and served it upon Dave Ross, respondent's safety director, 

1507 
after finding.that the automatic reverse alarm was not working on the 

quarry haul truck LW 15. The haul truck was hauling quarried broken 

limestone from the quarry to the primary crusher and the backup alarm 

was not working, and prior to issuing the citation, he discussed the 

condition with Mr. Ross and possibly the quarry foreman (Tr. 10-14). 

Inspector Downs indicated that while an alrirm was installed on 

the truck, it was not functioning properly in that it was not emitting 

a noise louder than the surrounding noise, and, in fact, was not emitting any sound. He did not notice anyone around the vehicle while it 

was operating, and did not notice anyone giving signals prior to the 

vehicle being placed in reverse. Prior to his issuing the citation, 

Mr. Ross did not say anything about the alarm other than to acknowledge that it was not working, and he indicated that it was going to be 

repaired. In Mr. Downs' opinion, any men immediately behind the truck 

would be obstructed, and a person would have to be at least 25 to 

30 feet behind the truck before the rear view mirror would be able to 

pick him up. He does not know how long the truck was operating prior 

to his citing the condition. He fixed the abatement time as 3 p.m., 

March 14, 1978, and it was abated at 1:30 p.m. the same day. The 

operator corrected the condition in good faith (Tr. 15-18). 

Inspector Downs stated that the hazard presented was the possibility of someone being run over, but the chance of this happening 

was improbable due to the fact that there was no flow of traffic in 

the area during the hour or so he was there. A heavy-duty truck 

running over someone could result in a fatality, and Mr. Downs 

believed that the condition should have been known by the operator 

because the quarry foreman is present in that area at various times 

during the day (Tr. 18-20). 

On cross-examination, Inspector Downs testified that when the 

truck was purchased he was aware of no safety requirement that 

required it to have an alarm installed, and he did not know how long 

the alarm had been inoperative. He did not discuss the matter with 

the truck driver, the driver may or may not have known that the alarm 

was inoperative, and because of the outside noise he may not have been 

able to hear the alarm while the truck was in operation. Compliance 

could have been achieved by having a flagman or an observer present, 

but te saw no such person there, although the loader operator was 

present. He stated that the truck does back up because it has to 

do so in order to dump and he has seen it dump in the past. He does 

not remember whether or not he ever rode in the truck, and could not 

state whether there was an obstructed view from the driver's seat 

(Tr. 25-38). 

On redirect examination, Inspector Downs testified that quarry 

operations and mills were covered by the 1969 Act and that since the 

aileged violation occurred at a quarry, it would have been covered 

under the' 1969 Act even though the cement processing plant and the 

1508 
mill may not have been covered under the 1969 Act. He did not know 

whether there was any state, Federal, or other type of law prior to 

the enactment of the subject standard that required a reverse alarm. 

The front-end loader would not be able to specifically see the truck 

driver. Whether or not the truck driver can hear the reverse alarm 

depends on how loud the backup alarm sounds and this is because the 

alarm must be louder than the surrounding noises. The truck engine is 

located in front of the reverse alarm, which, in turn, is in front of 

the driver, and the-truck driver must also be able to hear the reverse 

alarm (Tr. 38-42). 

In response to a question from the bench, Mr. Downs indicated 

that he did not review the company records on the particular truck 

to see whether it had been previously inspected, and he indicated 

that the driver is supposed to check out the truck (Tr. 44). He also 

testified that he had been in a truck of the same model before, but 

had never been in the driver's seat, and he does not recall the weather 

on March 14, 1978 (Tr. 47). Since he has never been in the driver's 

seat, he did not know whether the truck driver could see an observer 

to the rear (Tr. 51). 

On further redirect examination, Mr. Downs testified that the 

normal truck-operating procedure is to back up and take a load of 

limestone up to the primary crusher. There were three trucks opera ting out of the quarry with one driver and one loader operator on 

each truck. The loader operator simply loaded materials on the back 

of each truck (Tr. 52). 

Citation No. 107002, March 15, 1978, 30 CFR 56.14-6, states as 

follows: "The guard for the coal elevator chain drive was not kept 

in place. The coal elevator is located over the east end of the kiln 

building. The repair crew failed to replace the guard when through 

repairing the chain drive." 

Petitioner's Testimony 

Inspector Downs testified that he issued Citation No. 107002 

because the guard for the coal elevator chain drive was not kept in 

place, and he served the citation upon Dave Ross. He observed that 

the top half of the guard for the enclosed chain drive was off and 

lying some 2-1/2 feet from the walkway. The elevator had been 

guarded, but the guard was not secured in any fashion, and it was 

lying on the ground (Tr. 56-58). 

According to Mr. Downs, the bucket coal elevator brought the coal 

up to the top of the kiln building where it was dropped onto a screw 

conveyor for transportation to a storage tank. The walkway by the 

s~rew was full of coal and clinker dust, and the fact that he saw 

clinker dust on the walkway and the screw full of coal indicated to 

him that the buckets were operating. The kiln was burning, he could 

1509 
hear the noise of the kiln, and he therefore concluded that the 

machinery was operating and thus required a guard. There were no 

tools or equipment located near the guard that would give an indication that it was being tested. The coal elevator was enclosed, he 

could not see the buckets, and he is uncertain as to whether he ever 

saw the chain moving (Tr. 59-62). 

Mr. Downs further testified that he does not know whether the 

guard was replaced before the equipment was operated, although it is 

possible that it was. Other than the inspection party, there was no 

one else in the vicinity, and although there was no pedestrian traffic 

ar0und the unguarded chain, the coal operator and the crusher operator 

pass by the unguarded chain three or four times a day while they are 

checking the chutes (Tr. 63-68). Although he did not see a repair 

crew at this location, Mr. Downs testified that he knows that the 

repair crew was responsiQle for failing to replace the guard because 

.they are the only persons in the plant who do this work. Assuming 

that the repair crew did in fact fail to replace the guard when they 

were repairing the chain drive, it was negligence to leave it 

unguarded and not be around it (Tr. 63). 

On further recross-examination, Inspector Downs testified that 

he does not know how long the guard had been off, and he elected to 

cite the condition as a violation of section 56.14-6 rather than 

56.14-1 because it was not necessary that the machine be operating 

at the time in order to create a hazard. The only reason for anyone taking the guard off would have been either for testing or maintenance. Abatement of the condition was performed immediately and 

even before the citation was reduced to writing (Exh. P-2). There 

was no guarding by "location," and the provision of section 56.14-6 

stating that "the guard shall be securely in place while machinery is 

being operated," does not mean to him that the machinery must be in 

operation at the time it is observed before a violation can be issued, 

and this is because the machinery will eventually be started up and 

operated. 

In response to questions from the be~ch, Inspector Downs stated 

that in his experience, he does not consider guard railings or handrailing to be acceptable in lieu of the guarding requirement. The 

walkway in question is not a normal course of travel for people in and 

out of the plant, but rather it is a place that somebody would go to 

do some specific chore (Tr. 77). 

Respondent's Testimony 

Alphias K. Klashak, respondent's safety manager, testified 

regarding the safety standards issued pursuant to the 1977 Act, 

an·d indicated that he had experienced difficulties in obtaining 

copies of' the standards. He indicated that in addition to being 

1510 
covered by state mining laws, safety regulations, workman's compensation laws, union demands, union contracts on safety, respondent also has instituted company policies on safety. There have 

been inconsistencies or conflicts between all of the various regulatory groups and bodies, and from 1969 or 1970 until the fall of 

1976, respondent was under the jurisdiction of OSHA, and therefore 

both the backup alarm and the conveyor had previously been regulated 

by OSHA. Respondent did its best to comply with former regulations 

under OSHA and is presently trying to comply with regulations under 

the 1977 Mine Safety Act. 

With respect to the alleged violation pertaining to the backup 

horn, Mr. Klashak testified that he spoke with the driver about a week 

and a half after the inspection, and during that discussion, he specifically asked the driver if he had complied with company policy by 

checking the backup alarm that morning before he took the truck from 

the yard. The driver advised him that the backup alarm was working 

when he left the yard that morning because he put the truck in reverse 

before starting the engine, and he further stated that the truck 

engine makes so much noise it cannot be heard anyway. No one else 

was in that area other than the loader and the truck driver (Tr. 89-

90). 

Mr. Klashak stated that although the truck backs up to the 

loader, the truck driver knows when to stop because he usually watches 

the loader operator, and the loader operator signals to him with his 

hand, and this is the universal procedure that is followed. Although 

respondent has taken steps to put a backup alarm on all of its equip~ 

ment, and has attempted to maintain such alarms to the best of its 

ability, it cannot have a mechanic riding on the truck to repair such 

alarms when they break down. The truck in,question was a 1962 model, 

and the backup alarm which had been in place for a number of years had 

been installed to meet OSHA requirements. The reason why the alarm 

was not working was due to a simple maintenance problem, namely, the 

vibration of the truck had loosened the activating device and all that 

was necessary to correct the condition was to reposition the alarm on 

the shift rod and tighten down a screw that was loose (Tr. 91-92). 

With respect to the alleged violation involving the chain drive, 

Mr. Klashak stated that there is a walkway around the other side of 

the top of the conveyor where the drive is located, but this is not 

in the area that is frequented by the person who traverses the bucket 

elevator and the coal conveyor system once a day to check on the 

operation and condition of the chain, belt, and the walkway (Tr. 92). 

In his opinion, the machine in question is guarded by location, and 

as he recalls, there is some semblance of a guard installed. It is 

difficult to gain access to the side of the conveyor because one has 

to squeeze through some tight areas in order to reach the unguarded 

area. The only people who are in the unguarded area are maintenance 

personnel .who would be there to test the machinery and to make necessary repairs when it was not working. 

1511 
Mr. Klashak stated that even with the guard installed, it is possible to get into the chain drive by sticking one's arm in a little 

place around the edge of the shaft, but to do so would be to attempt 

suicide. One could reach over from the other side of the conveyor and 

possibly get caught in the conveyor while doing so. With the guard on 

at all times, and never removed whether the machinery is running or 

not, he would not expect a citattion to be issued under normal circumstances. However, there is still the remote possibility that someone 

could be hurt with or without the guard, e.g., someone could break his 

arm falling on the guard (Tr. 94). - -

On cross-examination, Mr. Klashak testified that he was not present when the inspections were conducted and that his knowledge concerning the citations was derived from discussions with others relating 

to questions and problems that were raised by the inspection. He does 

not know whether the operator of the loader actually waved to the 

driver, and he indicated that the truck and the loader both move at 

different times. He could not say who moves last, the truck or the 

loader (Tr. 95-98). 

Mr. David Ross, respondent's pl_ant administrator at the time the 

citations issued, testified that respondent has a safety program, 

safety guidelines, and conducts inspections. He was present when the 

backup alarm citation was issued. He explained that the backup alarm 

device failed to operate because the activating switch was mounted on 

the shift lever so that when the shift lever was μut into reverse position, it would activate an instantaneous on-off switch, and as long as 

the reverse lever was in the reverse position and the switch was activated, the alarm would sound. In this case, the mounting brackets had 

worked loose due to the vibrations caused by operating the truck up and 

down the roads that day, allowing the switch to move out of the range 

of the shift lever. When the shift lever was moved to the re.verse 

position, it would not physically activate the switch. These events 

could have occurred at anytime, and the truck operator's last trip down 

the road could have provided s~fficient vibration to jar the mounting 

loose. The truck in question is a heavy-duty truck which makes a lot 

of noise, and he was unable to hear the backup horn when driving the 

truck with the windows down and with the engine operating at excessive 

rpms. When the window is rolled up, he cannot hear the backup alarm. 

The front-end loader gathers a bucket of material and waits for the 

truck to back up into position to be loaded, and the loader operator 

signals the driver either visually or audibly, by blowing the horn, 

to let him know when he is in position. 

At the time of the inspection, Mr. Ross indicateG that he and the 

inspector and an employee member of the plant safety committee were 

watching_ the loading operation, but were unable to hear the backup 

alarm. No one else is required to be between the loader and the 

truck, and normally no one is there. Regardless of whether or not 

there is a 'backup horn, the truck driver has to know when to stop, 

1512 
and he knows when to stop either by seeing a signal or by visually 

observing his· position. There is nothing to obstruct the view of the 

driver of the front-end loader since he positions himself and his 

machine where he can be seen by the truck driver and where he can see 

the truck driver. Thus, both parties have at all times full view of 

each other, and abatement was achieved immediately (Tr. 106-112). 

Mr. Ross testified that he was present when the inspection was 

made on the guard on the chain drive. The physical location of the 

headwheel, or the top of the elevator, is on a walkway-type platform 

at the top of the kiln building, and the chain drive is on the side 

away from the normal passageway or walkway where any employee would be 

required to be during the normal course of his duties. An employee 

would have to walk around both the head wheel of the elevator and the 

screw conveyor to reach the chain drive or the elevator. There is a 

guard which is fabricated for the chain drive, but he could not recall 

when it was installed, although he knows that it was years ago. Other 

than to perform maintenance on the chain and drive, he knows of no 

other reason for the guard to be removed, and when such maintenance is 

performed, the chain drive is always shut down. The guard in question 

was put back on before the citation was even written (Tr. 113-115). 

On cross-examination, Mr. Ross testified that the truck involved 

was a Leternal Westinghouse 27-ton unit with a bed approximately 

20 feet in length, and 10 feet wide, and he has seated himself in the 

driver's seat of one of the trucks. The truck is equipped with side 

view mirrors, and assuming someone was standing 1 foot behind the end 

of the truck in the center of the truck, the driver would not be able 

to see that person since his view would be obstructed by the end of 

the truck bed. At the time of the alleged violation, the truck began 

to back up approximately 50 feet from the loader. He simultaneously 

observed the full course of reverse as well as the loading process, 

and was standing at a position that enabled him to also see the full 

side of the loader as well as the full front of the truck. The loader 

was positioned at right angles to the direction of travel that the 

truck was backing at, and he was able to see the left side of the 

driver of the loader. He did not hear any horn, noise, or audible 

reverse being emitted at the time of the alleged violation, and he 

could not state whether he saw the loader operator put his hands up 

or hear him beep his horn. With regard to the chain drive, the repair 

crew would be the only persons traveling completely around the housing 

walkway (Tr. 115-121). 

Citation No. 107004, March 15, 1978, 30 CFR 56.20-3, states as 

follows: "The walkway by the coal screen feed over the outside coal 

storage tank was not kept clean of coal buildup and clinker dust. 

The coal and clinker dust was built up to where footing was 

unstable." 

Citation No. 107005, March 15, 1978, 30 CFR 56.20-3, states as 

follows: "The walkway for the incline coal conveyor belt at the east 

1513 
end of the kiln building was not kept clean. A build up of clinker 

dust and coal on the walkway made the footing unstable. The coal 

belt operator traveled this walkway daily to check the coal chutes." 

MSHA inspector Downs confirmed that he issued Citation No. 107004 

because of the buildup of coal and clinker dust on the coal screw walkway which runs the full length of the screw. Clinker dust is dust 

that originates from the clinkers of the kiln, and "clinker" is dried 

cement. The walkway involved was elevated, approximately 20 feet in 

length, and was being used by respondent's employees. It was located 

on top of a coal storage tank which was in a cone shape and it was 

approximately 40 feet off the ground. The walkway itself was flat as 

opposed to angled, and the clinker dust was crushed up coal which was 

compacted rather than being hard (Tr. 121-124). 

The clinker dust and coal material was approximately 2- to 

2-1/2 feet deep and was.built up throughout the entire length of the 

walkway. The width of the walkway was approximately 3 feet, he did 

not take a cross-section measurement of the depth of the material, and 

he was given no explanation as to why the condition existed. The purpose of the standard cited is to prevent someone from slipping and 

falling, and in this case, if an individual had fallen at the highe~t 

point, he could have fallen off the walkway onto the tank and then 

down approximately 40 feet. While coal is not slippery by nature, 

clinker dust is slippery. The condition should have been known to 

management, and he believed that respondent was negligent in not 

keeping the area cleaned. One person would go to the area to check 

it out. He allowed 2 days, that is, until Harch 17, 1978, to abate 

the condition, and it was abated on March 15 (Tr. 125-129). 

Mr. Downs testified that he also issued Citation No. 107005, 

alleging a violation of 30 CFR 56.20-3, and served it upon Mr. Ross. 

He issued the citation after walking down the elevator walkway, where 

he observed some material, namely, coal and clinker dust, built up on 

th2 inclined belt of the conveyor to the top of the kiln building in 

certain areas, and the accumulation ranged from 6 to 8 inches in depth. 

The buildup of the material across the width of the sidewalk would 

fluctuate where it would be rolling or dipping in and out. However, 

the material had accumulated throughout the entire length of the walkway with the greatest accumulation at the top rather than towards the 

bottom. The coal crusher operator was exposed to the accumulation 

since he walked up the belt or walkway when he checked the chutes to 

see if there was any plugging. If an employee slipped and fell on the 

walkway, it is possible that he could have fallen completely off the 

walkway. In his opl.nion, the condition should have been known by the 

operator, and at the time that he issued the~citation he did not 

believe that the operator exercised any care in preventing the condition from occurring. He allowed 2 days for abatement, that is, to 

March 17, 1978, but the condition was abated the same day that the 

citation was issued, that is, March 15, 1978, at 3:45 p.m. (Tr. 131-

135). 

1514 
On cross-examination, Mr. Downs testified that both conditions 

were corrected and abated before he reduced the citations to writing. 

The unsure footing would result from the material rolling or moving 

around, and while the handrail on the walkway would protect a person 

from falling off, it would not adequately protect a person from 

falling off in this case because of the accumulation and material 

buildup on the walkway which placed the handrail at knee level. He 

did not know how long it took for the material to accumulate, and he 

did not know how often one would use the walkway (Tr. 135-140). 

Mr. Downs testified that Mr. Ross told him there was a leak in 

the breakover screw point. Hr. Downs conceded that when he filled out 

his "inspector's statements," he noted that the condition or practice 

cited in Citation Nos. 107004 and 107005 could not have been known or 

predicted. With regard to gravity, he indicated that it was improbable 

that any harm would have occurred as a result of the cited conditions, 

and in fact the condition was abated before the citations were ever 

written up. His last prior inspection of the mine was around 1977, 

and he is unable to remember whether he cited the same walkway or 

not (Tr. 141-151). 

Mr. Downs stated that the cleanup process took 2 or 3 hours 

since the material involved was not solidified like cement. The 

walkway around the screw consisted of loose material, namely, crusher 

coal with clinker dust m:i_xed jnto it, and the elevated inclined walkway had solid material on it which he believed was coal with clinker 

dust spilled onto it. The accumulation did not move, nor was it 

unstable, and it was possible to trip over it due to the fact that it 

was not completely level. It was not "clean and orderly," and one had 

to hold onto the handraU in order to walk down the walkway (Tr. 159-

160). Approximately four or five men were dispatched to clean up the 

walkways, and this resulted in the walkway being cleaned up before the 

citation was written (Tr. 161-162). 

Respondent's Testimony 

Mr. Klashak testified that the material on the walkway that was 

cited in Ci ta ti on No. 107004, consisted of clinker dust and coal dust, 

the coal dust being of a course, grainy material that has not been 

pulverized into the finest that is necessary to feed the furnace at 

that point, but it is fine with a consistency a little bigger than 

course sand. In explaining the cause of the accumulation, he indicated that when the material is traveling up the conveyor, if a 

blockage occurs in the conveyor system; in the screw conveyor, or any 

of the transfer hoppers, some moist material may become solidified and 

it can stop in the mouth of the conveyor, build up a pile of material, 

dump it on the conveyor, and in a very short period of time, there can 

ba an accumulation of 2-1/2 feet or more. Dampness or moisture in the 

air could cause the clinker dust to "set-up" in a very short period of 

time, and the crew had not yet had an opportunity to clean up, and 

15.LS 
this would. also apply to Citation No. 107005, since it involved similar conditions (Tr. 167-170). He was not present on the date that 

the citations were issued. The platform walkway was approximately 20 

to 30 feet long, but four or five men would not have room to be on 

the platform at the same time because the spill was not the whole 

length of the conveyor walkway (Tr. 170-175). 

Citation No. 107006, March 15, 1978, 30 CFR 56.14-1 states: "The 

pinch point between the take-up pulley and the cross conveyor belt that 

runs between the coal crusher and incline coal conveyor belt was not 

guarded. The coal belt operator walks by this takeup pulley several 

times a day." 

Petitioner's Testimony 

Inspector Downs confirmed that he issued Citation No. 107006, 

citing a violation of section 56.14-1, because there was an exposed 

pinch point between the belt and the takeup pulley. The "pinch point" 

is the place of initial contact where the belt and pulley join. The 

takeup pulley was accessible, there was a walkway immediately next to 

it, the pinch point was approximately 6 to 8 inches above the walkway, 

and the walkwiy was within 4 or 5 inches of the pulley belt. He 

believed it was possible for a person to become caught in the pinch 

point and be injured (Tr. 180-183). 

Mr. Downs testified that he has never seen anyone injured by 

being caught in a pinch point, nor has he investigated any such 

accidents, but MSHA "fatalgrams" occasionally come through his office 

where such incidents are reported, and he has seen films concerning 

such hazards (Tr. 184). 

On cross-examination, Mr. Downs testified that a guard is something that will cover a tail pulley, a head pulley, conveyor belt 

drive, and takeup pulley, etc., at the pinch point. At the time 

he observed the tail pulley, there was no guard on it, but there 

was a guard on it at the time he abated the citation. Despite the 

presence of a guard, it is humanly possible for someone to get into 

a pinch point if a person wishes to do so. In his view, section 

56.14-1 requires that all kinds of pulleys be guarded, and even 

though ~he standard specificially states that head, tail or takeup 

pulleys.have to be guarded, the language "and similar exposed moving 

machinery parts" covers the citation in question (Tr. 193). He could 

not recall the size of the unguarded opening, and even though the 

pulley was designed and installed under other safety regulations, he 

would still cite it under section 56.14-1, if it were not guarded. A 

corrugated metal covering was put over the tail pulley in order tb 

abate both Citation Nos. 107006 and 017089, and in his opinion, good 

faith was shown (Tr. 191-195). On Citation No. 107006, he indicated 

tliat the condition "could not have been known or predicted," but on 

Citation ~o. 107089, he indicated that the condition "should have been 

b16 
known to the operator" since there were other guards on other takeup 

pulleys in the plant. It was possible for someone to trip on the 

walkway itself, although he did not cite the walkway. There were 

handrails on the walkway, and it would not matter whether or not 

machinery was running insofar as a hazard is concerned. He would 

issue a citation regardless, sinces he assumes that machinery is 

going to be operating in the future, and the coal crusher operator 

walked through the area (Tr. 195-198). 

Mr. Downs testified that the reason the "good faith" portion of 

his inspector's statement was not filled out on Citation Nos. 107006 

and 107089, was due to an oversight on his part. He then corrected 

himself with respect to Citation No. 107006, and stated that since 

Citation No. 107006 was not abated the same day that it was issued, 

it is customary for an inspector to fill out a second sheet pertaining to good faith. He did fill out a second sheet, however, but he 

has no idea what he indicated on it with respect to whether the condition was corrected within the time specified for abatement, or whether 

management took extraordinary steps to gaj_n compliance. He assumes 

that extraordinary steps were taken to gain compliance, since the condition h2d been corrected when he arrived at the mine and he believes 

that Mr. Ross told him that the condition was corrected within the 

time specified. With respect to Citation No. 107089, Mr. Downs indicated that the condition was abated within the specified time and he 

believes that management exhibited good faith. Even with the recommended guards installed, it would still be possible for someone to go 

to the plant and stick his hand in both pulleys that are involved in 

Citation Nos. 107006 and 107089, assuming that person really wanted to 

get into the pulleys (Tr. 199-202). 

Respondent's Testimony 

Mr. Klashak testified regarding Citation Nos. 107006 and 107089, 

and he indicated that there are <lifferences in different kinds of 

pulleys. The American National Standards Institute (ANSI) recognizes that in any conveyor system certain pulleys are guarded by their 

relative position inside the conveyor frame. At the locations cited, 

there was a kickplate to keep tools or a foot from protuding over the 

walkway, and there was also a stop cord, and these were safety devices 

installed by respondent. Despite the fabrication of a guard over the 

particular bend pulley cited in Citation No. 107006, it did not completely seal the bend and it is still reachable by someone's hand. 

It would be possible for someone to lay down on the conveyor and stick 

his hand in, and it would also be very easy for someone, if he wanted 

to do so, to get his foot in over the guard and over the existing 

kickplate. In his view, there has been no substantial change in any 

danger or hazard from that which existed before the citation was 

issued. Prior to the time the citation was issued, there was no 

hazard, and if any hazard did exist it would have been only caused 

by someone intentionally trying to injure himself (Tr. 210-214). 

1517 
Mr. Klashak stated that with regard to Citation No. 107089, as 

well as Citation No. 107006, the conveyor system was designed according to ANSI Standards, and it also had a stop cord and a kickplate. 

In his opinion, someone could intentionally get to the pulley cited, 

even after a guard was put on it, and there was a nonslip, grid surface on the walkways near both of the pulleys in question (Tr. 214-

215) •. 

On cross-examination, Mr. Klashak testified that the kickplate 

on both conveyors is approximately 4 inches high and the top of the 

bend pulley is approximately 4 inches above the base of the conveyor 

walkway at the point where the alleged violation occurred. He was 

unable to say how high the pulley is located above the kickplate, and 

he did not know how long the belts had been installed, but he did know 

that they were installed prior to the time he came to work for the 

respondent (Tr. 219-220). He believed it would be extremely remote 

for anyone to come in contact with the pulley, except if it were done 

intentionally (Tr. 221). 

Citation No. 107007, March 15, 1978, 30 CFR 56.11-1, states: 

A safe access was not provided for the kiln operator 

to the kiln floor due to the excessive material buildup. 

An area 40 feet by 40 feet on the kiln roof over the kiln 

controls had approximately 20 to 24 inches of clinker dust 

builtup on the roof. The cross beams supporting the roof 

in this area were bent due to the weight on them. 

Petitioner's Testimony 

Inspector Downs confirmed that he issued and served upon Dave 

Ross, Citation No. 107007, alleging a violation of 30 CFR 56.11-1, 

after finding an excessive material buildup on the roof above the 

kiln floor. Due to the conditions, he believed that safe access was 

not provided for the kiln operator, and people who travel through 

that area. The roof area above the kiln floor was approximately 

40 feet by 40 feet, and the material there was approximately 20 to 

24 inches deep. Prior to the issuance of the subject citation, he 

had read an MSHA fatalgram concerning two incidents of fatalities 

resulting from roof cave ins due to clinker dust buildup, and he was 

of the opinion that due to the buildup of material on the roof in 

question, the person working below the roof was not provided safe 

access (Tr. 228-231). He could not recall what he stated in his 

inspector's statement regarding the elements of negligence or gravity, 

and he did not know exactly how many people were working on, or had 

access to, the kiln floor (Tr. 234). 

On cross-examination. Mr. Downs indicated that he issued the 

citation because of "alarm" over the previous incidents brought to 

his attention, and he also received complaints from some of the men 

1518 
working in the area. He cited section 56.11-1 because this was the 

closest standard available, and he confirmed that everyone does not 

go under the kiln roof to reach their work station (Tr. 234-235). He 

looked at the roof crossbeams and thought they were bent due to the 

weight of the dust buildup, but he did not know how long the crossbeams had been in that condition. Even if he knew, he would still 

have issued the citation, because be believed the roof was going to 

"imminently fall" (Tr. 237). Although HSHA technical support is 

available to test crossbeams, he talked to no structural engineers 

about the conditions, performed no tests to determine the structural 

integrity of the crossbeams, and he did not know the weight of the 

material on the roof (Tr. 240). 

Respondent's Testimony 

Mr. Klashak testified that the mill where the roof was located 

has since been closed down, but he viewed the roof about a week after 

the citation issued. After the roof was cleaned, the bend in the 

crossbeams was still there and he was informed that the "bend" condition of the beams had existed since the late 1950's (Tr. 245). He 

did not see the conditions cited since they were abated when he viewed 

the area (Tr. 246). Based on the buildup described by the inspector, 

he believed it was doubtful that the buildup was heavy enough to cause 

the deflection in the crossbeams. Abatement was achieved immediately 

(Tr. 248). Work is performed under the roof, and at the time the 

citation was issued, a decision had been made to shut down that 

portion of the mill, and it has in fact been closed down (Tr. 255). 

Citation No. 107008, March 16, 1978, 30 CFR 56.9-2, states: 

The brakes for the 922-B Catepillar front end loader 

were not functioning properly. The loader was loading a 

dump truck at the gypsum stockpile. There were no persons 

in the immediate area. This condition had been reported to 

the yard foreman on Friday the 10 of March at the weekly 

safety meeting. 

Petitioner's Testimony 

MSHA's Inspector Downs testified that he issued the citation 

because the brakes on the front-end loader were not functioning in 

that they would not stop the equipment. The loader operator told 

him that the brake conditions were previously reported at a safety 

meeting held on March 10, and two or three times earlier than that, 

and that he had used the loader after making those reports. He 

issued the imminent danger order because the loader was operating 

.throughout the plant around pedestrian traffic and the only way it 

co~ld stop was for the operator to drop the bucket and "throw it in 

reverse." ,There was no pedestrian traffic at the time of the citation, 

and the loader was operating in the gypsum storage area, which was a 

1519 
flat area, and it was loading a truck. He issued the order to take 

the loader out of service to repair the brakes, and to preclude anyone 

from being run over or the loader turning over on a hill. The loader 

was taken out of service immediately, and Mr. Ross arunitted to him 

that he knew the loader had no brakes, but that it would be taken out 

of service (Tr. 258-264). 

On cross-examination, Hr. Downs indicated that he was alone at 

the time of the inspection, and was on his way to the electrician shop 

after lunch when he happened to see the loader. He was aware of the 

requirement that a representative of the operator and miners should be 

given an opportunity to accompany an inspector. He stopped by the 

mine office in the morning to let them know that he was on an inspection, Hr. Ross was with him in the morning, and he was certain he 

issued other citations. He was on his way back from lunch when he 

saw the loader and cited it (Tr. 268-276). Mr. Downs stated he asked 

the loader operator to drive forward and brake his machine, and when 

he did, it would not stop (Tr. 285). 

Respondent's Testimony 

Dav:!:_~_!~o~ confirned Inspector's Downs' testimony with respect 

to the manner in which he conducted his inspection. After Mr. Downs 

took the loader out of service, he (Ross) instructed the operator 

to drive it to the garage some 100 yards away so that a mechanic could 

determine the brake problera. Mr. Ross stated he was aware that the 

machine had a problem with the braking system and had heard that it 

had something to do with a leaking master cylinder. The delay in 

repair was caused by the fact that another production loader was being 

repaired, and he believed the loader cited could still be operated 

with reasonable care while the other one was being repaired (Tr. 280-

283). He confirmed that he was not with Mr. Downs when the loader was 

cited, but had agreed to meet him after lunch (Tr. 283). 

Docket No. BARB 79-267-PM 

The proposal for assessment of civil penalty filed in this 

docket alleges one violation of the provisions of 30 CFR 56.14-1, 

as set forth in Citation 107089, issued on August 8, 1978, which 

states as follows: 

The take-up pulley along side of the primary crusher 

belt walkway was not guarded so a person could not: come in 

contact with the pinch point. An employee walks this walkway four or five times a day. The pinch point is approximately 6 to 8 inches above the walkway. 

Petitioner's Testimony 

Insp,ec tor Downs confirmed that he issued Citation No. 107089 and 

served it on Mr. Ross. The takeup pulley was alongside the walkway 

1520 
within 4 or 5 -inches away, and some 6 to 8 inches above the walkway, 

and a person could come in contact with it (Tr. 185-186). Abatement 

was achieved within the time permitted (Tr. 186). With respect to the 

negligence involved, he indicated on his inspector's statement that 

the condition "should have been known by operator," and based this 

conclusion on the fact that other takeup pulleys alongside the walkway were guarded. This was the only unguarded takeup pulley alongside this particular walkway (Tr. 187). Prior to March 14, 1978, 

he had been at the site of the subject citation, and had previously 

issued notices to respondent for lack of guards. He does recall, 

under the 1969 Act, however, having issued one notice for an 

unguarded takeup pulley which subsequently was guarded. Approximately 5 months after issuing Citation No. 107006, he issued Citation No. 107089, for the same violation (Tr. 187-190). 

Respondent's Testimony 

Mr. Klashak previously testified concerning this citation and 

that testimony has been considered by me and is incorporated herein 

by reference. 

Findings and Conclusions 

Docket No. BARB 79-61-PM 

Citation No. 107001--Fact of Violation 

Respondent is charged with a violation of 30 CFR 56.9-87, which 

states: 

Heavy duty mobile equipment shall be provided with 

audible warning devices. When the operator of such 

equipment has an obstructed view of 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. [Emphasis 

added.] 

The standard requires that heavy-duty mobile equipment be provided with audible warning devices. I believe the obvious intent of 

this standard is to protect against miners being run over or otherwise injured by such equipment while it is operating in reverse, and 

the audible alarm requirement is obviously intended to provide such 

miners with an audible warning that such equipment is in operation 

in or around their particular work environment. The standard also 

requires that such heavy-duty equipment be provided with an automatic 

reverse signal alarm which is audible above the surrounding noise 

level. However, this second requirement is only applicable "when the 

op.era tor of such equipment has an obstructed view to the rear." In 

the event.that the view to the rear is not obstructed, the. standard 

1521 
permits an observer to be present to signal when it is safe for the 

equipment to back up. If such an observer is present, the equipment 

need not be provided with a reverse alarm. 

The citation asserts that the haulage truck in question had a 

malfunctioning reverse alarm which was not operating when the truck 

was backing up to be loaded. Since the petitioner has the burden of 

proof to establish the alleged violation, it is incumbent on the 

petitioner to establish that the truck in question was "heavy-duty 

mobile equipment," that it was being operated in reverse at the time 

the alleged infraction was observed, that the reverse alarm was in 

fact inoperative, an~ that the operator of the truck had an 

obstructed view to the rear. 

In support of the citation, petitioner presented the testimony of 

the inspector who observed the truck in operation and issued the citation. He testified that the truck was a heavy-duty truck and that a 

backup alarm was installed on the truck. However, after viewing the 

truck operating in reverse, and hearing no sound being emitted from a 

backup alarm which was installed on the truck, he surmised that the 

alarm was inoperative, and in effect treated the situation as if no 

alarm was in fact provided. However, the inspector indicated that he 

never sat in the driver's seat and made no determination as to whether 

the truck d~iver could see anyone to the rear while he was backing up. 

Although he expressed an opinion that any men working to the rear of 

the truck would be obstructed from view by the truck operator and 

that they would have to be positioned s01ae 25 to 30 feet behind the 

truck to be brought within the view of the rear-view truck mirror, I 

cannot conclude that thj_s conclusion on his part is supported by anything other than mere conjecture on his part. The inspector did not 

interview the truck driver, he did not position himself in the 

driver's seat, and he testified that he observed no one working 

around the vehicle and saw no one giving any signals to the driver 

bPfore putting the truck in reverse. 

I find that the evidence and testimony adduced with respect to 

this citation supports a finding that the truck in question was in 

fact heavy-duty mobile equipment, and that fact is not in dispute. 

l further find that while the truck was provided with a backup alarm 

at the .time of the citation, it was inoperative and emitted no sound 

which was audible above the surrounding noise. As a matter of fact, 

it emitted no sound at all and respondent has not rebutted this fact. 

Further, although respondent attempted to establish that a lo~der 

operator was in a position to either give hand signals to the driver 

or sound his loader horn as a signal, I do not believe that the standard intended that someone operating another piece of equipment may 

also serve as an observer. I believe that the observer contemplated 

by the standard is a person such as a flagman who is in a positi.on 

to devote his full time and attention to the operation of the truck 

and to insure that anyone on foot in the area is not exposed to any 

1522 
danger of beirig run over. It seems to me that someone operating a 

loader would be more concerned with posttioning the truck in such a 

fashion to facilitate loading and that his attention to that chore 

would preclude his observing other pedestrian traffic in the area. 

Having established that the truck was of the kind that required 

an audible alarm while operating in reverse, and having established 

that the alarm was inoperative, the next critical question presented 

is whether the petitioner has established that the view to the rear 

was obstructed. I conclude and find that the petitioner has not 

established this fact by any credible and probative evidence. Since 

the inspector obviously issued the citation because he believed someone out of the so-called obstructed view of the driver could be run 

over while the truck was operating in reverse, it was incumbent on 

him to establish the rear-view obstruction. It seems to me that the 

most logical way to establish this fact is to either talk to the truck 

driver who should be able to tell the inspector whether or not he has 

an obstructed view. If the driver refuses to talk to the inspector, 

there is nothing to preclude MSHA from calling him as a witness to 

testi.fy. Another most logical method is for the inspector to sit in 

the driver's seat of the truck and take 2 look for himself. In this 

case, the. inspector did neither. Although respondent's witnesses 

testified on cross-examination that a person standing a foot behind 

the truck would be obstructed, I believe that the burden of initially 

establishing this point rests with the petitioner. All too often in 

proceedings of this type, the parties will engage in last-minute, 

after-the-fact, semantical boxing matches trying to reconstruct and 

back fill with purported facts to support their positions. I simply 

give little or no weight to such last-minute trial tactics. The 

citation is VACATED. 

Citation No. 107002--Fact of Violation 

30 CFR 56.14-6 provides that "[e]xcept when testing the machinery, 

guards shall be securely in place while machinery is being operated." 

Respondent asserts at page 3 of its posthearing brief that "the 

citation stated that the coal elevator chain drive guard was removed 

for repair." This is not altogether accurate. Respondent is charged 

with· a failure to keep the coal elevator chain guard in place. The 

statement in the citation indicating that "the repair crew failed to 

replace the guard" is a speculative gratuitous statement ma<le by the 

inspector in his attempt to explain why the guard was not in place 

when he observed the condition. The inspector's testimony that he 

observed the top half of the chain drive guard off the equipment and 

lying next to the walkway is unrebutted, and I find that it supports 

the citation. Respondent has presented no credible evidence that the 

equipment was being tested, and the fact that ihe inspector did not 

specifically recall whether the chain drive was in fact moving at the 

time he observed that it was unguarded may not serve to vitiate the 

1523 
citation. Al though the standard does indicate that the guard must be 

in place while machinery is being operated, and makes an exception 

when it is being tested, the fact is that in this case the inspector's 

observations concerning the presence of coal in, on, and around the 

buckets, coupled with the fact that the kiln was burning and operating, 

led him to conclude that the machinery j_n question was in operation. 

Respondent has not rebutted this fact; nor has respondent presented 

any evidence that production was not going on, that the equipment was 

not operating, or that it was down for maintenance or testing. In 

these circumstances, I conclude and find that petitioner has established a prima facie case and has established that the guard was in 

fact not in place. The citation is AFFIRMED. 

Gravity 

The testimony establishes that the cited equipment had been 

guarded, but that part of the guard had been taken off and not 

replaced. The area in question was apparently not heavily traveled, 

there is no indication as to how long the portion of the equipment 

was left unguarded or whether anyone was exposed to any hazard, and 

abatement was immediate. In these circumstances, I cannot conclude 

that the citation was serious. 

Negligence 

The guard in question was apparently removed to facilttat:e some 

maintenance work, and someone apparently forgot to put it back on. 

Since it was lying in full view, I believe that it is reasonable to 

expect that someone inspecting the belt line would have observed it, 

and the inspector indicated that mine personnel would have occasion 

to pass by the area dur.ing the shift. In the circumstances, I conclude that the respondent failed to exercise reasonable care to 

insure that the guard in question was kept in place as required by 

section 56.14-6, and that its failure to do so constitutes ordinary 

negligence. 

Goo<;l yaith Compliance 

The evidence establishes that the condition cited was corrected 

immediately and I find that respondent achieved rapid abatement of 

the citation. 

Citatiori Nos. 107004 and 107005--Fact of Violations 

These citations charge the respondent with alleged violat~ons of 

the provisions of 30 CFR 56.20-3, which provides as follows: 

At all mining locations: (a) Workplaces, passageways, 

storerooms, and service rooms shall be kept clean and 

1524 
orderly. (b) The floor of every workplace shall be maintained in a clean and, so far as possible, a dry condition. 

Where wet processes are used, drainage shall be maintained, 

and false floors, platforms, mats, or other dry standing 

places shall be provided where practicable. (c) Every 

floor, working place, and passageway shaJl be kept free 

from protruding nails, splinters, holes, or loose boards, 

as practicable. 

The inspector's testimony concerning the prc~sence of accumulated 

coal and clinker dust, including his measurements regarding the extent 

of the accumulations and buildups of this material at the two locations 

cited has not been rebutted by the respondent, and I find and conclude 

that petitioner has established the violations as cited. The standard 

cited requires workplaces, passageways, and the floor of workplaces be 

maintained in a clean condition. The evidence establishes that the 

walkways in question were used by employees in the course of their 

work, and they therefore are "working places" within the meaning of 

the definition of that term as used in section 56.2 of the regulations. 

Although one may view the intent of the standard as a "housekeeping"-

type of standard, the fact is that the locations cited were not kept 

clean as required by the standard. And, the fact that the inspector 

did not specifically cite the (a), (b), or (c) clauses of section 

56.20-3 does not, in my view, render the citation illegal. The citations and testimony of the inspector adequately and specifically 

describe the conditions which the inspector believed were in violation of the cited standard, and I conclude and find that they support 

the citations which were issued. 

Respondent's defense is based in part on an assertion that the 

spillage of material in question was caused by a sudden interruption 

and blockage which were promptly abated, and an argument that there 

are periods during the pro due tion cycle, such as construe tion and 

re!)air work, when obstructions do exist, and a suggestion that walkways or passageways simply cannot always be kept clean and orderly 

(Brief, p. 4). These are mitigati.ng factors which I believe may be 

considered in connection with the criteria of negligence and good 

faith compliance, but they may not serve as an absolute defense to 

the violations. I take note of the fac:t that one does not reasonably 

expect a mine or plant to be "spic and span," and that the production 

process does generate dust, dirt, eta. However, the extent of the 

coal and clinker dust accumulations described by the inspector in the 

citations in question go beyond any reasonable "fall-out" that one 

would ordinarily expect in any production mine or plant. And, when 

such conditions deteriorate to the point where they constitute a 

potential hazard to the work force, one can reason&bly expect that 

they be cleaned up. 

During the course of his testimony in support of the two citations in question, the inspector candidly and honestly admitted that 

1525 
when he filled· out his inspector's statements with respect to these 

citations, he checked the box under the negligence portion of the form 

which states "[c]ould not have been known or predicted; or occurred due 

to the circumstances beyond the operator's control." Ile did so at that 

time because he knew that the assessments levied for these citations 

would be increased if there was any indication of negligence on the 

part of the operator and he "didn't want the companies to be fined so 

much" (Tr. 161-163). In justiUcation of his actions in this regard, 

the inspector alluded to the fact that mine inspections under the 

newly-enacted 1977 Act were a "new ball game" for operators such as 

the respondent, and he apparently assuned that the operator in this 

case would not be aware of the newly-enacted requirements (Tr. 162). 

Respondent has now seen fit to raise this as an issue, and at page 5 

of its brie~ asserts that the inspector ''was obviously relieved to be 

able to express the hardship on the operator or trying to enforce 

brand new rules under an admjnistrative scheme that was unfair and 

capricjous," and that respondent should not be penalized in light of 

this testimony. 

Although the actions by the inspector with respect to the foregoing incident raises a serious question of his credibility concerning his testimony of negligence connected with the citations, his 

candid admissions must be taken in context and must be considered in 

light of the then prevailing circumstances. In this regard, I take 

note of the fact that the citations here were issued on March 15, 

1978) less than a week after the effective date of the 1971 Amendments to the 1969 Act, and while it is true that metal and nonmetallic 

mine operators were previously subjected to citations for violations 

of mand':_ltorz standards promulgated under the now repealed MC!t.o.l and 

Nonmetallic Mine Safety Act, that statute did not provide for the 

imposition of monetary civil.penalties for proven violations. In 

this limited context, the only ~ignificant change resulting from the 

enactment of the 1977 law was the fact that such mine operators are 

now liable for civil penalties for violations of mandatory standards, 

and in this sense it is a "new bdll game" as suggested by the inspector. The enactment of the 1977 Act in no way lessened the responsibility of a covered mine operator to insure compliance with mandatory 

standards. Respondent's suggestion that it cannot be held accountable 

for or liable for the citations issued here is REJECTED, and the citations issued are AFFIRMED. 

I find that the conditions concerning the accumulations of 

clinker dust on the walkways constituted serious situations. The 

extent of the accumulations were such that it could have resulted 

in someone falling or tripping on the walkway, and possibly falling 

over the railing. In the circumstances, and notwithstandlng the 

fact that the conditions were promptly corrected, I find that the 

citations were serious. 

1526 
Negligence 

In view of the extent of the accumulations of materials on the 

walkways, it is difficult for me to understand why corrective action 

was not initiated before the inspector happened on the scene. I can 

understand a sudden blockage or malfunction resulting in leakage of 

materials onto the adjacent walkways, but I cannot understand the 

apparent disregard for prompt cleanup ~efore the arrival of the 

inspector on the scene. Although the inspector's credibility was 

damaged somewhat by his candid admissions with respect to the 

filling out of his inspector's statements, the fact is that there 

is ample evidence of record independent of those statements to support findings that the respondel:t failed to exercise reasonable care 

to discover the accumulations or to clean up the walkways prior to 

the arrival of the inspector on the scene. Accordingly, I find and 

conclude that the failure of the respondent to exercise reasonable 

care constituted ordinary negligence as to both citations in 

question. 

Good Faith Compliance 

I find that the record supports findings that the respondent 

exercised rapid abatement in correcting the conditions cited in both 

citatj_ons. 

Citation No. 107006--Fact of Violation 

Thj_s citation charges a violation of mf!ndatory standard 30 CFR 

.':i6.1L;-l, which states: "Gears; sprockets; chains; drive, head, tail, 

and takeup pulleys; flywheels; couplj_ngs; shafts; sawblades; fan 

inlets; and similar exposed moving machi~e parts which may be contacted by persons, and which may cause injury to persons, shall be 

guarded." 

The inspector cited the violation because he obviously b~lieved 

that someone walking by the adjacent walkway could possibly become 

caught in the pulley pinch point. Respondent's witness Klashak identified a photograph (Exh. R-3) of the puley in question and stated 

that. he took it a week or so after the citation issued. The inspector tes_tified that the pulley pinch point, where the conveyor belt 

and pulley join, was ripproximately 6 to 8 inches above the adjacent 

walkway and that the walkway was some 4 or 5 inches from the belt. 

In defense of the citation, respondent argues that the cited 

pulley was in fact a "bend pulley," and since a "bend pulley" is not 

specifically included in section 56.14-1, the standard does not apply. 

In addition, respondent argues that the reason the "bend pulley" is 

not specifically included in the standard is the fact that such 

pulleys were exempted out of recognition of the fact that due to their 

position 'on a belt -system, they do not require guarding. Further, 

1527 
respondent argues that the kickplate installed on the nonskid walkway 

would prevent someone from projecting his foot ov~r the edge of the 

walkway and into the pinch point, and that a stop cord along the 

walkway would have stopped the conveyor belt instantaneously upon contact with the cord. Finally, respondent suggests that if any hazard 

did exist, it could only be the result of someone deliberately placing 

his hand or foot into the pinch point, and that even with the installation of the metal guard to abate the citation, someone could still 

deliberately reach into the pinch point. 

Respondent's first defense is rejected. I conclude that on the 

facts here presented, the fact that a "bend pulley" is not specifically mentioned in the standard does not render the citation illeeal. 

The standard refers to "similar exposed moving machine parts," and I 

conclude that the pulley in question, as described by the witnesses, 

is such a similar moving part and comes within the scope and intent of 

the standard, and respondent has not produced any credible evidence to 

convince me otherwise. As for the pref~ence of the kickplate and stop 

cord, while this may mitigate the gravity of the situation, I am not 

convinced that those devices may serve as substitutes for the guarding requirements of the cited standard. 

As I previously stated in a recent decision concerning the guarding requirements of section 56.14-1, Massey Sand and Rock Company, 

Docket No. DENV 78-57 5-PH (June 18, 19-79), petition for discretionary 

review dcnicc!_ (July 27, 1979), I beU.eve t11:'1_t_\~Ti-e;1ai1-j_r1spect-orcites 

a violation of this section of the mandatory standards, it is incumbent on him to ascertain all of the pertinent factors which leads him 

to conclude that in the normal course of his work duties at or near 

such exposed machine parts, an e!llployee is likely to come into contact 

with such exposed parts and be injured if such parts are not guarded. 

Here, it seems obvious to me from the inspector's testimony in support 

of the citations, that he relied chiefly on the fact that a person 

coming in contact with such unguarded machine parts could possibly be 

injured, and that conclusion was based on certain MSHA reports which 

apparently reflect that employees who are caught in unguarded pulleys 

are in fact injured. While I accept the general proposition that a 

person who becomes entangled in an unguarded machine part is likely to 

be injured, this conclusion simply begs the question as to whether a 

specific pulley location in a mine is required to be guarded pursuant 

to the requirements of section 56.14-1. In this regard, the key words 

of the regulatory language, "may be cont::icted," is critical to any 

determination as to whether the standard has been violated. As I construe that language, it means that on a case-by-case basis, petitioner 

must establish that the unguarded area in question, by its location 

and proximity to the comings and goings of mine personnel, exposes 

them to the hazard or danger of being caught in the unguarded pulley. 

11). my view, this question can only be determined by consideration of 

the preva,iling circumstances at the time the citation issued. 

1528 
In the circumstances here presented, the evidence establishes 

that the exposed pulley pinch point was located above the level of the 

adjacent walkway which itself was within 4 or 5 inches of the conveyor 

belt. The inspector was concerned that someone walking along the belt 

could fall into the exposed area in the event he were to trip on the 

walkway. Although the inspector could not state the dimensions of the 

unguarded area in question, I believe the unguarded area was situated 

in such a location that would expose someone to the danger of being 

caught in the pinch point in the event they were to trip or fall while 

walking along the walkway. The question of the likelihood of this 

happening goes to the gravity of the situation and not to the question 

of whether or not the pin~h point was readily accessible. The citation is AFFIRMED. 

Gravity 

Although the adjacent walkway was protected to some extent by a 

stop cord, kickplate, and handrail, thus mitigating somewhat the possibility of someone being exposed to the unguarded ptnch point, the 

fact is that those devices would not prevent someone's leg or arm 

from becoming entangled in the unguarded pulley area were they to 

trip or fall on the walkway, which was in close proximity to the 

unguarded area. Further~ while the chances of this happening may 

have been somewhat remote, a hazard did exist and I find that the 

condition cited was serious. 

Negligence 

Under the circumstances presented here, namely, the fact that 

the operator had installed kickplates, stop cords, and handraiis, I 

believe it is reasonable to assume that the respondent could not 

reasonably have known of the fact that the pulley in question was 

required to be guarded, and in th circumstances, I cannot conclude 

that the respondent was negligent. 

Good Faith Comnliance 

The evidence establishes that the respontlent achieved rapid compliance of the cited condition and that is my finding. 

Citation No. 107007--Fact of Violation 

Respondent is charged here with a violation of the provisions of 

30 CFR 56.11-1, which requires that "[s]afe means of access shall be 

provided and maintained to aJ.l working pJ.aces." In this instance, 

the inspector cited the violation after observing accumulations of 

clinker dust on the roof of the kiln. He described the roof area 

which was allegedly covered as 40 feet by 40 feet and described the 

ex.tent of. the accumqlation as "approximately 20 to 24 in1.:hes of 

clinker dust built up on the roof." The citation also asserts that 

1529 
the crossbeams supporting the roof were bent due to the weight of the 

accumulated dust. He was concerned that the person working in an<l 

under the kiln roof area and persons passing under or through the 

roof kiln area were exposed to the danger of a roof collapse, Rnd 

his alarm in this regard was triggered by the fact that he was aware 

through the reading of HSHA fatalgrarrs of identical roof cavc·-ins in 

other areas. Although the inspector indicated tho.t MSHA technical 

support advice was available to him through consultations with structural engineers to determine the structural integrity of the kiln 

roof, he did not avail himself of this advice, no tests were performed to determine the strength of the roof support beams, and while 

he calculated and estimRted the extent of the accumulations, he did 

not determine the weight of the materials which he observed on the 

roof. In addition, h0 made no inquiries as to the length of time that 

the materi~ls were on the roof, the length of time that the support 

beams were in the alleged "bent" condition, and while he alluded to 

the fact that he had received some coBplaints from some of the men, 

there is no indication in the record that he attempted to interview 

any of the men tn ascertain some of these details and none of the men 

were. called as witn:.::sses. He simply viewed the conditions, "thought 

the crossbeams were bent due to the weight of the accumulated materials," and concluded that the roof w0uld "imminently fall." 

When asked on cross-examination whether he was aware of the fact 

that the crossb~ams had been in a bent condition for decR<les, the 

j_nspc.c ten· r:tnswerPd that "[a] t the time} I wasn't worried about that" 

(Tr. 237). As a matter of fact, he stated that even if bends had 

been present for dccadPs, it would have made no difference to him 

because he believed the roof was going to "imminently fal.l" (Tr. 237). 

When nsked whether he issued the d.taU.on out of aJarm due to the 

previously-reported incidents, he responded "Yes, plus the fact that 

I had 12;ot a few complaints from the 1i1en working in that area" (Tr. 

235). When asked whether he really knew what standard to cite, he 

responded "You can look completely through that book and you won't 

find nothing else'' (Tr. 235). When asked whether he considered the 

situation presented to be an inmi.nent danger, he answered that he did 

not, and that if he did he would have issued an imminent danger withdrawal order (Tr. 238). ln short, his conclusion that the roof was 

about to fall in as a result of the weight of the accumulations was a 

pure judgment call on his part ~rnd he candidly admitted that this was 

the case (Tr. 240). He also candidly admitted that faced with the 

reports of previous roof cave-ins, "I had very definitely been told 

in my office to get out there and look at them roofs on cement plants" 

(Tr. 242). 

The petitioner bears the burden of proof to establish by a preponderance of the evidence that the kiln roof in question was in 

danger of falling due to the weight of the accumulated materials 

w&ich the inspector observed. If that fact can be established, I 

could conclude that a safe means of access had not been provided as 

1530 
required by section 56.11-1. However, after close examination of the 

testimony and evidence produced by the petitioner in support of the 

citation, I conclude and find that petitioner has not proved that the 

conditions cited by the inspector were in fact dangerous or hazardous. 

I believe that the inspector was influenced by past incidents of roof 

failures and that he really had no factual knowledge that the roof 

was about to fall. It seems to me that if he really believed the roof 

was about to fall in, he should have taken immediate steps to close the 

area down and withdraw men from the danger zone. Here, he issued the 

citation and initially allowed the respondent one week to abate the 

conditions. Assuming that the operator availed hhnself of the one full 

week to clean off the accumulations, one must assume that men still 

worked in and around the area which the inspector believed was unsafe, 

and at least one man worked under a roof which the inspector believed 

would fall at any time. Such enforcement practices simply defy logic. 

I am of the view that when an inspector cites a violation of a mandatory safety standard, he should be able to support it with facts and 

not with conjecture and speculation. The citation is VACATED. 

Citation No. 107008--Fact of Violation 

I find that the petitioner has established by a preponderance of 

the evidence that the brakes on the front-end loader which is the subject of this citation were not functioning properly. The cited section requires that defective equi~nent be corrected before it is used, 

and the failure of the respondent to correct the brake defects constituted a violation of section 56. 9-2 as ci.ted in the cilalion. Respot1·-

dent's evidence does not rebut the prima facie showing of a violation 

by the petitioner and the citation is AFFIRMED. 

_Gravity 

Although the inspector observed no pedestrian traffic in the immediate area where the loader was being operated at the time the citation issued, had he not issued the order taking i.t out of service, it 

is likely that an accident would have occurred and someone uould have 

been injured. This likelihood is supported by the evidence which 

establishes that the only means for stopping the loader was by 

dragging the bucket or putting it in reverse. I find that the violation was serious. 

Negligence 

The evidence establishes that Mr. Ross was aware of the fact that 

the defective loader had some problem with the brakes. However, he 

permitted the equipment to be operated "with reasonable care" until 

another piece of similar equipment undergoing repairs could replace 

the defective loader. I believe and find that such a course of action 

on the part of mine management was a reckless disregard of the safety 

requirements of section 56.9-2, and constitutes gross negligence. 

1531 
regulated by·OSHA rather than MSHA (Tr. 290). In addition, the parties agreed that any reasonable civil penalties, or the civil penalties initially assessed by MSHA, if levied, will not adversely affect 

respondent's ability to remain in business (Tr. 290). 

History of Prior Violations 

Petitioner's Exhibit P-13 is a computer printout reflecting prior 

paid violations for violations resulting from inspections at respondent's Knoxville Mine and Mill. For the period August 9, 1976, through 

August 8, 1978, the printout reflects two citations for which respondent paid civil penalty assessments totaling $214. There is no history 

for the Knoxville Quarry. Based on thi.s information, I find that 

respondent has no significant prior history which would warra11t 

increased penalty assessments for the citations which I have affirmed. 

Additional Issues Raised by the Respondent 

Both at the hearing and in its posthearing arguments, respondent 

asserts and argues that it should not be held responsible or accountable for the mandatory standards cited by the inspector because the 

standards have been imposed by the Secretary and not Congress. 

Respondent argues that Congress never intended to legislate by regulation, and that its intent was to impose mandatory time schedules on 

the Secretary for the purpose of developing safety standards through 

the rulemaking process. Further, respondent argues that petitioner 

has not established that there have been any hearings held to carry 

out the Congressional intent and mandate requiring a showing of a 

demonstrated need for the standards in question. Respondent also 

alluded to the fact that it did not participate in, or comment on, 

any of the standards at the time of their promulgation. 

Respondent's arguments concerning the validity of the regulations are rejected. It seems clear to 1:ie that section 30l(b) of the 

Act expresses the intent of Congress that those mandatory standards 

promulgated pursuant to the now repealed Federal Metal and Nonmetallic Mine Safety Act which were in effect at the time of the 1977 

Amendments to the 1969 Federal Coal Hine Health and Safety Act were 

to remain in effect as mandatory health or safety standards applicable to metal and nonmetallic mines. With regard to respondent's 

assertion that it was not given an opportunity to comment on the 

standards before they were promulgated, I can only observe that it 

is common knowledge that the standards which appear in Parts 55, 56, 

and 57, were in fact the result of advisory committees composed of 

both industry and Government members purportedly knowledgeable in 

health and safety matters, and that the mining industry was given 

full and ample opportunity for input and comment during the rulemaking pLocess connected with the promulgation and adoption of the 

1532 
standards. Mr~ Klashak candidly admitted as much during his testimony, and he also admitted that he was generally aware of the fact 

that the 1977 Act incorporated the then existing standards by reference and that the respondent's mining operations were covered by the 

Act. Although one can sympathize with Mr. Klashak's frustrations 

connected with his belief that he is being "put upon" through overregulation by many state and Federal inspection agencies, that fact 

may not serve a legal defense to the citations. 

Alleged Failure of the Inspector to Permit Respondent'~ Representative 

to Accompany Hirn on His Inspection 

In connection with Citation No. 107008 dealing with the brakes on 

the front-end loader, respondent argues that a representative of a mine 

operator has a statutory right to accompany the inspector during his 

inspection rounds, and that in connection with this citation, the 

inspector failed to afford Mr. Ross that opportunity and in effect 

conducted an ex parte inspection. After due consideration of the 

argument, it is rejected; and based on the circumstances and facts 

presented in this case, I conclude and find that respondent's statutory right to accompany the inspector were not violated, and my reasons in this regard follow. 

Section 103(£) affords an opportunity to both the representative 

of the mine operator and the miners to accompany the inspector during 

his inspection of the mine and to participate in any post-inspection 

conferences held at the mine. On the facts presented here, it is 

clear that on the day of the insepction on March 16, Hr. Ross was 

aware that Inspector Downs was on mine property conducting an inspection sjnce Mr. Ross was with him that morning. The inspector took a 

lunch break after his morni.ng rounds and intended and agreed to meet 

with Mr. Ross after lunch to continue his inspection rounds. After 

eating his lunch, Hr. Downs was on his way to meet Mr. Ross when he 

happened to observe the front-end loader which he believed constituted 

an imminent danger. Rather than ignoring the situation, he decided 

to issue his order taking the loader out of service before finding 

Mr. Ross. In these circumstances, I cannot conclude that the inspector acted unreasonably, and the fact that Hr. Ross was not with him 

at the precise moment he obuerved the loader infraction, does not 

prejudice the respondent, and does not, in my view, render the citation illegal. Hr. Ross was aware of the inspector's presence on the 

mine property, Hr. Ross was with him during his earlier morning rounds 

when other citations were issued, and Mr. Ross and the inspector discussed the loader citation after it was issued. 

ORDER 

On the basis of the foregoing findings and conclusions, the following citations are VACATED, and the proposals for assessment of 

civil penalties, insofar as these citations are concerned, are 

DISMISSED: 

1533 
Docket No. BARB 79-61-PM 

Citation No. Date 30 CFR Section 

107001 

107007 

3/14/78 

3/16/78 

56.9-87 

56.9-2 

On the basis of the foregoing findings and conclusions, the following citations are AFFIRMED, and considering the six statutory criteria set forth in section llO(i) of the Act, civil penalties are 

assessed as follows: 

Citation No. Date 30 CFR Sect ion Assesr::ment 

107002 3/ 15/78 56 .1Li.-6 $ 75 

107004 3/15/78 56. 20·-3 90 

107005 3/ 15/78 56.20-3 125 

107006 3/15/78 56.14-1 100 

107008 3/ 16/78 56.9-2 375 

Docket No. BARB 79-267-PH 

Citation No. Date 30 CFR Section Assessment 

107089 8/08/78 56.14-1 $ 125 

Respondent IS ORDERED to pay the civil penalties assessed in 

these proceedings, as indicated above, in the total aoount of $890 

within thirty (30) days of the date of this decision. 

Distribution: 

George A. Koutras 

Administrative Law Judge 

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

the Solicitor, Room 280, U.S. Courthouse, Nashville, TN 37203 

(Certified Mail) 

Norman H. Williams, Esq., Fowler & Robertson, 7th Floor, First 

Tennessee Bank Building, Knoxville, TN 37902 (Certified Mail) 

Standard Distribution 

1534 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

OCT a 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SUNSHINE MINING CO., 

Respondent 

1979 

Civil Penalty Proceeding 

Docket No. DENV 79-99-PM 

A.O. No. 10-00089-05004 

Sunshine Mine 

DECISION 

Appearances: Marshall P. Salzman, Attorney, U.S. Department of 

Labor, San Francisco, California, for the petitioner; 

Daniel L. Poole, Esq, Boise, Idaho, for the respondent. 

Before: Judge Koutras 

Statement of the Proceeding 

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

of the Federal Mine Safety and Health Act of 1977, initiated by the 

petitioner against the respondent on November 29, 1978, through the 

filing of proposals seeking civil penalty assessments for five 

alleged violations of the provisions of certain mandatory safety 

standards set forth in Part 57, Title 30, Code of Federal Regulations. Respondent filed a timely answer and notice of contest, and 

a hearing was held in Wallace, Idaho, on July 11, 1979. 

Issues 

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

respondent has violated the provisions of the Act and implementing 

regulations as alleged in the proposal for assessment of civil penalty 

filed in this proceeding, and, if so, (2) the appropriate civil penalty that should be assessed against the respondent for the alleged 

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

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

1535 
In determining the amount of any civil penalty assessment, section llO(i) of the Act requires consideration of the following criteria: (1) the operator's history of previous violations (2) the 

appropriateness of such penalty to the size of the business of the 

operator, (3) whether the operator was negligent, (4) the effect on 

the operator's ability to continue in business, (5) the gravity of 

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

in attempting to achieve rapid compliance after notification of the 

violation. 

Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 801 ~ ~· 

2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3. Commission Rules, 29 CFR 2700.l et~· 

Discussion 

Stipulations 

The parties stipulated as to the Commission's jurisdiction, and 

respondent conceded that the citations in question were issued and 

served. Further, the parties agreed that respondent is a large 

mining company, paid 14 assessed violations prior to the date 

of the 1978 inspections in issue here, and that any civil penalties 

assessed in this matter will not impair respondent's ability to 

remain in business (Tr. 2-3). 

Citation No. 347006, April 10, 1978, 30 CFR 57.12-30, states as 

follows: 11The 4400 west side switch rack and sub station (electrical) 

had loose ground, timber, chain link fencing material along with 

ground water falling into onto and around the electrical components 

creating the hazards of shorting and fire." 

Petitioner's Testimony 

MSHA inspector James Arnoldi Confirmed that he inspected the 

mine in April 1978, and that the mine is a large multilevel silverproducing mine. The switch rack in question supplied power to the 

4400 mine level. He indicated that corrogated fiberglass which had 

been placed over the switch rack to keep water off had fallen into 

the rack area, chain link fencing had fallen over and was lying 

against the rack, loose rock was located throughout the area and 

probably caused the fence to fall down, and water was dripping in the 

area of approximately 10 by 6. The switch rack consists of electric 

components used to distribute power and he "imagined" it was energized and "believed" the voltage was 2300. Dripping water and the 

fence against the electrical components posed the possibility of 

shorting out and creating a fire. People were not working in the 

1536 
immediate area, but there was timber there which could cause any 

fire to spread. He did not know how far away people were working, 

but believed they would be affected by a fire because the air course 

would carry smoke throughout the mine. He indicated that the operator should have been aware of the condition because "they walk by it 

every day" and preparations were being made to move the switch rack 

to another raise. The condition of the area led him to to believe 

that it was in that condition for several weeks. Abatement was 

achieved by moving the switch rack (Tr. 5-9). 

On cross-examination, Mr. Arnoldi indicated that he has taken 

some 40 to 60 hours of electrical courses at MSHA's academy in 

Beckley, West Virginia. The switch rack unit itself was approximately 4 feet long and some 3 feet high, and it was located within 

100 feet of the 4400 station off the main line in a small deadend 

"cubbyhole" drift which was some 30 or 40 feet deep. He viewed the 

rack from a distance of 10 to 15 feet and did not walk up to it. A 

muck pile high enough to knock over the chain link fence was present 

and it was some 3 to 4 feet high. The ceiling was some 9 to 10 feet 

high and one would have to climb over the muck pile to reach the 

switch rack. No supplies were stored in the ar~a, and miners would 

have no need to reach anything located around the switch rack. 

He saw no miners working around the area or the service raises 

(Tr. 10-14). 

Inspector Arnoldi discussed the matter with a company safety 

engineer who advised him the switch rack was being moved to another 

raise, but he did not discuss the air ventilation patterns in the 

area, nor did he inquire as to the number of men working in the mine 

on the day in question. A short in the switch rack could cause a 

fire, but he made no inquiry as to any protective devices which may 

have been installed to protect against any shorts. He confirmed that 

he was faimiliar to some extent with millisecond circuit breakers, 

and indicated that in case of an overloa~ or short circuit, power 

would be cut off instantaneously by these breakers, but he did not 

inquire as to whether such circuit breakers were installed on the 

switch rack in question because he did not think about it. The 

wooden timber raise he referred to was 15 to 20 feet from the switch 

rack area, and there was nothing combustible between the timber and 

switch rack, except for the corrugated fiberglass which he "assumed" 

was combustible. The drift in question was not a travelway, and no 

miners would have any reason to be there except for an electrician 

or repairman (Tr. 14-18). 

Inspector Arnoldi indicated that the equipment was energized and 

that he issued no order requiring that it be deenergized. He cited 

section 57.12-30 because it was ''the most applicable to get the situation corrected," although he agreed the standard was "poorly 

written." He was not familiar with the type of switches installed on 

1537 
the switch rack in question, the wiring insulation, or what a person 

would have to do in relationship to the switch rack in order to be 

exposed to an electrocution hazard. The presence of water posed a 

potentially dangerous situation, but he did not know what could 

happen with dripping water. He made no inquiries concerning the 

switch rack wiring insulation factor, the resistance rating of the 

wiring or insulation, or whether the rating was a water rating for 

the insulation factor (Tr. 19-25). 

On redirect, Inspector Arnoldi confirmed that the presence of 

a switch breaker ~ould make the likelihood of a fire a remote possibility (Tr. 26). He believed a fire hazard existed because of 

water dripping in the area, and the fact that the chain link fence 

was lying on the switch rack components. Even though power was shut 

off by the circuit breaker, he believed people would be exposed to a 

fire wherever and whatever the ventilation pattern (Tr. 28). 

On recross, Mr. Arnoldi distinguished between a substation and 

a disconnect rack, and indicated that the former involves transformers, while the latter involves switches. The citation concerns a 

switch rack and he conceded that he should not have characterized it 

in part as a substation in his citation. A switch rack has a lower 

fire potential, and while he discussed the length of time the condition cited had existed with the operator's representative, he could 

not recall the time, and his notes do not reflect any time frame. 

He was told the new raise would be ready in 2 or 3 weeks (Tr. 28-30). 

In response to bench questions, Mr. Arnoldi indicated that the 

switch rack was in operation at the time of the citation. He conceded the citation was a "type of housekeeping" condition that could 

lead to and contribute to a dangerous condition. The relocation 

work connected with moving the switch rack caused the deterioration 

of the area, and he did not believe the area would have deteriorated 

were it not for the move. He had observed the condition of other 

similar electrical equipment in the mine and it was in good condition. He knew that the operator was preparing to move the switch 

back, and he could think of no other standards which could be applicable to the situation he found (Tr. 30-32). 

Reseondent's Testimony 

Malcolm McKinnon, former mine superintendent at the Sunshine 

Mine, identified Exhibit R-101 as a partial level map of the west 

side of the 4400 level. He was familiar with the switch rack 

citation, the location of the cited rack, and he was the superintendent at the time the citation issued. He was in the area in question 

periodically, and he indicated that several days before the citation, 

work had been completed to enlarge some drift pipe lines, and in that 

process ground had to be removed and taken down with a muck pile, 

1538 
The switch rack was located close to the rear wall, at a deadend, 

and the area was not a travelway. Pipe construction was taking 

place, and the ground condition between the 4400 and 4600 areas 

was poor. Two men were working on one shift a day working on 

the repairs, and a repairman and an electrician would be in the 

area, and the area was under repair for 1 or 2 days before the 

citation was issued. He examined the rack from a distance of 

5 or 6 feet and observed it from the top of the muck pile. He 

observed no timbers, fencing, or muck falling into and onto the 

electrical components, nor could he recall seeing anything leaning 

against the switch rack. He observed no water falling into or onto 

the electrical components and recalled no fiberglass. The chain 

link fence was partially buried in the muck pile, but he did not 

recall that it was in contact with the with the rack (Tr. 41-48). 

Mr. McKinnon described the ventilation pattern and marked it on 

the exhibit. He indicated that smoke from any fire would exit 

directly to the mine surface rather than through any work places 

downstream, However, if the electrician or repairmen were in the 

area, they would be affected. He perceived no potentially dangerous 

situation on the day the citation issued (Tr. 48-50), 

On cross-examination, Mr. McKinnon conceded he was not present 

during the inspection. He indicated that ground water was present 

some 20 feet from the switch rack. He observed the area within a 

week or 10 days after the inspection, and the area had been cleanedup, the ground flagged off, and the fencing was back up (Tr. 50-53). 

George ClaEE_, underground electrical supervisor, stated that 

he was responsible for the switch rack in question, was in the 

area quite often, and after the fall of ground took place prior 

to the citation, he was there daily. He was supervising the work 

in the area prior to the citation and went there after the citation 

issued. He described the area around the switch rack after the fall 

of the ground, and he indicated that the switch racks are capable of 

handling 5,000 volts, and the wiring is rated at 5,000 volts wet. 

The disconnect switches are porcelain and are rated at 5,000 volts 

wet. There were 2,300 volts on the rack at the time of the citation. 

The wet ratings are UL, (Underwriters' Laboratories) ratings, and they 

relate to the electrical components operating under a wet condition. 

Water was going down the drift at a distance of some 15 or 16 feet 

from the switch rack, and while the area was damp and the humidity 

high, he saw no dripping water. The work area for the repairmen was 

separated from the switch rack by a pile of rocks. He cautioned his 

repairmen to be careful of the energized switch rack, and he believed 

that experienced miners could safely remove the muck pile and loose 

ground without deenergizing the equipment. He saw no loose ground, 

timber, or chain link fencing falling into or onto the switch rack or 

elect~ical components. Maintenance had not been neglected on the 

rack or wiring. The probability of the facility shorting would 

1539 
depend on a lot of factors, and while shorting from water was not 

impossible, the chances were very, very slight. Westinghouse vacuum 

breakers had been installed some 4 months prior to the citation, 

and they are ultra fast, The only thing that could catch fire was 

the insulation of the wiring itself, but he saw nothing flammable 

that could contact the wiring. The area was damp and wet and he 

saw no danger of a fire, and did not believe the repairmen working 

in the area were exposed to any unreasonable danger (Tr. 54-67). 

Mr, Clapp stated that the cables from the service raise to the 

switch rack were insulated with bore hole steel, that a person would 

have to reach under the switch rack and touch an exposed part of a 

disconnect door before being exposed to an electrocution hazard. The 

disconnect switches and rack are insulated and not exposed to the 

front (Tr. 6 7) • 

On cross-examination, Mr. Clapp confirmed that he did not 

believe it necessary to deenergize the switch rack wires because 

experienced miners were working around them, However, he conceded 

that carelessness could lead to a dangerous co~dition, Wooden lagging was in the muck pile and an old piece of water pipe was about 

a foot from the rack, Had Mr, Arnoldi not inspected the area, the 

conditions would have prevailed for 2 weeks at most while the new 

raise was being constructed (Tr. 70). 

In response to bench questions, Mr. Clapp indicated that even 

if the fencing were leaning across the switch rack, there would be 

no hazard since the UL rating of the cable was such that it was 

engineered to operate under wet conditions (Tr. 72), 

Sidney R. Barker, repairman, testified he had a job assignment 

repairing the area at the switch rack in question. He confirmed that 

Mr, Clapp advised him to be careful and not to take any unnecessary 

chances, He also worked in the area after the citation issued, When 

he began his repair work, he observed no timber, water, fencing material, or muck falling into or onto the switch rack. He did not 

believe he was exposed to any unreasonable danger while performing 

repairs or cleanup (Tr. 77). 

Cita.tio~ No. 346811, May 11, 1978, 30 CFR 57.19-100, states: 

"The shaft landing at the 4500 pocket was not provided with 

gates between the pocket and the shaft opening," 

Citation No. 346812, May 11, 1978, 30 CFR 57.19-100, states: 

"The shaft landing at the 4800 pocket was not provided with 

gates between the pocket and the shaft opening," 

Citation No. 349610, May 11, 1978, 30 CFR 57,19-100, states: 

"The shaft landing at the 5400 level pocket was not provided 

with .safety gates between pocket and shaft opening." 

1540 
"The 

with 

Citation No, 349611 1 May 11, 1978, 30 CFR 57,19-100, states: 

shaft landing at the 5000 level pocket was not provided 

safety gates between pocket and shaft opening", 

MSHA inspector Donald L, Myers, testified that he conducted the 

inspection and issued the citations concerning the shaft landings, 

and that fellow Inspector Guttromson accompanied him during the 

inspection of the skip pockets at the 4500, 4800, 5000, and 5400 

levels, He described a "skip pocket" as a cutout or offset off the 

side of the shaft that is connected to the dumping point above where 

the ore comes into· the pocket loading chute for transportation up the 

shaft on the skip. People were working on the day in question loadp 

ing ore onto the hoists from the pockets, A rope or chain was 

istalled between the skip pocket and shaft openings, but it was not 

being used and bad not been used for some time, No gates were 

installed, The depth of the pockets from the rear to the front of 

the shaft varied from 4 to 8 feet back to where the men were working 

(Tr, 84-87), 

Inspector Myers stated that the hazard presented by the conditions cited was the possibility of a man slipping or falling in the 

shaft or something coming down the shaft and hitting him, Water and 

wet muck sometimes come into the pocket and may cause a spill, On 

the day of the citations, two persons were exposed to the hazard, and 

they rotated their work among the four pocket-level locations which 

were cited, There was nothing to prevent the men from falling on the 

day in question, and he believed the operator should have been aware 

of the conditions since a chain or rope was installed but not used, 

and he believed there was some reason for their installation, The 

conditions were readily observable and he saw no safety line or lanyard and could not recall whether the employees had safety belts. 

After the inspection, safety lines were obtained and provided, The 

conditions were abated by fabricating and constructing a chain link 

gate on a rail or piece of metal across the upper portion of the 

shaft opening, The gates were mine management 1 s idea, he agreed 

that they would be satisfactory, and the conditions were timely 

abated, He considered the skip pocket to be a shaft landing because 

any landing where men have to get off and on a conveyance is a landing, Machinery would be taken on and off the conveyance at a normal 

landing, and if repairs are made in the skip pocket, equipment could 

be taken there, He believed that a "skip pocket" is a point in the 

shaft where the cage can be lowered with men or materials (Exhs, R-2 

R-2, R-3, Tr, 88-93), 

On cross-examination, Inspector Myers characterized a "level" as 

a working area where work such as mining or timber repair takes place, 

as distinguished from loading muck or ore from the skip pocket, He 

described the areas referred to as levels, the "grizzly," and loading 

pockets, and marked them on Exhibit R-1 (Tr, 93-96), He also 

descriped a "shaft station" and indicated that it is not the same 

1541 
as a "skip po_cket." He also indicated it was customary to have gates 

at shaft stations and they have been used for at least 10 years 

(Tr. 98-99). In his view, a rope or chain does not constitute a 

gate, but it is a barrier of some kind (Tr. 101). He has never 

researched gate construction, has not issued citations at other 

mines for not having gates across the front of skip pockets, and 

he could remember seeing no other mines with such gates installed 

(Tr. 101). A chain or rope installed at a skip pocket would meet 

the requirements of the cited safety standard, but if installed 

at a shaft landing station, they would not, He conceded that he 

required the installation of gates, but that a single chain in a 

skip pocket is not adequate but "it beats not having anything at 

all" (Tr. 103-104). 

Inspector Myers stated he did not discuss with the operator 

what was necessary to abate the citations, He confirmed that he 

was at the mine on a regular inspection and that someone had complained about flooding in a pocket and the lack of gates (Tr. 104, 

106), He believed that any kind of a barrier would have been sufficient although he did specify a gate. Had another barrier been 

in place and in use he would not have cited a violation. He stated 

he did not talk to the operator ab0ut other options for abatement 

because he cannot tell an operator how to abate a citation. Since 

the gate was mine management's design, and he found it adequate, he 

simply thought it was "fine" (Tr, 118), The gates in question will 

not keep material from going under the gate into the skip pocket 

because it has no rigid bottom, but it will prevent things from coming down the shaft into the skip pocket, and it will keep men from 

going out through (Tr, 118). 

Inspector Myers indicated that materials such as a welder and 

cutting torch might be unloaded at the skip pocket for repair work, 

but he did not know how often this would happen, Basically, the 

cagers are unloaded at this location, The activity taking place at 

a shaft station include the off-loading of materials such as timber, 

explosives, drill bits, and steel pipe, and a considerable number of 

miners would come and go from such a shaft station at any given shift. 

Considerably more activity takes place at a shaft station as opposed 

to a skip pocket, and there is a greater risk of materials falling 

from such a shaft station than would be the case of a skip pocket, 

Miners are required to wear safety belts where there is a danger of 

falling and that requirement is enforced at the mine. He would not 

have issued the citations if the miners were tied off to protect 

them against falling or being pushed into the shaft, and gates are 

not required at working deck locations. He has never heard of anyone referring to a skip pocket as a shaft landing, and he does not 

know whether miners consider skip pockets to be shaft landings, and 

he knows of no MSHA regulation that defines a "shaft landing." Standard 57.19-103 uses the term "loading pocket," and he believes it 

can be contrued to mean "skip pocket," and he could not explain why 

1542 
section 57.10-100 speaks in terms of "shaft landings." Respondent 

was in the process of developing protective "curtains" to keep material from falling down the shaft, and the one installed at the 5200 

level (Exh. R-3), was developed as a result of complaints. Since 

it was reported that the operator "were dragging their feet" in 

installing the rest of the curtains, it was decided that a citation 

should be issued. After being in the skip pocket with the loaders, 

he decided they needed protection from falling into the shaft and 

from materials falling down the shaft, and that prompted him to 

issue the citations (Tr. 119-130). 

Inspector Myers described the position of the skip loaders and 

cagers while performing thei~ work tasks in the skip pocket, and the 

cagers told him that they sometimes went to the edge of the shaft and 

stuck their heads out in the shaft and looked down, and he understands that this is part of the cager's normal job responsibility. 

He also described the position of the skip and the loading process 

which takes place. In the normal course of business, a miner would 

not normally approach the open shaft at any time other than when the 

skip is parked right at his feet (Tr. 130-134). 

On redirect, Mr. Myers indicated that at the time of his inspection no employees were exposed to. danger and his inspection took 

place during the day shift. His primary concerns were employees 

falling or being pushed down the shaft or materials coming down the 

shaft and bouncing in on them. He would consider a chain or some type 

of barrier that a miner could grab onto as sufficient to abate the 

conditions cited (Tr. 135). He defined a "shaft landing" as any point 

in the shaft where men have to get off and on a skip (Tr. 137). 

Respondent's Testimonr 

MSHA inspector Maurice Guttromso~ was called by the respondent 

as an adverse witness. He stated that he was aware of no mining 

texts that describe gate or curtain assemblies for skip pockets, but 

was familiar with mining or engineering publications that described 

gates for station landings or levels. The inspection in this case 

was the first time he had ever written citations for a loading pocket 

not having a gate, and subsequent to this time he has not issued any 

others because he has "never run across any yet that needed it. 11 At 

the mine where he is presently assigned, gates are not needed because 

the landings are "set so far back" it makes no sense to have them. 

They are some 15 feet from the shaft and usually one or two cagers 

are present there to load the skip located in the shaft. Since the 

cagers are so far back, there is no way anything can come down the 

shaft and strike them, He defined "shaft landing" as a point in the 

shaft where the skip stops and men and materials are loaded on and 

off, and he believes that the term "shaft landing" is the same as 

a "sha,ft station or landing" (Tr. 143-144). 

1543 
Robert E. Launhardt, safety director, Sunshine Mine, testified 

he was familiar with the citations issued in this case, and it is his 

understanding that the skip pocket was construed to be a shaft landing and therefore the citations were issued becausi the gates required 

by section 57.19-100 were not installed. He does not believe the 

citations were properly issued because he has never believed that a 

skip or loading pocket is synonymous with a shaft landing. It is 

his understanding that the term "shaft landing" or "shaft station" 

applies to an opening to a working level from which men and materials 

enter and leave a mine, and that section 57.19-100 was intended to 

apply to the shaft station or shaft landing gates. Had the intent 

been to cover skip pockets, the standard would have said so. He 

stated that in his experience, he has never heard the terms "loading 

station11 or "skip pockets" used synonymously with shaft station or 

level. He does not believe that the cited &tandard applies to loading pockets or skip pockets. He can think of no reason why a cager 

would want to lean over a shaft and look down, and his job description does not require him to do that since it is an unsafe practice. 

A gate or curtain would not protect a miner if he decided to lean 

over the shaft with his head out. Company policy and safety rules 

dictate that cagers and shaft repairmen who regularly work in areas 

where there is a danger of falling shall wear safety belts or lines, 

and Lhis safety rule is enforced, However, cagers and shaft repairmen as a group are reluctant to use safety lines when there is a 

shaft conveyance present because they do not want to be tied to anything in the event they have to move quickly, and the application 

of such a safety line in a pocket is questionable (Tr. 170-179). 

Mr. Launhardt stated that he was not involved with the original 

design of the gates or curtains that were ultimately installed at the 

pockets in question, although he was aware of the fact that they were 

being developed, and he was not present when the citations were 

issued, nor was he aware of the timetable for installing the gates 

or curtains (Tr. 180). 

On cross-examination, M:;_·, Launhardt testified as to his interpretation of the terms "shaft stations," "landings," "pockets," etc., 

and as to certain other safety standards dealing with shaft protection (Tr. 180-183). In response to further questions, he also defined 

the terms "stage" and "level," and indicated that the location where 

the gate was originally installed at the 5200 level is a skip pocket, 

as are the other locations cited (Tr. 189). 

Wayne Baxter, shaft foreman, testified he was involved in the 

process of developing gates or curtains or some kind of barriers for 

installation at the skip pockets. Attempts were made to construct 

gates which swing out, but that proved unworkable. The cagers brought 

the problem to his attention and since the 5200 pocket was the worst 

location for possible falling material, work to install a gate was 

started there. Alternative devices prior to the ga·i.:e which was 

1544 
ultimately installed at this location were rejected because the 

cagers did not like them opening in or out. After working with the 

cager and a shaft mechanic, he devised the gate which was installed. 

He intended to install similar gates at all the pockets and had fabricated frames for the 5400 and 5000 locations, but since no two pockets 

were alike, each had to be measured individually. Gates are now 

installed at all skip pockets, and when he began the project no one 

told him that such gates were required. As for any delays connected 

with the construction of the gates, he was not aware of any, and the 

citations were abated on the Monday after they were issued. The 

abatement could not have taken place that soon had he not been 

actively involved in constructing the gates (Tr. 194-201). He contemplated fininshing the construction of all of the gates within 

a week or week and a half of the inspection, and no one complained 

to him about any delays in this regard (Tr. 202-203). 

Findings and Conclusions 

Citation No. 347006, 30 CFR 57.12-30 

Mandatory safety standard 30 CFR 57.12-30 states as follows: 

"When a potentially dangerous condition is found it shall be corrected before equipment or wiring is energized." 

The parties waived the filing of any posthearing proposed findings and conclusions with regard to the citation in question. However, they were afforded an opportunity to make oral arguments with 

regard to their respective positions during the course of the hearings (Tr. 22-23, 26, 35-41, 77-82). 

Respondent's Arguments 

Respondent argues that the inspector picked the wrong standard 

to cite and that the record does not support a finding that the condition cited constituted a potentially dangerous condition within the 

meaning of section 57.12-30. Absent any detailed -evaluation of all 

of the circumstances which prevailed at the time the citation issued, 

respondent takes the position that the inspector's judgment in issuing the citation simply cannot be affirmed and that petitioner failed 

to carry its burden of proof. While alluding to other standards which 

respondent believes could have been cited, counsel could not specifically state which ones he believed were more applicable except for 

a reference to section 57.12-23. Further, respondent argues that 

the inspection was superficial in that the inspector failed to completely evaluate what was required to result in a truly dangerous 

situation. Respondent emphasizes that while the standard requires 

that any potentially condition be eliminated before equipment is 

energized, the inspector allowed the equipment to remain energized. 

1545 
Petitioner's Arguments 

Petitioner argues that the dangerous condition need not predate 

the energizing of the equipment wires, and that the standard should 

be broadly construed to either require the deenergizing of the equipment or to correct the potentially dangerous conditions, Petitioner 

relies on the inspector's testimony that the conditions cited were 

potentially dangerous, and notwithstanding the fact the the inspector made only a cursory examination of the conditions, petitioner 

believes there was .a potential for danger and asserts that that fact 

is controlling, The potential danger was that a fire could have 

occurred, and petitioner asserts that the standard cited by the 

inspector was in fact the applicable standard which perteined to the 

conditions found, 

The parties are in agreement that the fact that the inspector 

saw fit to describe ·the electrical equipment in question as a switch 

rack and substation is not fatally defective, The parties are in 

agreement, and the testimony presented establishes that what is 

involved here is a switch rack and not an electrical substation, 

The question of substation is relevant only insofar as the element 

of gravity is concerned since the potential for fire or electrocution hazard is significantly higher at a substation, as opposed to 

a switch rack (Tr. 79-80, 82). 

After careful review of the arguments presented by the parties, 

and based upon the preponderance of the evidence adduced, including 

close scrutiny of the testimony, I conclude and find that the petitioner has the better part of the argument and has established a violation by a preponderan~e of the evidence, I conclude that the cited 

standard is broad enough to apply to the situation presented on the 

day of the cited conditions, The deteriorated conditions at the area 

where the switch rack was located were obviously caused by respondent's decision to move the rack to a new underground location. Work 

was being performed to achieve this move, and in the course of that 

work the ground was disturbed, a chain link fence fell over, water 

was present, and other debris was adjacent to and resting against the 

switch rack, Faced with these conditions, the inspector believed that 

there was a potential hazard of shock and fire caused by a possible 

short circuit of the equipment, 

Although it is clear that the inspector failed to make any 

detailed evaluation or examination of all of the elements which he 

should have looked into to determine the extent of the hazard, the 

fact is that the equipment was energized and at least two men were 

working in and around the area in question, While the mine venti-

. lation system and circuit breaker protection on the switch rack 

may serve to mitigate the seriousness of the situation presented, I 

cannot conclude that these factors may serve as an absolute defense 

to the citation or serve as a basis for a finding that no potential 

danger was presented. 

1546 
The former mine superintendent testified that the general ground 

conditions in.the area were poor and that water was located nearby. 

However, he did not view the conditions cited during the inspection. 

Mr. Clapp, the electrical supervisor respo~sible for the switch rack, 

candidly testified that he cautioned his crew to be careful of the 

energized switch rack, and he was careful to point out during his 

testimony that experienced miners could safely remove loose rock 

and muck without:deenergizing the equipment, although the equipment 

was not deenergized due to the fact that an experienced crew was 

working on it. Mr. Clapp conceded that carelessness could lead to 

danger, and it is obvious to me that he is a safety-conscious supervisor who is concerned for the safety of his men. Coupled with his 

warnings to his crew to be careful, I believe it is reasonable to · 

conclude that Mr. Clapp was cognizant and aware of the fact that 

there was a potential danger present, notwithstanding his assertion 

that the men were not exposed to any "unreasonable" danger. tn addition, Mr. Clapp conceded that the probability of a short circuit is 

dependent on many factors, and he stated that while the chances of a 

short occurring due to the presence of water were slight, it was 

not impossible and that the wiring insulation could catch fire. He 

also indicated that if the citation had not issued, the conditions 

found by the inspector would have prevailed for approximately another 

2 weeks while the switch rack was being moved, In these circumstances, I conclude and find that the conditions at the switch rack 

area cited by the inspector constituted a potential danger within 

the meaning of the cited safety standard, and the citation is 

AFFIRMED. 

Negligence 

The evidence and testimony presented reflects that mine management personnel were in the area on a daily basis and I conclude 

that they should have been aware of the potential danger presented 

and taken corrective action prior to the inspection, In this regard, 

I find that the respondent failed to exercise reasonable care to prevent the conditions cited and that this constitutes ordinary 

negligence, 

Gravity 

Although I have concluded that the conditions cited presented a 

potential danger~ the seriousness of the situation is mitigated 

somewhat by the fact that the switch rack was equipped with circuit 

breaker protection and was operating below its UL wet voltage rating 

at the time of the citation. 

Good Faith Comeliance 

I find that the evidence adduced supports a finding that the 

respondent exercised good faith in ultimately abating the conditions 

cited·. 

1547 
Size of Business and Effect of Civil Penalty Assessment on Respondent's Ability to Remain in Business 

The parties stipulated that respondent is a large mine operator 

and that a civil penalty assessment will not impair its ability to 

remain in business. 

History of Prior Violations 

Respondent's history of 14 paid prior assessed violations, does 

not, in my view, constitute a significant history of prior violations, 

and for a large operator I cannot conclude that it warrants any additional increase in the penalty assessed by me in this matter. 

Citation Nos. 346811, 356812, 349610, and 349611 all concern 

alleged violations of the provisions of 30 CFR 57.19-100, in that 

respondent failed to install protective gates at four shaft landing pocket locations between the pockets in question and the shaft 

openings. Section 57 .19-100 states as follows: "Shaft landings 

shall be equipped with substantial safety gates so constructed that 

materials will not go through or under them; gates shall be closed 

except when loading or unloading shaft conveyances." 

The parties waived the filing of written proposed findings and 

conclusions, but were given an opportunity to present arguments on 

the record during the hearing in support of their respective positions (Tr. 207-211). 

Petitioner's Arguments 

Petitioner's counsel agreed that the language of the cited standard does not address itself to the protection of miners who may fall 

into the shaft. Counsel asserted that "the problem wasn't spillage 

into the shaft," but rather "the problem was materials coming in, not 

materials going out,'' and quite candidly, counsel asserted that petitioner is seeking to apply the cited standard broadly to the facts 

presented in this case (Tr. 189-191). 

Petitioner asserts that the threshold question is whether the 

loading pockets in question are equivalent or equal to shaft landings 

as described in section 57.19-100. If they are not, petitioner conc~des that the citations were incorrectly issued. In support of its 

case, petitioner relies on the testimony presented concerning the 

hazards of materials falling in and out of the pockets and the hazards 

of men falling into the shafts. Petitioner suggests that the recognition of such dangers supports a broad interpretation of the standard 

to include the pockets in question, particularly in light of the general introductory statement found in section 57.19 which petitioner 

asserts indicates that the intent of the standards is to include the 

protection of men who are performing work. As for the use of safety 

belts or lines in lie1: of protective gates, petitioner points out 

that belts and lines were not being used, and that the standard 

requiring the use of such belts and lines simply does not apply to 

the facts presented (Tr. 207-208). 
Respondent's Arguments 

Respondent interprets the intent of the standard to protect 

against materials coming from the shaft landing going into the shaft 

and that the gate was intended to protect against that event. Further, counsel asserted that there simply is no applicable standard 

that relates to curtains, gates, or anything else in terms of skip 

pockets or loading pockets, and he emphatically believed that respondent was in the process of developing and installing protective curtains at all skip pocket locations and that its motivation in doing 

this was in the interest of safety and not because any particular 

safety standard required it. Counsel does not believe that respondent should be penalized for its efforts in this regard by being subjected to civil penalty citations and assessments. Further, counsel 

does not believe that respondent could have been alternatively cited 

with section 57.19-103, because that standard deals with spillage out 

of the pocket and into the shaft, and the facts presented simply do 

not fit that situation (Tr. 192-193). 

Respondent agrees that the critical question rests on whether 

loading pockets are properly defined as shaft landings. Respondent 

asserts that the testimony presentAd demonstrates that in terms of 

normal usage in the mining industry and a reasonable interpretation 

of the usage of the language of the standard among knowledgeable 

people, that when the terms "shaft" and "landing" are used, it is 

intended to mean shaft stations or levels and not loading stations 

or loading pockets, Respondent avers that the cited standard simply 

does not apply to the locations cited and that respondent was in the 

process of devising and installing a protective device that MSHA was 

later willing to accept as "gates," and that the abatements accepted 

by MSHA as "gates" are in fact not "gates" within the meaning of the 

standard in issue. As for the use of safety belts and lines, respondent takes the position that there is no evidence that those requirements have not been enforced by the res~ondent, notwithstanding the 

fact that miners are reluctant to use them because they believe they 

are hazardous when used in conjunction with a moving shaft skip. As 

for the application of the standard in question to men and materials, 

respondent asserts that while the standard speaks in terms of preventing materials from corning down the shaft, respondent recognizes 

that the standard is intended to protect men from being injured and 

that is the predominant concern of respondent as well as MSHA. 

Further, respondent reiterates its argument that in the interest of 

safety and concern for the miners, iL voluntarily began to take corrective action to devise and install a protective device beyond that 

required by any applicable mandatory safety standard and that it 

should not be penalized or assessed civil penalties simply because 

it has demonstrated that such devices could be designed and installed 

but had not done it in time (Tr. 209-120). 

1549 
The evidence adduced in this proceeding reflects that while 

ropes or chains were installed at the pocket locations in question, 

they were not in use, and although the inspector indicated that 

while he would accept the use of any such barriers at these locations in question to prevent men from falling or being pushed into 

the open shaft, since ropes or chains were not being used, he considered that the locations were unprotected, Further, although the 

inspector denied that he insisted on gates, and indicated that the 

gates were "volunteered" by the respondent since respondent had 

installed such a device at another similar pocket location and he 

simply accepted this device as adequate for compliance, the fact is 

that his citations specifically state that gates were not provided, 

and I am convinced and conclude that by citing section 57.19-100, 

which specifically requires a protective gate, he firmly believed 

that the standard cited required the installation of gates at the 

pocket locations in question. His belief in this regard was dictated 

by his judgment that the hazards presented by not having such gates 

installed involved the possibility of someone fallin3 into the open 

shaft or being struck by materials which could inadvertently fall 

down the open shaft and striking a person who may be leaning out over 

the shaft or material falling down the shaft and somehow falling into 

the open pocket and striking someone who may be working inside the 

pockr·t. The parties stipulated that the protective gate which was 

installed on the 5200 level was installed at that location at least 

2 days prior to the time the citations in question issued (Tr. 202), 

and the evidence indicates that the gates which were ultimately 

installed to abate the citations were modeled after the one installed 

at the 5200 level. 

I take note of the fact that the parties, including the inspector 

who issued the citations, seem to be in agreement that the cited standard is not a model of clarity and that it lends itself to different 

interpretations. Taken at face value, the literal language of the 

standard requires that substantially-constructed gates be installed 

at shaft landings in order to prevent materials from going through 

or under them. It also requires that such gates be closed except 

when loading or unloading shaft conveyances. Quite frankly, I have 

no problem with the language of the standard per se. If MSHA can 

establish that the four locations which did nothave gates installed 

are in fact shaft landings, then it should prevail. If they cannot, 

then the citations should be vacated. The problem, as I see it, is 

compounded by the fact that a well intentioned inspector did not cite 

a mandatory standard which specifically and directly fits the facts 

presented here; that is, there is no standard that specifically 

refers to skip of loading pockets, men falling into the shaft, or 

materials falling into a shaft. Petitioner would have me read and 

apply the standard as if it included skip or loading pockets, even 

though those terms ar not used. In support of this argument, petitioner relies on the general language of section 57.19, and the fact 

that men and materials are loaded on and off at loa~ing pockets. 

1550 
Section 57.19 states as follows: "The hoisting standards in this 

section apply to those hoists and appurtenances used for hoisting 

men. However, where men may be endangered by hoists and appurtenances used solely for handling ore, rock, and materials, the appropriate standards should be applied. 11 

I see nothing in the language of section 57.19 that would support 

the petitioner's position that a skip or loading pocket is the same 

as a shaft landing. That section simply states that when men are 

endangered by hoists and appurtenances used solely for handling ore, 

rock, and materials, the appropriate standards should be applied. If 

men are loaded on and off the skip at the shaft locations in question 

then it seems to me that section 57.19 would be inapplicable. In any 

event, I see nothing in the language of section 57.19 tD support petitioner's position. Further, as for my transforming the term "shaft 

landings" as it appears in section 57.19-100 to read "loading pocket," 

I can only note that I take the standards as I find them. Interpreting a standard broadly to achieve the Congressional intent to insure 

safety in the mines is one thing, but rewriting safety standards is 

something else. Here, the terms "shaft landings" and "loading 

pockets" must have some distinct and separate meaning since the 

drafters of the standards use these and similar terms in different 

standards. For example, section 57.19-101 refers to "shaft collar or 

landing," 57.19-103 refers to "loading pockets," 57.19-105 refers to 

"shaft compartments," 57.19-106 makes reference to "shaft sets," and 

recently enacted mandatory standard 57.19-104 refers to "shaft stations." 44 Fed. Reg. 48534 (August 17, 1979). Since those terms are 

not further defin~in Part 57, the interpretation and application 

of those terms in an enforcement setting are left to the imagination 

and ingenuity of the inspectors issuing citations, the attorneys representing the parties, and I might add, the judge who ultimately must 

decide the question. 

The petitioner has the burden of proof. In surrunary, its position 

is that section 57.19-100 requires the installation of protective 

gates at shaft landings in order to preclude materials from coming 

into the loading pocket. Since the definition of "shaft landing" 

rests in part on the fact that men and materials are loaded on and 

off at such landings, and since men and materials are also loaded on 

and off at loading or skip pocket locations, petitioner reasons that 

the two terms are synonymous and that for purposes of the application 

of section 57.19-100, shaft landings and skip or loading pocket "landings" are the same. In support of its position, petitioner relies on 

the testimony of the inspector, dictionary definitions, and a broad 

reading of section 57.19-100. 

With regard to the inspector's testimony, it seems clear from 

the record that it is somewhat contradictory and equivocal on the 

quest~on of interpretation and application of section 57.19-100. 

1551 
This stems from the fact that the inspector was trying to do the 

best he could -under the circumstances by citing a standard which 

obviously does not specifically and directly fit the factual situation presented in this case. For example, the inspector stated 

that he considers a skip pocket to be a shaft landing because "I 

feel that any landing where men have to get off and on that conveyance is a landing." When asked whether machinery is taken on and 

on and off the conveyance, he answered, "on the normal landing they 

do," When asked about a "skip pocket", he answered, "if repair is 

done on the pocket or in the area of the shaft--is in the area of 

the pocket, I imagine equipment is." And, when asked how men would 

get to the pocket, he answered, "they ride the skip down." Thus, 

the inspector seems to distinguish between a "normal" landing and a 

skip pocket (Tr. 91-92), 

A second example of a somewhat confused interpretation of the 

language of the standard lies in the fact that one of the hazards 

and dangers relied on by the inspector in citing section 57.19-100, 

was the possibility of a miner falling into or being pushed into the 

shaft, However, the standard does not address itself to the protection of men falling into the shaft, It requires substantially constructed-gates to prevent materials from going through or under the 

gates, The language "through or under" generated some debate during 

the hearing as to whether it meant from the shaft side into the pocket or from the pocket into the shaft, and is again indicative of the 

somewhat loose language of the standard. 

A third example of confusion lies in the fact that the term 

"gate" is not defined. Pictorial Exhibits R-2 and R-3 depict some 

chain-link fencing fixed to a pipe or bar by rings to facilitate the 

lateral opening and closing of the device, and I assume that the term 

"curtain" stems from the fact that the device is similar to an ordinary household curtain, and the device depicted in the exhibits is 

the one previously installed at the 5200 level and which served as 

the prototype for the ones installed at the cited skip pocket locations to abate the citations, 

Finally, another example of the somewhat confused interpretation 

of section 57.19-100 lies in the fact that the inspector would not 

have issued the citations if barriers such as ropes or chains, or 

devices such as safety belts or lines would have been installed and 

used at the cited locations. However, if the purpose of issuing the 

citations was to protect against materials coming out of the skip 

pockets and falling into the shaft, I fail to understand how such 

personal protective devices would prevent this from happening, It 

seems to me that section 57.19-103, which states in part that ''loading pockets shall be constructed so as to minimize spillage into the 

shaft," would be an appropriate standard to cover that situation. 

As for the use of life lines or safety belts, section 57.15-5, which 

requires the use of belts and lines where there is a danger of falling, 

would, be an appropriate standard to prevent a man from falling into 

the shaft, notwithstanding the fact that the men are not particularly 

enchanted with such devices. 

1552 
The inspector asserted that the reference to "gates" in his citations and abatements was only intended to reflect what the respondent 

had already installed at the 5200 pocket location, and that since he 

approved of that gate, and since respondent was willing to go ahead 

and install similar ones at the other locations, he accepted the 

installation of the gates as sufficient to meet the requirements of 

the standard. However, I take note of the fact that the initial 

inspection of the skip pocket locations which did not have gates 

installed was prompted by complaints made to MSHA. As a result of 

those complaints, an MSHA official from Arlington, Virginia, by the 

name of Pitts made the following notation on a piece of paper and 

gave it to the inspector: "57.19-100 (m) Need safety gates between 

pockets and shaft at 4800, 4500, 5000, 5400 the same as is on 5200 

pocket," (1'r. llO; Exh. ALJ-1). 

Although the inspector denied he was influenced in any way by 

the note given him and indicated that he made an independent evaluation of the conditions at each of the locations cited, it seems 

clear to me that the inspection was clearly the ,result of the complaint and that Mr, Pitts' note did influence the inspector, The 

note is dated 2 days before the inspection, and I simply cannot 

believe that an inspector is not influenced when an MSHA official 

from headquarters brings something to his attention, Here, since 

the note makes specific reference to section 57.19-100, and cites 

the identical four pocket locations cited by the inspector in his 

citations as being in need of gates, it seems obvious that the 

inspector was influenced by the note and the complaint when he 

issued the citations, 

During the hearing, respondent made much of the fact that the 

inspection had been prompted by a written complaint which had not 

been furnished to the operator, Counsel argued that the statute 

requires that copies of written complaints be furnished to an operator (Tr. 105-116). After considering the testimony presented, I 

am persuaded that a written complaint was not in fact filed with MSHA 

and that the operator's rights have not been violated in this regard, 

As fo.r the complaint, the note, and the influence they may have had 

on the inspector, I cannot conclude that this renders the citations 

invalid. The fact of violation must be determined on the basis of 

the evidence adduced to support the conditions cited and not on what 

prompted the inspector to conduct the inspection in the first place, 

The inspector was simply doing his job by following up on certain 

alle~ations of a purported unsafe condition in the mine. However, 

the prior notation given to the inspector is relevant to the extent 

that it indicates to me that he at least relied on it to some extent 

in citing section 57.19-100. 

In the final analysis, 

classic example of a safety 

tual situation which simply 

it seems clear 

standard being 

does not fit. 

1553 

to me that this case 

applied by MSHA to a 

Although the parties 

is a 

facseem 
to be in agreement that some protection is needed to prevent miners 

from being injured, they are in total disagreement as to whether 

the cited standard applies, and in support of their respective 

after-the-fact arguments, have relied primarily on arguments concerning distinctions between the meaning of the terms "shaft landing" 

and "loading" or "skip pockets." In this regard, I deem it appropriate at this point to include certain pertinent dictionary definitions of several terms used in this proceeding as they appear in the 

Dictionary of Mining, Mineral, and Related Terms, published by the 

U.S. Department of the Interior, 1968 Edition, and they are as 

follows: 

Shaft. An excavation of limited area compared with 

its depth, made for finding or mining ore or coal, raising 

water, ore, rock, or coal, hoisting and lowering men and 

material, or ventilating underground workings. The term is 

often specifically applied to approximately vertical 

shafts, as distinguished from an incline or inclined shaft. 

Landing. a. Level stage in a shaft, at which cages 

are loaded and discharged. Pryor, 3. b. The top or bottom of a slope, shaft, or inclined plane. Fay. c. The 

mouth of a shaft where the cages are loaded; any point in 

the shaft at which the cage can be loaded with men or 

materials. Nelson. d. The brow or level section at the 

top of an inclined haulage plane where the loaded tubs are 

exchanged for empty tubs or vice versa. Nels~. 

Shaft pocket. a. Ore storage, excavated at depth, 

which receives trammed ore pending removal by skip. Pryor, 

3. b. Loading pockets of one or more compartments for 

different classes ~f ore and for waste built at the shaft 

stations. They are cut into the walls on one or both sides 

of a vertical shaft or in the hanging wall of an inclined 

shaft. Lewis, p. 257. c. See measuring chute. Nelson. 

Shaft set. a. Supporting frame of timber, masonry, 

or steel which supports sides of shaft and the gear. Composed of two wallplates, two end plates, and dividers which 

form shaft into compartments. Pryo_E., 3. b. A system of 

mine timbering similar to square sets. The shaft sets are 

placed from the surface downward, each new set supported 

from the set above until it is blocked in place. New wallplates are suspended from those of the set above by hanging 

bolts. Blocking, wedging, and lagging complete the work 

of timbering. At stations the shaft posts are made much 

longer than usual to give ample head room for unloading 

timber and other supplies. Lewis, pp. 45-47. 

1554 
Shaft station. a. An enlargement of a level near a 

shaft from which ore, coal, or rock may be hoisted and supplies unloaded. ~· b. Enlarged space made to accommodate pump cru·sher, ore pockets, shunting, truck tripples, 

etc. Pryor, 3. 

Sk~p. A guided steel hoppit usually rectangular with 

a capacity from 4 to 10 tons and used in vertical or 

inclined shafts for hoisting coal or mineral. It can also 

be adapted for man riding. The skip is mounted within a 

carrying framework, having an aperture at the upper end 

to permit loading and a hinged or sliding door at the 

lower end to permit discharge of the load. The cars at 

the pit bottom deliver their load either direct into two 

measuring chutes located at the side of the shaft or into 

a storage bunker from which the material is fed to the 

measuring chutes. 

Skip loader I. In metal mining, one who loads ore 

into skip (large can-shaped container) from skip pockets 

(underground storage bins) at different shaft stations 

in mine, operating a mechanical device to open and close 

the gates of the loading chutes. Also called skipman; 

skipper. [Emphasis added.] 

Skip loader II. In metal mining, one who dumps ore 

from mine cars directly into skip in mines not equipped 

with skip pockets. 

A review of the dictionary terms. set forth above reflects that 

the terms "skip loading station" and "shaft landings" have separate and 

distinct meanings. As indicated by ~he definition of the term "skip 

loader," a skip loading station or pocket is a location where minerals are stored or loaded into a skip for transportation to the surface. In addition, the different mandatory standards previously discussed where those and similar terms are used, supports a conclusion 

that those terms have different and distinct meanings. Logic distates that if the intent was not to give them different meanings, the 

standards would not have referred to them. In addition, the testimony 

reflecting the activities which normally take place during the mining 

cycle, including the loading of ore at skip stations, persuades me 

that the terms have different meanings in the real world of mining 

underground. While it may be true that materials and men may be 

loaded on and off a skip from time to time at a loading or skip pocket, I cannot conclude that this fact, per se, transforms a skip or 

loading pocket into a shaft landing for purposes of the application 

of section 57.19-100. I construe the standard to apply to shaft landings, and I conclude that it requires the installation of gates, without exception, so as to preclude materials from falling from the skip 

or loading pocket into the shaft. However, I am not persuaded by 

the fact that simply taking men and materials on and off any mine 

1555 
shaft landing necessarily means that gates have to be installed at 

those locations. It seems to me that if MSHA desires to protect 

miners from falling into a shaft at any such mine locations, it 

should vigorously enforce the existing safety belt and line standard. If MSHA desires to protect men from the hazard of materials 

falling into a shaft from a loading or skip pocket landing location 

in a mine, it should vigorously enforce the standard requiring the 

installation of protective devices at those locations. And, if MSHA 

desires to prevent both men and materials at skip and loading stations or pockets from falling into mine shafts, it should promulgate 

a clear and concise safety standard covering precisely that situation. The practice of rewriting safety standards through the adjudicatory and hearing process in a civil penalty setting is simply not 

an appropriate or desirable way to promulgate such standards, particularly when both the operator and the enforcing agency seemingly are 

in agreement that such a standard is in order. 

In addition to the aforesaid enforcement problems dealing with 

a standard which does not precisely fit the factual situation presented, I believe it is basically unfair to penalize a mine operator 

by imposing civil penalty assessments in a situation where the mine 

operator recognizes the safety problems presented and is makin; an 

effort at compliance. In this case, I am convinced from the evidence 

presented, that the respondent did not reasonably believe that any 

mandatory standard required the installation of protective gates at 

loading stations, installed a prototype of such a device at one such 

location, and was in the process of devising and installing similar 

devices at other such locations, The citations were issued because 

a complaint had been filed, and the inspector issued the citations 

because he believed the operator was "dragging his feet" and he candidly admitted this was the case. In my view, the intent of civil 

penalties is to deter future violations. Here the citations were 

used to nudge the operator into complying with a standard whose 

application was questionable in the first instance. It seems to me 

that something short of subjecting an operator to monetary civil penalties up to $10,000 and possible mine closure if he does not ultimately come into "compliance" would have achieved the intended purpose 

of insuring a safe working environment for the miner working at the 

skip loading areas cited. Further, I firmly believe that the promulgation of a precise and clear safety standard to prevent the types of 

hazards alluded to in this proceeding would advance the interests of 

safety simply because the operator would be put on notice as to what 

was expected of him in terms of compliance and MSHA inspectors would 

not be put in the tenuous position of not knowing which mandatory 

standard to cite in a given situation, and they would not be placed 

in the position of attempting to justify their judgment calls after 

the citations are issued through a laborious and somewhat semantical 

exercise and application of some other safety standard, which may, in 

his view, be "close" but not quite on point. In the circumstances 

1556 
and facts presented here, and after careful consideration of all of 

the facts and circumstances surrounding the issuance of the citations in question, I conclude and find that they should be vacated 

and that the civil penalty proposals seeking assessments for the 

alleged violations should be dismissed. My findings and conclusions 

are based chiefly on the fact that the cited standard applies to a 

shaft landing and MSHA has not convinced me by any credible evidence 

that the skip or loading pockets in question are in fact shaft landings, or that the standard cited requires the installation of protective gates at skip or loading pockets. The citations are VACATED. 

ORDER 

In view of the foregoing findings and conclusions, IT IS ORDERED 

that the following citations be vacated and the proposals for assessment of civil penalties for those citations be DISMISSED. 

Citation No. Date 30 CFR Section 

346811 5/11/78 57.19-:-100 

346812 5/11/78 57.19-100 

349610 5/11/78 57.19-100 

349611 5/ 11/78 57.19-100 

In view of the foregoing findings and conclusions affirming 

Citation No. 347006, and taking into account the six statutory 

criteria in section llO(i) of the Act, a civil penalty in the amount 

of $350 is assessed for this citation and respondent IS ORDERED to 

pay that amount within thirty (30) days of the date of this decision. 

Distribution: 

Marshall P. Salzman, Trial Attorney, U.S. Department of Labor, 

Office of the Solicitor, 450 Golden Gate Avenue, Box 36017, 

Room 10404 Federal Building, San Francisco, CA 94102 

(Certified Mail) 

Daniel L. Poole, Esq., Suite 1010, Bank of Idaho Building, 

P.O. Box 1559, Boise, ID 83701 (Certified Mail) 

Standard Distribution 

1557 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 4, 1979 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. MORG 79-77-P 

A.O. No. 46-01440-02013 

v. 

Alexander Underground Mine 

THE VALLEY CAMP COAL COMPANY, 

Respondent 

Appearances: 

Before: 

DECISION 

John H. O'Donnell, Esq., Office of the Solicitor, 

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

for Petitioner; 

Ronald Johnson, Esq., Schrader, Stanp and Recht, 

Wheeling, West Virginia, for Respondent. 

Chief Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

The above case arose on the filing of a petition for the 

assessment of civil penalties alleging three violations of mandatory 

·safety standards occurring in August, September and November 1977. 

The case therefore arose under the provisions of the Coal Mine Health 

and Safety Act of 1969, 30 U.S.C. § 801 ~~· Pursuant to notice, 

the case was called for hearing on the merits in Wheeling, 

West Virginia, on September 5, 1979. George Messner, James E. Mackey 

and John Radosevic testified on behalf of Petitioner, Tommy Tucker 

and Arnold Miszaros, on behalf of Respondent. At the conclusion of 

the hearing, the parties waived the filing of proposed findings and 

conclusions and I issued a bench decision as follows: 

JUDGE BRODERICK: All right. With respect to the violations alleged in this proceeding, I find, first, that the 

Respondent at the time of the alleged violations was a 

large operator. I further find that the Respondent's history of prior violations was not significant, and the 

penalties assessed will not be increased because of that 

history. 

1558 
With respect to the violation charged in Government's 

Exhibit 2, which is Notice 3-GM issued August 23, 1977, I 

find and conclude that the violation alleged was not established by the evidence, and therefore no penalty is·imposed. 

With respect to the violation charged in Government's 

Exhibit Number 6, Notice 2-GM, September-21, 1977, I find 

that a violation of 30 CFR 70.201 was established by the 

evidence showing that an inaccurate sampling was being 

taken of the respirable dust in the mine atmosphere of the 

004 occupation in the subject mine. I find that the violation was not serious. I find that it was not caused by 

Respondent's negligence. I find that the condition was 

abated promptly and in good faith. I assess a penalty of 

$50 for this violation. 

With respect to the violation charged in Notice 

Number 1-JR, November 1, 1977, the Government's Exhibit 9, 

I find that there was established a violation of 30 CFR 

75.1403 because of the failure of Respondent to provide a 

lifting jack and bar for the Number 7 and 9 self-propelled 

personnel carriers in the subject mine. 

This equipment was required by Safeguard Notice 1-CBS, 

issued July 26, 1973. I find that the condition was not 

serious, that there is no evidence that it was caused by 

Respondent's negligence. I find that it was abated 

promptly and in good faith. I assess a penalty of $75 for 

this violation. 

A written decision affirming these findings will be 

issued, and an appeal time will run from the date of the 

issuance of the written decision. 

That concludes the record of this proceeding. I thank 

you very much, gentlemen. 

I hereby affirm the bench decision and make the additional findings and conclusions as follows: 

1. Government's Exhibit G2, Notice No. 3 GM, August 23, 1977, 

alleges a violation of 30 CFR 70.lOO(b) in that the average respirable 

dust concentration exceeded the allowable limit for a particular occupation in Respondent's mine. This was based upon 10 samples submitted 

by Respondent between June 15 and August 8, 1977. The evidence showed 

that two of the samples were submitted in error, in that they were 

taken from employees in another section of the mine. Absent the 

two samples, the average concentration was within the applicable 

limits. Respondent was charged with exceeding the respirable dust 

concentration, not with failing to submit accurate samples. The violation charged was not shown to have occurred. 

1559 
2. Government's Exhibit G6, Notice No. 2 GM, September 21, 

1977, alleges a violation of 30 CFR 75.201 in that a respirable dust 

sampler belonging to a section mechanic was found to be operating on 

the table in the dinner hole. The standard requires that accurate 

samples be taken and the evidence clearly shows that a patently inaccurate sample was being taken. There is no evidence that Respondent was 

aware of the facts prior to the notice being issued. 

ORDER 

Based on the above findings of fact and conclusions of law, 

Respondent is ordered to pay, within 30 days of this decision, the 

following civil penalties for the violations found herein to have 

occurred: 

Notice 

2 GM 9/21/77 

1 JR 11/1/77 

Distribution: 

By certified mail. 

30 CFR 

Standard 

70.201 

75.1403 

Penalty 

$ 50 

75 

Total $125 

_,.., f 

J,/f~t,Lt/s _,.HJ r1!J cl?,//~ ~i James A. Broderick 

Chief Administative Law Judge 

Arthur M. Reclit; Esq., Attorney for The Valley Camp Coal Company, 

Schrader, Stamp & Recht, 816 Central Union Building, Wheeling, 

WV 26003 

John H. O'Donnell, Trial Attorney, Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

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

~oulevard, Arlington, VA 22203 

1560 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WASHINGTON CONSTRUCTION COMPANY, 

Respondent 

OCT s l979 

Civil Penalty Proceedings 

Docket No. DENV 79-288-PM 

A.c. No. 10-00634-05001 

Docket No. DENV 79-323-PM 

A.c. No. 10-00634-05002 

Monsanto Quartzite Quarry 

DECISION 

Appearances: Mildred Lou Wheeler, Esq., Office of the Solicitor, U.S. Department of Labor, for Petitioner; 

James A. Brouelette, E.E.O./Safety Officer, 

Washington Construction Company, Missoula, 

Montana, for Respondent. 

Before: Administrative Law Judge Michels 

These proceedings were brought pursuant to section llO(a) of the 

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

Act). The petitions for assessment of civil penalties were filed by 

the Mine Safety and Heal~h Administration on January 30, 1979, and 

February 9, 1979, respectively, and timely answers were filed thereafter. A hearing was held on July 26, 1979, in Missoula, Montana, at 

which both parties were represented. 

The parties agreed that the Washington Construction Company's 

operations affect commerce within the meaning of section 4 of the 

Act. (Tr. 5). The parties also agreed to settle in Docket No. DENV 

79-288-PM, Citation Nos. 345011, 345017 &nd 345019 for the full 

amounts assessed by the Mine Safety and Health Administration 

which are respectively $30, $30 and $22. This settlement was 

approved (Tr. 5-6). 

Docket No. DENV 79-288-PM 

Citation Nos. 345010, 345013 and 345018 

Evidence was received in a consolidated fashion on the abovelisted citations and the decision and assessments were made from 

1561 
the bench. The decision from pages 54-59 with some necessary corrections and deletions follows: 

THE COURT: May I see the exhibit, please? The decision from the bench on three of these citations is as follows: The citations are Nos. 345010, 345013, and 345018. 

Each of these citations alleges the violation of mandatory 

standard 30 CFR 56.12-32. This standard is mandatory, and 

it requirei that "Inspection and cover plates on electrical 

equipment and junction boxes shall be kept in place at all 

times except during testing or repairs." The evidence 

received indicates clearly that the cover boxes were off, 

so it is a violation in each instance of that particular 

manda·tory standard. It w~s the position of Mr. Brouelette 

that these were housekeeping types of violations; but nevertheless, they do go contrary to the Act. So, I have really 

no option except to find the violation; and of course the 

other elements go to the amount of the penalty or the 

assessment. 

Now, I should make clear that as the Administrative 

Law Judge, I am not bound by the point system used by the 

Assessment Office. However, I try to make the assessment 

on as rational a basis as I can taking into account all of 

the evidence as well as the statutory criterion. If it was 

not clear, I will now make it clear, and I hereby find a 

violation of 30 CFR 56.12-32 for each of those three citations. I will now take into account or make findings of 

each of the statutory criteria. 

So far as past history is concerned, the evidence shows 

14 citations, apparently all of which were issued on the 

same occasion of this inspection. I find that this is not 

an appreciable history. The evidence was received as to the 

size of the operator. It appears that its production is in 

the neighborhood of 200,000 tons per year, and employees, 

500 to 1,500 [company wide]. 

* * * * * * * 

It seems to me that company wide we have a medium size 

company; but possibly for the site itself, it would be maybe 

small to medium; and I so find. It was stipulated that the 

fines to be assessed here would have no effect on the operator's ability to continue to do business. It was further 

stipulated that the operator abated the violations in good 

faith within the time allowed by the inspector. 

So, as far as the gravity and negligence is concerned, 

it would be my view that with some variations, which I don't 

1562 
think are necessarily too important, that the seriousness or 

gravity and the degree of negligence are about the same for 

the three. So, I will proceed to make findings for each of 

the three violations on those further criteria. I will take 

first the gravity. 

I think I could accept in part that in these three 

situations, the probability of serious harm or injury was 

slight; and it is my impression from the inspector's testimony that he virtually agreed to that. I think that was 

in part because of the location of the boxes, and the fact 

that there was very little traffic near the boxes. On the 

other hand, I don't want to underestimate the general 

seriousness of any electrical violation. The standard where 

the regulation was promulgated was for a good reason; and 

that is, while most of the time possibly a person could put 

his hand in that box and not be affected, there is also the 

risk or the chance that because of some faulty connection 

or a bare wire, a person could seriously be burned or electrocuted. Of course, while it is true that maybe this 

wouldn't happen very often, it could happen where you have 

poor visibility, people groping around, and accidentally 

reaching into the box. So, there is that possibility. 

Now, we can say that maybe in these instances it was 

remote, but when you look at the overall history of mine 

accidents, you see that you do have an accumulation of such 

things. You have maybe not'too many of them, but you will 

have one or two here and one or two elsewhere for some other 

thing, and that again is quite remote; but the net effect 

is to cause overall, a history of injuries and perhaps even 

deaths, that the whole purpose of the Act is to eliminate. 

So, I can't discount that that is serious in that sense. 

I will find it serious with the qualifications that I 

mentioned. 

Now, so far as the negligence is concerned, in this 

instance the lack of the covers was clearly visible, so it 

is the kind of thing that I think that safety people would 

normally expect the mine management and miners themselves 

to note and to do something about it. I do appreciate, and 

I will take into account the fact that in this case it is 

apparently due to one particular person, and that person 

is no longer working the mine. At first I was somewhat 

impressed by the fact that there were, in these particular 

cases, four of these violations which seemed to be sort of 

a pattern and which suggested that maybe it was a very 

serious case of negligence; but because of the circumstances I just related I understand this is now take~ care 

of and will not happen in the future. So, taking that into 

1563 
account, I would just say it is a low degree of ordinary 

negligence. I believe, then, that I covered all of the 

criteria which brings me to the assessment. 

In my experience, I would say that the amounts 

assessed are not really excessive. I would think that 

ordinarily those would be appropriate assessments. However, 

I am going to take into account some of the factors that I 

just mentioned for these particular cases. It is my understanding that the first assessment was somewhat larger 

because of perhaps more access to that particular box. Considering all of these circumstances, I am going to make an 

assessment of one-half of .the amounts originally asked, 

namely, that would be for Citation No. 10, $16, for Citation No. 13 it would be $12, and for Citation No. 18 it 

would be $12. 

That completes my decision on these first three assessments. We may go to the next. 

* * * * * * * 

Citation No. 345012 

Evidence was received on this citation and the decision and 

assessment were made orally from the bench. It is recorded at 

pages 72-74 of the transcript and with necessary corrections and 

deletions is as follows: 

THE COURT: I will now proceed to make the decision on 

Citation No. 345012. The first consideration was whether or 

not the Act or the regulation has been violated as charged. 

The charge in this instance is that the conduit elbow had 

broken causing some at least slight damage to the cables 

to the Telesmith Cone Crusher Motor. Mr. Brouelette has 

argued here that this should not be a violation because of 

the lack of any hazard, in his view. Mr. Brouelette [also 

argued there was no] violation in this particular instance 

in that the condition, which existed, was [not] contrary to 

the regulation. 

Now, the regulation, that portion that the inspector 

had in mind, requires that, "Cables shall enter metal frames 

of motors, splice boxes, and electrical compartments only. 

through proper fittings." The results of the broken elbow 

and the cable then hanging loose meant that it was not 

entering the box through proper fittings. It is not the 

purpose of these regulations to decide in each case whether 

or not there is a specific hazard before the violation 

occurs. Maybe some of the regulations are written that way, 

1564 
but most of them just assume that if that condition existed, 

it has the potentiality for a hazard under some conditions. 

So, that is why a good electrical practice, I assume, 

requires that those kinds of conditions not be allowed to 

exist. Therefore, regardless of the degree of the hazard 

or the possibility of harm, it is really not relevant as to 

the question of whether or not there was a violation. If 

the condition exists, there is a violation. 

Now, maybe as a layman it is difficult for you to 

understand that, but that is the way most of these regulations are written, and that is the way they are enforced. 

So, with that in mind, I would find that because of these 

broken connections and th? condition that has been described 

and it is not disputed, as I understand it, that there then 

was, and I do find a violation of 30 CFR 56.12-8. I should 

say the findings have already been made as to all of the 

criteria except as to gravity and negligence of the citation. so, I would just confine myself to those two 

criteria. 

As far as the seriousness i~ concerned, I just have to 

believe that when a cable such as this is broken, and that 

there is a vibration existing and the possibility, at least, 

even though it may not be at all that great of contact, 

electrical contact, that it is, what I would classify it as, 

serious, and I so find. On the negligence factor, I think 

it is clear. I don't believe it is really disputed that 

this happened at the time that repair was done on the 

machinery; so it was known and that should not have been 

permitted to exist. 

I will, however, take into account, even though there 

is no evidence on the subject in the strict sense of the 

word, the fact that the company had ordered parts for this. 

I do that because Mr. Brouelette is not familiar with legal 

procedures, and he did not have the evidence at hand; but I 

will take his word for it under these circumstances that it 

was on order. Thus, it seems to me that the company did 

recognize the problem and was prepared to do something about 

it. I don't think that that means that they are relieved of 

all responsibility here. In some of these situations it may 

be.that the machine simply cannot be operated if a danger 

exists. However, I will take that factor into account and 

I will do exactly, because of that factor, the same as I 

did for the other assessments, and I will reduce it by 

one-half. So, accordingly, I hereby assess for Citation 

No. 345012 the sum of $15. That completes the decision in 

this citation. You may go to the next citation. 

* * * * * * * 

1565 
Docket No. DENV 79-323-PM 

Citation No. 345020 

Upon the receipt of evidence on this citation, a decision and 

assessment were made orally from the bench. It is recorded at pages 

101-105 of the transcript and with certain necessary corrections and 

deletions reads as follows: 

This is a decision in DENV 79-323-PM, which contains 

a single citation. That citation is that the jaw discharge conveyor belt was used as a walkway to the drive 

motor and was not provided with handrailing. The standard 

cited as being violated is 30 CFR 56.11-2. This citation 

reads, "Cross-overs, elevated walkways, elevated ramps, 

and stairways shall ·be of substantial cons true ti on provided with handrails, and maintained in good condition." 

That is a quotation, and that is the end of the relevant 

part. 

The only evidence on the far.t of the violation is that 

of the testimony of the inspector and also the document which 

is a picture. I don't understand that there is any contest 

as to the facts. The conveyor belt was used by men, by 

miners, including a supervisor, as a means of access to the 

motor. The conveyor belt is, if I have it correctly, some 

160 feet and rises to an elevation of as much as 30 feet at 

the very tip. The specific issue, it seems, is [the operator's] contention that such a conveyor belt is not a walkway. 

The regulation that I read does not specifically mention the 

conveyor belt. At this point I should state that with these 

regulations, these mandatory standards, that it is not infrequent that they do not mention specific pieces of machinery 

and specific conditions; but they are written in a way, in 

a general way to cover situations that come within their 

scope even though they are not specifically listed. 

Now, it would be very helpful here, of course, if this 

was a matter that somebody had previously considered and 

ruled on, and we would perhaps have authority then for 

whether or not a conveyor belt used in this matter is a 

walkway. 

The argument of MSHA is simply, since it in fact was 

used as a walkway, that therefore it is a walkway and therefore it is subject to the provisions of that particular 

regulation. So, it would be up to me to make that decision, 

and since I have decided to do it from the bench, I will 

attempt to do so, keeping in mind, however, that I may be 

ruling on something [for] which there may be legal precedent 

1566 
or other information which would bear on this and [of] which 

I am unfamiliar. 

So, my ruling, then, I think you should understand is 

based on the confines of this case and the testimony and 

evidence that we have taken here today. Now, I appreciate 

the view that you have mentioned that [such] construction 

of this particular standard could mean a lot of areas not 

otherwise thought to be walkways [would be covered]; but I 

am going to confine this to this particular condition and 

piece of machinery which was a relatively long area, namely, 

160 feet. It was elevated up to 30 feet, which is a long 

way off the gro~nd, and c~rtainly would suggest a clear 

hazard to miners using that. It, according to the statements made, is a relatively stationary piece of machinery. 

It is not moved daily or monthly or even yearly. It stays 

there more or less permanently, as these things go. It 

would not be similar, at least I would not view it, to the 

analogy made of a steel worker ·on a beam. These beams have 

to be moved around to be put into place, and even there, I 

am not confident that they don't require some kind of protection for those steel workers; but in any event, that is 

a temporary, impermanent walkway kind of situation, and that 

is not what we are dealing with here, as I see it, at least. 

I see it as a more permanent situation, and I would accept 

the position of the Government on this, that since it was 

used in this manner, that therefore it does become a walkway. 

I will take into account, I think, a little bit, at 

least in the assessment, the fact that this does come as 

something new. Even the inspector was not completely sure 

about it. He had to consult his supervisor, and in that 

kind of situation, I suppose that we can't expect the companies subject to these regulations, then, to know either. 

So, therefore I think that that ought to be a big consideration in the assessment of a penalty, namely, this is more 

like a warning rather than a severe penalty for something 

that should clearly be done; but having said that, then, 

and I hope having made myself fairly clear, if not completely satisfactory to everybody concerned, I will find, 

then, that based on the use of this conveyor belt as a 

walkway and the fact that it had no guard rail, that it 

was a violation as charged of 30 CFR 56.11-2. 

Findings have already been made on all the criteria 

except as to gravity and negligence. So as far as the 

gravity is concerned, I think there is no question that it 

is a serious matter. Even though these men are experienced 

1567 
and are aware of the hazard that is there, and almost anything could happen to cause a severe injury to a miner, so 

I would find that the violation is serious. Now, as to t~e 

negligence, I have already covered that in part. Surely 

the company did know there were no handrailings, and even 

the supervisor used it; but what they did not know and could 

not apparently know, there being no history of this being 

cited as a violation, that that would be construed to be a 

walkway. So; therefore, the negligence in this instance 

would be minimal. It would be slight negligence in my view, 

and for that reason, then, I would reduce the penalty to 

what I would consider just a nominal penalty in this circumstance. In that I consider this in the nature of a warning, 

and so therefore it shoulo not be a severe penalty. With 

that in mind, I would assess a penalty for this alleged violation of $5. 

* * * * * * * 

The following is a summary of the assessments made or agreed upon 

herein: 

Docket No. DENV 79-288-PM 

Citation No. 

345010 

345011 

345012 

345013 

345017 

345018 

345019 

Penalty Assessed or Agreed Upon 

Total 

$ 16 

30 

15 

12 

30 

12 

22 

$137 

Docket No. DENV 79-323-PM 

Citation No. 

345020 

It is ORDEI{ED that the 

within 30 days of the date 

Penalty Assessed 

$ 5 

Grand Total $142 

ORDER 

Respondent pay the total penalties of $142 

of this decision. 

e>{~c!l.~ Administrative Law Judge 

b68 
FED!ERJU .. iVHM~ S;\FEYV AND }JEALY&-J ~~f..VFi.'W co:vm!HSSiO~\i OFFICE OF ADMINISTRATIVE LAW JUDGES' 

4015 WILSON BOULEVARD 

ARLINGTON, VIRG li\llA 22203 

OCT s 

SECRETARY OF LABOR, 

MINE SAFE TY i\ND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KENTUCKY BLUE COAL COMPANY, 

Respondent 

1979 

Civil Penalty Proceeding 

Docket No. BARB 79-260-P 

A.c. No. 15-05345-03001 

Siler Tipple 

DECISION 

Appearances: DarryJl.A. Stewart, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Tommy Ray Lanham, 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 

September 12, 1979. After considering evidence submitted by both 

parties, and argument, I entered an oral opinion on the record at 

the close of the hearing. It was found that the five violations 

charged did occur. I also found that the violations were serious, 

that they resulted from ordinary negligence on the part of Respondent, that Respondent was small in size, had but one previous violad.on, and had abated the violations in good faith. It was also 

determined that a penalty otherwise warranted by consideration of 

the other penalty assessment criteria provided by statute would have 

no adverse affect on Respondent's ability to continue in business. 

Consideration of these various criteria mandated levying penalties 

for the five violations. Accordingly, Respondent was assessed the 

following penalties: 

Citation No. 

126479 

126480 

126485 

126486 

126487 

l569 

Penalty 

$150 

so 

25 

20 

75 
ORDER 

\..1herefore, it is ORDERED that Respondent pay MSHA the penalties 

herein assessed totaling $320 within 30 days from the date of this 

decision. 

Distribution: 

Dan:yi A. Stewart, Esq., Office of the Solicitor, U.S. Department of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, 

TN 37203 (Certified Mail) 

William H. Wilder, Vice President, Tommy Ray Lanham, Kentucky 

Blue Coal Company, P.O. Box 750, Corbin, KY 40701 (Certified 

Mail) 

1570 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

NEW HAVEN TRAP ROCK-TOMASSO, 

Respondent 

OCT 5 1979 

Civil Penalty Proceeding 

Docket No. WILK 79-160-PM 

A/O No. 06-00012-05002V 

North Branford Plant #7 

DECISION APPROVING SETTLEMENTS 

ORDER TO PAY 

The Solicitor advises that he and the attorney for the operator 

have discussed the alleged violations in the above-captioned proceeding. 

Pursuant to such discussion, the Solicitor has filed a motion to approve 

settlements agreed to by the parties. 

This petition contains five 104(d)(l) orders. Three of these orders 

were issued for failure to provide tail pulleys with guards. These 

violations of 30 CFR 56.14-1 were originally assessed at $600 each. 

The other two orders were issued for failure to provide berms on the 

outer banks of elevated roadways. These two violations of 30 CFR 

56.9-22 were also originally assessed at $600 each. 

In his motion, the Solicitor recommends a settlement of $500 for 

each violation. In support of these reductions, the Solicitor advises 

that the originally assessed amounts were too high in light of the 

fact that the inspection occurred within twenty days of the effective 

date of the Act, giving the operator little time to uncover and abate 

violations prior to that inspection. In addition, the Solicitor 

attached to his motion a copy of the assessment sheet which he advised 

contained findings regarding the six statutory criteria. However, 

the assessment sheet contains no such findings. Only the assessed 

amounts are listed. This kind of submission is inadequate and will 

not be acceptable in the future. The Solicitor must set out his 

views on the statutory criteria whenever he seeks approval of settlements. 

Rather than disapprove the recommended settlements, I have 

personally reviewed these orders. Based upon this review, I conclude 

the violations are serious and that the operator was negligent. 

However, I also accept the Solicitor's representation that the 

inspection only occurred within twenty days of the effective date 

1571 
of the Act. The date of the inspection justifies the recommended 

reduction especially since the settlements remain sufficiently 

substantial to effectuate the purposes of the Act. The recommended 

settlements are therefore, approved. 

ORDER 

The operator is ORDERED to pay $2,500 within 30 days from the 

date of this decision. 

{---,-·~J\\~ Paul Merlin -- ·· 

Assistant Chief Administrative Law Judge 

Distribution: 

Ronald C. Glover, Esq., Office of the Solicitor, U.S. Department of 

Labor, JFK Federal Building, Boston, MA 02203 (Certified Mail) 

Thomas J. Pooley, Esq., Ashland-Warren, Inc., 675 Massachusetts Ave., 

Cambridge, MA 02139 (Certified Mail) 

1572 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

OC'f i ~:· 197S 

ITMANN COAL COMPANY, 

Applicant 

Application for Review 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket No. WEVA 79-119-R 

Withdrawal Order No. 

0660641 

Issued: April 26, 1979 

Itmann No. 3 Mine 

Appearances: Karl T. Skrypak, Esq., Consolidation Coal 

Company, Pittsburgh, Pennsylvania, for Applicant; 

David E. Street, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, 

for Respondent; 

Mary Lu Jordan, Esq., for the United Mine Workers 

of America, Washington, D.C. 

Before: Judge Kennedy 

DECISION AND ORDER 

On April 26, 1979 at 2:45 a.m., a haulage accident 

occurred at applicant's Itmann No. 3 Mine. At 7:45 a.m. an 

accident control and withdrawal order issued pursuant to 

section 103(k), 30 U.S.C. 813(k), l/ of the Mine Act "to 

ensure the safety of the miners until an investigation can 

determine the cause or causes" of the accident. The equipment 

l/ Section 103(k), 30 U.S.C. 813(k), of the Act provides: 

In the event of any accident occurring in a coal 

or other mine, an authorized representative of the 

Secretary, when present, may issue such orders as he 

deems appropriate to insure the safety of any person 

in the coal or other mine, and the operator of such 

mine shall obtain the approval of such representative, 

in consultation with appropriate State representatives, 

when feasible, of any plan to recover any person in 

such mine or to recover the coal or other mine or 

return affected areas of such mine to normal. 

1573 
and area covered by this order were "locomotive No. 784 and 

the trolley system between No. 5 rectifier and No. 6 rectifier." 

The Order was modified at 9:00 a.m. to permit the equipment 

involved to be moved out of the area. 

At 3:15 p.m. on the same day order of withdrawal No. 

0660641 issued pursuant to section 107(a), 30 U.S. 817(a), 2/ 

of the Act on the finding that an imminent danger existed 

"due to [a] kink in the trolley wire which caused the trolley 

pole of the locomotive No. 784 to become disengaged from 

such wire and the pole became free swinging along an area 

of trolley wire supports and striking such supports forcing 

the pole to swing across the locomotive striking and injuring 

two employees." The equipment and area which were covered 

by this order were "[a]ll track haulage locomotives that are 

designed' [to] permit the pole to free swing if disengaged 

from the wire and trolley system from No. 5 to No. 6 rectifier 

stations." The Order was modified at 10:00 p.m." to allow 

the use of haulage motors that do not have free swinging 

trolley poles." 

On April 29, 1979 at 11:45 a.m., the section 107(a) 

immineat danger order was terminated because "[t]he track 

haulage equipment at the Itmann #3 mine that have [sic] free 

swinging trolley poles have been modified to prevent the 

poles from swinging across the motor decks when they become 

disengaged from the trolley wire." 

2/ Section 107(a), 30 U.S.C. 817(a), of the Act provides: 

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. 

1574 
At 12:00 noon on the same day, the section 103(k) 

control order was terminated because "[t]he investigation of 

the serious haulage accident has been completed and the 

trolley wire and the modifications to the haulage equipment 

appeared to be adequate for the resumption of use." 

The captioned Application for Review was filed on May 11, 

1979, alleging that the condition described did not constitute 

an innninent danger and that the order was invalidly issued. 

On September 6, 1979, applicant filed a motion for sunnnary 

decision pursuant to 29 C.F.R. 2700.64, by which it seeks a 

finding that a section 107(a) innninent danger closure order 

may not properly be issued in an area and on equipment 

already covered by a section 103(k) control order. On 

September 24, 1979, the United Mine Workers of America filed 

their opposition to applicant's motion, and on September 26, 

1979, the Secretary filed his opposition. There being no 

genuine issue as to the material facts, 3/ the matter stands 

ready for sunnnary decision of the question of law presented. 

Applicant admits that the section 103(k) order was 

properly issued to control the scene of the accident so that 

a thorough investigation could be conducted. Applicant 

further concedes that the Secretary may cite an operator for 

any violations of the Act or of the mandatory standards 

which are disclosed by the investigation. 4/ Applicant 

contends, however, that as a matter of law-"it is impossible 

for MSHA to make the necessary section 107 (a) .tnnninent 

danger finding when miners have been withdrawn from the area 

by the section 103(k) Order." (Motion p. 5) It is further 

3/ The United Mine Workers takes issue with applicant's 

characterization of the 107(a) order as covering "essentially 

the same" area and equipment as the 103(k) order. This 

contention is, however, not material to the determination of 

the question of law presented. 

4/ Since the condition which caused the accident, namely the 

Kink in the trolley wire, was not a violation of a mandatory 

safety standard, a penalty will not be assessed. At this stage 

of the proceeding, it is unnecessary to express any opinion 

or finding with respect to the claim that the condition 

constituted an innninent danger. Whether the condition merits 

the issuance of an improved standard that might require 

inspection of trolley wires for conditions that may result 

in fatalities or injuries is not before us. 

1575 
suggested that since section 103(k) grants the Secretary 

broad authority to make recommendations as to corrective 

action to be taken before the Order was terminated, and 

since the miners had already been withdrawn, the issuance 

of a section 107(a) imminent danger order during the accident 

investigation was unauthorized. (Id.) 

The only authority cited by applicant in support of its 

position is my decision in Eastern A~sociated Co~l.Corz., 

HOPE 73-663 (February 12, 1974), affirmed as modified IBMA 

298 (June 25, 1975). This reliance, however, is clearly 

misplaced since I held merely that in the absence of a 

condition or practice constituting an imminent danger an 

imminent danger closure order may not be used for control 

purposes. In that case I vacated the imminent danger order 

because the inspector had no reason to believe that the 

fatal haulage accident was the result of an imminent danger, 

no inspection or investigation had disclosed the existance 

of such a danger, and the 6rder was issued solely for control 

purposes. I pointed out that section 103(f) of the 1969 

Act, the parallel provision of section 103(k) of the 1977 

Act, is an independent grant of authority that permits 

federal mine inspectors to take control of the scene of an 

accident and to issue any type of order, including imminent 

danger orders, appropriate to insure the safety of persons 

in the mine. Anticipating the very issue which applicant 

raises here I clearly stated: 

So that there be no misunderstanding as to the scope 

of our ruling, we wish to emphasize that the operator 

does not contend, nor do we hold, that a section 104(a) 

order of withdrawal may not be appropriate and warranted 

within the meaning of section 103(f) where a proper 

surface or underground inspection at the scene of a 

mine accident discloses the existance of an imminent 

danger. Id. at p. 17. 

Indeed, this decision is in accord with a line of cases 

which have rejected applicant's position. In Valley Camp Coal Co., 

1 IBMA 243 (December 29, 1972), the operator argued that an 

imminent danger order could not properly issue when all 

personnel had voluntarily withdrawn from the mine prior to 

the inspection. Rejecting this contention the Board stated: 

Valley Camp bases its argument on an erroneous 

belief that an order of withdrawal cannot properly 

be issued if no miners are in the mine when the order 

is issued. We previously rejected this argument in 

1516 
UMWA District #31 v. Clinchfield Coal Co., 1 IBMA 31, 

41 (1970), wherein it was held that because an order 

of withdrawal not only takes the miners out of the 

mine, but also keeps them out until the danger has been 

eliminated, an order of withdrawal may be issued when 

no miners are in the mine. 1 IBMA at 248. 

Thus, the mere fact that miners have been withdrawn 

prior to the issuance of an imminent danger order does not 

invalidate that order. In Eastern Associated Coal Corp. v. 

IBMA, 491 F.2d 277 (4th Cir. 1974), it was held that an 

imminent danger order is valid even though prior to issuance 

the operator had volu~tarily withdrawn the miners and was in 

the process of abating the condition. The validity of an 

imminent danger order depends solely upon whether the condition 

or practice could reasonably be expected to cause death or 

serious physical harm "if normal mining operations were 

permitted to proceed in the area before the dangerous condition 

is eliminated." 491 F.2d at 278. The purpose of the imminent 

danger order is not only to withdraw the miners, but also 

to keep them withdrawn until the condition is corrected. 

The question of the effect of simultaneous closure 

orders was first considered in Roscoe Pa~e, et al. v. 

Valley Camp Coal Co., 6 IBMA 1 (January 8, 1976). The 

miners who were idled by an unwarrantable failure withdrawal 

order filed for compensation. The operator defended on the 

ground that no miners were idled by the order because they 

had previously been withdrawn by an accident control order 

pursuant to section 103(f) of the 1969 Act. The Board 

rejected the contention that the control order invalidated the 

overlapping unwarrantable failure order. 6 IBMA at 6. 

Finally, in a decision directly on point, Peabody Coal Co., 

VINC 77-40, 77-50 (March 1, 1978), affirmed (Sept. 7, 1979), it 

was held that miners were entitled to compensation as a 

result of the valid issuance of an imminent danger order 

even though a control order was already in effect. This 

follows because, "the purpose of [an imminent danger] withdrawal order is not only to remove the miners but also to 

insure that they remain withdrawn until the imminent danger 

has been eliminated." Id. at p. 7. 

Thus, it is apparent that in the case at hand the 

section 103(k) control order was issued for the purpose of 

facilitating the investigation of the haulage accident. 

When the inspector determined that the cause of the accident 

which killed one miner and seriously injured another was an 

1577 
imminently dangerous condition which could reasonably be 

expected to cause death or serious physical harm if normal 

operations were permitted to proceed, he issued a section 

107(a) order which required that all haulage locomotives 

which had booms that could swing free if disengaged from the 

trolley wire must be appropriately modified. When this was 

accomplished the imminent danger order was terminated, and 

when the investigation was concluded the control order was 

terminated. 

The premises considered, I must conclude that the 

section 107(a) order No. 0660641 was not defective merely 

because it was issued in an area and on equipment already 

covered by a section 103(k) control order. 

Accordingly, it is ORDERED t t applicant's motion for 

summary decision be, and hereby · , DENIED. 

Distribution: 

·David E. Street, Esq., U.S. Department of Labor, Office of 

.the Solicitor, Room 14480 Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Harrison B. Combs, Jr., Esq., United Mine Workers of America, 

900 15th Street, N.W., Washington, DC 20005 (Certified 

Mail) 

Karl T. Skrypak, Esq., Consolidation Coal Company, Consol 

Plaza, 1800 Washington Road, Pittsburgh, PA 15241 

(Certified Mail) 

1578 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

WESTMORELAND COAL COMPANY, 

Respondent 

OCT 11 1979 

Civil Penalty Proceeding 

Docket No. HOPE 79-306-P 

A.O. No. 46-01514-03002 

Eccles No. 6 Mine 

DECISION AND ORDER APPROVING SETTLEMENT 

The parties move for approval of a settlement of the four 

respirable dust violations charged at a 35% reduction in the amount 

initially assessed, i.e., from $850.00 to $540.00. 

For the reasons advanced by the parties and based on an independent 

evaluation and de novo review of the circumstances including the challenge 

to the validity~f the standard raised by the operator (See, Judge 

Moore's decision in Olga Coal Company, Docket No. HOPE 79-113-P, June 28, 

1978 appeal pending), I find the settlement proposed is in accord 

with the purposes and policy of the Act. 

Accordingly, it is ORDERED that the motion to approve settlement 

be, and hereby is, GRANTED. It is further ORDERED that the operator 

pay the penalty agreed upon, $540.00, on a before Friday, October 26, 

1979 and that subject to payment the cap ·o ed petition be DISMISSED. 

Distribution: 

Marshall H. Harris, Regional Solicitor, James H. Swain, Esq., U.S. 

Department of Labor, Office of the Solicitor, Room 14480 Gateway 

Building, 3535 Market Street, Philadelphia, PA 19104 (Certified 

Mail) 

C. Lynch Christian, III, Esq., Jackson, Kelly, Holt & O'Farrell, 

P.O. Box 553, Charleston, WV 25322 (Certified Mail) 

1579 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

OCT 1978 

OLGA COAL COMPANY, Application for Review 

Applicant 

v. Docket No. HOPE 79-111 

SECRETARY OF LABOR, Order No. 253669 

MINE SAFETY AND HEALTH October 24, 1978 

ADMINISTRATION (MSHA), 

_Respondent Olga Mine No. 2 

and 

UNITED MINE WORKERS OF AMERICA, 

Respondent 

Appearances: 

Before: 

DECISION 

Michael T. Heenan, Esq., and M. Susan Carlson, Esq., 

Kilcullen, Smith & Heenan, Washington, D.C., for 

Applicant; 

James H. Swain, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, 

Pennsylvania, for Respondent; 

Mary Lu Jordan, Esq9, united Mine Workers of 

America, Washington, D.C., for Respondent. 

Judge Forrest E. Stewart 

Findings of Fact and Conclusions of Law 

Olga Coal Company (Applicant) filed a timely application pursuant 

to section 105(d) of the Federal Mine Safety and Health Act of 1977 

(hereinafter the Act), 30 u.s.c. § 801 !!.~··requesting review of 

Order No. 253669, issued October 24, 1978. Applicant also challenged 

,the validity of the underlying citation which was issued under section 104(d)(l) of the Act. 

A hearing 

West Virginia. 

exhibits. MSHA 

The UMWA called 

was held on June 7 and 8, 1979, in Charleston, 

Applicant called three witnesses and introduced five 

called three witnesses and introduced six exhibits. 

one witness. Each of the parties filed a posthearing 

b_rief. 

1580 
Underlying Citation 

Citation No. 253350 was jointly issued by Federal coal mine 

inspectors Robert Huffman and Lawrence Snyder on October 11, 1978, 

pursuant to section 104(d) of the Act. The inspectors alleged a violation of 30 CFR 75.326, and described the condition or practice at 

issue as follows: "The air passing over 10 Left section belt conveyor was being used to ventilate the active working section." 

The inspectors also alleged that the condition was of such a 

nature as could significantly and substantially contribute to a mine 

safety hazard. 

The event which led to the issuance of Citation No. 253350 

occurred on October 9, 1978. The parties offered the following 

stipulation concerning that event: 

On October 9, 1978, there was a slippage of the fire 

resistant belt near the belt drive. This s,lippage caused 

intense smoke to permeate the 9 Left and 10 Left section entryways. These areas are marked by blue to indicate that they are in intake air. Smoke also permeated 

the face area. Seven men were working in this area on 

that day, five of whom used self rescuers to abandon this 

area. 

On the following morning, Inspector Snyder was informed of this 

incident and, thereafter, he conducted an inspection of the 9 and 

10 Left sections. The inspector examined the belt and ventilation 

on the 9 Left section but he did not have the time to check ventilation on the 10 Left section that day. 

Inspector Snyder returned to this area on October 11 in the company of Inspector Robert Huffman. While Inspector Snyder continued 

his examination of the 9 Left section, Inspector Huffman proceeded 

to check ventilation on the 10 Left section. 

As Inspector Huffman proceeded along the belt entry, he observed 

two stoppings which were leaking excessively. The inspector conducted smoke tests at these locations and observed that the air was 

traveling from the belt entry into the intake entry. He explained 

that a hole had been knocked out in one stopping to allow passage of 

a plastic pipe from one entry into the next. Leonard Sparks, the 

UMWA safety committeeman who accompanied Inspector Huffman, testified 

that this pipe had been installed "for quite sometime." He was aware 

of its presence because he had pumped water from the track through 

that particular pipe. The unsealed area around the pipe was clearly 

visible and was large enough to allow Mr. Sparks to place his fingers 

in the hole around the pipe. A hole had been placed in the second 

stopping to permit the passage of a rock dust hose. 

1581 
Inspector Huffman also performed smoke tests at a diagonal door 

which separated the belt entry from the intake entry. He observed 

that the air migrated very rapidly into the intake escapeway. The 

inspector,testified that the door was damaged and had been installed 

on the wrong side of the stopping. It remained open approximately 

12 inches when he tried to close it. 

After Inspector Huffman examined the diagonal door, he met 

Inspector Snyder, who also examined this area. Inspector Snyder 

agreed to sign the citation because his examination of the diagonal 

door convinced him that a violation existed. Mr. Sparks' testimony 

corroborated that of the inspectors. 

To determine whether Citation No. 253350 was properly issued pur~ 

suant to section 104(d) of the Act, it must be determined (a) whether 

a violation of 30 CFR 75.326 existed as alleged and, if. so, (b) 

whether the violation was such nature as could significantly and substantially contribute to the cause and effect of a coal mine safety 

hazard, and (c) whether the violation was caused by an unwarrantable 

failure of the operator to comply with section 75.326. 

The applicable portion of section 75.326 reads as follows: 

Whenever an authorized representative of the Secretary 

finds, in the case of any coal mine opened on or prior to 

March 30, 1970, which has been developed with more than two 

entries, that the conditions in the entries, other than 

belt haulage entries, are such as to permit adequately the 

coursing of intake or return air through such entries, (a) 

the belt haulage ~ntries shall not be used to ventilate, 

unless such entries are necessary to ventilate, active 

working places, * * *• 

The parties stipulated at the hearing that the Olga Mine was 

opened prior to March 30, 1970, but that the particular working section opened after that date. This working section had been developed 

on four entries, one of which was the belt entry. It is clear that 

the belt haulage entry was not necessary to ventilate the active 

working places. 

To establish a violation of section 75.326, the Secretary must 

also show: 

(1) that an authorized representative of the Secretary had found 

that the conditions in the entries, other than belt haulage entries, 

are such as to permit adequately the coursing of intake or return 

air through such entries, and, 

(2) that the belt haulage entries were being used to ventilate 

active workings. 

1582 
With res_pect to the requirement that a finding be made, Applicant 

asserted the following: 

As a condition precedent to a showing of a violation 

of 30 CFR §75.326 with respect to any mine opened before 

March 30, 1970, it must be shown that a specific finding was 

made by the Secretary and communicated to the mine involved 

that "conditions in the entries other than belt haulage 

entries, are such as to permit adequately the coursing of 

intake or return air through such entries." The Secretary 

has failed to establish by a preponderance of the evidence 

in the present case that any such finding was ever specifically made and communicated to the Applicant so as to 

make this section applicable to Olga Coal Company. 

The Secretary contended that an adequate finding had been made, 

asserting the following: 

Here, there is approval of a ventilation plan which 

does not call for the use of beltway air to ventilate the 

working areas of the 9 and 10 left sections of the mine. 

There is also the stipulatioP that the ventilation in this 

specific area was modified and determined to be adequate 

without the need for belt haulageway air. This constitutes 

adequate notice to the operator. The operator actively 

participated in the modification process, and submitted 

the ventilation plan for approval. 

The citation did not contain the specific statement that the 

authorized representative had found conditions in the entries to be 

such as to permit adequately the coursing of intake or return air. 

The regulation, however, requires only that such a finding be made. 

There is no requirement therein that this finding be communicated to 

the operator. Certainly the regulation does not require that a 

formal finding be made pursuant to section 75.326 and then connuun1-

cated to an operator before the section may be applied. 

Applicant's argument is particularly weak in the case at hand 

because Applicant had actual knowledge that the entries on the 

affected sections were such as to perrcit adequately the coursing of 

intake or return.air. The ventilation plan, to which Applicant had 

acq.uiesced, already called for the ventilation of working areas on 

these sections with air other than that of the belt entry. The 

effort to separate belt air from that of the other entries had been 

made by the Applicant prior to Mr. Caffrey's inspection. This effort 

was unsuccessful because of improperly maintained stoppings, not 

because of the condition of the entries on the section. 

The conditions in these entries were such 

quately the coursing of intake or return air. 

liminary finding to that effect had to be made 

1583 

as to permit adeIt is true that a prebefore the inspector 
could conclude that a violation of section 75.326 existed. This 

preliminary finding was made by the inspectors before they issued the 

subject citation. Two days had been spent inspecting the'ventilation 

on sections 9 and 10. With regards to the requisite finding, the conditions in the entries were obvious enough that the inspectors did not 

have to enunciate that finding in the citation. 

The belt entry was being used to ventilate the active working 

within the meaning of section 75.326. That belt haulage air entered 

working areas is uncontradicted. The smoke tests performed by Inspector Huffman indicated that air was traveling very rapidly from the 

belt entry into an intake entry, and from there to the active working 

places. This was not an instance of isolated, unsubstantial leakage, 

nor one in which the failure to separate the belt entry made it possible that leakage might occur. The October 9th contamination of the 

working places with smoke generated in the belt entry provides dramatic evidence that air from. that entry had been used to ventilate the 

active workings. 

/~ Applicant asserted that the leakage of air from the belt entry 

was unintentional and that unintentional leakage does not constitute 

a use of belt air to ventilate active workings in violation of 

section 75.326. This contention is rejected. There is nothing in 

section 75.326 which requires that the use of belt entry air for 

_ such ventilation be intentional. 

The condition which gave rise to Citation No. 253350 was a violation of 30 CFR 75.326 as alleged. 

The condition described by the inspectors and the UMWA witness 

as existing on October 11 was more than a technical violation. That 

it had the potential to contribute to the creation of a serious mine 

hazard had been all too graphically demonstrated by the contamin~tion 

of the section that had occurred 2 days earlier. Both inspectors 

testified that the leakage they observed between the belt and the 

intake entries could significantly contribute to a mine hazard. Each 

believed that, given the leaks that were present on October 11, 

another belt fire would have produced the same situation that had 

occurred on October 9, 1978. Had another fire occurred, the miners 

on the longwall face would have been enveloped once again in smoke. 

Neither inspector felt that the possibility of another fire was remote 

and Inspector Huffman described the conditions he observed on the 

11th· as "very near an imminent danger." The violation was clearly of 

such a nature as could significantly and substantially contribute to 

the cause and effect of a mine safety hazard. 

A finding that a violation was caused by the unwarrantable failure on the part of the operator is proper if the inspector determines 

that: "The operator involved has failed to abate the conditions or 

1584 
practices the operator knew or should have known existed or which it 

failed to abate because .of a lack of due diligenc·e, or because of 

indifference or lack of reasonable care. 11 Zie&ler Coal Companz, 

7 IBMA 280, 296 (1977). 

This violation was caused by the unwarrantable failure of the 

operator. The operator demonstrated a lack of due diligence in -its 

failure to discover and abate the conditions which caused the active 

working section to be ventilated with belt entry air. The October 9th 

contamination of the longwall face put the Applicant on notice that a 

hazard existed on the section. The doorway and holes in the stopping 

provided an obvious avenue for smoke from the belt to reach the working section. In view of the seriousness of the hazard, these apertures should hav~ been .detected and repair efforts undertaken. 

The condition which existed along the belt entry on October 11, 

1978, was in violation of section 75.326, was of such a nature as 

could significantly and substantially contribute to the cause and 

effect of a mine hazard, and was caused by .unwarrantable failure on 

the part of the operator. It was, therefore, properly issued under 

section 104(d) of the Act. 

Order No. 253669 

Order No. 253669 was issued by inspector William Uhl on 

October 24, 1978 , in the course of a regular inspection of Olga Mine. 

The inspector cited a violation of 30 CFR 75.400 and described the 

condition or practice at issue as follows: 

Loose coal, coal dust and float coal dust wete permitted to accumulate along the active shuttle car haulageway, No. 3 entry, 3 North section, I.D. 031. These 

accumulations ranged in depths from 0-20 inches beginning 

at the section dumping point and extending inby to the 

Nos. 1 & 2 pillar ·blocks. A distance of approximately 

600 feet. 

To determine whether Order No. 253669 was properly issued, 

it must be determined (a) whether th~ violation of section 75.400 

existed as alleged, and, if so, (b) whether the violation was caused 

by an unwarrantable failure on the part of the operator. 

The elements of MSHA's prima facie case, as set forth in Old Ben 

Coal Companz 8 IBMA 98 (1977), are as follows: 

(1) that an accumulation of coal dust, float coal dust 

deposited on rock dusted surfaces, loose coal, or other 

combustible materials existed in the active workings of 

a coal mine; (2) that the coal mine operator was aware, 

or, by the exercise of due diligence, should have been 

1585 
aware of the existence of such accumulation; and (3) that 

the operator failed to clean up such accumulation, or 

undertake cleanup, within a reasonable time after discovery, or after discovery should have been made. 

Evidence of record clearly establishes that accumlations of coal, 

coal dust and float coal dust existed along the shuttle car haulageway 

in the 3 North section on October 24, 1978. The witnesses for Applicant and Respondent differed as to the extent of these accumulations. 

Inspector Uhl testified that a reasonable man would have considered 

the accumulations excessive. 

From the size of the accumulation, Mr. Uhl estimated that it had 

probably developed over a period of several shifts. The testimony of 

section foreman, Hubert Patterson, established that the accumulations 

had occurred during the three full mining shifts between October 19 

and 24. 

Mr. Uhl measured the accumulations he observed and determined 

that the accumulations ranged in depths from 0 to 20 inches. He testified that for the most part the accumulations were 8 to 10 inches 

deep for the entire 600-foot length of the active shuttle car haulage 

road, and extended for 14 feet across the width of the entry. 

Since the company officials apparently disagreed with his conclu-· 

sion that a violation existed, Mr. Uhl decided to take dust samples to 

substantiate his order. Although this area is required to be maintained at a 65 percent incombustible level, the analysis of Mr. Uhl's 

samples indicated that the accumulation present in the 3 North section 

ranged from 10 to 25 P.ercent incombustibility. 

Applicant's witnesses testified that the accumulations were far 

less extensive than the inspector claimed. They agreed that there 

had been some spillage of coal at points along the entry, but that 

the only large accumulation existed at one particular corner. 

Mr. Smallwood, Applicant's safety director, testified that coal had 

accumulated at this corner to a depth of ·8 to 10 inches for the 

entire width of the entry and a distance of 15 to 20 feet. 

The conclusions of Inspector Uhl are accepted here. He based 

his finding that the accumulations existed and were excessive on 

measurements, dust samples and visual observation. Of Applicant's 

witnesses, only Hubert L. Patterson, a foreman on the 3 North section, took depth measurements. The three measurements taken by 

Mr. Patterson complemented, rather than contradicted, Inspector Uhl's 

findings. 

The operator, through Section Foreman Patterson, was aware of 

the existence of the accumulation. Inspector Uhl testified that 

Mr. Patterson had stated that the foreman on the preceding shift had 

1586 
mentioned the need for a cleanup. Mr. Patterson denied having spoken 

with the foreman from the previous shift and did not remember making 

any such statement to the inspector. However, he testified that he 

had observed the accumulations during an early shift inspection of 

the section and that he wanted to clean them up. 

Moreover, the operator should have been aware of these accumulations of coal. They were visually obvious and had been building up 

for three production shifts. 

Finally, the operator failed to undertake cleanup within a re~­

sonable time after the accumulations were discovered or should have 

been discovered. The accumulations were extensive and had a high 

content of combustible material. In the opinion of the inspector, 

the condition was close to being an imminent danger. The accumulations presented a serious hazard and warranted immediate action. No 

such action was taken. 

In addition, Applicant's cleanup program called for cleanup of 

the haulageway "as required." When the inspector arrived, shuttle 

car operators were cleaning their equipment in compliance with one 

of the provisions of the cleanup program. No effort had been undertaken, however, to clean the haulageway despite the fact that coal 

had been building up for three production shifts. Oden Strong, 

superintendent of the Olga Mine, testified that it was not the practice at the mine to fail to clean up a section for three working 

shifts. 

The conclusion that the operator failed to undertake cleanup 

within a reasonable time is warranted in view of the seriousness of 

the hazard present, as well as its failure to comply with its own 

cleanup program. 

MSHA has established that a violation of section 75.326 existed 

as alleged. 

A finding that a violation was caused by the unwarrantable failure on the part of the operator is proper if the inspector determines 

that the operator failed to abate the conditions or practices constituting the violation, which it knew or should have known existed or 

which it failed to abate because of a lack of due diligence, indifference or reasonable care. As noted above, the operator had knowledge, 

or should have had knowledge of the excessive accumulations. 

Applicant asserted that the key issue presented herein is "what 

was the proper way for the section to be mined considering all appiicable safety concerns?" The Applicant contended that its foreman 

recognized the existence of two safety hazards on the section and 

attended to the more serious of the two. Because the section has a 

very hard top and is subject to substantial pressure, the ribs of 

1587 
the pillars on the section are prone to bumping and its floors tend 

to heave or buckle upward. The foreman attempted to complete the 

mining of two pushouts, one on each of two pillars, in order to 

reduce pressure 6n the section and decrease the likelihood that 

heaving or bumping would occur. It was asserted that the mining of 

the pillar and a cleanup were mutually exclusive because it was 

difficult to clean the accumulations without recutting the buckled 

floors, and the continuous miner was the only piece of equipment 

available on the section which could perform both tasks. 

Mr. Patterson offered somewhat contradictory testimony as to the 

length of time taken to remove the two pillars which were being mined 

at the time. At one point, he stated that it. took 2-1/2 days. He 

also testified that the mining of those pillars began after the last 

cleanup had occurred on the section, three production shifts earlier. 

It it; accepted that once mining of a pillar has begun, it should be 

mined to completion so as to minimize the occurrence of bumping or 

heaving. Yet, in the course of these three critical production 

shifts, coal had accumulated in hazardous amounts. 

Applicant's "greater hazard" argument is rejected. Both conditions posed a hazard to those working on the section. The accumulation of coal was the result of a breakdown in Applicant's cleanup 

program which called for section cleanup "as required." As noted 

above, Oden Strong testified that it was not the practice at the Olga 

Mine to fail to clean up a section for three shifts. When cleanup 

was required on this section, mine personnel were either unwilling 

or unable to effect it. The operator failed to act when presented 

with a serious safety hazard, and failed to maintain its established 

cleanup procedure. The violation was, therefore, the result of an 

an unwarrantable failure on the part of Applicant. 

Accordingly, Order No. 353669 was properly issued. 

ORDER 

The above-captioned application for review is hereby DISMISSED. 

Forrest E. Stewart 

Administrative Law Judge 

1588 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KENNECOTT COPPER CORPORATION, 

RAY MINES DIVISION, 

Respondent 

OCT 1 2 1979 

Civil Penalty Proceeding 

Docket No. DENV 79-246-PM 

A.C. No. 02-00826-05001 

Hayden Concentrator Mine 

DECISION AND ORDER APPROVING SETTLEMENT 

OF CIVIL PENALTY PROCEEDINGS 

Appearances: Marshall P. Salzman, Esq., Office of the Solicitor, 

Department of Labor, for Petitioner; 

Patrick W. Paterson, Esq., Fennemore, Craig, 

von Ammon & Udall, Phoenix, Arizona, for Respondent. 

Before: Administrative Law Judge Michels 

This is a civil penalty proceeding brought pursuant to section 

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

§ S20(a), by the Mine Safety and Health Administration (MSHA) 

against Respondent, Kennecott Copper Corporation. On September 12, 

1979, a hearing was held in Phoenix, Arizona, at which both parties 

were represented by counsel. 

When the hearing commenced, counsel for Petitioner proposed the 

following disposition for this docket: 

Mr. Salzman: Your Honor, these proceedings involve 

five (5) citations. Regarding, four (4) of these citations, the Secretary, as a result of additional and 

careful investigation, moves to dismiss four (4) of the 

proposed penalties resulting from these citations. 

These are citations numbers 371165, 371167, 371170 

and 371174. The reason is that we do not believe that we 

have the evidence to sustain the alleged violations. 

1589 
With respect to the remaining citation, 371166, the 

Respondent has agreed to pay the full assessed amount. 

We therefore move to settle this citation based upon 

the payment of the full assessed amount and we believe 

that the assessed amount was reasonable. 

(Tr. 4-5) 

Respondent advised the court that it concurred in this motion 

(Tr. 6). 

Since Petitioner had advised that it did not have sufficient evidence to sustain its burden on four of the citations and the proposed 

settlement of Citation No. 371166 for $60, which is the full amount 

of the original assessment, appeared to be sufficient, a decision was 

issued from the bench approving the proposed disposition (Tr. 6). 

This bench decision is hereby AFFIRMED. Accordingly, 

The Citation Nos. 371165, 371167, 371170, and 371174 are vacated 

and the petition is dismissed as to these citations. Respondent is 

ordered to pay the sum of $60 for the violation in Citation No. 371166 

within 30 days of the date of this decision. 

Distribution: 

/---~- iJIJ.~ .. ;t!~ (.____.--/ ~ichels 

Administrative Law Judge 

Marshall P. Salzman, Esq., Office of the Solicitor, U.S. 

Department of Labor, 450, Golden Gate Ave., Rm. 10404, San 

Francisco, CA 94102 (Certified Mail) 

Michael P. Green, Patrick W. Paterson, and William L. Thorpe, 

Esqs., Fennemore, Craig, von Ammon & Udall, 100 West Washington 

St., Ste. 1700, Phoenix, AZ 85003 (Certified Mail) 

1590 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

ITMANN COAL COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

OCT 1979 

Application for Review 

Docket No. HOPE 78-347 

Itmann No. 1 Mine 

DECISION 

Appearances: Michel Nardi, Consolidation Coal Company, 

Consol Plaza, Pittsburgh, Pennsylvania, 15241; 

David L. Baskin, Trial Attorney, Office of the 

Solicitor, U.S. Department of Labor, Division 

of Mine Safety and Health, 4015 Wilson Boulevard, 

Arlington, Virginia 22203 

Before: Judge Fauver 

This proceeding was brought by Itmann Coal Company under section 

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

§ 801 et seq., to review the validity of a citation and an order of 

withdrawal issued by a federal mine inspector pursuant to section 

104(d} of the Act. 

The parties submitted prehearing statements pursuant to a notice 

of hearing, and a hearing was held on November 14, 1978, in Arlington, 

Virginia. Both sides were represented by counsel, who have submitted 

their proposed findings, conclusions, and briefs following receipt of 

the transcript. 

Having considered the evidence and the contentions of the parties, 

I find that the preponderance of the reliable, probative, and substantial evidence establishes the following: 

FINDINGS OF FACT 

Citation No. 248571 

1. At all pertinent times, Applicant, Itmann Coal Company, 

operated an underground coal mine known as the Itmann No. 1 Mine, in 

1591 
Wyoming County, West Virginia, which produced coal for sales in or 

affecting interstate commerce. 

2. At about 8:20 on the morning of April 6, 1978, Jack Bailey, 

a miner's helper, arrived at his working section, the Guyan No. 2 

panel section. During his preshift examination, he observed a crack 

in the roof which he immediately reported to the section foreman, 

Levi Holly. He also noticed that the roadway into the face was 

abnormally wide and required additional supports. 

3. Foreman Holly and another miner's helper, Dean Simmons, 

walked up to the face and Mr. Holly sounded the roof for vibrations 

by means of a hammer check on both sides of the crack. A hammer 

check is considered to be a reasonable method, although not 

fool-proof, for detecting cracks within 5 or 6 feet of the roof's 

surface. The approved roof-control plan for the Itmann- No. 1 Mine 

states that roof examinations shall consist of visual examinations 

as well as the sound and vibration (hammer) method. 

4. The foreman or,dered additional timbers, and Simmons set 

about 20-25 posts to narrow the width where the roof was cracked, 

but leaving enough room to operate the mining machine. Production 

was started, but after two shuttle cars were loaded, the roof began 

to creak and warp. 

5. Federal mine inspector Steven Kowalski arrived at the Guyan 

No. 2 panel section at about 9:30 that morning, accompanied by the 

shift foreman, Mr. Green, and the miners' representative, Mr. Naylor. 

Inspector Kowalski observed two fractures in the roof that extended 

about 40 feet from the face and were about one-eighth to one-quarter 

inch in width. Inspector Kowalski pointed out both cracks to the 

shift foreman, Mr. Green. 

6. I find that when Inspector Kowalski checked the roof, there 

were two cracks, as he described. In reaching this finding I have 

considered the fact that after the additional posts were installed, 

the miner operator did not observe the roof; that the superintendent's testimony with respect to the number of cracks was not firsthand; that the foreman, Mr. Holly, who observed the roof during the 

pFeshift did not testify (he is deceased); and that the inspector 

ho.th kept notes of his observations and was able to identify two 

cracks in reasonable detail. 

7. No one was directly under the cracks, but the machine operator's position was near the right side of the cracks (facing inby), 

and the cracks extended outby his position. 

8. At the instruction of Mr. Green, the continuous miner was 

pulled back, at which point the roof began to warp--it started cracking and popping, and fine particles began to fall--which I find indicated further deterioration in the condition of the roof. 

1592 
9. Inspector Kowalski issued a section 104(d) citation charging 

a violation of 30 CFR 75.200 (roof-control plan), indicating that 

approved Roof-Control Plan No. 4-RC-12-70-1154-4 was not being followed in the Guyan No. 2 panel section in the No. 1 pillar split on 

the final lift near spad No. 6996, No. 2 entry because additional support, such as cross-sections or roof bolts, should have been used. 

Under section 104(d)(l) of the Act, Inspector Kowalski included in 

the citation findings that: (1) the violation could significantly 

·and substantially contribute to the cause and effect of a mine safety 

hazard, and (2) it was caused by an unwarrantable failure of the operator to comply with the cited standard. 

10. The roof-control plan then in effect was formulated by the 

superintendent, Richard Harris, and submitted to both MSHA and the 

State Department of Mines for their approval. The approved plan 

states at page 6: 

1. This plan stipulates the minimum requirements for 

roof supports and where conditions indicate, additional 

supports are to be installed. 

* * * * * * * 

4. Where miners are exposed to danger of falls of 

roof, face, and ribs, the workman shall examine and test 

the roof, face, and ribs before any work or machine is 

started, and as frequently thereafter as may be necessary 

to insure safety * * *· Roof and rib examinations shall 

consist of visual examination and the sound-and-vibration 

method. 

11. At the site involved, pillar lift No. 11, Applicant was 

engaged in retreat mining, which called for compliance with drawing 

No. 9 of the plan. This drawing, entitled "Pillar Recovery Continuous Mining," reads: 

1. This plan is to be used when conditions make it 

necessary to advance through the pillars and mine the 

wings on the retreat from the same opening. 

* * * * * * * 

5. Pillar split is supported, as shown in Drawings 

Nos. 1, 2, 4, or 5. 

12. At the option of the Applicant, drawing No. 5 was selected. 

It provided: 

Entries, Rooms, Crosscuts, Barriers, Pillar Splits, 

and Places Being Reactivated for Roadways. 

1593 
1. Plan shown is minimum support for normal conditions. Additional posts, crossbars, or cribs shall be 

installed where needed. 

13. In retreat mining, cracks in the roof are not an unusual 

occurrence. Roof falls are planned after the final pushout of a 

pillar split. A hole is first cut through the middle of a block of 

coal, which is about 6 or 7 feet high and about 20 feet wide. After 

the initial cut, which is called a split, two wings remain on either 

side. When the final lift is mined, very little of the split remains, 

and there is no reason for the miner, equipment, or anyone to remain 

in the split area. The term "lift" refers to the process of cutting 

off the ends of the block. In this type of mining, roof support is 

no longer needed after the coal is removed. 

14. The cited roof condition was abated the same day, about 

2-1/2 hours later, by inserting 15 to 20 4-foot roof bolts at 4-foot 

centers. The miner was removed and a roof-bolting machine was 

brought in. Temporary supports were installed while the bolts were 

put in the roof. As the roof bolts were being installed, two wide 

roof cracks were discovered, about 18 and 24 inches wide, even though 

the section foreman had earlier sounded the roof for vibrations. 

15. I find that the roof condition could have significantly and 

substantially contributed to the cause and effect of a mine safety 

hazard. Falls of the roof, face, and ribs are the No. 1 killer in 

coal mining, and can happen in any mine. In geological terms, the 

roof was shale and is considered to be unpredictable. By the time 

the inspector arrived, the roof was worsening, indicating that the 

additional posts were not providing adequate support. In the 

event of a roof fall, the left side of the mining machine probably 

would have been covered, and the machine operator may have been 

struck. Headlight cables were located on the left side of the miner, 

so that a roof fall might have caused a mine fire or electrical hazard. 

Additional findings as to the roof condition are included in the Discussion. 

Order No. 248578 

16. On April 11, 1978, Inspector Kowalski returned to the 

Itmann No. 1 Mine and inspected the Nos. 1 and 2 conveyor entries in 

the pinnacle section, which was an active working section. He was 

accompanied by the shift foreman, Mr. Green. 

17. Before going underground, Inspector Kowalski checked the 

belt examiner's books, which are kept in the office on a table where 

the section foreman makes out the reports. All management personnel 

are supposed to read these books. 

18. The conveyor belts, which are used for carrying coal, are 

supposed to be examined after each production shift has begun, but 

not necessarily at the beginning of the shift. 

1594 
19. 

the belt 

angles. 

observed 

Inspector Kowalski and Mr. Green came into the area where 

and track meet. The No. 1 and No. 2 belts converge at right 

As they walked toward the crossbelt area, the inspector 

behind the door an accumulation of float coal dust. 

20. At the time of the inspection, the belts were running and 

float coal dust was apparent in the air. Float coal dust did not 

remain suspended in the air when the belts were not running. 

21. The .belt system was shut off and they crossed over to the 

other side. The inspector pointed out a pile of float coal dust which 

appeared to be about 9 inches deep. He found different measurements 

of dust at different locations, ranging from one-sixteenth of an inch 

to 9 inches deep. At some points, there was rock dust underneath the 

float coal dust, and at others, there were just accumulations of coal 

dust. The largest accumulations were near the No. 2 head area, or 

at the crossbelt. Dust ran back down the No. 1 belt about 80 feet, 

toward the mine cars at the No. 1 head. The belt head is the 

beginning of the belt, where the belt drive, the motor, and belt 

pulleys are located. The tail pulley is the end of the belt where 

the back roller is located. Coal .is loaded on the tailpiece. 

22. On April 11, 1978, Inspector Kowalski issued a withdrawal 

order under section 104(d)(l) charging an unwarrantable violation of 

the dust safety standard in 30 CFR 75.400. He recorded that float 

coal dust deposited on rock-dusted surfaces was permitted to accumulate on the entry and connecting crosscuts of pinnacle Nos. 1 and 2 

belt conveyor, beginning about 100 ·feet outby the pinnacle No. 1 belt 

conveyor tail roller, and extending about 350 feet inby the permanent 

stoppings of the No. 4 entry, a distance of about 70 feet to another 

permanent stopping, also beginning at the No. 2 pinnacle belt conveyor head and extending inby to a stopping about 250 feet. Float 

coal dust ranged in depth from about one-sixteenth of an inch to 

9 inches. 

23. The accumulation problem was reported on the belt examiner's 

books for five different shifts. The only corrective action taken 

was on April 10, when the belt examiner's book indicated that the 

area was partly rock dusted. The inspector estimated that the accumulations had been there for at least 1 week. 

24. The shift foreman had indicated to the inspector that he 

was not pleased with the condition, and had he known of the accumulations, it would have been cleaned up. 

25. Reports made in the belt examiner's books were summary 

comments and not explicitly detailed. 

26. The Itmaon No. 1 Mine is not a particularly gassy mine. In 

the 12 years that Mr. Green had been there, there had never been a gas 

ignition. 

1595 
27. There is always a potential ignition hazard around electrical equipment near float coal dust. Float coal dust will burn, and it 

will explode. At the time of the inspection, both belts were running. 

They have electric motors and there is other electrical equipment in 

the area, including belt control lines, power cables to the belt 

boxes, and belt motors. These were all covered with float coal dust. 

28. Samples of dust taken in the belt conveyor entries were sent 

to the laboratory for combustible content analysis. The No. 1 sample, 

taken off the floor of the belt conveyor entry pinnacle section, 

about 5 feet in the pinnacle No. 1 belt tail, came back 29 percent 

incombustible content. The No. 2 sample, from about 10 feet inside 

the No. 1 belt, came back 17 percent incombustible. Section 75.403 

requires that the inc~mbustible content of the intake entries be maintained at at least 65 percent. The samples indicated that the float 

coal dust was alsmost pure coal. It was powdery and dry. 

29. In the No. 2 belt entry, air was coursing from the stopping 

on the No. 2 tail, so ,in the event of a fire at any place along that 

section of the belt, it would tend to move toward the tailpiece. 

30. The condition was abated in about 8 hours. 

31. I find that the dust conditions reported in the withdrawal 

order were proved by a preponderance of the evidence and that such 

conditions were the result of an unwarrantable failure by the operator to comply with the safety standard in 30 CFR 75.400. 

DISCUSSION 

This case concerns the validity of a citation and a subsequent 

order issued to Applicant under section 104(d)(l) of the Act. With 

respect to the citation, the inspector found that Applicant had 

unwarrantably violated 30 CFR 75.200 and that the violation could 

significantly and substantially contribute to the cause and effect 

of a coal or other mine safety or health hazard. Subsequently, 

within 90 days of the issuance of the citation, the inspector found 

that Applicant had unwarrantably violated 30 CFR 75.400 (accumulation 

of float coal dust) and, therefore, issued a withdrawal order under 

section 104(d)(l) of the Act. 

Under section 104(d)(l) of the Act, if an inspector issues a citation finding (1) a violation of a mandatory health or safety standard 

that could significantly and substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard and (2) that the 

violation was caused by an unwarrantable failure to comply with such 

standard, the operator is subject to a withdrawal order if: 

* * * during the same inspection or any subsequent inspection of such mine within 90 days after the issuance of such 

1596 
citation [an inspector] 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 * * *· 

With respect to the citation (roof-control violation), I conclude that the Applicant violated a mandatory safety standard and 

that the violation was of such a nature as could significantly and 

substantially contribute to the cause and effect of a coal mine 

safety hazard. 

The roof-control plan in effect was formulated in accordance with 

30 CFR 75.200, which provides in pertinent part: 

Each operator shall undertake to carry out on a continuing basis a program to improve the roof control system 

of each coal mine and the means and measures to accomplish 

such system. 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. A roof control plan and revisions thereof suitable to the roof conditions and mining 

system of each coal mine and approved by the Secretary 

shall be adopted and set out in printed form on or before 

May 29, 1970. The plan shall show the type of support and 

spacing approved by the Secretary * * *· 

The applicable part of Applicant's approved plan reads: "Plan 

shown is minimum support for normal conditions. Additional posts, 

crossbars, or cribs shall be installed where needed." In normal 

conditions, two parallel rows of posts can be used as minimum 

support in pillar splits. 

The controlling issue with respect to the validity of the citation depends on whether or not the cracked roof condition in the 

No. 1 pillar split area of the Guyan No. 2 panel section was an 

abnormal condition. If this condition were "abnormal," the validity 

of the citation would then depend on whether the roof control plan 

required the use of additional supports, such as crossbars or roof 

bolts, rather than the posts added by the foreman. 

The federal mine inspector was of the opinion that: (1) the 

cracks in the roof indicated an abnormal condition requiring the company to exceed the minimum standards of its roof-control plan, and (2) 

that prior to mining, cross-sectional supports or roof bolts should 

have been installed. He stated that the posts added by the foreman 

were insufficient. 

In the inspector's opinion, a normal roof is one that is firm and 

unbroken. He stated that cracks in a roof typically indicate an 

abnormal condition, but went on to say that when mining a pillar split 

1597 
cracks are not an unusual occurrence. He believed that under the circumstances present at the Guyan No. 2 panel section, however, the roof 

was unpredictable, and could have fallen at any time after the miner 

was removed from the face. When the foreman ordered the miner to back 

out, material started falling from the cracks, which indicated that 

additional support was needed. 

Applicant argues that cracks in a roof during retreat mining are 

not unusual, and if checked by an approved method, there is nothing 

inherently dangerous about them. Because the roof ultimately is 

designed to collapse during this method, Applicant contends that the 

roof condition indicated in the citation was normal. 

Applicant argues that even if the condition were considered 

abnormal, the plan was followed because it gave the operator the 

option of using additional posts, crossbars, or cribs where needed, 

and Applicant chose to use additional posts. Applicant inspected the 

roof during the preshift before sending the mining machine into the 

face area, and recognized that additional suppqrt was needed. The 

foreman chose to set an additional 20-25 timbers rather than use the 

other options under the plan. 

A decision as to whether or not there was a violation of the 

roof-control plan depends on whether the inspector's on-the-site determination should prevail over the judgment of the mine foreman that 

additional posts complied with the plan's requirements. I conclude 

that MSHA proved by a preponderance of the evidence that abnormal conditions prevailed and the roof was in need of additional support. The 

evidence adduced at the hearing leads me to conclude that the failure 

to use cross-sectional· s.upport (or roof bolts) under the circumstances 

was a violation of the plan. First, the roadway was initially in need 

of additional support because it was too wide. Second, the additional 

post plan was evidently inadequate because it was limited by a determination to leave room to mine coal, which meant there was no more 

room to add posts (after the additional 20-25) and still have room for 

the mining machine to operate. The fact that the roof exhibited signs 

of instability after the posts were installed indicated that satisfactory support was not provided, and that the option chosen by Applicant 

proved ineffective. On the other hand, cross-sectional support, or 

roof bolts, would have provided adequate support and still permit room 

for mining. 

Having found that Applicant violated a mandatory health or safety 

standard, I also conclude that the violation could significantly and 

substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard. A violation may significantly and substantially contribute to the cause of a hazard regardless of whether 

or not it creates a risk of serious harm or death. Alabama By-Products 

Corporation, 7 IBMA 85, 94 (1977), approved in S. Rpt. No. 95-181, 

95th Cong., 1st. Sess. 31 (1977), reprinted in LEGISLATIVE HISTORY OF 

THE FEDERAL MINE SAFETY AND HEALTH ACT OF 1977 at 619 (1978). On the 

1598 
other hand, no citation would be warranted if there were no risk of 

inJury at all, i.e., where the violation is technical in nature, or 

if the risk of Injury were very remote or minimal. Id. 

The roof was shale and unpredictable in nature. In the opinion 

of the inspector, it was difficult to tell what type of fall might 

occur from just looking at the cracks, and whether or not it would 

strike the machine operator. The edge or left side of the miner 

probably would have been covered. During the abatement of the citation, two cracks were discovered in the roof strata indicating that 

the conditions were even more dangerous than they may have originally appeared. The additional cracks were discovered in spite of the 

roof test conducted by the foreman during the preshift examination. 

A roof fall could have injured or killed a miner or have caused a 

mine fire or electrical hazard. 

The controlling issue with respect to "unwarrantable failure" as 

used in section 104(d) ( 1) is whether the operator failed to abate a 

violation which it knew or should have known existed, or failed to 

abate a violation due to indifference or lack of reasonable care. 

Zeigler Coal Company, 7 IBMA 280-296 (1977) (interpreting section 

104(c)(l) of the Federal Coal Mine Health and Safety Act of 1969), 

approved irv S. Rpt. No. 85-181, supra at 31-32. 

I conclude that the Secretary proved that the roof-control violation was unwarrantable. The. operator knew about the cracked roof condition before mining commenced. Instead of choosing cross-sectional 

support, or roof bolts, it chose to add posts, but this approach was 

self-limiting because the operator chose to leave room for the mining 

machine, so that posts would not directly support the area of the 

cracked roof. On the other hand, cross-sectional supports or 

roof bolts could have suported the area of the cracked roof while 

still allowing room for the mining machine to operate. 

The evidence overwhelmingly shows the post-support method chosen 

by the operator was inadequate to give necessary support to the 

cracked area of the roof. I conclude that a reasonably prudent operator would have used cross-sectional support or roof bolts, and would 

not have relied solely upon additional posts while allowing room for 

passage of the continuous miner. 

CONCLUSIONS OF LAW 

1. The undersigned Judge has jurisdiction over the parties and 

the subject matter of the above proceeding. 

2. Applicant's Itmann No. 1 Mine, at all pertinent times, was 

subject to the provisions of the Act. 

1599 
3. The Secretary proved by a preponderance of the evidence that 

the additional 20-25 posts installed by Applicant provided inadequate 

support for the roof and that Applicant therefore violated the 

approved roof-control plan, and hence 30 CFR 75.200, as charged 

in the citation issued on April 6, 1978. 

4. The Secretary proved by a preponderance of the evidence that 

the violation of the roof-control plan was of such a nature as could 

significantly and substantially contribute to the cause and effect of 

a coal mine safety hazard. 

5. The Secretary proved by a preponderance of the evidence that 

the roof-control violation was the result of an unwarrantable failure by the operator to comply with the roof-control plan, as required 

by the mandatory safety standards in 30 CFR 75.200. 

6. The Secretary proved by a preponderance of the evidence that 

the operator violated the dust safety standard in 30 CFR 75.400 as 

charged in the withdrawal order issued on April 11, 1978, and that 

such violation resulted from an unwarrantable failure of the operator 

to comply with such standard. 

All proposed findings and conclusions inconsistent with the above 

are hereby rejected. 

ORDER 

WHEREFORE IT IS ORDERED that the citation issued on April 6, 

1978, and the order issued on April 11, 1978, are hereby AFFIRMED and 

the application for review thereof is DISMISSED. 

WILLIAM FAUVER, JUDGE 

Distribution: 

Michel Nardi, Consolidation Coal Company, Consol Plaza, 

Pittsburgh, PA 15241 (Certified Mail) 

David L. Baskin, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, Division of Mine Safety and Health, 

4015 Wilson Boulevard, Arlington, VA 22203 

1600 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

October 12, 1979 

CONSOLIDATION COAL COMPANY, 

Applicant 

Contest of Order 

v. Docket No. WEVA 79-54-R 

SECRETARY OF LABOR, Order No. 0810947 

MINE SAFETY AND HEALTH March 26, 1979 

ADMINISTRATION (MSHA), 

Respondent Shoemaker Mine 

and 

UNITED MINE WORKERS OF AMERICA 

(UMWA), 

Representative 

of Miners 

DECISION 

Appearances: Michel Nardi, Esq., Pittsburgh, Pennsylvania, for 

Applicant; 

James H. Swain, Esq., Office of the Solicitor, U.S. 

Department of Labor, Philadelphia, Pennsylvania, for 

Respondent Secretary of Labor; 

Richard L. Trumka, Esq., Washington, D.C., for the 

Representative of the Miners, the United Mine Workers 

of America. 

Before: Chief Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

The case arose upon the filing by Applicant of an application 

for review of an order (now called a notice of contest of an order in 

Commission Rule of Procedure, 29 CFR 2700.20) issued on March 26, 1979, 

under section 104(d)(2) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 814(d)(2). Applicant challenged the order on the 

grounds that the violation of the mandatory safety standard alleged 

in the order did not occur; that there was no unwarrantable failure 

to comply with the mandatory safety standard; and that no condition 

or practice existed which could significantly and substantially contribute to the cause and effect of a mine safety or health hazard. 

Respondents Secretary of Labor and United Mine Workers of America 

contended that the order was properly issued. 

1601 
Pursuant to notice, the case was called for hearing on the 

merits in Wheeling, West Virginia, on September 4, 1979. Kenneth R. 

Williams, a Federal coal mine inspector, testified for Respondent 

Secretary of Labor; Rayburn Fraley, William Barack, Joseph Domenick, 

Dale Goudy, and Bruce Armstrong testified for Applicant. No witnesses were called by the Representative of the miners. At the 

close of the hearing, the parties waived the filing of written 

proposed findings and conclusions. 

ISSUES 

1. Whether there was on March 26, 1979, an accumulation of coal 

dust, including float coal dust deposited on rock-dusted surfaces, 

loose coal and other combustible materials in the No. 1 and No. 2 

belt entries of the 2 left off 4 north section of the subject mine. 

2. If issue No. 1 is answered in the affirmative, whether the 

condition or practice was caused by the Applicant's unwarrantable 

failure to comply with the mandatory safety standard in question. 

3. If issue No. 1 is answered in the affirmative, whether the 

condition cited could significantly and substantially contribute to 

the cause and effect of a mine safety or health hazard. 

FINDINGS OF FACT 

1. On March 26, 1979, Applicant was the operator of a coal mine 

in West Virginia known as the Shoemaker Mine. 

2. The preshift examiner's report book (the "fireboss book") 

covering the 3 left, 4 north section of the subject mine reported the 

following conditions between March 19, 1979.and March 26, 1979: loose 

coal on the No. 2 belt on the third shift, March 19, 1979; loose coal 

on the No. 2 belt line and the No. 2 tailpiece on the third shift, 

March 22, 1979; (the latter condition [No. 2 tailpiece] was shown as 

corrected), loose coal on the No. 2 belt line, the spotter and the 

transfer point on the first shift, March 23; the report indicated 

that the section was idle during that shift; loose coal on the No. 2 

belt line on the second shift, March 23; loose coal was also reported 

at the transfer point, the spotter and the tailpiece which were corrected; loose coal on the belt line on the third shift, March 23; the 

report stated that it "has been worked on, but belt is still spilling 

off on right side;" loose coal on the No. 2 belt line was reported 

on the first shift, and again on the second and third shifts on 

March 24. The section was reported as idle that day. The same condition was reported on each shift on March 25 (a Sunday) when the 

section was idle. Loose coal was reported on the first shift, 

March 26 on the No. 2 belt line, "tailpiece to 7+32," partially 

corrected; the report for the second shift on March 26 indicated 

the loose coal condition on the left side of the No. 2 belt line 

was corrected (Tr. 156-21; Applicant's Exh. 3). 

1602 
3. Federal mine inspector Kenneth R. Williams, a duly authorized 

representative of the Secretary of Labor, inspected the subject mine 

on March 26, 1979. He reviewed the fireboss book above referred to 

before going into the mine. Inspector Williams was accompanied during his inspection by Nick Renzella, company safety escort, and Mike 

Veronis, union representative. 

4. At approximately 6 or 7 p.m. on March.26, Inspector Williams 

arrived at the 3 left off 4 north section and walked the No. 1 and 

No. 2 belt lines. At about 8:30 p.m., he issued a 104(d)(2) order of 

withdrawal. 

VIOLATION 

5. On March 26, 1979, there was an accumulation of coal dust and 

float coal dust on the floor, the belt, on equipment and power cables 

along the No. 1 belt entry and in crosscuts in the 3 left off 4 north 

section of the subject mine. The condition was general throughout the 

entry for a distance of approximately 950 feet. Coal dust accumulated 

under the rollers from 2 to 14 inches in depth. The area generally 

was dry but was damp at the tailpiece. Some of the rollers were stuck 

at or near the tailpiece. The belt was not running at the time. 

DISCUSSION 

. The above finding substantially accepts the testimony of Inspector Williams which was disputed by Applicant's witnesses. William 

Barack, chief inspector for Applicant, entered the mine shortly after 

the order was issued. He testified that there was some float dust on 

the belt structures, the hardware, the ribs, the roof planks, the 

belt drives, the power junction boxes, and the power lines, but that 

there were no "unusual accumulations," and that the condition was not 

dangerous. Peter Domenick, supervisor of safety at the subject mine, 

did not go to the section until September 28. There is substantial 

dispute as to whether the condition was the same on the 28th as it had 

been on the 26th. Dale Goudy, section foreman, worked on the first 

shift (midnight to 8 a .m_.) on September 26. He stated that the No. 1 

belt was "very clean." He saw a small amount of float dust on the 

belt structure and the ribs. He did not know whether any float dust 

was on the electrical boxes or power drives. Bruce Armstrong, section 

foreman on the 8 a.m. to 4 p.m. shift testified that on March 26, 

his crew worked the entire shift on the belt line (No. 2). He testified that when he examined the belt on March 23, he did not see 

anything wrong with the No. 1 belt line. He did not walk the No.I 

belt line on the 26th and does not know its. condition on that day. 

Inspector Williams testimony was complete and unequivocal. His 

was the only testimony of an eye witness to the conditions he observed 

and reported. Neither Nick Renzella, the company safety escort, or 

Mike Veronis, the union representative, both of whom accompanied 

Inspector Williams,·were called as witnesses. I find Inspector 

Williams testimony credible and I accept it. 

1603 

j 
6. On March 26, 1979, there was an accumulation of loose coal 

along the right side of the No. 2 belt extending approximately 

two-thirds of the length of the belt or 1,000 feet. Beyond that 

point, the area had been cleaned and the loose coal was shoveled 

onto the belt. The belt was not running at this time. 

DISCUSSION 

Mr. Barack testified that there was some spillage along the 

No. 2 belt but that it was "not excessive." He stated that cleanup 

had begun. Dale. Goudy testified that he reported lo.ose coal spillage 

for 700 or 800 feet from the No. 2 tailpiece outby toward the dumping 

point when he made his.onshift inspection on March 26. He directed 

men to shovel it onto the belt. They worked to the end of the shift 

and cleaned all but 100 to 150 feet of the area. Bruce Armstrong 

testified that during his shift his crew shove~ed approximately 

500 feet and corrected the condition which he /had previously noted 

in the fireboss book for March 23. However, ne did not examine the 

entire belt line. ' 

It is clear that a.pplicant had started to clean up the accumulations along the No. 2 belt line. It is also clear that it had not 

completed the task and that accumulations of many days duration 

remained. 

I have accepted Inspector William's testimony as to the condition of the No. 2 belt as I did with respect to the condition of the 

No. 1 belt. 

UNWARRANTABLE FAILURE 

7. The condition found along the No. 2 belt line had been 

reported in the preshift and onshift mine examiner's book since 

March 19 and was not corrected as of March 26. 

8. The condition found along the No. 1 belt line was of such 

magnitude that it must hav~ been present for some days. 

9. Applicant was aware of the conditions described in Findings 

of Fact No. 5 and No. 6. It had ample opportunity to correct these 

conditions before March 26, 1979, but failed to do so. 

SIGNIFICANT AND SUBSTANTIAL 

10. The conditions found to exist in Findings No. 5 and No. 6 

were such as could significantly and substantially contribute to the 

cause of a mine safety or health hazard. 

DISCUSSION 

Float coal dust if put in suspension is potentially explosive, 

and can propagate an ignition. There were many possible sources 

1604 
of ignition in.the area. Loose coal and coal dust can, of course, 

serve as fuel for a mine fire. The extent of the accumulations 

found herein could have contributed to a mine safety or health 

hazard. If the belts had been in operation, a dangerous situation 

would have been presented. 

CONCLUSIONS OF LAW 

1. The undersigned Administrative Law Judge has jurisdiction 

over the parties and subject matter of this proceeding. 

2. The conditions found to exist on March 26, 1979, in Findings 

of Fact No. 5 and No. 6 constituted a violation of the safety standard contained in 30 CFR 75.400. 

3. The conditions found to exist in Findings of Fact No. 5 and 

No. 6 resulted from Applicant's unwarrantable failure to comply with 

the safety standard in question. 

4. The conditions found to exist in Findings of Fact No. 5 and 

No. 6 were such as could significantly and substantially contribute 

to the cause and effect of a mine safety or health hazard. 

ORDER 

Order of Withdrawal No. 0810947 issued March 26, 1979, is 

AFFIRMED, and the contest of said order is REJECTED. 

J~/4:1.~~d Chief Administrative Law Judge 

Distribution: 

By certified mail: 

Michel Nardi, Consolidation Coal Company, 1800 Washington Road, 

Pittsburgh, PA 15241 

Barbara Krause Kaufmann, Attorney, Office of the Solicitor, U.S. 

Department of Labor, Room 14480, Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 

Attorney, United Mine Workers of America, 900 15th Street, N.W., 

Washington, DC 20005 

1605 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRG tNIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

v. 

CONSOLIDATION COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. HOPE 78-569-P 

A/O No. 46-01409-02028 V 

Maitland Mine 

DECISION 

Appearances: Leo J. McGinn, Esq., Office of the Solicitor, 

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

for Petitioner; 

Karl T. Skrypak, Esq., Consolidation Coal Company, 

Pittsburgh, Pennsylvania for Respondent. 

Before: Judge Forrest E. Stewart 

On August 29, 1979, a hearing was held in the above-captioned 

proceedings in Charleston, West Virginia. At that time, the Administrative Law Judge approved a settlement negotiated by the parties and 

ordered Respondent to pay the agreed-upon sum of $1,500 within 30 days 

of the date of the ord~r. 

A 104(c)(2) order of withdrawal had been issued on August 29, 

1977, at Respondent's Maitland Mine alleging a violation of the 

approved roof control plan. The inspector described the condition 

or practice as follows: 

Loose, unsupported roof and ribs were present along 

the mantrip and supply track haulage system at several 

locations from the first left belt overcast to a point 

about five crosscuts outby the two left supply hole, and 

the conditions were or should have been known to management 

in that they were obvious." 

MSHA's Office of Assessments originally proposed a penalty of 

$6,000. As grounds for the reduction in proposed penalty, Counsel for 

Petitioner asserted the following: 

1606 
The Office of Assessments waived the use of the formula 

contained.in 30 CFR 100.3 in determining the civil penalty 

on the basis that unwarrantable failure had been found and 

assessed a penalty in the amount of six thousand dollars. 

As a result of prehearing discussions with the MSHA 

inspector who issued the Order and discussions with 

Mr. Skrypak, the attorney for Consol, an agreement was 

reached to settle the case for an amount of fifteen hundred dollars. 

We believe the amount of fifteen hundred dollars in 

this instance is sufficient to support the purposes of 

the Act in preventing violations, accidents and injuries, 

and is in accordance with the criteria and the Act itself. 

Essentially, the area which we cited is only vaguely 

described by the inspector as to gravity. Several locations were mentioned by him. In attempting to elicit definite testimony as to the exact nature of the roof conditions, the inspector had taken no notes and could not give 

a more precise and detailed description of the allegations 

on which the assessment was made. 

I felt we would have problems in presenting a clearcut 

description as to the gravity and extent of the conditions 

cited. The area cited had not been used as an active haulage or entry for transporting men. 

The prime consideration was·the question of unwarrantability~ and upon this Consolidation has given evidence that 

the condition was, at the time the Order issued, currently 

being rehabilitated and being brought up to the standards 

of the roof control plan, that good faith was being shown 

at that time, and even more so after the issuance ~f the 

Order, abating those conditions. 

They were, in fact, expending time and money to remedy 

the condition before the Order had been issued. So, with 

these factors considered -- also the fact no injuries were 

either, in fact, caused or were they probable to be caused 

due to the remote area of the condition -- it is unlikely 

serious injuries would have resulted -- although ordinarily 

a roof c.ondition must be considered as an extremely serious 

violation. 

We feel the penalty in the amount of fifteen hundred 

dollars is sufficient to deter future violations and recommend it be accepted by the Administrative Law Judge. 

1607 
Counsel for Respondent placed on record the following 

dollar amounts and man-hours which were expended by the operator 

to correct the situation prior to the issuance of the order: 

During the period of approximately six weeks before 

this particular Citation or Order was issued and for a 

period of some four weeks thereafter, Consolidation Coal 

Company spent a total of forty-nine working days in this 

area, amounting to eighty-seven man shifts which covered 

over two thousand man hours. 

During this two thousand man hours, the following 

work was performed: Over ninety feet of draw rock was 

taken down, the ninety feet was then rebolted with 

approximately ninety roof bolts. 

Eleven breaks of locust timbers were set. That translates in layman's terms to approximately three hundred 

timbers. Thirty crossbars were set, those being steel 

crossbars. 

The high voltage and trolley wire was rehung. The 

approximate cost of the work -- by figuring only the 

direct cost of labor and supplies -- is around seventy-five 

thousand -Oollars. The direct cost, which cannot be figured 

accurately, would probably place the value of this work in 

excess of one hundred thousand dollars. 

The approval of settlement and the order requiring that the 

respondent pay the sum of $1,500 within 30 days of the date of the 

hearing are hereby affirmed. 

Distribution: 

Forrest E. Stewart 

Administative Law Judge 

Leo McGinn, Esq., Office of the Solicitor U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Karl Skrypak, Esq., Consolidation Coal Company, Consol Plaza, 

1800 Washington Road, Pittsburg, PA 15231 (Certified Mail) 

1608 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CARBON FUEL COMPANY, 

Respondent 

Docket No. HOPE 78-623-P 

A/O No. 46-02877-02012 F 

No. 9 - No. 8 Drift Mine 

DECISION 

Appearances: 

Before: 

Leo J. McGinn, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, for 

Petitioner. 

Judge Stewart 

The above-captioned case is a civil penalty proceeding pursuant 

to section 110 of the Federal Mine Safety and Health Act of 1977. 

A hearing in this matter was held on August 29, 1979, in Charleston, 

West Virginia. At that time, settlement of the case was proposed in 

the amount of $3,500. MSHA's Office of Assessments had originally 

proposed an assessment of $10,000. In support of the motion for 

settlement, counsel for Petitioner asserted the following: 

Your Honor, this case involves a single violation, 

a 104(b) Notice alleging a violation of 75.200 issued 

January 11, 1977, for failure to comply with the approved 

roof control plan, in that the roof bolting machine operator was not using the temporary supports, roof bolting 

in the face area, and an accident occurred; and the bolter 

was killed as a result of the accident. 

An assessment was made at that time of ten thousand 

dollars. Your Honor, when this case was assigned for 

hearing during this week, I obtained the file from 

Mr. Edward Fitch, an attorney of our office, and was 

advised by him -- and this was confirmed by correspondence 

in the file -- this actually had been set last year for 

prehearing by another judge and had been continued. In 

the meantime, settlement negotiations had been carried on. 

1609 
By letter dated July 30, 1979, a letter from C. Lynch 

Christian, III, attorney for Carbon Fuel, to Mr. Edward 

Fitch, Esquire, of the Office of the Solicitor, confirmed 

a settlement agreement reached between the parties in the 

amount of three thousand five hundred dollars. 

I examined the material available in the file, discussed the case with Mr. Fitch, and was told by him agreement had been reached and that a motion, for some reason 

or another, had not been filed by the parties asking that 

the amount be approved and the case be dismissed. 

Basically, the reasons are contained in a letter 

from Mr. Christian to Mr. Fitch which explains the ~lle­

'gations of negligence on the part of the operator. 

Evidently, the evidence accepted by Mr. Fitch is that 

temporary supports were available on the continuous mining 

machine and should have been used at that time. 

The victim had attended the training classes in roof 

and rib control and had received a full explanation of 

the requirements of the plan only two months prior to 

the accident, including the requirement temporary supports 

be set while bolting. 

The victim had been caught, as explained in the 

letter, "--by mine management without or with improperly 

set temporary supports on three occasions since 1974. On 

each of these occasions, the roof bolter had been shut 

down, the roof control procedures carefully explained and 

a verbal or written warning issued to Mr. Morris," the 

victim. 

In view of these circumstances, Mr. Fitch accepted 

the contention that management could not be held to be 

grossly negligent in the unfortunate fatal accident which 

occurred here. 

Although the violation is, of course, serious with 

the death of the man, it was considered a penalty in the 

amount of thirty-five hundred dollars was sufficient and 

would be acceptable under the circumstances of the evidence available for proof as to negligency. 

Having concurred with Mr. Fitch and examined the 

documents in the file, I find no reason for the Office 

of the Solicitor to back out of the agreement which had 

been reached between the two attorneys at an earlier time. 

1610 
So, I move the penalty in the amount of thirty-five 

hundred dollars be accepted and the proceeding be 

dismissed upon payment. 

Counsel for Petitioner also introduced into evidence two letters 

from counsel for Respondent to counsel for Petitioner. The first of 

these was a letter of agreement, dated July 30, 1979. The second, 

dated May 3, 1979, set out Respondent's position with respect to the 

issue of negligence. 

At the conciusion of the hearing, the settlement negotiated by 

the parties was approved by the Administrative Law Judge and Respondent was ordered to pay the agreed-upon sum of $3,500. This approval 

of settlement is affirmed here. 

ORDER 

It is ORDERED that the approval of settlement negotiated by the 

parties in the above-captioned proceeding is hereby AFFIRMED. 

It is further ORDERED that Respondent pay the agreed-upon sum 

of $3,500 within 30 days of the date of this decision. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Leo McGinn, Esq., Office of the Solicitor, MSHA, U.S. Department 

of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

C. Lynch Christian III, Esq., Jackson, Kelly, Holt & O'Farrell, 

P.O. Box 553, Charleston, WV 25322 (Certified Mail) 

1611 
FEDERAL MINE SAFETY AND HEALTH REVIEW COIY!MISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON. VIRG !NIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CO-OP MINING COMPANY~ 

Respondent 

Civil Penalty Proceeding 

Docket No. DENV 79-1-P 

A.O. No. 42-0081-02015 

Co-op Mine 

DECISION AND ORDER APPROVING SETTLEMENT 

This proceeding concerns a proposal for assessment of civil penalty filed by the petitioner against the respondent on October 4, 1978, 

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

of 1977, 30 u.s.c. § 820(a), charging the respondent with one alleged 

violation of the provisions of 30 CFR 70.250(b), and seeking a civil 

penalty assessment in the amount of $190 for the alleged violation. 

By stipulation and joint motion filed October 9, 1979, pursuant 

to Commission Rule 29 CFR 2700.30, the parties propose to settle this 

case without a formal hearing by the petitioner amending the proposed 

penalty to reflect a penalty of $25 rather than the $190 which was 

initially proposed, and respondent agreeing to withdraw its contest 

and to pay the $25 proposed penalty. 

In support of the proposed settlement, the parties have taken 

into account, and have submitted information concerning the six statutory criteria set forth in section llO(a) of the Act, including the 

following: 

History of previous violations - Respondent has had a 

total of 110 violations from July 27, 1975 to July 26, 1977, 

only one of which was a violation of 30 C.F.R. 250(b). 

Size - Respondent operates a coal mine which mines 

between 30,000 and 50,000 tons of coal each year. 

Ability to continue in business - Payment of the proposed penalty will not impair respondent's ability to continue in business. 

1612 
Good faith, negligence and gravity - Respondent is 

required by standard 30 C.F.R. 70.250(b) to take respirable 

dust samples from the mine atmosphere of miners at least 

once every 120 days. MSHA received information, allegedly 

from Respondent, that Respondent employed a miner with 

Social Security No. 528-96-5108. No respirable dust 

sample was submitted for an employee with that Social 

Security Number within the prescribed time, and an order 

for violation was ultimately issued. Respondent did in 

fact employ a miner with Social Security No. 528-96-5109, 

however, Respondent's personnel records show that no~~ 

employee with the Social Security Number 528-96-5108 has 

ever been employed by Respondent, and Respondent--.-g-records 

show that samples for an employee with Social Security no. 

528-96-5109 were submitted as required. Any error appears 

to have been clearly clerical in nature and MSHA does 

possess a sample for employee 528-96-5109 during the time 

in question. 

DISCUSSION 

After careful review and consideration of the argument in support 

of the proposed settlement, and taking into account those factors 

required to be considered by section llO(i) of the Act, I conclude 

and find that the proposed settlement should be approved. It would 

appear that the alleged citation in question resulted from a clerical 

error and does not in my view present a serious violation. Further, 

respondent is a small mine operator and has no significant prior 

history of violations. 

ORDER 

The settlement is approved, and the respondent is ORDERED to pay 

a civil penalty in the amount of $25 within 30 days of the date of 

this decision and order in satisfaction of Citation No. 7-0770, 

July 26, 1977, 30 CFR 70.250(b). Upon receipt of payment, this case 

should'be dismissed. 

/?./ :) /// .. --

?.~~ -~ Ko"ltfas 4~ . 

Administrative Law Judge 

Distribution: 

James Abrams, Esq., U.S. Department of Labor, Office of the 

Solicitor, 15019 Federal Office Building, Denver, CO 80202 

(Certified Mail) 

Carl E. Kingston, Esq., 53 West Angelo Avenue, Salt Lake City, 

UT 84115 (Certified Mail) 

1613 
FEDERAL MINE SAFETY AND HEALTH REVIE\Y COMMISSION 

RONALD E. DUNLAP, 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

Applicant 

Application for Review 

of Discharge 

Docket No. BARB 78-66 

CHAROLAIS COAL CORPORATION, 

Respondent No. 1 Mine 

DECISION 

Appearances: Ronald E. Dunlap, White Plains, Kentucky, prose.; 

Joe A. Evans III, Esquire, Madisonville, Kentucky, 

for the respondent. 

Before: Judge Koutras 

Statement of the Case 

On December 5, 1977, applicant Ronald E. Dunlap filed a discrimination complaint with the Office of Hearings and Appeals, U.S. Department of Interior, Arlington, Virginia, pursuant to section llO(b) of 

the Federal Coal Mine Health and Safety Act of 1969, asserting that he 

was discharged by the respondent on November 14, 1977, and that his 

discharge was in violation of section llO(b) of the Act. The complaint states as follows: 

On November 14th, I was discharged from my job as a 

Euclid driver for Charolaois Coal Corp. For sometime, I 

had been complaining about the brakes. We were moving the 

Euclids on November 4, from one mine to the other, when 

the first Euclid stopped to let an oncoming car pass. The 

brakes failed on the Euclid that I was driving, so I had 

to run the Euclid off the road to keep from hitting the 

car, and as a result I hit the back of the other Euclid. 

I was sent home after the accident. The Euclid was down 

for seven days to repair the brakes. I reported to work 

everyday until November 14th, when they informed me I was 

·fired due to the accident. I was discharged by the company in violation of section llO(B) of the Federal Coal 

Mine Health and Safety Act. 

1614 
By letter .dated January 17, 1978, from former Chief Administrative Law Judge Luoma, Mr. Dunlap was advised that his co.mplaint had 

been docketed but that it appeared to be deficient in that there was 

no indication that a copy had been served on the respondent. He was 

advised to serve a copy on the respondent and to advise Judge Luoma's 

office that service was made on the respondent. 

By letter dated February 22, 1978, Mr. Dunlap advised that a 

copy of his complaint was served on the respondent by MESA Special 

Investigator Jesse F. Rideout on December 28, 1977. 

On March 27, 1979, Commission Chief Administrative Law Judge 

Broderick issued an order to the respondent to show cause why it 

should not be held in default and the matter summarily disposed of 

because of respon4ent's failure to file an answer. 

On April 4, 1979, respondent filed a response to Judge Broderick's 

show-cause order, and on April 25, 1979, I issued an order indicating 

that respondent satisfactorily answered the show-cause order and should 

not be held in default. By notice of hearing issued May 9, 1979, the 

parties were advised that a hearing would be held in Evansville, 

Indiana, on August 21, 1979. 

Issue Presented 

The issue presented in this proceeding is whether the discharge 

of Mr. Dunlap from his truck driver's position was in fact prompted 

by his reporting of safety infractions to the Mining Enforcement and 

Safety Administration. 

Applicable Statutory Provisions 

1. The Federal Coal Mine Health and Safety Act of 1969, 

30 U.S.C. § 801 et seq. 

2. Section llO(b) of the Act provides in pertinent part that: 

No person shall discharge or in any other way discriminate against or cause to be discriminated against any miner 

or any authorized representative of miners by reason of the 

fact that such miner or representative (A) has notified the 

Secretary or his authorized representative of any alleged 

violation or danger, (B) has filed, instituted, or caused to 

be filed or instituted any proceeding under this Act, or (C) 

has testified or is about to testify in any proceeding 

resulting from the administration or enforcement of the 

provisions of this Act. 

1615 
Discussion 

Applicant's Testimony 

Ronald E. Dunlap testified that on November 4, 1977, while 

employed by the respondent as a Euclid truck driver, and while 

driving a truck which he believed had bad brakes, he ran the truck 

off the road in order to avoid hitting another car which had stopped 

on the road. He had previously complained about the bad brakes some 

2 months prior to this incident. After the incident, mine foreman 

Tom Gamble sent him home, and he was subsequently fired by Mr. Bowles, 

the mine owner, and Mr. Bowles stated he fired him because he had 

received complaints about the manner in which the trucks were being 

operated on the road (Tr. 8-11). 

Mr. Dunlap stated that he still does not know the reason why he 

was discharged by Mr. Bowles. After he was fired, he tried to obtain 

other employment but was unable to, and he believes it was because he 

"went to the Federal people over it" (Tr. 12). He called someone at 

MESA on the phone and complained about the truck brakes and he also 

sought help in filing his discrimination complaint. He subsequently 

went to work for Island Creek Coal Company in Madisonville on 

September 18, 1978, and is still employed there. Prior to that time, 

he was unemployed and was paid no unemployment benefits because of his 

discharge (Tr. 14). 

On cross-examination, Mr. Dunlap confirmed that he was discharged 

on November 14, 1977, and that on November 26, 1977, he executed an 

affidavit alleging that he was fired because of reports of safety violations (Exh. R-1). He stated that sometime in mid-October of 1977 

he called an unidentified man at the MESA Madisonville office to complain about the brakes on the truck in question. He did not file any 

written report, and to his knowledge, no one came to the mine to 

inspect or check on the condition which he reported. He continued to 

drive the truck after he complained about it and he was not discharged 

and continued to work with the respondent until his discharge on 

November 14 (Tr. 15-16). 

Mr. Dunlap identified the manufacturer's specifications for a 

Euclid R-50 truck, the type of vehicle he was driving on the day of 

the accident (Exh. R-2). He described the truck braking system, and 

his duties entailed hauling spoil from one of the mine pits to a dumping area and this was done in tandem with another truck driver usually 

over an 8-hour daily shift. He confirmed that at the end of a shift 

he was required to fill out a slip stating the current condition of 

the truck, and he customarily filled it out by signing it and turning 

in the hours he worked (Exh. R-3, Tr. 17-23). He denied that he was 

ever informed that he was to report the condition of his truck on the 

report (Tr. 24). However, he stated he was not sure whether he has 

filled out any such reports indicating problems with his truck, but 

did identify one he turned in on October 12, 1977 (Exh. R-4). 

1616 
Mr. Dunlap stated that he was instructed to advise the mechanic 

about any problems with his truck, and he also turned in reports to 

his foreman (Tr. 26). He admitted that at no time did he ever fill 

out a report stating there were problems with his truck and this is 

because he always reported it orally (Tr. 27). He denied that anyone has ever advised him to slow down while driving around the pit 

(Tr. 29). 

Mr. Dunlap testified with respect to the accident with his truck 

and he indicated that he had to run his truck into a ditch to avoid 

the stopped car, and that he could not stop in time (Tr. 30-37). He· 

confirmed that he wrecked his brother-in-law's truck 2 days after the 

accident in question and believed bad brakes caused that accident 

also (Tr. 39). He also admitted stating to Mr. Gamble that he would 

not blame Mr. Bowles for firing him for wrecking the Euclid truck (Tr. 

40). 

In response to questions from the bench, Mr. Dunlap stated that 

on October 15, 1977, he called someone at MESA qnd advised him that 

he damaged the truck transmission because he could not stop the truck 

and had to put it in gear to keep it from going over a bank. He could 

not recall who he talked to and no one from MESA came in response to 

his call. He never saw any MESA or state inspectors at the mine and 

he has never complained to any state inspectors about truck brake 

conditions. He also indicated that he never told Mr. Bowles about 

his call to MESA, and he told no one at the mine about it (Tr. 40-44). 

Respondent's Testimony 

Donald E. Bowles, mine owner, testified that he is familiar with 

the Euclid truck operated by Mr. Dunlap on the day of the accident, 

and he discussed the truck braking system. Mr. Bowles stated he drove 

the truck after the accident to get it out of the road. The truck 

windshield was knocked out and one door would not close. The truck 

was purchased in January 1977, and a new one costs $280,000 (Tr. 62-

65). Mr. Bowles stated he was unaware of any complaints made by 

Mr. Dunlap to MESA, and he first learned about the matter when MESA 

representative Rideout interviewed him after Mr. Dunlap filed his 

complaint (Tr. 66). 

Mr. Bowles testified he has observed Mr. Dunlap's driving habits 

and asked pit foreman Gamble on two occasions to slow him down. Prior 

to the accident, he was not aware of any serious brake difficulties 

with the Euclid truck. He denied that Mr. Dunlap was fired for complaining about safety violations (Tr. 66-67). 

On cross-examination, Mr. Bowles testified that the truck in question was still under warranty at the time of the accident, and that in 

addition to Mr. Dunlap, it was also driven by Mr. Gamble. He confirmed that there was a brake problem with the truck, but indicated 

1617 
that it was caused by failure of the driver to use the retarder to 

slow it down and "riding the brakes" while going downhill (Tr. 70). 

Mr. Bowles stated that he told Mr. Dunlap that a local county 

judge had complained about his driving too fast and reckless with 

the Euclid truck and that after the accident when he rode back with 

Mr. Dunlap to his car, Mr. Dunlap asked him if he were fired, and 

Mr. Bowles answered 11 1 don't know" and told him he would have to talk 

to Mr. Gamble and Mr. Durall first and that he would let him know. 

On or about November 14, he told Mr. Dunlap that he was fired because 

of the complaint~ of his fast driving and that he could not permit 

anyone who was unsafe to operate his equipment (Tr. 71-72). 

Mr. Bowles described the accident and indicated that one truck 

ahead of Mr. Dunlap had stopped to allow a car to pass by and 

Mr. Dunlap was trailing behind the lead Euclid truck which had 

stopped. Mr. Dunlap hit the truck which had stopped in the backend 

and ran off the ditch beside it (Tr. 73). Mr. Bowles stated that 

Mr. Dunlap's discharge was oral and he paid him his final check (Tr. 

75). 

In response to bench questions, Mr. Bowles testified that MESA 

does ~nspect his mine, but he could not recall the Euclid trucks being 

inspected in October or November 1977, nor could he recall any citations being issued against the trucks for deficient brakes (Tr. 76). 

He first met Mr. Rideout when he came to interview him concerning 

Mr. Dunlap's complaint. Mr. Rideout asked him to reinstate Mr. Dunlap 

and he told him he could not because he was not a safe workman (Tr. 

77). He denied firing Mr. Dunlap for making any safety complaints 

and knows of no complaints that he may have filed with MESA, and 

Mr. Rideout mentioned none (Tr. 79). 

Thomas E. Gamble, pit foreman, testified that Mr. Dunlap was a 

good worker but a "little bit fast" and sometimes a "little bit reckless" with his truck. He was aware of no complaints made to MESA by 

Mr. Dunlap and when he left t~e job he had received no complaints 

about bad truck brakes. He would not have permitted Mr. Dunlap to 

operate the truck if it were in fact in an unsafe condition. After 

the accident, Mr. Dunlap stated that if Mr. Bowles fired him 11 1 

guess I've got it coming" (Tr. 82-85). 

In response to bench questions, Mr. Gamble stated that Mr. Dunlap 

worked directly for him and they were working together when the accident occurred- (Tr. 86). Mr. Bowles consulted him as to whether 

Mr. Dunlap should be fired and he voted to fire him because of his 

reckless driving habits. Mr. Dunlap never indicated to him that he 

ever complained to MESA about any defective brakes on the trucks (Tr. 

87). He is unware of any citations issued against the trucks for 

defective brakes, and aside from his driving habits, Mr. Dunlap was a 

good worker (Tr. 89). 

1618 
John S. Durall, pit foreman, testified he was aware of 

Mr. Dunlap's driving habits and that they were "average". On the day 

of the accident, he was driving the lead truck acting as a flag truck 

to slow down other vehicles coming from the opposite direction. The 

truck operator is responsible for filling out the slip tickets at the 

end of each shift. He is not aware of any MESA citations issued during October and November against the Euclid trucks (Tr. 92). He was 

not aware that Mr. Dunlap had registered any complaints with MESA. 

Findings and Conclusions 

On the facts and evidence adduced in this proceeding, I cannot 

conclude that Mr. Dunlap's discharge from his employment with the 

respondent was in any way connected with, or the result of, any discrimination resulting from any complaints which he may have made to 

MESA in connection with the brakes on the Euclid truck. As a matter 

of fact, there is no evidence to substantiate the fact that Mr. Dunlap 

ever complained to MESA about any defective brakes on the truck in 

question, and there is no evidence to substantiate the allegation 

that respondent was aware of such complaints and retaliated against 

Mr. Dunlap by discharging him. MESA's involvement in the case came 

after Mr. Dunlap filed his complaint, and from the record it would 

appear that this involvement was limited to a March 1978 interview by 

MESA inspector Rideout with the owner of the mine. Respondent's evidence and testimony establishes that Mr. Dunlap's discharge was 

prompted by the accident that he was involved in concerning the Euclid 

trucks owned by the respondent, and the fact that respondent considered 

Mr. Dunlap to be an unsafe truck driver • 

. During the course of the hearing, and in response to my question 

as to whether Mr. Dunlap had ever cons1dered retaining counsel to 

represent him, he indicated that he had retained an attorney from 

Madisonville, Kentucky, who was aware of his complaint, but it was 

his understanding that he did not require an attorney. Out of consideration of the fact that Mr. Dunlap appeared pro se at the hearing, the record was left open for a period of 30 dayS-to afford 

Mr. Dunlap an opportunity to contact his attorney further for the 

purpose of advising him as to the posture of his case and to afford 

the attorney an opportunity to file any further arguments in support 

of his claim (Tr. 93-96). No further information in this regard has 

been forthcoming either from Mr. Dunlap or his alleged attorney. 

Under the circumstances, I am of the view that Mr. Dunlap has had a 

full and fair opportunity to present his claim and he admitted as 

much at the hearing (Tr. 94-95). However, as indicated above, 

Mr. Dunlap has presented nothing to support his claim that his discharge was prompted by any protected activities afforded him under 

the 1969 Act. 

1619 
ORDER 

In view of the foregoing findings and conclusions, applicant is 

not entitled to any relief under section llO(b) of the Act, and his 

application for revliew is denied and this case is dismissed. 

~~outr~s !!£ 4~-----· 

Administrative Law Judge 

Distribution: 

Ronald E. Dunlap, P.O. Box 153, White Plains, KY 42464 (Certified 

Mail) 

Joe A. Evans III, Esq., Moore, Morrow & Frymire, P.O. Box 695, 

Madisonville, KY 42431 (Certified Mail) 

1620 
FEDERAL MINE SAFETY AMO HEALTH REViEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. DENV 79-219-PM 

A.C. No. 04-00035-05002 

v. 

CALICO ROCK MiuLING, 

INCORPORATED, }j 

Respondent 

Docket No. DENV 79-241-PM 

A.C. No. 04-00035-05001 

Calico Quarries & Mill 

DECISION 

Appearances: Donald F. Rector, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Howard M. Peterson, President, Calico Rock Milling, 

Incorporated, Barstow, California, for Respondent. 

Before: Administrative Law Judge Michels 

The above-captioned civil penalty proceedings were brought pursuant to section llO(a) of the Federal Mine Safety and Health Act of 

1977, 30 u.s.c. § 820(a). On January 18, 1979, the Mine Safety and 

Health Administration (MSHA) filed a petition for the assessment of 

civil penalties, docketed in DENV 79-219-PM, alleging that Respondent 

committed violations of 30 CFR 56.9-87, 56.9-7, 50.20, sections 109(a) 

and 103(a) of the Act, and two separate violations of 56.14-1. Thereafter, orr January .26, 1979, MSHA filed a second petition, docketed in 

DENV 79-241-PM, alleging that Respondent committed two violations of 

30 CFR 56.14-6. On March 30, 1979, Respondent filed answers contesting the violations in both dockets. A hearing was held on August 7, 

1979, in San Bernardino, California, at which Petitioner was represented by counsel and Respondent was represented by its president, 

1-_/ At the beginning of the hearing, Respondent moved to amend the 

~aption in this case from Secretary of Labor, Mine Safety and Health 

Administration (MSHA) v. Calico Rock Company, to the above. Petitioner did not object to this change and the caption has been amended 

accordingly (Tr. 15). 

1621 
Mr. Howard M. Peterson. The two dockets were consolidated for the 

hearing and for this decision (Tr. 2). 2/ At the start of the hearing, the parties stipulated (1) that Re~pondent does not have a prior 

history of violations, (2) that Respondent is a small company, and, 

(3) the imposition of these penalties would not impair the operator's 

ability to continue in business (Tr. 4-5). Thereafter, the following 

action was taken: 

Docket No. DENV 79-219-PM 

Citation No. 375049, July 18, 1978 

Evidence was first received regarding Citation No. 375049, which 

alleges a violation of 30 CFR 56.9-87. The condition or practice cited 

by the inspector is as follows: "An automatic warning device which 

would give an audible alarm when the equipment is put in reverse was 

not provided on the Michigan 125 Front-end loader." The regulation, 

30 CFR 56.9-87, provides that: 

Heavy duty mobile equipment shall be provided with 

audible warning devices. When tLe 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. 

On the basis of the evidence presented, and in light of the statutory criteria, a decision was made from the bench finding a violation 

of the standard and assessing a penalty of $40. This decision from 

pages 76-78 of the transcript, with some necessary corrections, is set 

forth below: 

Now to get onto the citation. This citation is that an 

automatic warning device, which would give an audible aldrm 

when the equipment is put in reverse, was not provided on 

the Michigan 125 front-end loader. This is cited as a violation of 30 CFR 56.9-87, which does require that heavy duty 

mobile equipment be provided with audible warning devices. 

The evidence indicates that this is the kind of equipment 

which should be so provided. It further indicates, and I do 

not believe that Mr. Peterson has disputed, that it was not 

provided. There is some question apparently as to whether 

this [equipment] was fully in operation, because the indication is that it was being used * * * in the process of doing 

a repair to test it out. 

]:_/ The citations were heard in numerical order which meant that the 

two citations in Docket No. DENV 79-241-PM were heard in the middle 

of the citations heard in Docket No. DENV 79-219-PM. 

1622 
Well, I would say this. That as far as the need for 

such a device is concerned, it is, of course, to warn 

people in back. It is hard for me to draw a distinction 

between operating generally or operating just in the context of the repair. So I fail to see that this would be 

much of a mitigating circumstance in this instance. 

The net result is that I would find that there has been 

a violation as alleged. * * * We have already considered 

three of the criteria. As far as the abatement, I just 

don't think there is enough evidence for me to determine 

that it was not abated in good faith, so I will just simply 

let that finding go as though there was an abatement within 

the time set by the inspector. 

There are two other elements or criteria to consider. 

As to gravity, the testimony was that people, that other 

miners were in the area and in back of it. In my mind, 

there is no question about the seriousness of not having 

these devices. It is all too easy for somebody to get 

injured when they do not hear the machine being backed up. 

So I would have to naturally find that it is serious. 

There is also the question of the negligence. Based 

on the evidence I heard, I think there is no question that 

Mr. Peterson and his company knew that these were required 

and apparently also knew that it was not on this machine, 

although it should have been. There is one slight mitigating factor, that maybe it was not appreciated that this 

should have been on there in this particular situation, 

where it. was being used in connection with other repairs 

to test out the machine. 

As I said, I can't see any distinction, so I wouldn't 

make much of a point of that. The Government has asked 

for $56 here, which is, of course, nominal. But taking 

into account this slight mitigating factor, I would reduce 

that somewhat to $40. I will take $16 off. 

So, accordingly, my finding would be for an assessment 

of $40 for this citation. 

The above bench decision and assessment are hereby AFFIRMED. 

Citation Nos. 375050 and 375051, July 18, 1978 

Following the above decision, Petitioner and Respondent introduced evidence in a consolidated fashion on Citation Nos. 375050 and 

375051 which both allege violations of 30 CFR 56.14-1. The condition 

or practice cited in Citation No. 375050 states: "The V-belts on the 

1623 
drive motor o~ the secondary crusher was not guarded to keep employees 

from coming into contact with the pinch points." On Citation No. 

375051, the inspector, as to the practice stated: "The balance wheel 

on the secondary crusher was not guarded to keep the employees from 

coming in contact with it." The regulation requires that: "Gears; 

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

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

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

injury to persons, shall be guarded." 

The following bench decision found at pages 130-137 of the transcript, with some necessary corrections, was issued at the hearing on 

the merits of these two violations: 

To begin with, I must find whether or not there was a 

violation, you see. In this case, we are dealing with two 

different citations, 375050 and 375051, both charging a violation of 30 CFR 56.14-1. This is under 30-CFR. The evidence shows that the citations were issued against a piece 

of machinery which on either end had a V-belt and a balance 

wheel which were not covered. 

The charge was, of course, that they were not guarded 

and 56.14-1 requires that movj_ng machine parts which may 

cause injury shall be guarded. So the evidence that has 

been received has turned on, in part at least, a question 

of whether or not there was a guarding. Now, I think there 

is one disputed area and that is whether or not there was a 

chain with a sign as shown in one of the pictures. 

The inspector testified that he did not see any such 

chain or sign, and I think that -- or I will accept his 

testimony on that, because Mr. Cowley also stated that on 

the date of the abatement that there was a screen there; 

that there was no chain or sign. * * * 

As I observed, it is my understanding that this 

machinery was previously guarded either completely or with 

separate guards. I don't know which. And that these were 

,removed. They were removed apparently because the State 

.inspector had believed that if there was no access, then 

that would be adequate. 

Now, as it turns out, however, there was access and 

it is admitted that there was a ladder there on that day 

so that miners could have gone up there. I believe it is 

c_lear that they did go up there for maintenance and oiling, 

but it is not clear, of course, in fact there is no evidence, that anybody was ever up there while the machinery 

was moving. 

1624 
Well, I am getting a little bit ahead of myself. The 

question is whether or not that was guarded. Now, the question has been raised, and properly so, as to whether or not 

the regulation that we have is adequate and I think it is. 

At least in relation to this particular piece of machinery, 

a guard simply means -- it seems unquestionably -- a cover 

that would keep people out, so that they would not get 

pulled into it or their clothing pulled into it. If it is 

inaccessible, I would go along with the proposition that 

you wouldn't necessarily have to have a guard. If it is 

way out of reach of anybody. But this was not out of reach. 

* * * [I)t could be reached via the ladder and right into 

the machine. Of course, the inspector did not observe any 

person up there, but I believe that it is clear that people 

do go there, and that was the reason for the ladder, to 

allow access so that they could get up for maintenance. 

That is my understanding. 

Now, I just would have no alternative really except to 

find that this was unguarded as alleged, and I do so find. 

In other words, there is a violation as charged in both of 

these citations of 30 CFR 56.14-1. * * * 

So that brings us to the point of the assessment. The 

findings have already been made on all of the criteria, 

except abatement, seriousness and negligence. I think 

counsel, Mr. Rector, has made a big point on abatement 

because of Mr. Peterson's statement that he wasn't going to 

do anything further or guard this. I really didn't understand it that way. What I understood you [Mr. Peter_son] 

were saying, and I so interpret it, is that you believed 

what you had there was adequate in all the circumstances. 

So I don't add, I would not add a further penalty or 

increase the penalties for that reason. * * * Abatement did 

not take place within the time permitted, but it did take 

place eventually to the satisfaction of Inspector Cowley. 

Now that brings up seriousness or gravity. My finding 

would be that it is a serious violation. I think that open 

machinery which is not guarded is very dangerous. [The cited 

con.dition] is mitigated here a little bit by that fact that 

nobody was seen there, and there is no evidence at all that 

anybody was ever there when the machinery was moving. * * * 

Now, as far as negligence is concerned, I find ordinary 

negligence, because I believe that it should be known that 

these should be guarded. I mean, either an operator knows 

or should know about that. I think that it is a mitigating 

1625 
factor that the State inspector did give his advice or permission to remove those guards under certain circumstances. 

So it is not, as I see it, the gross negligence that has 

been suggested. But even with all of those factors in mind, 

I don't think I can reduce these fines. So therefore, I 

will assess the penalties that have been assessed by MSHA 

in their Assessment Office, namely, that is, for each of 

these violations the sum of $56. 

(Tr. 130-137). 

I hereby AFFIRM the above bench decision. 

Docket No. DENV 79-241-PM 

Citation Nos. 375052 and 375053, July 18, 1978 

Thereafter, the parties presented evidence on Citation Nos. 

375052 and 375053, which are the only two citations docketed in 

DENV 79-241-PM. Both charge Respondent with separate violations 

of 30 CFR 56.14-6. The condition or practice cited in Citation No. 

375052 states: "The guard for the V-belts of the drive mbtor on the 

No. 2 Shaker Screen was not in place while belt was running to keep 

employees from coming into contact with the pinch points." The wording of Citation No. 375053 is the same except that it refers to the 

NQ. 1 Shaker Screen. 30 CFR 56.14-6 provides: "Except when testing the machinery, guards shall be securely in place while machinery 

is being operated." 

After considering the evidence, a decision was issued from the 

bench. This decision found in the transcript at pages 153 and 154, 

with some corrections, is set forth below: 

These citations are 375052 and 375053. They both 

involve charges of 56.14-6, alleging that the guards on 

the particular pieces of machinery involved were not in 

place while the machines were running. This particular 

regulation, I will read it in full, states: "Except when 

testing the machinery, guards shall be securely in place 

while the machinery is being operated." 

Now, it is clear from the testimony that guards were 

not on the machinery while it was being operated. I suppose then the issue is whether the conditions come within 

the exception, that is, except when testing the machinery. 

Mr. Peterson has testified to the effect that they were in 

a testing posture. The one indication that this might not 

have been true was mentioned by the inspector, and that is 

that one [guard] seemed to be covered with dust or dirt or 

rock, indicating it had been there a long time, although 

1626 
Mr. Peterson has explained that. [He testified that within 

an hour 1 s running, dust could build up to an inch or an inch 

and a half (Tr. 152-153). 

There was no rebuttal of that [the claim that tests 

were taking place]. I have no reason whatsoever not to 

believe Mr. Peterson on his explanation. Therefore, my 

understanding would be that it comes within the exception. 

This is no criticism of the inspector. He called it as he 

saw it when he went there. Unfortunately, he didn't find 

out, I guess, that it was in a testing posture. 

That being the case, I would dismiss then as to those 

two citations. Accordingly the petitions [are vacated] and 

the whole docket, DENV 79-241-PM, is dismissed. 

(Tr. 153-154). 

I hereby AFFIRM the above decision vacating Citation Nos. 375052 

and 375053 and dismissing DENV 79-241-PM. 

Docket No. DENV 79-219-PM 

Citation No. 375054, July 18, 1978 

Next, evidence was introduced on Citation No. 375054 which charges 

a violation of 30 CFR 56.9-7. After the conclusion of the parties' 

presentation of evidence, the following decision found in transcript 

pages 171-174, with some corrections, was rendered from the bench: 

I will therefore make my decfsion. This is Citation 

375045. The citation states that the conveyor side of the 

walkway on the hopper/conveyor was not equipped with 

emergency stop devices or a cord along the full length of 

the conveyor belt. The standard, in this instance, states: 

"Unguarded conveyors with walkways shall be equipped with 

emergency stop devices or cords along their full length." 

Well, the evidence here on a number of points seems 

undisputed, that is, that there was a walkway along a conveyor that was in operation; furthermore, that there was 

no emergency stop device on the walkway. I don't think 

there is any dispute about that. 

Mr. Peterson has mentioned several points in his 

defense. The first one being, I believe, the contention 

that it was in fact guarded, so that it was not unguarded 

asserting and testifying that there was a chain. 

Contrary-wise, if my recollection of the testimony is 

correct, I think Mr. Goodspeed did say that there was no 

1627 
guard and it was accessible. So I have a direct conflict 

in the testimony and in the evidence. 

Here, again, of course, we have some kind of problem 

or controversy as to what we would mean by guarded. Would, 

for example, a chain be adequate if it was there or if it 

had been there? 

Well, I have to make a decision on it, and I don't 

know perhaps enough about this whole procedure or arrangement to make a decision which I think is necessarily going 

to be a precedent for other cases, but I am thinking just 

in terms of this situation. I would find for this citation 

that the mere chain would not be enough. I agree that a 

chain can be too easily taken down. It is usually just put 

up with some snap, and if somebody wants to use it they go 

under it or use it in some way. * * * Therefore, that 

guard has to be a secure kind of guard that would probably 

have to be some kind of a link fence or whatever the barrier 

would be. I say, I readily admit, I have not researched this 

area, and I don't want to be making a kind of a ruling that 

would be necessarily a broad precedent here. But I think, 

as I understand this situation, it would not be guarded 

[with only a chain]. 

So then the next point -- well it was not equipped with 

the emergency stop devices. * * * If [the conveyor] doesn't 

have this cord, it violates this standard. Now, that may 

seem harsh and it may seem strict, but I believe that these 

regulations were written with the thought that if these are 

enforced, it will prevent those accidents from happening 

which shouldn't occur. Men probably shouldn't, maybe very 

seldom go on it, but just as surely as you don't follow the 

correct procedures, we will find miners doing that, and we 

will find injuries. Sd I would have to sustain the proof as 

alleged, and I find then a violation as charged of 30 CFR 

56.7-9. 

So far as the criteria specifically applicable to the 

abatement, the evidence is that it was not abated within 

the time set, so I would have to take that into account in 

assessing the penalty. As far as gravity is concerned in 

this instance, I believe it is serious, although it is 

mitigated to some extent by the testimony that it [the 

walkway] was rarely used. 

Negligence: It seems to me that this was a regulation 

and a requirement which the company knew or should have 

known. So I will find ordinary negligence. 

1628 
I will assess the penalty which has been requested by 

MSHA, which is $48. 

(Tr. 171-174). 

The above decision and assessment are hereby AFFIRMED. 

Citation No. 375055, July 18, 1978 

Following this decision, the parties presented evidence on Citation No. 375055 which states: "Records pertaining to reporting of 

accidents, injury, illnesses, and employment are not being kept at 

the mine site office as required in the Mine Safety and Health Act 

of 1977." A violation of 30 CFR 50.20 was charged in the petition 

but not on the citation issued to the Respondent. This standard 

reads in pertinent part: "Each operator shall maintain at the mine 

office a supply of MSHA Mine Accident Injury and Illness Report 

Form 7000-1." 

After considering the parties' evidence, the following bench 

decision was issued: 

I will proceed to decide on this qitation. My understanding of the testimony is that there were no records [at 

the site], which namely are the completed records, and that 

this was what the charge entailed. However, as I understand 

it, and as we have discussed it formerly, the matter has 

become confused because of the charge in the petition [was] 

that it was a violation of 30 CFR 50.20, which raises a 

different issue entirely. There is no testimony on that 

issue and accordingly I have no recourse except to vacate 

and dismiss as to this citation. 

(Tr. 193-194). 

The matter was dismissed without prejudice (Tr. 212). 

The above decision vacating Citation No. 375055 and dismissing 

the petition as to it without prejudice is hereby AFFIRMED. 

Citation Nos. 375061 and 375067, July 18, 1978 

Following this decision, Petitioner and Respondent introduced 

evidence on Citation No. 375061, which alleges a violation of section 109(a) of the Act stating that: "Citations issued during the 

inspection made July 18, 1978, had not been posted on the mine 

bulletin board." The cited section of the Act requires that: 

At each coal or other mine there shall be maintained 

an office with a conspicuous sign designating it as the 

1629 
office of such mine. There $hall be a bulletin board at 

such office or located at a conspicuous place near an 

entrance of such mine, in such manner that orders, citations, notices and decisions required by law or regulation to be posted, may be posted thereon, and be easily 

visible to all persons desiring to read them, and be protected against damage by weather and against unautl1orized 

removal. A copy of any order, citation, notice or decision required by this Act to be given to an operator shall 

be delivered to the office of the affected mine, and a 

copy shall be immediately posted on the bulletin board of 

such mine by the operator or his agent. 

Evidence was also presented on Citation No. 375067, which alleges a 

violation of section 103(a) of the Act stating: "H. M. Peterson 

denied entry by ordering the inspector, Tyrone Goodspeed, off the 

mine property preventing him from completing an inspection under the 

Mine Safety and Health Act of 1977." Section 103(a), in pertinent 

part, provides: 

For the purpose of making any inspection or investigatio~ under this Act, the Secretary, or the Secretary of 

Health, Education, and Welfare, with respect to fulfilling his responsibilities under this Act, or any authorized 

representative of the Secretary or the Secretary of Health, 

Education, and Welfare, shall have a right of entry to, 

upon, or through any coal or other mine. 

These citations were decided orally from the bench. The decision rendered on these citations is located at pages 214-218 of the 

transcript. 

As to Citation No. 375061, it was found that the Act in section 109(a) requires such postings, that according to the testimony, 

there were no postings and, in 8ubstance, that the Respondent violated the Act as charged. Respondent's defense that it was not aware 

of the requirement was accepted but only as justification to reduce 

the penalty. 

It was further found that the abatement took place at the time 

the next inspector arrived, that the violation was not serious, and 

that there was slight or no negligence in connection with the 

violation. 

Respondent was fined a penalty of one-half of the amount assessed 

by the Assessment Office or a penalty of $7. 

Concerning Citation No. 375067, it was found that the operator 

had denied entry by ordering the inspector, Mr. GoodspeP.d, off the 

mine site, preventing him from completing an inspection under the 

Act. This was found to be a violation as charged. 

1630 
It was further found that no abatement time was set and that the 

violation was thereafter abated when two other inspectors, Mr. Cowley 

and Mr. Plumb came to the mine and were allowed to inspect it. The 

violation was found to be highly serious because inspections are 

fundamental to an orderly administration of the Act and because 

inspectors must have freedom of movement at the mines. Finally, it 

was found that the operator was greatly negligent because it interfered with orderly procedures to prevent accidents and did so 

knowingly. 

The fine levied by the Assessment Off ice of $345 was found approryria te and assessed against the operator for this violation. 

I hereby AFFIRM the decision and assessments for Citation Nos. 

375061 and 375067. 

The summary of the dispositions in these two dockets is as 

follows: 

Citation No. 

375049 

375050 

375051 

375054 

375055 

375061 

375067 

Citation No. 

375052 

375053 

Docket No. DENV 79-219-PM 

Assessment or Action Taken 

Docket No. DENV 79-241-PM 

ORDER 

$ 40 

56 

56 

48 

vacated 

7 

345 

Action Taken 

vacated 

vacated 

It is ORDERED that Respondent pay total penalties of $552 within 

30 days of the date of this decision. 

~~ct:s~ Administrative Law Judge 

1631 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

THE PITTSBURG & MIDWAY COAL 

MINING COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. DENV 79-327-P 

A. C. No. 23-00462-03002V 

Empire Strip Mine 

DECISION 

Appearances: Robert S. Bass, Esq., Office of the Solicitor, 

U. S. Department of Labor, for Petitioner; 

George M. Paulson, Jr., Esq., Tμe Pittsburg & 

Midway Coal Mining Company, 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 

Joplin, Missouri, on September 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 

proffered by counsel during closing argument, I entered a detailed 

oral opinion on the record. It was found that the violation of 30 

CFR 77.404(a) charged in the citation for Respondent's failure to 

maintain a rotary drill in a safe condition did occur. It was also 

ultimately found that this large operator had no history of previous 

violations, that it proceeded in good faith to achieve rapid compliance with the safety standard after being served with the citation, 

that any penalty assessed would not adversely affect its ability to 

continue in business, that the violation was very serious and resulted 

from gross negligence. A penalty of $2,000.00 was assessed. 

Respondent is ordered to pay the penalty of $2,000.00 within 30 

days from the date of this decision. 

4Pdut / ~&{ J1v 

Michael A. Lasher, Jr., Judge 

Distribution: 

Robert S. Bass, Esq., U. S. Department of Labor, 911 Walnut St., 

Rm. 2106, Kansas City, MO 64106 (Certified Mail) 

George M. Paulson, Jr., Esq., The Gulf Companies, Law Department, 

1720 S. Bellaire St., Denver, CO 80222 (Certified Mail) 

1631 
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 

October 18, 1979 

Civil Penalty Proceeding 

Docket No. LAKE 79-234-M 

A.G. No. 11-01764-05007 

Spivey Mine 

ALLIED CHEMICAL CORPORATION, 

Respondent 

ORDER APPROVING SETTLEMENT AND 

DIRECTING PAYMENT 

On October 9, 1979, Petitioner filed a motion to approve a settlement agreement and to dismiss the proceeding. In support of its motion, 

Petitioner states that the amount of the settlement is $226 for alleged 

violations and the amount of the original assessment was $452. The 

motion contained an analysis of the criteria to be followed in determining the appropriateness of the penalty, and submitted documentation in 

support of the motion. 

The settlement agreement should be approved for the following 

reasons: 

1. Citation No. 366017 - there were no miners working in 

the expected rock fall area. Miners attempted to 

remove the rocks but were unsuccessful. The Operator 

exhibited good faith by drilling down the rock and 

bolting the area to abate the condition. 

2. Citation No. 366019 - a guard was placed across the 

end of the pumps to abate. There were no moving 

parts and employees did not travel between or in 

front of the pumps. 

3. Citation No. 366020 - Operator placed warning devices 

on the bin chutes although the operator stated that 

the chutes were plainly visible and it thought that 

they posed no danger to the miners. 

4. Citation No. 366022 - a loose slab was removed from 

the roof by the Operator. The slab was not located 

in a working area of the mine and was not readily 

visible to the Operator. 

1633 
DKT8 

5. · Citation No. 366024 - waterlines were raised 4" to abate 

the citation. The lines in question had been in place 

for 4 years prior to citation. Those riding the motor 

had adequate clearance under the lines both before and 

after the citation was abated. No specific height was 

required by the governing standard. 

6. Citation No. 366025 - Rocks from area which had been 

blasted broke ladder rungs. Operator had planned to 

repair the ladders prior to commencing any additional 

work. To abate, the Operator installed a new ladder 

and ladder rungs. 

7. Citation No. 366026 - Operator removed slab which 

contained visible fracture. Area in which slab was 

located had not been worked in some time. Operator 

assigned extra men to abate the citation. 

8. Citation No. 366027 - Operator provided safety belts 

and life check lines to abate citation. Although 

small, open:i,ngs of 8" X 12" and 19" X 12" posed 

possibility that someone might fall through them. 

Having analyzed the following factors; (a) the operator's history 

of previous violations; (b) the appropriateness of the penalty to the 

size of the business; (c) the degree of negligence; (d) the effect on 

the operator's ability to continue in business; (e) the gravity of the 

violation, and (f) the good faith in achievement of rapid compliance 

after notification of violation, I conclude that the settlement agreement should be approved. 

Therefore, it is ORDERED that the proposed settlement agreement is 

APPROVED. 

It is FURTHER ORDERED that Respondent pay the agreed amount within 

30 days of this order. 

J~ A.~:fc<find,___ Distribution: Chief Administrative Law Judge 

Mr. Gilbert Falter, Safety Supervisor, Allied Chemical Corporation, 

Cave-in-Rock, IL 62919 

Miguel J. Carmona, Attorney, Office of the Solicitor, U.S. Department 

of Labor, 230 South Dearborn Street, Eighth Floor, Chicago, IL 60604 

Assessment Officer, MSHA, Office of the Solicitor. U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

1634 
FEDERAL MINE SAFETY AND ~EAlTH REVIEW COMMISSBON 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

DRY LAKE COAL COMPANY, INC., 

Respondent 

Civil Penalty Proceeding 

Docket No. BARB 78-617-P 

Assessment Control 

No. 15-00600-02009F 

No. 4 Mine 

DECISION APPROVING SETTLEMENT 

Appearances: Stephen P. Kramer, Esq., Office of the Solicitor, 

Department of Labor, for Petitioner; 

William R. forester, Esq., Forester & Forester, 

Harlan, Kentucky, for Respondent. 

Before Administrative Law Judge Steffey 

When the hearing in the above-entitled proceeding was convened in 

Barbourville, Kentucky, on September 11, 1979, the parties asked that I 

approve a settlement agreement under which respondent had agreed to pay 

a civil penalty of $5,000 instead of the penalty of $10,000 proposed by 

the Assessment Office. The Assessment Office had waived the formula 

provided for in 30 CFR 100.3 and had made findings of fact based on a 

fatality report. Counsel for both parties stated that if a hearing were 

to be held, most of the facts stated in the fatality report would be 

contested by respondent's witnesses. 

Counsel for MSHA. noted that he had been unable to get exact data 

to serve as a basis for findings with respect to the criteria of the size 

of respondent's business and respondent's history of previous violations. 

It appears that difficulties as to the data needed for findings regarding 

those criteria resulted from the fact that information stored in the computer 

had become mixed with respect to whether the alleged violations occurred 

at the No. 4 Mine involved in this proceeding or at other mines which 

respondent had previously operated (Tr. 6-7). Also the data available to 

MSHA did not remove doubt as to whether respondent is a small company 

operated by one individual or part of other interests controlled by several 

individuals (Tr. 7-8). In the absence of definite information, it was 

agreed that respondent should be found to operate a small business which 

produced about 200 tons of coal per day (Tr. 8). The lack of specific 

facts also results in a finding that respondent has no significant history 

of previous violations wPich would warrant any increase in any penalty 

that might be assessed in this proceeding. 

1635 
MSHA v. Dry Lake, Docket No. BARB 78-617-P (Contd.) 

Finally, it was agreed that since respondent pulled out of the area 

of the roof fall, the criterion of whether respondent made a good faith 

effort to achieve rapid compliance was inapplicable to any penalty which 

might be assessed (Tr. 8). 

There is nothing in the record to show that payment of the settlement penalty of $5,000 will cause respondent to discontinue in business. 

In the absence of any information to the contrary, I find that the payment 

of the settlement penalty will not cause respondent to discontinue in 

business. 

The foregoing discussion shows that any penalty which might be 

assessed would have to be based entirely upon the two criteria of negligence 

and gravity. As to the criterion of negligence, the Assessment Office 

found that the roof fall which killed one miner and injured another was 

the result of considerable negligence. Counsel for respondent challenged 

any finding of gross negligence (Tr. 24) by arguing that his witnesses 

would testify that a check of the roof shortly before the roof fall occurred 

indicated that the roof was in good condition (Tr. 18). Also respondent's 

counsel stated that the inspectors who wrote the fatality report did 

not see the actual entry in which the roof fall occurred and that the 

fatality report was the result of interviewing other persons who had been 

in the area of the roof fall. Counsel for respondent stated that the 

fatality report's claims that insufficient timbers had been set in the 

area of the roof fall would be challenged because the roof fall had 

knocked down the timbers which had been erected before the roof fall and 

he also said that it was difficult to obtain timbers to help support 

the roof while they were trying to remove the injured miners. Timbers 

were taken from some entries where they had previously been set and used 

in the entry where the roof fall had occurred. In such circumstances, 

it was contended that no one knew whether an adequate number of timbers 

had been set before the roof fall occurred (Tr. 22). 

Respondent's attorney also stated that the fatality report's claim 

that the miners did not have an understanding of the roof-control plan 

would be contested. It was pointed out that respondent keeps a copy of 

the roof-control plan on the bulletin board at all times and that the 

miners know the provisions in the roof-control plan. Additionally, they 

were using a Wilcox continuous-mining machine and most of the miners 

were experienced in that type of mining and understood the provisions 

of the plan (Tr. 18-19). 

There would be no way that anyone could deny that the roof fall was 

extremely serious because one miner was killed and another injured as a 

result of the roof fall (Exh. 2; Tr. 28). Respondent claimed that the 

main reason that the roof fell was that it was not known before the roof 

fell that respondent's No. 4 Mine was directly under an abandoned mine 

which had pillars directly above the site of the roof fall in respondent's 

mine. Respondent claims that the roof in its mine took weight suddenly 

and unexpectedly and that the mine foreman could not have anticipated the 

roof fall which occurred (Tr. 27). 

1636 
MSHA v. Dry Lake, Docket No. BARB 78-617-P (Contd.) 

Counsel for MSHA stated that the inspectors would testify in support 

of the facts as they were stated in the fatality report, but he said 

that they would be unable to support their measurements and data concerning the number of timbers in the mine and width of the entries because a 

flood had occurred after the fatality report had been written and the 

flooc had inundated the MSHA files where the inspectors' notes were kept 

and the notes had been dstroyed. Therefore, if a hearing had been held, 

the inspectors would not have had available in the hearing room any 

written data to support their testimony other than the facts in the 

fatality report whose accuracy had been challenged by respondent's 

prospective witnesses (Tr. 5). 

The foregoing discussion of the evidence which would have been 

submitted if a full hearing had been held indicates that any findings 

as to gravity and negligence would not be so firm as to justify the assessment of a maximum civil penalty of $10,000 where a small mine is involved. 

Consequently, I find that respondent's agreement to pay a civil penalty of 

$5~000 is reasonable in the circumstances and should be approved. 

WHEREFORE, it is ordered: 

(A) The parties' request that I approve a settlement under which 

respondent would pay a civil penalty of $5,000 is granted and the settlement proposal is approved. 

(B) Pursuant to the parties' settlement agreement, respondent, within 

30 days from the date of this decision, shall pay a civil penalty of $5,000 

for the violation of Section 75.200 cited in Order No. 1 KF (7-20) dated 

February 9, 1977. 

Distribution: 

~ C. ~-J;. f)__g_, 

Richard C. Steffey ~~ Administrative Law Judge 

Stephen P. Kramer, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

William R. Forester, Esq., Attorney for Dry Lake Coal Company, Inc., 

Forester & Forester, First Street, Harlan, KY 40831 (Certified 

Mail) 

1637 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET. NW, SUITE 229 

WASHINGTON, DC 20006 

October 19, 1979 

CONSOLIDATION COAL COMPANY, 

Applicant 

Contest of Order 

v. Docket No. WEVA 79-171-R 

SECRETARY OF LABOR, Order No. 0811292 

MINE SAFETY AND HEALTH May 15, 1979 

ADMINISTRATION (MSHA), 

Respondent McElroy Mine 

and 

UNITED MINE WORKERS OF AMERICA, 

(UMWA), 

Representative of Miners 

Appearances: 

Before: 

DECISION 

Michel Nardi, Esq., Pittsburgh, Pennsylvania, for 

Applicant; 

James H. Swain, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania 

for Respondent; 

Richard L. Trumka, Esq., Washington, D.C. for 

Representative of the Miners, the United Mine Workers 

of America. 

Chief Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

The above case arose upon the filing of an application for review 

(called a contest of order under the newly adopted rules of procedure 

29 CFR 2700.20) of an order issued under section 104(b) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 814(b) on May 15, 1979. 

Pursuant to notice, the case was heard on the merits in Wheeling, 

West Virginia, on September 5, 1979. Kenneth R. Williams, a Federal 

mine inspector testified for Respondent; William M. McCluskey and 

Robert J. Huggins testified for Applicant; Daniel Lee Rine testified 

for the representative of the miners. At the close of the hearing, 

the parties waived the filing of written proposed findings and 

conclusions, and the matter was submitted for decision. 

1638 
ISSUES 

1. On May 8, 1979, did a violation of 30 CFR 75.1403 exist in 

the subject mine as described in Citation No. 0811290? 

2. If the answer to the first issue is in the affirmative, 

was the condition abated before order of withdrawal No. 0811292 

was issued on May 15, 1979? 

3. If the answers to the first two issues are in the affirmative, should the period of time for abatement have been further 

extended? 

STATUTORY PROVISION 

Section 104 of the Act provides in part as follows: 

(a) If, upon inspection or investigation, the 

Secretary * * * believes than an operator * * * has 

violated this Act, or any mandatory health or safety 

standard, rule, order, or regulation * * *he 

shall * * * issue a citation * * * the citation shall 

fix a reasonable time for the abatement of the violation. * * * 

(b) If, upon any follow-up inspection * * * an 

authorized representative of the Secretary finds (1) 

that a violation described in a citation * * * has not 

been totally abated within the period of time as 

originally fixed therein ~r as subsequently extended, 

and (2) that the period of time for the abatement should 

not be further extended, he shall * * * promptly issue 

an order requiring the operator * * * to immediately 

cause all persons * * * to be withdrawn from, and to be 

prohibited from entering, such area. * * * 

REGULATORY PROVISION 

30 CFR 75.1403 provides: "Other safeguards, adequate, in the 

judgment of an authorized representative of the Secretary, to minimize 

hazards with respect to transportation of men and materials shall be 

provided." 

FINDINGS OF FACT 

1. On May 8 and 15, 1979, and on all other dates pertinent 

to this proceeding, Applicant was the operator of a coal mine in 

Marshall County, West Virginia, known as the McElroy Mine. 

1639 
2. On March 15, 1973, Charles B. Sturn, a Federal coal mine 

inspector issued a notice to provide safeguards under 30 CFR 

75.1403 to the operator of the subject mine. The notice was issued 

because the main haulage track was not being maintained in a safe 

workmanlike manner. It directed that "all haulage tracks shall be 

maintained in a safe workmanlike manner." 

3. On May 8, 1979, the supply track from the junction of 

4 left off 2 North to the working section in the subject mine had 

numerous kinks, high and low joints and grease on two curves to 

compensate for an improperly maintained gage between the rails. 

4. The track described in Finding No. 3 was a haulage tra~k. 

It was not being maintained so as to minimize hazards and not being 

maintained in a safe workmanlike manner. 

DISCUSSION 

William McCluskey, Applicant's safety supervisor at the 

subject mine, testified that the track in question "was as good 

or better as any supply track in the McElroy Mine." He implied 

that supply tracks because they were primarily constructed of 

40 pound iron (mainline tracks were made with 60 or 80 pound iron) 

always had kinks and loose joints. However, he also admitted that 

he had reports (after the citation was issued) that derailments 

had occurred. It is clear and I find that the supply track in 

question was not being safely maintained on May 8, 1979. 

5. On May 8, 1979, Federal mine inspector Kenneth Williams 

issued Citation No. 0811290 alleging a violation of 30 CFR 

75.1403 because of the condition described in Finding No. 3. He 

fixed the time for abatement at 9 a.m. May 15, 1979. 

6. After the citation was issued, two crews were assigned 

to abate the condition. A crew under the supervision of assistant 

mine foreman Ivan R. Blake worked on the abatement as follows: 

On May 9, 1979, three men worked an entire shift; on May 10, 

three men worked one shift; on May 11, four men worked one shift; 

and on May 14, three men worked one shift. Under maintenance 

foreman Chester Nadolski, three men worked on May 9; five on May 10; 

two on May 11. On May 12, a Saturday, six people worked an entire 

shift, four of them working 2 hours overtime. On May 14, two men 

worked all shift and on May 15, two men worked all shift. The work 

of these two crews consisted in leveling and blocking track, replacing 

broken rail~. bent ties, angle bars and missing bolts. 

7. When Inspector Williams arrived at the section on May 15, 

1979, foreman Nadolski's crew was working on the curve where the 

gage had been cited as too narrow. 

1640 
8. When Inspector Williams arrived at the section the narrow 

gage on the curve had not been corrected. The other conditions 

described in the citation had been corrected. 

DISCUSSION 

Although Inspector Williams indicated that other areas of the 

track needed more work, his testimony was somewhat vague and 

unconvincing. The only work done after the issuance of the order 

other than widening the gage at the curve was the replacement of 

an angle bar and a bolt on a joint. 

CONCLUSIONS OF LAW 

1. The condition described in Finding of Fact No. 3 taken 

in conjunction with the notice to provide safeguards referred to 

in Finding No. 2 constituted a violation of 30 CFR 75.1403. 

2. The violation referred to in Conclusion No. 1 was not 

totally abated within the period of time originally fixed in 

Citation No. 0811290. 

3. In view of the substantial work done to abate the condition 

as described in Finding of Fact No. 6 and the fact that this work was 

continuing, the period of time for abatement should have been further 

extended. 

4. The order of withdrawal 0811292 of May 15, 1979, was not 

properly issued. 

ORDER 

Based ori the above findings of fact and conclusions of law 

order of withdrawal 0811292 is VACATED. 

~#~kbi James A. Broderick 

Chief Administative Law Judge 

Distribution: By certified mail. 

Michel Nardi, Esq., Consolidation Coal Company, Consol P~aza, 1800 

Washington Road, Pittsburgh, PA 15241 

James H. Swain, Esq., Attorney, Office of the Solicitor, U.S. 

Department of Labor, Room 14480 Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 

Attorney, United Mine Workers of America, 900 Fifteenth Street, N.W., 

JAB Washington, DC 20005 

1641 
FEDERAL MINE SAFETY AND HEALTH R IEVIEW COiV'JMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILS0t4 BOULEVARD 

ARLINGTON, VIRG INI/, 22203 

OCT ·1 :J 1979 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. VINC 79-109-P 

A.O. No. 33-01172-03011 

v. 

SOUTHERN OHIO COAL COMPANY, 

Respondent 

Docket No. VINC 79-148-P 

A.O. No. 33-01172-03013 

Appearances: 

Before: 

Meigs No. 1 Mine 

Docket No. VINC 79-110-P 

A.O. No. 33-01173-03009 

Docket No. VINC 79-111-P 

A.O. No. 01173-03010 

Meigs No. 2 Mine 

Docket No. VINC 79-112-P 

A.O. No. 33-02308-03010 

Docket No. VINC 79-114-P 

A.O. No. 33-02308-03012 

Docket No. VINC 79-115-P 

A.O. No. 33-02308-03013 

Docket No. VINC 79-141-P 

A.O. No. 33-02308-03009 

Raccoon No. 3 Mine 

DECISIONS 

Linda Leasure, Attorney, Office of the Solicitor, 

U.S. Department of Labor, Cleveland, Ohio, for the 

petitioner; 

David M. Cohen, Esq., Lancaster, Ohi.o, for the 

respondent. 

Judge Koutras 

1642 
Statement of the Proceedings 

These proceedings concern proposals for assessment of civil penal ties filed by the petitioner against the respondent pursuant to 

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

30 u.s.c. § 820(a), charging the respondent with a total of 14 alleged 

violations issued pursuant to the Act and the implementing mandatory 

safety and health standards. Respondent filed timely answers, hearings were held on June 19, 1979, in Columbus, Ohio, and the parties 

appeared and participated therein. The parties filed posthearing 

arguments in support of their positions and they have been considered 

by me in the course of these decisions. 

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 

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

(1) the operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, (3) whether the operator was negligent, (4) the effect on the 

operator's ability to continue in business, (5) the gravity of the 

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

attempting to achieve rapid compliance after notification of the 

violation. 

Applicable Statutory and Regulatory Provisions 

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

30 U.S. C. § 801 et ~· 

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

3. Commission Rules, 29 CFR 2700.1 ~ seq. 

Discussion 

Docket No. VINC 79-109-P 

Citation No. 279540, July 28, 1978, alleges a violation of 30 CFR 

7 5. 507, and states as follows: "The battery charger unit for the 

1643 
scoop car operating the 002 section was located in the return air 

course in the crosscut from the No. 4 entry to the No. 5 entry in the 

002 section." 

Petitioner's Testimony 

John W. Collins, Federal coal mine inspector, testified that on 

July 28, 1978, he conducted an inspection of the 002 section of the 

Meigs No. 1 Mine and that he observed an S & S scoop car batterycharging unit located in the return air course in the No. 5 entry. 

He observed that the permanent stoppings were installed to the third 

connecting crosscut outby the faces, and the second connecting crossCllt outby the face had a curtain which, according to the roof-control 

plan, is a temporary stopping. However, it was separating the intake 

from the return. On the other side of the temporary stopping located 

in the return entry, he observed a battery charger unit which he cited 

as a nonpermissible piece of equipment since it was not located out 

of the return. The only connection that the battery charging unit 

should have with the return is that the air current that flows over 

the battery charger should be air that is coursed directly on the 

return (Tr. 52-56). 

Inspector Collins confirmed his prior statement made on his 

inspector's statement that the occurrence of the event against which 

the cited standard is directed was "probable." The mine does liberate 

methane and it is currently on a 15-day spot inspection cycle. The 

return air comes off the section and returns over the nonpermissible 

battery charger which is a potential hazard in the event of a possible 

accumulation of methane. He determined that the condition "should 

have been known to the operator" because the preshift and onshift 

examinations of the section should have revealed the existing condition. With respect to good faith, the inspector indicated that there 

was normal compliance (Tr. 57-60). 

On cross-examination, Inspector Collins testified that the 

battery charger was operating at the time the citation was written or 

he would not have issued the citation (Tr. 61-63). However, in 

response to questions from the bench, he testified that he had no 

present recollection as to whether or not the battery charger was in 

fact -operating, and his notes did not reflect anything that would 

indicate that it was operating. However, his normal practice is not 

to issue a citation of this kind unless the battery-charging station 

is in fact operational. The charging units are moved quite often 

because of advancing sections, and it is often necessary to reroute 

them around crosscuts in order to get them to the proper location 

on the section so that the charger units can be ventilated directly 

to the return. The function of the battery charger is to recharge 

the batteries for the sand scoops. If a nonoperational batterycharging unit was located in the return, it is possible that someone 

would hook it up to some other piece of equipment at some time during 

1644 
the mining cycle, and in such a situation, he would not cite the 

condition unless he actually saw it connected to the power center or 

in operation. Since the unit is moved from one section to another, 

he did not know how long this particular battery-charging unit was in 

the area cited, and the unit was not mentioned in the preshift and/or 

onshift books, (Tr. 63-67). 

On redirect examination, Mr. Collins testified that he observed 

the area after abatement and that the location of the temporary stopping had been changed by moving a line brattice made of a flameresistant plastic material on the other side so that it would make 

a difference in the intake and return (Tr. 67). 

Respondent's Testimony 

w. Keith Carpenter, respondent's safety representative at the 

No. 1 Mine, testified that he made the drawing (Exh. R-1), which 

shows the air course on the day the subject citation was issued, and 

it depicts the location of the battery charger, the ventilation curtains, and the stoppings, but does not indicate a curtain between the 

battery control unit and the No. 4 entry. He discussed with Jack 

Stallings, a union representative and safety committeeman who was 

present when the citation was written, whether there was a curtain 

between the No. 4 entry and the battery charger at the time the citation was written and his response was that he saw no curtain. The 

battery unit is located in intake air which does not come through the 

return until it reaches the immediate return. The air that passes 

over the battery charger does not reach or go back to the working 

faces, but rather, goes directly into the return air. The battery 

charger was not energized at the time the citation was written, and 

copies of the permissibility book signed by two mechanics the day 

that they were checking the scoop, reflects it was unplugged from 

the power center due to the fact that the mechanic was checking the 

permissibility of the power center at that time. Abatement was 

achieved by installing a curtain between the battery charger and the 

No. 5 entry (Tr. 68-73). 

On cross-examinati.on, Mr. Carpenter testified that he made the 

diagram (Exh. R-1) the day after he returned to the mine surface. He 

also noted a description of the process of the movement of the air, 

but does not recall whether or not he did that on the same day. He 

made the diagram because he felt that the condition was not a violation, and he discussed his observations regarding the alleged violation with Jack Stallings the day before the hearing and he does not 

remember having a similar conversation with him over a year ago 

(Tr. 75-76). 

In response to questions from the bench, Mr. Carpenter testified 

that the basic difference between his diagram and that of the inspector, is that the inspector's diagram does not indicate the presence of 

1645 
a curtain. The curtain which was installed as part of the abatement 

was not present at the time the citation issued. He did not see the 

curtain, but he was present when the condition was observed by the 

inspector. Assuming that the curtain was there at the time of the 

citation, this would have placed the battery charger in intake air 

although the inspector stated that it was in the return. Even though 

the curtain was on the left side of the charger, there was still intake 

air flowing over the return because all the air is pulled in at the 

stopping depicted by the double parallel line on the diagram which 

connects the two blocks. There was a movement of air coming over the 

charger, and even though the curtain was behind it, this was still 

considered intake air as it came over the charging unit (Tr. 77-80). 

Inspector Collins was recalled for rebuttal testimony, and testified that if the hattery charger were located where it is located 

in Exhibit R-1, and there was no curtain on either side of it, he 

still would have issued the notice of violation since the area is 

also a return area because the air from the section is returning 

through it (Tr. 81-82). 

On cross-examination, Mr. Collins testified that on Exhibit R-1, 

although a curtain had been drawn between the No. 4 and No. 5 entries, 

there was no curtain on either side of the battery charger; thus the 

battery charger is located in return air and anything returning in 

that area is return air (Tr. 82-83). If the battery charger were 

'located between the No. 4 and No. 5 entries without curtains on either 

side, it would be located in return air since it would be on a return 

area because the battery charger was located as indicated by both 

diagrams (Tr. 83-86). 

Mr. Carpenter, upon being recalled, testified that intake air 

comes up the No. 1 entry to the face and around the check curtain and 

back out the entry, and that the purpose of the check curtain is to 

prevent complete and total loss of air. There is enough leakage in 

the intake air to prevent complete, total loss of air, and the air 

goes around the faces and back out, and it becomes return air when it 

gets to the immediate return in the No. 5 entry (Tr. 86-87). 

Docket No. VINC 79-148-P 

Citation No. 279550, August 2, 1978, alleges a violation of 

30 CFR 75.1003(a), and states as follows: "The trolley wire was not 

guarded where supplies for the 006 section were located along the 

006 section track. Men were required to pass under the trolley wire 

in order to place supplies from the supply cars to the storage area 

for the supplies for the 006 section." 

Petitioner's Testimony 

MSHA inspector Collins testified that during the course of conducting an inspection of the Meigs No. 1 Mine on August 2, 1978, he 

1646 
observed along·the 006 section track that the trolley wire was not 

guarded where supplies for the 006 section were located along the 

006 section track. .Men were required to pass under the trolley wire 

in order to place supplies from the supply car to the storage area 

with the supplies in the 006 section. Supplies were being unloaded 

into the crosscut from the supply car to the storage area, but he 

could not recall whether or not he actually saw the supplies being 

unloaded; however, his notes indicate that he had spoken with two 

utility men on the section who indicated that they had gone to the 

supply area to pick up some resin and that they had passed under the 

trolley wire to obtain it. He indicated that the condition should 

have been known to the operator because in order to gain access to 

the section, it is necessary to travel through the area. With respect 

to the gravity of the situation, he noted that injury could be a 

"probable" result since persons could come in contact with the trolley 

wire as they pass under it and injury could result from the shock that 

they could receive because the supply car itself is grounded to the 

track and one person would be in danger. 

The respondent uses a yellow piece of trolley guard to guard 

trolley wires in the mine and it is possible for one to come into contact with this guarding and not recei·1e a shock. The normal guarding 

procedure is to put the trolley guarding, which is a plastic-type of 

insulated material, over the top of the wire itself and install belt 

hangers to keep it in place. To his knowledge, no temporary type of 

guard had ever been used in the mine (Tr. 102-107). 

On cross-examination, Mr. Collins confirmed that his notes 

reflect that the trolley wire was energized at the time he cited the 

alleged violation, but they do not reflect whether or not it was energized at the time the two men passed under it. The only time that the 

trolley is deenergized at the mine is during any installation of a 

trolley system, and a trolley wire is deenergized by the tripping of 

switches that are located at certain branch line locations and in 

outby areas (Tr. 107-109). The trolley wire is not normally guarded 

along its entire length, but it is guarded at the mantrip stations 

and areas where persons have to pass under it, such as refuse holes, 

supply areas, and also at doors on the track. A trolley wire is 

required to be guarded at any place a person has to pass under it. 

The supply area involved was regularly used, and the trolley wire is 

required to be guarded so long as men pass under it while taking 

supplies from the supply cars to the storage area (Tr. 110-113). 

Inspector Collins testified that he could not recall the height 

of the trolley wire, the height of the entry, or the type of roof 

present, and he does not have such information in his notes. The 

height of the trolley wire throughout the mine varies with the height 

of the seam. The height of the working mine seam is 54 to 52 inches, 

but the track and trolley cause it to be even higher--sometimes 6 to 

7 feet. His notes indicate that he actually saw the supplies being 

1647 
unloaded, and he considers his notes to be accurate, but he had no 

independent recollection of the particular event (Tr. 110-122). 

Respondent's Testimony 

Mr. Carpenter testified that he was with Inspector Collins 

at the time the citation was issued but did not notice any miner 

loading or unloading supplies at the place indicated on Exhibit R-1. 

They rode into the area on a jeep and then pulled in directly behind 

the mantrip that was parked there. The supplies were already there 

when they arrived but there was no motor crew or any person unloading 

supplies at the time. He conceded that in retrieving the supplies 

from where they were stored, it was necessary for the men to pass 

under the trolley wi.re. Except for unloading supplies, there was no 

reason for men to pass underneath the trolley wire on a regular basis. 

The trolley wire is sometimes deenergized since all the motor crews 

and the men that are involved with transporting supplies from one part 

of the mine to the other are instructed that the trolley wire is to be 

deenergized when they are working under or around it. When unloading, 

the men are instructed to deenergize the wire if it is not guarded, 

and there are cut-off switches at the mouth of the track spur as it 

comes off the main mine (Tr. 114-127). 

On cross-examination, Mr. Carpenter testified that he did not 

.know for certain whether the trolley wire switch was pulled when the 

supplies were being unloaded. He indicated that it is reasonable to 

assume that if the two supply cars were in the location corresponding 

to Exhibit R-1 and somebody brought some equipment into the mine and 

wanted to off-load it, they could not put the cars under the guard, 

but had to move them elsewhere. Mr. Carpenter stated that it is reasonable to conclude that if the inspector came in and saw the supplies, he would naturally assume that at some point in time somebody 

put those supplies in by passing under the unguarded cable (Tr. 132). 

The citation was abated by guarding the area (Tr. 134-138). He did 

not recall the height of the trolley wire (Tr. 139). 

Docket No. VINC 79-110-P 

Citation No. 278046, Hay 11, 1978, alleges a violation of 30 CFR 

75.503, and states as follows: 

The No. 7009 shuttle car involved in the non-fatal 

accident in 008 section was not maintained in permissible 

condition in that at 7:30 p.m. on 5/10/78, the cable was 

pulled out of the reel and burned the insulation off the 

reel and the cable was re-entered, the shuttle car put 

back in operation and the damaged reel was not repaired. 

1648 
Petitioner's Testimony 

MSHA inspector Dalton E. McNece, Jr. testified that while 

conducting an accident investigation at the mine on May 11, 1978, 

he issued a citation involving the No. 7009 shuttle car which was 

involved in an accident in the 008 section. His investigation 

began on the evening of May 10, shortly after he had received word 

from a company official that an accident had occurred. In investigating the shuttle car which was involved in the accident, he and 

fellow inspector Don Osborne found one place in the trailing cable 

where the accident victim had received a shock from the trailing cable 

while standing in mud, and in addition, a bare place was found in the 

trailing cable. A citation wa8 issued for a violation of 30 CFR 

75.517 because the trailing cable was not properly and adequately 

insulated. Mr. McNece then proceeded to inspect the shuttle car and 

found that the cable had been pulled out of the trailing cable reel. 

When it had been pulled out of the trailing cable reel, the 250-volt, 

DC power cable caused a short circuit and burned the insulation off 

the trailing cable reel. There was a sharp edge on the reel despite 

the fact that the shuttle car was equipped with insulation on the 

trailing cable reel, and the car had been put back into operation in 

that condition. Had this condition continued, another man could have 

been shocked or possibly electrocuted by the shuttle car becoming 

deenergized. 

Mr. McNece stated the operator was negligent because one man had 

already been injured by the trailing cable, and the repair work was 

supervised by a certified company official. Although the cable reel 

had been checked, anyone shining a light into the reel compartment 

would see the bare metal on the cable reel. Mr. McNece believed the 

condition cited was very serious due to the fact that it could cause 

another person to receive an electrical shock or possibly be electrocuted. Approximately 11 persons could be affected as a result of the 

condition since 10 people work in the section in addition to the foreman. The condition was abated by insulating the trailing cable reel 

and by spraying approved insulating paint onto the shuttle car reel 

and trailing cable reel. After the paint dried, it provided adequate 

insulation for the trailing cable reel and restored it to its original 

approved condition (Tr. 150-152). 

On cross-examination, Mr. McNece testified that the earlier 

injury which prompted the investigation occurred when a miner came in 

contact with an energized power cable that had a bare place in it. 

When he arrived at the mine, the miner who was hurt was still at the 

hospital, but he would not classify the injury as serious because 

there was no lost time. However, the electrical shock that was sustained by the miner was serious enought to warrant hospital treatment 

and it disturbed the miner's nervous system. The existence of an 

uninsulated area on the trailing cable reel could lead to the 

electrocution of an individual. Although there is short-circuit 

1649 
protection to keep the current from going to ground, any malfunction 

to this short-circuit protection would send 250 volts of direct current onto the shuttle car. If an individual were to come into contact 

with the car he could possibly be electrocuted since the area was very 

wet, and mud and water is a very good conductor of electricity. In 

order for an individual to be hurt, three conditions have to be 

present; namely, insulation being off the cable, insulation being off 

the reel, and a malfunction in the short-circuit system. A violation 

of section 75.503 occurred because the insulation was not on the 

trailing cable reel as it came approved, and section 75.503 requires 

that it be maintained in permissible condition (Tr. 153-157). 

Mr. McNece testified that the shuttle car had been taken out of 

service at 7:30 p.m., the day the citation issued, and men were taking 

up cable slack from the power center that was anchored behind the 

trailing cable. \.\1hile in the process of reeling the cable, the 

individual who was pulling up the extra slack came into contact with 

the exposed bare wire and was shocked when it came by the anchor 

point. The shuttle car was then placed back into operation, but after 

learning that the injured man was to go to the hospital, the area was 

fenced off for the investigation. He could not explain the interval 

between ·;:he time when the man was injured and when it was determined 

that the injury was serious. It was evident that no examination was 

made of the trailing cable reel after the shock incident to determine 

whether it was damaged. The only thing that was done was to pull up 

the cable slack, reenter it in the reel, and placing the excess on 

the reel. He had to personally pull the cable off the reel in order 

to wipe the mud off with a rag so that he could examine the cable and 

reel compartment (Tr. 163-168). 

Hr. McNece testified that he determined the trailing cable was 

not examined because if it had, the bare place in the trailing cable, 

which was approximately 2 inches in length, would have been seen. The 

bar.e place was obvious and he took a rag and wiped the mud off the 

trailing cable to see the 2-inch spot. The cable in question was 

approximately 500 feet long, and he conceded it was possible that 

someone could examine a 500-foot cable and not locate a 2-inch bare 

spot covered with mud. He could not state that mine management did 

not conduct a visual observation of the cable by just walking along 

and looking at it, but in his opinion, the cable needed very close 

attention since it lay in mud and water and an individual had been 

shocked by it (Tr. 169-171). 

In addition to the citation for the insulation being burned off 

the reel, another citation was issued for a violation of section 

75.517, in regard to the insulation being burned off the cable. He 

examined the cable and found only one bare spot, and in order for an 

injury to occur to an individual, a bare spot on the reel would have 

to come into contact with any bare spot on the cable, but in this 

particular case, only one bare spot was detected (Tr. 171-173). The 

1650 
insulation was.worn off the reel and this rendered the shuttle car 

nonpermissible since it is required. to be insulated. The reason the 

shuttle car was not taken out of service was because mine personnel 

had to pick up the excess cable on the shuttle car in order to move 

it out. When the man was injured and the accident was determined to 

be of a serious nature, the trailing cable reel should not have been 

picked up again. However, he does not contend this was done intentionally. By use of the term "put back in operation," he does not 

mean that the shuttle car was actually used to run coal, but rather, 

he means that it was moved back out of the way (Tr. 173-180). 

On redirect examination, Mr. McNece testified that he determined 

that the violation was "significant and substantial" because it met 

the four criteria for the unwarrantable category, namely, (1) it was 

a violation of a mandatory health and safety standard, (2) it did not 

constitute an immindent danger, (3) it was significant and substantial 

in that it could cause death or serious physical harm to the miner, 

and (4) it was known or should have been known by the operator (Tr. 

180-182). 

Docket No. VINC 79-111-P 

The proposal for assessment of civil penalties filed in this proceeding alleges two violations. Citation No. 280459, July 25, 1979, 

Plleging a violation of 30 CFR 75.605, was settled by the parties. 

The initial assessment was for $305, and the parties were afforded an 

opportunity to present arguments on the record in support of a proposed settlement for $150. In support of the settlement, petitioner 

argued that if called to testify, the inspector would state that the 

trailing cable in question was not clamped securely to the machine, 

that the strain clamp had loosened and slipped, but the inspector was 

of the view that there was no negligence on the part of the respondent in allowing the condition to exist. However, in the initial 

assessment, the Assessment Office considered that the respondent was 

negligent. In view of the absence of negligence, petitioner argued 

that the reduction in the assessment is warranted. In the circumstances, the proposed settlement was approved (Tr. 19-24). 

The remaining citation in this docket, namely, No. 278095, 

July 20, 1978, 30 CFR 75.200, was tried, and testimony and evidence 

was adduced by the parties in support of their respective positions, 

and a discussion of this citation follows. 

Citation No. 278095, July 20, 1978, alleges a violation of 

30 CFR 75.200, and states as follows: "The approved roof control 

plan was not being complied with in 005 section in that a cut of coal 

18 feet wide and 10 feet deep was loaded out and temporary roof 

supports were not installed in the crosscut between Nos. 2 and 

3 entries." 

1651 
Petitioner's Testimony 

MSHA inspector McNece testified that on July 20, 1978, in making 

a routine inspection of the Meigs No. 2 Mine, he observed that the 

crosscut between the No. 2 and No. 3 entries was driven 17 feet wide 

and 10 feet deep, and that temporary supports were not installed as 

required by the approved roof-control plan. The mine's approved roofcontrol plan requires that such supports, on 5-foot centers, be 

installed within 15 minutes after the loading has been completed in 

the area. When he arrived on the section at 11 a.m., the loading crew 

was loading the crosscut. from the No. 3 entry towards the No. 4 entry 

and the loading cycle was two-thirds of the way completed. It took 

more than 15 minutes to mine out two-thirds of a cut of coal, and he 

was told by the loading crew that they had cleaned up the crosscut 

between No. 2 and No. 3 entries and had moved into the crosscut 

between No. 3 and No. 4. At the time, he made notes and drew a small 

sketch or diagram of the area, labeling the entries, and it indicated 

that the crosscut to the right in No. 3 entry was loaded out 

(Tr. 190-192). 

Mr. McNece testified that the respondent should be familiar 

with the approved roof-control plan, and a certified company official 

on the working section should have instructed someone to install the 

temporary supports. A foreman was on the section at the time. As 

for the gravity of the situation, Mr. McNece testified that the lack 

of temporary supports would leave an area 18 feet wide and 10 feet 

deep unsupported and it would be possible for someone to walk under 

unsupported roof believing it was roof bolted. The condition of the 

roof was solid, and it had no breaks or cracks in it (Tr. 193-194). 

On cross-examination, Inspector ~kNece testified that he issued 

the citation just after he arrived at the location cited and he did 

not remain there for 15 minutes in order to determine whether 

15 minutes had actually passed. Instead, he determined the passage 

of time from the fact that the individuals who were loading the 

crosscut between No. 3 and No. 4 had loaded two-thirds of the cut, 

and they could not have accomplished such loading in just a 15-minute 

period. The term "loading cycle" means using a loading machine for 

loading the coal out, bringing it to the shuttle car, transporting it 

from the face to the section loading point, and then discharging it 

onto the belt conveyor. This process of loading could occur in every 

face area where coal is shot or cut down (Tr. 194-198). 

Respondent's Testimony 

Lowell Carte, safety supervisor, Raccoon No. 3 Mine, testified 

that he is familiar with the approved roof-control plan (Exh. R-1), 

and that the plan requires that the installation of temporary roof 

supports after a loading cycle must be started within a 15-minute 

1652 
time period, and once such support work is begun, it must be completed. Conceivably, in the event of damaged supports, it could take 

more than 15 minutes to install such supports (Tr. 199-204). 

Mr. Carte testified that if Mr. McNece arrived on the section 

at 11 a.m., it would probably take an additional 5 or 10 minutes 

to arrive at the actual mining area. He furth~r testified that based 

upon his mining experience, he would not agree with the inspector-'s 

statement that two-thirds of a cut of coal could not be loaded out 

in 15 minutes, bec~use he has run a loader in a coal mine and he 

knows that a decent loaderman can load a place out in 20 minutes, 

and in 15 minutes if he is a good loaderman (Tr. 204-205). 

On cross-examination, Mr. Carte stated that he was not present 

when the inspector made his inspection, and he only recently conferred 

with the safety supervisor concerning the citation. There are people 

in the Raccoon No. 3 Mine who are capable of loading a section in 15 

to 20 minutes, and although he has never timed such individuals, he 

has observed them loading coal in the past, and would estimate they 

could load an 18-foot cut-out 110 feet deep in less than 10 minutes, 

and that it is even possible to do it in less than 15 minutes, depending on how far the coal has to be transported and how close the feeder 

is to the face area (Tr. 205-207). 

Mr. Carte testified that the usual procedure followed in the 

Raccoon Mine with regard to roof control is that a loading crew, 

the loaderman, or helper, install the temporary supports before 

leaving the area. The only reason for not following such a procedure 

would be that they did not have the temporary supports or the supports 

they were using were damaged. In such a case, they would probably 

relay the information to the utility man on the section :who would 

probably go to the supply area and bring in additional temporary 

supports (Tr. 208-209). 

On rebuttal, Inspector McNece testified that based on his experience, if everything were working properly and assuming the men were 

working productively, he would estimate that it would take 30 to 

45 minutes to load a section similar to the section in question 

(Tr. 209-213). 

Docket No. VINC 79-141-P 

In this docket, the proposal for assessment of civil penalties 

filed by the petitioner seeks civil penalties for three alleged violations. However, the parties proposed a settlement for two of the violations and were afforded an opportunity to present arguments on the 

record in support of the proposed settlement for Citation No. 279953, 

July 25, 1978, 30 CFR 75.400, and Citation No. 279990, August 3, 1979, 

30 CFR 75.1100-2(f). With respect to Citation No. 279953, the petitioner argued that the conditions cited were abated in a rapid fashion 

1653 
and that the iespondent exhibited good faith in the abatement of the 

conditions. With respect to Citation No. 279990, the petitioner 

pointed out that there was an arguable question of interpretation with 

respect to the application of the cited standard, particularly with 

respect to the question of what constituted an "oil storage station" 

within the meaning of the cited standard. Coupled with the fact that 

fire extinguishers were in fact provided on the section, and that the 

respondent exhibited rapid abatement of the violation, a decrease in 

the initial proposed settlement amounts were warranted (Tr. 42-45). 

After consideration of the the arguments presented in support of 

the proposed settleraents, I find and conclude that they should be 

approved. Accordingly, civil penalties in the amount of $160 for 

Citation No. 279953 (originally assessed at $345), and $160 for 

Citation No. 279990 (originally assessed at $225) are approved as 

dispositive of these two citations. 

The remaining citation in this docket, No. 279989, August 2, 

1978, 30 CFR 75.1710-l(a)(4), was tried, and testimony and evidence 

was adduced by the parties in support of their respective positions, 

and a discussion of this citation and the supporting arguments 

follows. 

Citation No. 279989, August 2, 1978, citing a violation of 

30 CFR 75.1710-l(a)(4), states as follows: "The front canopy had 

been removed from the Co. No. 4539 roof bolting machine operating 

in 006 section. The average mining height was more than 42 inches." 

Petitioner's Testimony 

MSHA inspector Jesse J. Petit testified that during the course 

of conducting an inspection at the 006 section of the Raccoon No. 3 

Mine, he observed that the front canopy of the No. 4539 roof-bolting 

machine had been previously removed. The machine was in operation 

at the time he observed this condition and he issued a citation. The 

average mining height on this particular section was 48 to 50 inches, 

and the condition was abated by installing the front canopy. In 

filling out the gravity sheet accompanying the citation, Mr. Petit 

indicated that the machine had previously passed through some 

extremely low coal in the section, and this evidently resulted in 

the removal of the canopy. He determined that the operator should 

have known about the alleged violation because the front canopy on 

the roof-bolting machine is not to be removed, and he believed that 

the condition could have resulted in a probable roof fall (Tr. 216-

219). 

On cross-examination, Inspector Petit testified that he took 

measurements at various locations on the section to determine that the 

average coal height was 48 to 50 inches. His notes do not indicate 

that he took such measurements, but he knows that he would not have 

issued the citation unless he had taken measurements. Even if the 

1654 
mining height is less than 42 inches, he would still have issued a 

citation because the front canopy is supposed to remain on the 

machine. The mining height in this particular section of the 

Raccoon No. 3 Mine fluctuates (Tr. 219-221). 

In response to questions from the bench, Mr. Petit testified that 

the front canopy must remain on under all conditions. All three of 

Southern Ohio Coal Company's mines have been granted relief for up to 

56 inches mining height before the canopies can be removed from roofbolting equipment, with the exception of the front canopy. Even when 

the equipment is operating in low coal, the front canopy cannot be 

taken off. He does not know the height of the canopy or the canopy 

adjustment heights. No one gave him an explanation as to why the 

front canopy was off at the time he cited the condition, and he served 

the citation on Ray Lieving, the master mechanic. The canopy in question was a hydraulic canopy, and at the time he issued the citation,, 

the roof bolter was energized. However, he did not know if it was in 

the process of installing bolts, and he did not remember whether he 

saw anyone using it, standing under it, or kneeling under it. The 

roof conditions in the section were good, and under the circumstances, 

he would consider this a nonserious vLolation although it could conceivably result in a fatality (Tr. 219-225). 

Respondent's Testimony 

Mr. Carte, testified that he is familiar with, and has previously 

measured the height in the 006 section, and that at the time the 

citation was issued in the No. 1 and No. 2 entries, the coal seam 

measured anywhere from 29 to 31 inches. He measured several areas on 

the section, and there were areas on the section in Nos. 3, 4, and 

5 entries inby the feeder that ranged anywhere from 46 to 56 inches 

in thickness. In the No. 2 entry where the coal vein had lowered, it 

was from 29 to 31 inches in thickness. Once low coal was encountered, 

they were operating in it for four or five breaks and they h&d to mine 

at least another five breaks before they exited the small seam of 

coal. The particular roof-bolting machine that was cited was working 

in the low coal area, and fireclay had to be taken to make height for 

the miner to get in to mine the low seam of coal. In order for the 

roof bolter to bolt the top, the canopy had to be removed because it 

extends approximately 8 inches higher than the roof-bolting machine 

itself. There was no way possible to bolt with the canopy on, the 

canopy could not be raised, and there was no human way of raising it 

or even going into the area (Tr. 226-239). 

Docket No. VINC 79-112-P 

In this docket, the proposal for assessment of civil penalties 

filed by the petitioner s~eks civil penalty assessments for four 

alleged violations of certain mandatory safety standards. During the 

course of the hearings, the parties were afforded an opportunity to 

1655 
present arguments in support of a proposed settlr,rn:ent for three of 

the violations, namely Citation Nos. 279961, August 9,1978; 279964, 

August 10, 1978; and 279973, August 15, 1978; all of which were issued 

for alleged violations of the provisions of 30 CFR 75.606. The initial assessments made for these citations were $225, $295, and $195, 

respectively. In support of a proposed settlement in the amounts of 

$122, $140, and $90 for each of these citations, petitioner argued 

that the reductions were warranted in view of the fact that after 

evaluation of the negligence criteria, the petitioner was of the view 

that there was little or no negligence on the part of the respondent 

in that there was no way ·that the respondent could have been aware of 

the fact that the equipment involved in each of these citations was 

in fact positioned in such a fashion as to be resting on the cables 

in question. The citations were issued after the inspector found 

that. certain pieces of equipment had been parked in such a fashion as 

to come to rest on the trailing cables. Although petitioner conceded 

that the operator is responsible for insuring against the type of 

violations cited, it believes chat the respondent could not have 

been aware of the fact that the equipment operators had in fact 

positioned the equipment in question in such a fashion as to be in 

violation of section 75.606, which requires that the trailing cables 

be adequately protected to prevent damage by mobile equipment 

(Tr. 31-35). 

In view of the fact that the evidence and abatements reflect 

that the conditions cited were immediately abated and that the cables 

in question were not damaged, I conclude and find that the proposed 

settlements should be approved. With respect to the remaining citation in this docket, the parties presented testimony and evidence in 

support of their respective positions, and a discussion of this 

citation follows. 

Citation No. 279997, August 8, 1978, 30 CFR 75.402, states as 

follows: "Rock dust had not been applied to the roof, ribs and floor 

of the last open crosscut between Nos. 4 and 5 entries, 009 section. 

A spot rock dust sample was collected to substantiate the citation. 

The distance through the crosscut was 60 feet." 

Petitioner's Testimony 

MSHA inspector Petit testified that during the course of conducting an inspection at the Raccoon No. 3 Mine on August 8, 1978, he 

observed that rock dust had not been applied to the last open cTosscut between the Nos. 4 and 5 entries. He took a dust sample at the 

location, which involved a band sample of the roof, rib and floor, 

and the results indicated 47 percent incombustible. The dimension 

of the crosscut was 60 feet, and during the time that he was in the 

area, he did not observe any rock dusting in any other crosscuts or 

entries. The mine does have a program for rock dusting that calls 

for all crosscuts to be rock dusted within 40 feet of the faces except 

1656 
in those areas that are too wet. He does not remember looking at the 

preshift book; however, he usually makes it a practice to so do before 

entering the mine. The respondent shut the whole section down and 

immediately assigned men to rock dusting. The rock dusting was completed at 11 o'clock, and he believes that the men must have had some 

additional work to do in the area, such as shoveling the ribs, or 

scooping up the crosscut, since it should not have taken an hour to 

rock dust 60 feet. The only explanation for taking that long to rock 

dust 60 feet is the lack of available rock dust on the section, or the 

cleaning of the section first. He observed rock dusting being done 

prior to terminating the order, and he remained there while it was 

being done (Tr. 249-253). 

On cross-examination, Mr. Petit testified that if there was a 

coal accumulation he would have had to issue the citation under a 

different standard, and he did not know what time the company discovered the condition. On his gravity statement, he indicated that the 

condition "should have been detected" by a preshift e:x1amination at 

the end of the prior shift. The citation was written at 10 o'clock 

in the morning, and the oncoming shift does not arrive on the working 

section •mtil 8:45 a.m. or 9 a.m., and the earliest arrival time would 

be 8:30 a.m. The citation was abated at 11 a.m, and prior to issuing 

the abatement, he is certain that he did not leave the section and go 

to other areas. However, he indicated that it is possible that he was 

in another area of that particular section ana that the area that 

needed rock dusting had been taken care of in 5 or 10 minutes (Tr. 

253-256). There was the possibility of fire resulting from a cable 

being shorted or an energized cable being shorted (Tr. 256-257). 

Docket No. VINC 79-114-P 

Citation No. 277726, August 29, 1978, alleges a violation of 

30 CFR 75.1405, and states as follows: "The Company Nos. 8730 and 

8107 stone haulage cars, located on the surface track in the supply 

yard could not be coupled without a person going between the ends of 

the cars. Order issued because: sufficient effort was not made to 

abate the citation." 

Petitioner's Testimony 

MSHA inspector Petit testified that in conducting an inspection 

on August 29, 1978, at respondent's Raccoon No. 3 Mine, he observed 

that certain uncoupling devices on a train of six rock cars, namely, 

car Nos. 8107 and 8730, had broken uncoupling devices. The cars were 

loaded with rock, and they were eventually going to the rock dump. 

The cars could not be uncoupled without someone going between the 

ends of the cars, and he determined this due to the fact that it was 

necessary to position oneself in between the cars in order to uncouple 

them. Each uncoupling device consisted of a rod or lever that extends 

on both sides of the car, from the middle of the car outward where a 

1657 
person can raise it up from the outside and uncouple it without going 

near the rail. He issued the citation at 1:15 p.m., and set a termination deadline for 4 p.m., that same day. He checked the coupling 

devices on other haulage cars and found that they were all right 

(Tr. 276). 

On August 30, 1978, he returned to the mine to check the cars 

again and he found that no effort had been made to abate the citation 

by the 1:15 p.m. deadline. The No. 8107 haulage car had been used 

after the citation was issued, but car No. 8730 was tagged out and 

off the track, but no effort had been made to have it repaired. The 

subsequent order was abated in 31 minutes. 

Mr. Petit believed that the operator was negligent in that a 

more thorough check of the haulage equipment should have detected the 

damaged uncoupling devices. He believed that the condition could 

result in a fatal injury in the event the car should happen to roll 

while someone was trying to uncouple it. That person could be run 

over, or at the least be knocked down or receive a broken leg. When 

he returned on August 30, 1978, he issued an order rather than granting additional time for abatement because while the company had tagged 

out two of the cars, car No. 8107 rock car was not tagged out and was 

still on the rails (Tr. 277-279). 

On cross-examination, Inspector Petit testified that the last 

time that the cars had.been removed was when they were brought out 

of the mine. At the time he issued the order of withdrawal, the cars 

were not in use, but car No. 8107 was still on the rails and could 

have been used at any time. It had been used after the citation 

issued, but this was not improper as long as it had been repaired 

by the abatement deadline. There was no danger connected with car 

No. 8730 since it was tagged out and off the track, and he does not 

recall asking anyone if car No. 8101 had been repaired (Tr. 279-281). 

According to Mr. Petit, a welder would have been required to 

repair the uncoupling devices, but he did not know whether there was 

a welder on each shift, how busy the repair shop was that particular 

day, or how many jobs the welder had to do, and he did not attempt to 

find out. He cited a violation of section 75.1405, which is the section that pertains to underground mining, and he chose to cite it 

under that section rather than Part 77 because the cars are underground 

more than they are on the surface. It is possible that they are used 

1 or 2 days a month, and would be on the surface the other portion 

of the month. He does not know of any requirement in Part 77 that 

requires automatic coupling devices for cars while they are located 

on the surface (Tr. 281-283). 

In response to questions from the bench, Mr. Petit testified that 

the surface area was a regular track haulage area for transporting 

1658 
supplies underground and transporting loaded rock cars from underground to the surface. The track does go underground, it is a spur 

of the mine, and the rock that was in the two cars came from underground. He did not consult with anyone in regard to fixing the abatement time since he believed that 7 hours was a sufficient time in 

which to repair the equipment, and he does not remember whether anyone 

complained about the abatement time (Tr. 286-288)~ 

Respondent's Testimony 

Chris Mapper, surface foreman, Raccoon No. 3 Mine, testified that 

after the citation was issued, he was instructed to remove the two 

cars and unload them, remove them from the track, and then transport 

them to the shop for repairs. When they finally got the cars to the 

shop it was probably 3 to 3:30 p.m., and due to the weight of the 

cars, a forklift had to be used to get them off the track. Each car 

weighs approximately 5 to 6 tons, and the cars were not used prior to 

the time they were taken off the track. He is aware that Mr. Petit 

issued Order of Withdrawal No. 277727, stating that sufficient effort 

was not made to abate the citation. Moreover, the welder that was 

working on the cars works a straight day shift, leaving work around 

3:45 p.m., and he thus he did not have time to work on the cars that 

day. After the citation was issued, five other cars were tagged out 

for repairs (Tr. 293). 

According to Mr. Mapper, the rock cars are used only onch a month 

when they shoot overcasts, but on occasion they are used 3 or 4 days 

a month. The cars spend most of the time on the surface, and last 

winter they were not used at all. It is possible to uncouple the cars 

on the surface without an automatic coupling device, but it is dangerous (Tr. 293-294). Only one welder is dn duty on the mine surface 

and he is supposed to check the cars to see if they have automatic 

coupling devices before they go underground. However, once the cars 

are underground, they can get bent up and they are treated roughly 

when underground (Tr. 299-300). 

Mr. Carte testified that at the time the initial citation issued 

there was no confusion. However, on the duplicate copy of the 

citation received by mine management, the car numbers were confused 

and one of the wrong cars was tags out. Company policy dictates that 

all cars be equipped with automatic couplers and are not to be taken 

underground in a damaged condition. On the day following the citation in question, five additional cars were tagged out for being in 

need of repairs and this was done at the initiative of the company 

(Tr. 305-306). 

Docket No. VINC 79-115-P 

Citation No. 277736, September 12, 1978, alleges a violation of 

30 CFR 75.200, and states as follows: "Temporary supports were not 

1659 
installed in the unsupported face area of No. 1 entry, 006 section as 

required by the operator's approved roof control plan." 

Petitioner's Testimony 

MSHA inspector Petit testified that on September 12, 1978, he 

inspected the Raccoon No. 3 Mine and observed that temporary supports 

were not installed in the unsupported area of the No. 1 entry, as 

required by the roof-control plan. An area 7 feet wide by 11 feet 

long was not roo.f bolted. The area was drilled, the cutter was ready 

to cut the place, and the area had been reported by the 8 a.m. to 

4 p.m. shift as being bolted. The applicable section of the approved 

roof-control plan required that temporary supports be installed or 

that installation be begun no later than 15 minutes after the loading 

cycle is completed. He determined that this provision had not been 

complied with because the coal driller already had drilled the area, 

and it takes 10 to 12 minutes to drill such an area. When he observed 

the operation, the cutter was getting ready to cut the area, so he 

determined the cutter was either moving in or was ready to move in. 

The coal drill operator, or the cutting machine operator, told him 

that he was told by the section foreman that the area w<is ready 

to cut. 

With respect to whether the operator had been negligent, 

Mr. Petit testified that a more thorough examination of the working 

section should have detected the violation and the fact that the area 

was not ready to be cut, drilled, and shot down. Such an observation 

should have been made by the presl1ift examiner. He determined the 

gravity of the condition and found that a roof fall was probable, but 

the roof was solid and in good cond~tion. He abated the citation 

after temporary roof supports were installed on not more than 5-foot 

centers, and the roof-control plan was reviewed with the crew (Tr. 

327-328). 

On cross-examination, Mr. Petit confirmed that the place was 

drilled and that the cutter was about ready to cut the area. The 

cutter was to undercut the new face and the scrap coal that is left. 

Mr. Petit's notes did not reflect whether scrap coal was left, and 

had there been scrap coal left, this would have indicated that the 

area already had been drilled. The mining cycle was begun when the 

area was drilled because it is not normal to drill ahead of the 

cutting machine. In this particular case, the driller came before 

the cutter (Tr. 330-331). 

Mr. Petit further testified he is aware of the fact that tbe 

roof-control plan permits 15 minutes from the second loading cycle to 

begin on a new face of coal, but it does not permit another loading 

cycle to start. Although the area had been previously drilled, the 

roof bolter came in and supposedly bolted it and then the coal driller 

came in. In response to the question of how he knew that 15 minutes 

1660 
had elapsed without beginning the installation of temporary supports. 

Mr. Petit indicated that he did not even think about the 15 minutes. 

He knew that the n~xt mining cycle had started since the place had 

been drilled and it was reported roof bolted (Tr. 330-331). 

Respondent's Testimony 

Mr. Carte testified that when the preshift examiner who is the 

section boss already on the section, made his rounds in the last 

3 hours of the shift, and called out his report to the boss that is 

coming onto the section, he automatically told him that the area was 

bolted because there was enough time to allow the roof bolter to bolt 

it. He noticed that the place had not been completely bolted because 

there was some scrap coal left on the bottom. In the meantime, he 

instructed the cuttermen to go back in the area.and scrap the coal so 

that the roof bolter could continue bolting (Tr. 336-339). The mining 

cycle had not been completed in this area, and under the roof-control 

plan, until the cycle is completed, the plan does not require the 

setting of temporary supports. Once it is started, however, it must 

be completed (Tr. 340). 

On cross-examination, Mr. Carte testified that although he was 

not present on the 006 section on September 12, 1978, he obtained 

information through his safety assistant who travels with an inspector 

and the oncoming and offgoing section boss. On September 12, the 

scrap coal was taken care of on the next cycle of the shift in which 

the citation was issued. As the cutting machine moved in, he would 

have scraped the coal, sent his roof bolter back in to install another 

row of bolts, and a new cycle would have begun. The cycle could not 

be completed until after the citation issued. Thus, at the time the 

inspector was there, there should have been scrap coal present. 

However, at the point after the section was drilled and the cutter 

was being moved in, the other cycle was not being started due to the 

fact that scrap coal had been left and the loader would have to come 

back in and clean it out and then the roof bolter goes back in and 

finishes bolting (Tr. 341-343). 

Stipulations 

The parties stipulated that the inspectors who issued the citations in issue were duly authorized representatives of the U.S. 

Department of Labor, that they were issued to the respondent on the 

dates indicated, and that the conditions cited were terminated within 

the time-frames set forth in the citations (Tr. 51, 101). 

1661 
Findings and Conclusions 

Docket No. VINC 79-109-P 

Citation No. 279540--Fact of Violation 

Respondent is charged with a violation of 30 CFR 75.507, which 

provides as follows: "Except where permissible power connnection 

units are used, all power-connection points outby the last open 

crosscut shall be in intake air." 

The citation here charges that the battery-charging unit in 

question was located in return air rather than intake air as required 

by the cited standard. After review of the testimony and evidence 

presented' by the parties in support of their respective positions, the 

key question presented with regard to the location of that unit lies 

in the positioning of a brattice curtain or temporary stopping. 

According to the inspector, the course of the ventilation current at 

the cited location is determined by the installation and location of 

the curtain, and the positioning of the curtain determines whether or 

not the unit is located in intake or return air (Tr. 68). Here, the 

inspector contends that the air being coursed over the unit was 

return air, and while the same air was used to abate the citation, 

the crux of the violation lies in the fact that complete air separation was not being maintained because the unit was being ventilated 

by return air, and the purpose of the curtain is to serve as a 

temporary stopping separating intake air from return air (Tr. 88-95). 

Petitioner argues that the intent of the cited standard is to 

insure that such battery chargers are adequately ventilated and are 

positioned in such a manner so as to preclude a buildup of methane, 

thereby posing an explosion threat in the event of arcing from the 

unit (Tr. 99). In its posthearing proposed findings and conclusions, 

petitioner argues that even asswning the absence of a temporary stopp:!_n·g, the lack of a stopping would have permitted the intermingling 

of intake and return air. Further, petitioner points out that the 

nonpermissible battery charger unit was located immediately on the 

return side of the temporary stopping between the check curtain or 

line brattice and the No. 5 entry, and by being positioned between 

the unit and the No. 4 entry, the curtain prevented or reduced intake 

airflow over the charger and exposed it to methane content in the 

return air. 

Respondent's argument is that the battery charger was located in 

intake air and that there was no curtain between the battery charger 

and the No. 4 entry. Further, respondent maintains that the charger 

was not operating, and since the inspector conceded that chargers of 

this type are moved often, one can assume that it was not in operation at the particular lo:.ation cited (Tr. 96-98). Respondent presented the testimony of safety representative Carpenter who apparently 

1662 
was not present when the inspector made his observations. His sketch 

of the scene, Exhibit R-1, was prepared a day after the citation issued 

and was based on purported conversations with a safety committeeman 

who was apparently present but not called as a witness. The inspector's sketch of the scene, as reflected in his notes made at the time 

the citation issued, Exhibit P-1, is consistent with the inspector's 

testimony concerning the positioning of the curtain and the location 

of the charger unit. Mr. Carpenter's notes on his sketch reflect in 

pertinent part that "The battery charger was not moved to abate the 

citation. The only thing that was done was to place a curtain behind 

the battery charager." This tends to support the inspector's observations, rather than to contradict it. 

I find and conclude that the petitioner has established a violation as charged in t·he citation by a preponderance of the evidence. 

Respondent's contention that petitioner must first establish that the 

battery charger unit in question was energized in order to support a 

violation of section 75.507 is rejected, notwithstanding the inspector's practice of not issuing citations if it is not energized. I 

find no such requirement in the standard and respondent has not persuaded me otherwise. The question of whether the unit was energized 

at the time of the inspection goes to the question of gravity and 1::ay 

not serve as an absolute defense to the violation. The citation is 

AFFIRMED. 

The inspector's testimony reflecting that the mine liberates 

methane and was on a 15-day spot inspection cycle has not been 

rebutted by the respondent. However, there is no evidence here that 

the inspector made any methane check at the location of the battery 

unit. Further, although the inspector made a sketch of the location 

of the unit, for some unexplained reason, he failed to note whether 

or not the battery charger in question was energized or operating at 

tl1e time the citation issued, and there is no evidence that the unit 

was in other than good condition. Also, there is nothing in the 

record concerning the quantity or quality of air being coursed through 

the section or entry where the unit was located, no indications as to 

how long the unit had been in the location, and there is nothing in 

the record to suggest any other violations concerning nonpermissible 

equipment operating, etc. In my view, these are critical questions 

concerning the actual conditions which prevailed at the time of the 

citation, and lacking any further evidence in this regard, I cannot 

conclude that the condition cited was serious. 

Negligence 

I find that the respondent failed to exercise reasonable care to 

prevent the condition ci~ed and that an onshift inspection of the area 

1663 
cited would have detected the condition. Although the inspector and 

Mr. Carpenter alluded to pertain preshift and onihift books, they were 

not produced, and there is nothing in the record to support a finding 

that respondent was not oblivious to, or unaware of, the condition 

cited. I find that the violation resulted from respondent's ordinary 

negligence. 

Good Faith Compliance 

I find that respondent exercised normal good faith compliance in 

abating the condition cited. 

Findings and Conclusions 

Docket No. VINC 79-148-P 

Citation No. 279550--Fact of Violation 

-\ Respondent is charged with a violation of 30 CFR 75.1003(a), 

which states: 

Trolley wires, trolley feeder wires, and bare signal 

wires shall be insulated adequately where they pass 

through doors and stoppings, and where they cross other 

power wires and cables. Trolley wires and trolley feeder 

wires shall be guarded adequately: 

(a) At all points where men are required to work 

or pass regularly under the wires; 

(b) On both sides of all doors and stoppings; and 

(c) At man-trip stations. [Emphasis added.] 

In its pos thearing proposed findings and conclusions, pc-ti ti oner 

argues that miners were required to pass under the unguarded wire in 

question in order to unload supplies from the supply car and place 

them in a storage or supply area which is indicated on Exhibit R-1. 

In support of this contention, petitioner cites the inspector's notes, 

recorded at the time of the inspection, which indicates that the 

inspector based his conclusions in this regard on conversations with 

two utility men working on the section who indicated that in picking 

up some resin from the supply area in question, they passed under the 

unguarded trolley wire. Petitioner contends this area was an "active 

-supply hold" (Brief, p. 7). Petitioner presented no further ~rguments during the hearing (Tr. 143), but did concede that it was not 

conten<ling that men normally passed back and forth under the unguarded 

wire as a normal routine (Tr. 142). 

Respondent asserts that the petitioner failed to establish a 

prima facie case in that it presented no evidence that men regularly 

1664 
passed under the cited unguarded trolley wire. Further, respondent 

asserts that the inspector could not state whether he actually 

observed men passing beneath the unguarded trolley wire, and that 

respondent's testimony reflects that company policy dictates that the 

wire be deenergized before men walk under it (Tr. 140-141). In addition, in its posthearing proposed findings and conclusion, respondent 

asserts that petitioner has not established that the trolley wire was 

energized at the time the citation issued, and that supplies could be 

removed from the supply area without men passing under the trolley 

wire. 

As I read the requirements of section 75.1003(a), it mandates 

th~t trolley wires be guarded at all points where men are required 

to work or pass regularly under such wires. I agree with the respondent's position that petitioner has not establish~d that men were 

required to regularly pass under the wires at the place where the 

supplies in question were located on the day the citation issued. 

However, the standard also requires that trolley wires be guarded 

where men are required~work. In this case, the ir;ispector testified that the supply area in question was one which was regularly 

used for that purpose and respondent has not rebutted this fact. In 

this regard, I believe the definitions of the terms "working section" 

and "active working" found in the definitions section on Part 75, 

30 CFR 75.2, is broad enough to sustain a findin~ that the area cited 

by the inspector was in fact a place where miners were required to 

work, and respondent's evidence does not convince me otherwise. With 

regard to the argument that petitioner has not established that the 

trolley wire was in fact energized at the time the citation issued, I 

believe that this fact goes to the gravity of the situation presented, 

and may not serve as an absolute defense to the asserted violation. 

The standard, on its face, requires that trolley wires be guarded 

under the co~ditions and terms specifically set forth therein, and 

there is no requirement that petitioner establish as a condition 

precedent that it be energized before a violation may be established. 

Thus, on the facts presented here, I cannot conclude that the fact 

that the petitioner did not establish that men regularly passed under 

the wire or that the wire was in fact energized is controlling as to 

the question of whether a violation occurred. In my view, the critical 

question is whether or not men passed under an unguarded trolley wire 

while performing work at the location cited by the inspector. 

In this case, I believe it is clear that the inspector did not 

personally observe men passing under an unguarded trolley wire, and ~ 

the inspector candidly admitted that this was the case. His conclusion that men passed under the wire was based on the fact that the 

supplies were positioned in such a fashion that it was physically l 

impossible for them to be off-loaded from the adjacent car and track 

without men actually passing under the unguarded wire. His conclusion 

was supported by statements purportedly made to him by two men who 

told him that they passed under the unguarded wire to obtain some 

1665 
of the supplies stored there, and his conversations in this regard 

were documented by notes made at the time of the inspection. 

Respondent does not dispute the fact that the trolley wire in 

question was rtot in fact guarded, or that the supplies were not stored 

at the place indicated by the inspector. Further, Mr. Carpenter 

candidly conceded that in retrieving the supplies from the storage 

area in question, it was necessary for men to pass under the unguarded 

wire, and he also conceded that it was natural for the inspector to 

assume that due to the location of the supplies someone had to pass 

under the unguarded wire in order to place them in that location. 

The burden of proof in this instance lies with the petitioner. 

Although the best evidence of the fact that men passed under the 

unguarded wire would be the testimony of the two men who purportedly 

spoke ~o the inspector, neither the petitioner nor the respondent 

saw fit to call these men as witnesses. However, on the facts presented here, I believe the inspector's testimdny is credible, and 

the inference that men passed under the unguarded wire in off-loading 

the supplies is supported by credible and probative testimony from 

the inspector, including the notes made at the time of the event 

in question. I find and conclude that the petitioner has established a prima facie case which remains unrebutted by any evidence 

or t~stimony presented by the respondent. As a matter -0f fact, I 

believe that Mr. Carpenter's testimony corroborates the inspector's 

testimony that the supplies were in fact stored in such a fashion 

that required men to pass under the unguarded wire in storing or 

retrieving them. On the facts and circumstances here presented, 

I conclude and find that the petitioner has established a violation 

·by tlte preponderance of the evidence. Respondent's defense as to 

the fact of violation is rejected, and the citation is AFFIRMED. 

Gravity 

It is clear that the inspector's notes reflect that the trolley 

wire was energized at the time the citation was issued, but do not 

reflect that it was so energized at the time men may have passed under 

it. Although the inspector indicated that two men told him they 

passed under the wire, they apparently did not state that it was 

energized at the time, and that fact is still in dispute. Respondent's witness did not know whether the trolley wire switch was on or 

off at the time the supplies were off-loaded, and he alluded to the 

fact that employees are instructed to deenergize the wire when they 

are working under or around such wires. Neither party disputed the 

fact that passing under an energized trolley wire constitutes a hazard 

of shock or electrocution. Under the circumstances, I conclude that 

the violation was serious. 

Negligence 

The supplies in question were located at a plac?. where men had 

to walk under the unguarded wire to either store or retrieve them. 

1666 
In these circumstances, I conclude that the respondent had a duty to 

exercise reasonable care to insure that the wire at that location was 

guarded. Its failure to do so constitutes ordinary negligence and 

that is my finding. 

Good Faith Compliance 

The citation was abated by guarding the area in question, and 

there is no evidence that abatement was not achieved within the time 

fixed by the inspector. I find that respondent exercised normal 

compliance in abating the condition cited. 

Findings and Conclusions 

Docket No. VINC 79-110-P 

Citation No. 278046--Fact of Violation 

Respondent is charged with a violation of 30 CFR 75.503, which 

provides as follows: "The operator of each coal mine shall maintain 

in permissible condition all electric face equipment required by 

§§ 75.500, 75.501, 75.504 to be permissible which is taken into or 

used inby the last open crosscut of any such mine." 

The thrust of the violation in this case is the assertion that 

the presence of a worn or "burned out" spot on the cable reel on the 

shuttle car, which resulted in the destr~ction of the j_nsulation at 

that point, rendered the car nonperrnissible and in violation of the 

permissibility requirements of section 75.503. In support of the 

citation, petitioner has presented the testimony of Inspector McNece, 

who, upon investigation of an accident concerning a shock received 

by a miner in conjunction with the use of the shuttle car in question, 

determined that the cable reel had been damaged. The inspector determined that the car in question had been used inby the last open crosscut and that the damaged reel rendered the car nonpermissible. 

Respondent presented no evidence to rebut the inspector's findings 

concerning the condition of the shuttle car. Its defense to the 

citation focused on the manner in which MSHA's Office of Assessments 

assessed the violation (Tr. 187-189), and this argument is addressed 

by me below in my findings concerning the question of gravity. As 

for the fact of violation, I find that petitioner has established a 

violation by a preponderance of the evidence and the citation is 

AFFIRMED. 

Negligence 

The inspector conceded that the one bare spot in question on the 

cable reel was approximately an area of some 2 inches and the cable 

was some 500 feet in length. He also indicated that he discovered 

the bare spot only after he wiped some mud off the cable with a rag, 

1667 
and further c.onceded that it was possible that someone could examine 

the cable and not locate or observe the mud-covered, 2-inch bare spot. 

While he could not state that any visual examinaiion was made, he 

did indicate that "close attention" was required to discover the bare 

spot (Tr. 170, 173-174). 

With regard to the movement of the shuttle car after the injury, 

and the inspector's assertion that the car was "put back in service," 

one could be led to believe tlw t the respondent in this instance 

totally disregarded any safety considerations after the bare spot was 

discovered, and deliberately placed an unsafe piece of equipment back 

into operation running coal. However, this is not the case. Although 

the inspector's testimoriy was somewhat misleading and confusing on 

this point, it is now clear from the record that the car in quesiion 

was operated and moved back out of the way some 50 feet in order to 

facilitate its movement out of the area so that it could be examined 

to ascertain the cause of the shock incident (Tr. 176-180). Under 

these circumstances, I conclude that under the then prevailing conditions, the respondent acted reasonably and I cannot conclude that 

there was any reckless or deliberate disregard for safety. 

BaE·~d -on the total circumstances which prevailed and in light of 

the foregoing discussion, I cannot conclude that the evidence supports 

a finding that the respondent was negligent in failing to discover the 

somewhat miniscule bare spot on the cable reel. 

Gravity 

It seems clear from the record that the shock incident in question 

resulted in an injury to a miner. Fortunately, the incident did not 

result in a fatality, but it did cause some trauma to the individual 

involved and he was taken to a hospital. The inspector indicated that 

no "lost time" was recorded, but that conclusion remains unexplained, 

and there was no testimony concerning the actual injuries, sustained· 

by the shock victim. However, the bare spot on the reel was hazardous 

and could have resulted in further serious injuries had it gone 

undetected. In the circumstances, I conclude that the condition cited 

was serious. 

During the course of the hearing, respondent's counsel alluded 

to the fact that during the initial assessment of this citation, a 

clerical error apparently occurred in that a "gravity sheet" pertaining to another citation somehow found its way into the official file 

for the instant citation (Tr. 158). I have taken this into account 

and have assessed the matter de novo based on the testimony and evidence presented by the parties at the hearing. 

Good Faith Compliance 

I find that the respondent abated the condition in a timely 

fashion after the citation issued. 

1668 
Findings and Conclusions 

Docket No. VINC 79-111-P 

Citation No. 278095--Fact of Violation 

Respondent is charged with a violation of 30 CFR 75.200, which 

provides: 

Each operator shall undertake to carry out on a continuing basis a program to improve the roof control system 

of each coal mine and the means and measures to accomplish 

such system. Tne 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. A roof control plan and revisions thereof suitable to the roof conditions and mining 

system of each coal mine and approved by the Secretary 

shall be adopted and set out in printed form on or before 

May 29, 1970. The plan shall show the type of support and 

spacing approved by the Secretary. Such plan shall be 

reviewed periodically, at least every 6 months by the Secretary, taking into consideration any falls of roof or ribs 

or inadequacy of support of roof or ribs. No person shall 

proceed beyond the last permanent support unless adequate 

temporary support is provided or unless such temporary support is not required under the approved roof control plan 

and the absence of such support will not pose a hazard to 

the miners. A copy of the plan shall be furnished to the 

Secretary or his authorized representative and shall be 

available to the miners and their representatives. 

The approved roof-control plan of April 25, 1978, for the Meigs 

No. 2 Mine (Exh. R-1), contains, in pertain part, the following 

requirements listed under "Safety Precautions for Temporary Support," 

page 8, paragraphs 2 and 8: 

* * * * * * 

2. * * * the installation of temporary supports 

shall be started no later than 15 minutes after the loading cycle is completed, and after the installation of 

such supports is started, installation shall be continued 

until at least the minimum number are installed as 

required by the approved plan. 

* * * * * * 

8. In areas where temporary supports are required, 

only those persons engaged in installing the temporary 

1669 

* 

* 
supporti will be allowed to proceed beyond the permanetly 

supported roof. 

Before any person proceeds inby permanently supported 

roof to install temporary supports, a thorough visual 

examination of the unsupported roof and ribs shall be 

made. If the visual examination does not disclose any 

hazardous condition, persons proceeding inby permanent 

supports shall do so with caution and shall test the roof 

by the sound and vibration method as they advance into the 

area. 

The applicable roof-control provision (p. 8, paragraph 2, Exh. 

R-1) requires that the installation of temporary supports be started 

no later than 15 minutes after the loading cycle is completed. Once 

started, the installation of such temporary supports shall be continued until at least the minimum number are installed as required by 

the plan. From the inspector's point of view, the gist of the violation is that after observing an area of unsupported roof, he looked 

into the next entry, observed that approximately two-thirds of the 

entry had been loaded out, and he surmized that the loading process 

there took r.iore than 15 minutes. He therefore assumed that the mining 

cycle had advanced from the previous cut without the installation of 

the required temporary roof support (Tr. 214). No temporary supports 

were installed, and a loading crew had cleaned up a place, moved into 

another area where two-thirds of the cut had been loaded out, and no 

temporary supports had been set in the previous cut that had just been 

left. The inspector supported his findings by notes and a sketch of 

the area made at the time of the citation, and he spoke with the loading crew at the scene. 

In its posthearing proposed findings and conclusions concerning 

this citation, respondent advances the defense that two-thirds of 

a cut can be loaded out within 15 mi.nutes, and that by failing to 

remain at the location in question or initially observing the conditions at the location and returning at least 15 minutes later, the 

inspector had no basis for concluding that the applicable roof-control 

provision was violated. This assertion by the respondent is rejected, 

and I find that the petitioner has established a violation by a preponderance of the evidence. On the facts presented here, the fact 

that a place can generally be loaded out in 15 minutes or less is not 

persuasive since the conditions which prevailed at the time of the 

citation control, and I conclude that respondent has not rebutted the 

fact that more than 15 minutes had elapsed from the completion of the 

loading cycle. As correctly pointed out by the petitioner, Mr. Carte 

was not present at the time of the citation, and I find the inspector's 

testimony in support of the citation and the prevailing conditions at 

the time it was issued to be credible. I find that the preponderance 

of the evidence adduced supports a finding of a violation as charged. 

Failure to comply with a provision of the roof-control plan here 

1670 
constitutes a violation of section 75.200. Peabody Coal Company, 

8 IBMA 121 (1977); Affinity Mining Co~1pany, 6 IB"MA 100 (1976); 

Dixie Fuel Company, Grays Knob Coal Company, 7 IBMA 71 (1976). 

The citation is AFFIRMED. 

Good Faith Compliance 

The inspector confirmed that abatement was achieved immediately, 

and that the respondent "got right on it and put the temporary supports up" (Tr. 215). I find respondent acted in good faith in 

abating the citation. 

The inspector stated that the lack of temporary roof support 

left an unsupported area of some 18 feet wide and 10 feet deep, and 

that someone could have "unconsciously" walked through that area 

believing that the roof was bolted and in so doing they would in fact 

be under unsupported roof (Tr. 193). 1 find that the lack of roof 

support presented a hazard of a possible roof fall and that the condition cited was serious. 

Negligence 

I find and conclude that the respondent failed to exercise reasonable ~are to insure that the roof area in question was adequately 

supported in accordance with its own approved plan. Its failure to 

do so, either through a thorough preshift or onshift examination, 

constitutes ordinary negligence. 

Findings and Conclusions 

Docket No. VINC 79-141-P 

Citation No. 279989--Fact of Violation 

Respondent is charged with a violation of 30 CFR 75.1710-l(a)(4), 

which provides: 

(a) Except as provided in paragraph (f) of this 

section, all self-propelled electric face equipment, 

including shuttle cars, which is employed .in the active 

workings of each underground coal mine on and after 

January 1, 1973, shall, in accordance with the schedule 

of time specified in subparagraphs (1), (2), (3), (4), 

(5), and (6) of this paragraph (a), be equipped with 

substantially constructed canopies or cabs, located and 

installed in such a manner that when the operator is at 

the operating controls of such equipment he shall be 

protected from falls of roof, face, or rib, or from rib 

1671 
and face rolls. The requirements of this paragraph (a) 

shall be met as follows: 

* * * * * * (4) On and after July 1, 1975, in coal mines having 

mining heights of 36 inches or more, but less than 

48 inc hes; 

* 

In defense of the citation, respondent argues that there is no 

requirement that cabs or canopies be installed on self-propelled electric face equipment where the mining heights are less than 30 inches 

(actual height from bottom to top less than 42 inches). In support of 

this assertion, respondent cited Exhibit R-2, an MSIIA meraorandum dated 

January 24, 1979, which explains and supplements MSHA's enforcement 

policy concerning the use of cabs and canopies as previously detailed 

in a prior memorandum issued on July 11, 1977 (Exh. R-2). The 1979 

memorandum contains detailed instructions concerning the testing of 

equipment underground, and the monitoring of such tests by MSHA to 

determine whether an operator has in fact acted in good faith in complying wlth the requirements of installing canopies on underground 

equipmer.t, .and whether such efforts would warrant the granting of 

extensions on citations issued for noncompliance. Paragraph 3 of 

the memorandum states in pertinent part as follows: 

To reduce the repeated issuance and termination of 

citations on self-propelled electric face equipment operated without canopies in rnfnes which experience frequent 

changes in the mining height (measured from the mine floor 

to the mine roof) below 42 inches, the following policy is 

established. 

Where the mining height fluctuates below and above 

42 inches, a citation for a violation of Section 75.1710-1, 

30 CFR 75, shall not be issued when such fluctuations 

below 42 inches would routinely create the necessity to 

remove cabs or canopies. An evaluation of the mining 

height shall be made periodically, not less than two times 

a year, to determine if such fluctuations still exist. 

These evaluations should normally be made as a part of a 

mandated complete mine inspection. 

This policy is not applicable where the mining height 

does not frequently fall below 42 inches. 

Although Inspector Petit testified that he took measurements to 

substantiate his conclusions that the average mining height was 48 to 

50 inches, he could not state where those measurements were taken. 

He indicated that his notes did not reflect that he took any measurements at all, or where they may have been taken. When asked whether 

he remembered taking any notes, he responded "Yes. I wouldn't have 

1672 
issued a cit~tion unless I had have, even though I didn't have to 

because the front canopy is not supposed to be removed" (Tr. 220). 

He also stated that the front canopy was not to be removed even if 

the mine height is less than 42 inches (Tr. 220). And, he conceded 

that the operator had previously come through "very low coal" and 

that the mining height in the 006 section fluctuated (Tr. 221, 245). 

He also testified that any measurements he may have taken were 

restricted to an area inby the section dumping point and this was 

because he believed that was the only place where the bolter would be 

operating (Tr. 245). However, he conceded that it was possible that 

it had been used in other low areas, which necessitated that the 

canopy be taken off, and that someone forgot to put it back on (Tr. 

245). When asked whether he measured the specific location where he 

found the roof bolter energized, he answered "Yes." However, when 

asked to describe the area, he answered "I don't recall" (Tr. 245). 

And, although he indicated that he never measured anyting on the 

section below 48•inches and that "it fluctuated 1+6, 47, 48, 49," he 

also indicated that he never measured a place below 42 inches on the 

section, but he could not recall how many time he measured, did not 

know the distance from the section dumping point to the face area, 

speculated that it may have possibly been 500 feet, and could not 

remember how much of that distance he measured (Tr. 247). 

Cutting across this entire episode with respect to the citation 

concerning the lack of a front canopy on the roof-bolting machine in 

question is a prior proceeding involvi.ne these very sa1:ie parties. The 

prior proceeding concerned a petition for modification filed by ti~ 

respondent pursuant to section 30l(c) of the 1969 Act. The petition 

sought a modification of the canopy requirements of 30 CFR 75.1710-l(a) 

for the Meigs No. 1 and No. 2 Mines and the Raccoon No. 3 Mine. My 

decision in that proceeding was issued on October 29, 1976, Southern 

Ohio Coal Company_ v. MESA, et al., Docket No. M 76-349; On appeal, my 

decision was affirmed, with certain modifications, by the former 

Interior Board of Mine Operations Appeals, 7 IBMA 331 (1977). I have 

reviewed my prior decision and the IBMA decision, and aside from the 

fact that the inspector touched on it during the course of the hearing when he alluded to the fact that the respondent had obtained some 

reiief from the requirements of the standard in mining heights of 

56 inches, the parties have offered no further arguments in this 

regard. Further, I see nothing in those prior proceedings that would 

permit the respondent to operate the roof bolter in question without 

a canopy assuming that the petitioner has established through credible 

evidence that the mining heights were more than the required 42 inches. 

The burden of proof in this instance lies with the petitioner. 

Petitioner must establish that the average mining heights where the 

roof bolter was operating was more than 42 inches. If the petitioner 

can establish that fact, then I believe it has established a violation. However, based on the evidence presented, namely, the testimony 

of the inspector who issued the citation, I cannot concl~de that the 

1673 
petitioner has established a case. I find the testimony of the 

inspector to be confusing and contradictory with respect to the key 

question concerning the operational mining height in the section where 

the roof bolter was operating. He failed to take detailed notes or 

otherwise establish as a matter of fact that the mining heights were 

such as required the use of a canopy. Based on a close scrutiny of 

his testimony, I conclude that he made only a cursory evaluation of 

the situation and failed to establish a true average of the mining 

heights on the section. I find and conclude that petitioner has 

failed to establish a violation by a preponderance of the evidence 

and the citation is VACATED. 

Findings 8nd Conclusions 

Docket No. VINC 79-112-P 

Citation No. 279997--Fact of Violation 

Respondent is charged with a violation of 30 CFR 75.402, which 

states: 

All underground areas of a <.:oal mine, except those 

areas in which the dust is too wet or too high in incombustible content to propagate an explosion, shall be rock 

dusted to with:Ln L10 feet of all working faces, unless 

such areas are inaccessible or unsafe to enter or unless 

the Secretary or his authorized representative permits an 

exception upon his finding that such exception will not 

pose a hazard to the miners. All crosscuts that are less 

than 40 feet from a wqrking face shall also be rock 

dusted. 

Respondent's "policy and procedure" cleanup program dated June 1, 

1974, is set out in Exhibit R-1, and the applicable provisions of that 

plan are paragraphs 8 and 10 which provide: 

After a thorough clean-up the section will be 

blanket dusted when the section is advanced or before 

the end of your regular shift. 

All areas from feeder inby will be cleaned up and 

dusted before end of regular shift. 

Respondent's defense is that its plan fixes no time-frame for 

the completion of rockdusting, it permits rock dusting as the section 

advances or by the end of the shift, and that time did not permit rock 

dusting at the time the conditions were observed by the inspector 

(Tr. 259-260). Mr. Carte's testimony in defense of the citation 

reflects that he was not present at the time the inspector observed 

the conditions, he had not observed the conditions during the prior 

1674 
shift, and he·indicated that the section bosses in charge of the section, including the foremen, were unaware of their own cleanup plan 

(Tr. 262). Respondent's additional defenses, as articulated in its 

posthearing proposed findings and conclusions, focus on the provisions of 30 CFR 400-2, which deals with cleanup programs dealing with 

cleanup and removal of accumulations of coal and coal dust, and I fail 

to understand the relevance of that provision to the facts presented 

here. Respondent is not charged with failure to clean up coal accumulations; it is charged with a failure to rock dust as required by 

section 75.402. With regard to respondent's assertion that the petitioner failed to establish that the last open crosscut between the 

Nos. 4 and 5 entries were within 40 feet from a working face, the 

inspector specifically stated that he observed no rock dust applied 

to the last open crosscut between those entries, that the crosscut 

extended some 60 feet, and that he observed no rock dust in any of 

the other entries or crosscuts (Tr. 249). In the circumstances, I 

find that the testimony of the inspector concerning his observation 

of the area cited supports a finding that rock dust had not been 

applied to the ribs, roof and floor in the area described by the 

inspector in his citation, and the respondent's evidence and testimony has not rebutted this fac. t. The citation is AFFIRMED. 

Good Faith Compliance 

The inspector testified that abatement was achieved immediately 

and that the respondent "shut the whole section down and immediately 

got on it." Although abatement took an hour, it was suggested that 

other work had to be done first, and whlle the inspector believed 

that the necessary rock dusting could have done in less than an hour 

and speculated that the reason it was not was the fact no rock dust 

was available, he really did not know that this was in fact the case 

(Tr. 252-263). He remained on the section and observed the rock 

dusting operation taking place to achieve compliance, and since he 

believed that the respondent "got right on it," I conclude and find 

that abatement was achieved through rapid conpliance, and that the 

respondent acted in good faith in this regard. 

Gravity 

Although the inspector believed that there was a fire hazard 

presented by the lack of rock dust (Tr. 251), he could not support 

that conclusion and there is nothing of record _to indicate why he 

believed this was the case. Further, he specifically stated that the 

mine in question is "blessed" because of the absence of methane, and 

while he alluded to the fact that a fire could occur in the event of 

a cable short, there is no indication of the presence of damaged 

cables or nonpermissible equipment operating in the area (Tr. 256-

257). In short, I cannot conclude that the record supports a finding of any threat of fire, and I cannot conclude that the circumstances presented were serious. 

1675 
Negligence 

The inspector stated that his "inspector's statement" reflects 

that the conditions cited "should have been detected through a proper 

preshift and onshift examination" of the section, and that the conditions cited "had to exist at the end of the prior shift," but he 

could not remember whether he checked the preshift books, and his 

notes apparently did not reflect that he did (Tr. 251). Although 

Mr. Carte indicated that the section bosses and foreman were not 

aware of their own· cleanup plan, that is no excuse. I find it rather 

incredible that such supervisory personnel, who are responsible for 

the safety of their crews, are unaware of the company's own cleanup 

plan. I can understand someone misinterpreting a particular plan, 

but cannot understand someone in a responsible supervisory position 

being completely obll.vious of a cleanup plan. I find that the respondent failed to exercise reasonable care to insure that its plan was 

followed and that such failure constitutes ordinary negligence. 

Findings and Conclusions 

Docket No. VINC 79-114-P 

Citation No. 277726--Fact of Violation 

Respondent is charged with a violation of 30 CFR 75.1405, which 

provides: 

All haulage equipment acquired by an operator of a 

coal mine on or after March 30, 1971, shall be equipped 

with automatic couplers which couple by impact and 

uncouple without the necessity of persons going between 

the ends of such equipment. All haulage equipment without automatic couplers in use in a mine on March 30, 

1970, shall also be so equipped within 4 years after 

March 30, 1970. 

30 CFR 75.1405-1 provides: "The requirement of§ 75.1405 with 

respect to automatic couplers applies only to track haulage cars which 

are regularly coupled and uncoupled." 

In its arguments presented at the hearing, and detailed in its 

proposed findings and conclusions, respondent asserts that the citation should be dismissed because section 75.1405 does not apply to 

the surface work area of an underground mine. In support of this 

argument, respondent contends that the supply yard for the Raccoon 

No. 3 Mine where the cars were located constituted a surface work area 

of an underground mine and was therefore subject to the requirements 

of Part 77, Title 30, Code of Federal Regulations, which contain mandatory safety standardS-·7£0r-bituminous, anthracite, and lignite 

surface coal mines, including open pit and auger mines, and to the 

1676 
surfc'.!ce work areas of underground coal mines, * * * " 30 CFR 77.1. 

Since there is no comparable standard requiring automatic coupling 

devices for stone haulage cars while located on surface work areas, 

respondent contends that petitioner has failed to establish a prima 

facie case and that the citation should be dismissed. 

A second defense argued by the respondent is that assuming that 

section 75.1405 does apply to the,cars in question, petitioner has 

not established they are regularly coupled and uncoupled are stated 

in section 75.1405-1. Respondent contends that the subject haulage 

cars are used sporadically, rather than regularly, and therefore, 

section 75.1405 does not apply. In support of this argument, respondent relies on the testimony of surface foreman Mapper and Mr. Carte. 

Respondent does not dispute the fact that the cars in question 

are taken underground by means of the regular mine track haulage 

system which goes in and out of the underground areas of the mine, 

nor does it dispute the fact that the cars in question were used 

underground in loading out materials resulting from the "shooting-out" 

of overcasts (Tr. 286-299, 293). As for the frequency' of use of the 

cars in question, Hr. Mapper confirmed that they are used in connection with the shooting of overcasts, and that this is done once a 

month over a period of 3 or 4 days (Tr. 293). 

On the day the citation issued, the inspector observed a train 

~f six such cars, including the two with defective coupling devices, 

and they were all loaded with rock obviously taken from the mine and 

awaiting transportation to the rock dumping area. Under the circumstances, I conclude and find that the cars in question are regularly 

used within the meaning of the cited standard. I believe it is reasonable to conclude that the shooting of overcasts underground is an 

important and ongoing underground mining activity essential to the 

production of coal, and respondent has not established that this is 

not the case. That is, respondent does not contend that the shooting 

0f overcasts is a onetime or infrequent event. I find that it is an 

ongoing and regular incident to the mining of coal which takes place 

once a month over a period of 3 or 4 days, and the mining cars in 

question are an essential and integral part of those operations. The 

fact that the cars in question remain idle during the winter months 

is irrelevant. Curtailment of mining activities during the winter 

months is not unusual, particularly in the case of track haulage 

areas where inclement weather, snow, ice, etc., present practical 

and potentially hazardous problems. Respondent's defense that the 

cars were not regularly used is rejected. 

With regard to the application of section 75.1405 to the cited 

rock haulage cars, respondent's assertions that they do not apply in 

this case are rejected. It seems clear to me that the mine in question is in fact an underground mine within the meaning of the Act and 

the mandatory standards set forth in Part 75 of the regulations. It 

1677 
is also clear that the track haulage system is an integral part of 

that undergrourid mine, that the rock haulage cars were in fact used 

underground, and respondent concedes that the storage area where the 

cars were located at the time the citation issued was in fact part of 

the underground mine. The definition of the term "coal mine" found 

in the Act includes the surface storage area in question and it is 

clearly within the definitional terms an area of land * * * under or 

above the surface * * * used in * * * the work of extracting * * * 

coal. I conclude and find that section 7 S. ll+OS is applicable to the 

rock- haulage cars in question, and that petitioner has established a 

violation. The citation is AFFIRMED. 

I find that the conditions cited presented ft real danger of 

serious injury or death to miners who may have had to position themselves between the cars to couple and uncouple them. Since the cars 

in question were loaded and awaiting transportation at the time the 

citation issued, one can reasonably infer that someone had to go 

between the cars to couple them. Respondent's own witness, Mapper, 

conceded that while the cars could be coupled and uncoupled without 

an automatic coupling device, it is a dangerous practice and that one 

has to be careful. His own words are "It is best to have automatic 

couplers on it" (Tr. 293). In addition, respondent's witness Carte 

stated that company policy dictated that automatic couplers be 

installed on the rock cars, and one of considerations for this policy 

was that "We didn't want to get nobody hurt" (Tr. 305). I find that 

the conditions cited were serious. 

Negligence 

I find that the record supports a finding that the conditions 

cited resulted from respondent's failure to take reasonable precautions to insure that the coupling and uncoupling devices were maintained in good working order, and that its failure to do so h~re 

constitutes ordinary negligence. Respondent's own witness, Mr. Carte, 

confirmed that the rock cars and coupling devices are subjected to 

damage "just about everytime they are taken underground" due to normal 

wear and tear in the loading process. This being the case, I believe 

it is reasonable to expect that more time and attention be given to 

the priority inspection, maintenance, and repair of the cars, notwithstanding the shortage of welders or other maintenance personnel. 

During the hearing, there was some confusion surrounding the fact 

that the actual cars cited by the inspector were not the ones taken 

out of service by the respondent and tagged for repair. In addition, 

there appeared to be a suggestion by the inspector that the respondent 

intended to put the cars back into operation after they were cited, 

thus presenting the possibility that the respondent may have been 

guilty of recklessness and total disregard for the safety of miners 

1678 
bordering on gross negligence. After close scrutiny of the testimony 

and the explanations given by the witnesses presented by the respondent, I find the testimony on this question to be credible and 

plausible, and thus cannot conclude that there was gross negligence in 

this case. 

Good Faith Compliance 

The initial citation in this case was issued on August 29, 1978, 

at 1:15 p.m., and the inspector fixed the abatement time as 8 p.m., 

that same day. Upon returning to the mine the next day, August 30, 

1978, the inspector observed that neither car had been repaired. 

Although one of the cars (No. 8730) had been tagged out, he believed 

that the other car (No. 8107), which was not tagged out, had also 

been used after he had cited it. This prompted him to issue Order 

No. 277727, at 9:40 a.m., taking both cars out of service, and he 

noted on the face of the order that "sufficient effort was not made 

to abate the condition." The initial Citation No. 277726, was then 

terminated less than an hour later on August 30 after repairs were 

made to the cars and the coupling and uncoupling devices were 

restored to effective operating condition. 

Respondent asserts that it acted with due diligence by removing 

from operations the two cars respondent believed were the subject of 

the initial citation, and that on its own initiative, removed other 

cars in need of repair, and acted diligently in making repairs to 

those cars. Further, respondent argues that as soon as it discovered 

the actual cars to which the inspc~c tor was referring, and since they 

were awaiting repairs, it acted in a diligent manner to correct 

and abate the conditions cited. 

Petitioner's posthearing proposed findings and conclusions contain no further proposals with respect to the question of good faith 

compliance. The inspector obviously believed that the initial citation was not abated in good faith since he made a finding that the 

respondent was making an insufficient effort to comply and that 

prompted him to issue the order taking the equipment out of service. 

Once that order issued, there was prompt and immediate compliance. 

Based on a close scrutiny of the testimony of the witnesses during 

the hearing, it seems clear to me that the parties had a communication 

problem as to which cars were required to be taken out of service and 

repaired, and I take note of the fact that this seems to be a recurring 

problem in cases of this kind. That is, an inspector will cite a condition and leave it up to the respondent to take corrective action. 

On the facts presented here, the inspector cited two cars and the 

respondent apparently took the wrong car or cars out of service, and 

apparently left the defective car or cars on the rail. Respondent's 

defense seems to be that there was a shortage of welders, and that 

the initial time for abatement was far to short. This is no excuse. 

1679 
It seems to me that if an operator believes the time fixed for abatement is not reasonable, he should at least attempt to convey this to 

the inspector. By the same token, I believe that an inspector has a 

duty to listen and not simply walk away for the situation. In short, 

the time for resolving these differences is at the time the citation 

issues, and not a year later when the case is litigated. 

Respondent's assertion in its posthearing proposed findings concerning the extension of the abatement time is irrelevant in this 

proceeding. This is a civil penalty proceeding and not a review 

proceeding, and the time for abatement is not in issue insofar as 

the fact of violation is concerned. However, I have considered the 

question as part of my findings concerning the questions of good 

faith compliance and negligence. 

In light of the foregoing, and based on all of the circumstances, 

I cannot conclude that respondent was dilatory or exhibited such a 

total lack of good faith or disregard for the law requiring to supporting a substantial increase in the civil penalty assessed for the 

citation in quesU.on. Although it is true that respondent had not 

completed the repairs on one of the cited cars because of certain 

logistic~l problems connected with removing it from the tracks and 

transporting it to the repair shop, the other car was apparently misidentified, and the wrong one was tagged out. In any event, I believe 

that viewed in perspective, the respondent attempted to comply, and 

while its goal fell short of the inspector's expectations that repairs 

could have been made within the time originally fixed, I am not 

totally convinced that this was not the case. 

Findings and Conclusions 

Docket No. VINC 79-115-P 

Citation No. 277736--Fact of Violation 

Respondent is charged with a violation of 30 CFR 75.200, for 

failing to install certain temporary roof supports as required by 

its approved roof-control plan. The parties stipulated that the 

applicable roof-control plan with respect to this citation is the 

same one previously discussed with regard to Citation No. 278095 

(DocKet No. VINC 79-111-P) (Tr. 335). 

Respondent's defense is based on the testimony of Mr. Carte, who 

was not present when the citation issued. He contended that the 

mining cycle had not as yet been completed when the inspector arrived 

on the scene because there was scrap coal that had to be loaded out. 

He conceded that had it not been for the presence of that scrap coal, 

the cycle would be considered completed. He believed the applicable 

roof-control provisions were being followed, and under his interpretation of those procedures, temporary supports need not be installed as 

1680 
long as scrap coal remains to be removed, because any attempts to set 

such temporary supports at the face area while removing scrap coal 

introduces another hazard into the process. Although the inspector's 

notes did not reflect the presence of any scrap coal, he testified 

that had scrap coal been present, this would indicate that the area 

had already been drilled. In this case, his unrebutted testimony is 

that a face area 7 feet wi_de by 11 feet long was drilled and a cutter 

was about to begin cutting with no supports installed. Further, 

although the area had previously been reported as roof bolted, the 

fact is that it was not completely bolted, and Mr. Carte admitted 

this was the case (Tr. 337). 

After careful consideration of the testimony presented, I conclude that the respondent has not established that scrap coal was 

present and that the mining cycle requiring the installation of 

temporary supports had not been completed. To the contrary, I conclude and find that the testimony presented by the inspector in 

support of the citation supports the conditions cited and supports a 

finding that respondent failed to install the temporary supports 

required by its own roof-control plan, and the failure to do so constitutes a violation of section 75.200. The citation is AFFIRMED. 

Gravity 

The inspector testified that the roof condition was "solid and 

good," and although his conclusion that a roof fall was "prohable" 

is somewhat illogical in light of the roof conditions, the fact is 

that the area and extent of specific unsupported roof at the face 

where coal is being cut presents a potential danger and hazard of 

a roof fall in that immediate area. Under the circumstances, I find 

that the violation is serious. 

Good Faith Compliance 

Abatement was achieved by the installation of temporary roof 

supports as required by the roof-control plan and the plan was 

reviewed with the crew (Tr. 328). The citation was terminated and 

the· conditions abated within the time fixed by the inspector and I 

conclude that the respondent exercised normal compliance in correcting the cited conditions. 

Negligence 

It is clear that the respondent failed to follow its own roofcontrol plan in this instance, and while there is testimony reflecting that the area was reported bolted, when in fact it was not, I 

cannot conclude there is sufficient evidence to support a finding of 

gross negligence or a reckless disregard for safety. I have taken 

into account the fact that the respondent may have believed that it 

was following its plan, but I conclude that a closer examination and 

1681 
attention to that plan, coupled with the conditions which prevailed 

at the time the citation issued, should have alerted respondent to 

the fact that the required roof supports were not installed. I find 

that respondent failed to exercise reasonable care to prevent the 

conditions cited and that this constitutes ordinary negligence. 

The following findings and conclusions are applicable to all of 

the dockets: 

Size of Business ar,d Effect of Civil Penalties on Respondent's Ability 

to Remain in Business. 

Information developed during the hearing reflects that respondent's Mei'gs No. 1 Mine has a daily coal production of 3,000 tons, and 

that the mine operates 2 productions shifts and one maintenance shift, 

employing 204 surface employees, and 447 underground employees (Tr. 16-

17). The Raccoon No. 3 Mine also produces 3,000 tons of coal daily on 

three similar shifts, but employs 58 surface employees and 373 underground. Both mines have eight to nine active working sections (Tr. 

35). No information was forthcoming with respect to the scope of 

respondent's operations at the Meigs No. 2 Hine. However, I believe 

the evidence adduced supports the conclusion that the respondent is a 

large coal mine operator and that is my finding. Further, absent any 

information to the contrary, I conclude that any civil penalties 

assessed by me with respect to any proven citations will not adversely 

impair the respondent's ability to remain in business. 

History of Prior Violations 

Respondent's prior history of violations is reflected in three 

computer printouts submitted by the petitioner at the hearing (Exh. 

P-1) for the Meigs No. 1 and No. 2 Mines, and the Raccoon No. 3 Mine 

(Tr~ 6, 26, 35). The printout for the No. 1 Mine reflects 558 paid 

violations amounting to $92,948.20 for the period July 18, 1976 through 

July 18, 1978. For the No. 2 Mine, the printout reflects that respondent paid $110,069 for 589 violations covering the period August 15, 

1976, through August 15, 1978 •. The printout for the Raccoon No. 3 

Mine reflects 454 paid violations totaling $70,281.40, for the period 

August 15, 1976, through August 15, 1978. For the time period in 

question, the prior history of paid violations reflects that respondent has paid civil penalty assessments for 1,601 violations, approximately 180 of which were for violations of the roof-support provisions 

of section 75.200, and some 140 for violations of the permissibility 

requirements of section 75.503. Based on this prior 2-year history 

of violations, I conclude and find that it constitutes a significant 

history of prior paid violations which I have taken into account in 

assessing civil penalties in these cases. 

1682 
ORDERS 

Pursuant to 29· CFR 2700.30, settlement is approved for the 

following citations, and respondent IS ORDERED to pay civil penalties 

in the amounts shown below in satisfaction of the settled citations: 

Docket No. VINC 79-111-P 

Citation No. Date 30 CFR Section Assessment 

280459 07 /25/79 75.605 $150 

Docket No. VINC 79-141-P 

Citation No. Date 30 CFR Section Assessment -

279953 07 /25/79 7 5. 400 $160 

279990 08/03/79 75.ll00-2(£) $160 

Docket No. VINC 79-112-P 

Citation No. Date 30 CFR Section Assessment 

------

279961 08/09/78 75.606 $122 

279964 08/10/78 75.606 $140 

279973 08/15/78 75.606 $ 90 

In view of the foregoing findings and conclusions, the following 

citation is VACATED, and the proposal for assessment of civil penalty 

for this citation is DISMISSED: 

Docket No. VINC 79-141-P--Citation'No. 279989, August 2, 1978, 

30 CFR 75.1710-l(a)(4). 

In view of the foregoing findings and conclusions, affirming the 

following citations, including consideration of the six statt·.tory 

criteria pursuant to section llO(i) of the Act, civil penalties are 

assessed as follows: 

Docket No. VINC 79-109-P 

Citation No. Date 30 CFR Section Assessment 

279540 07 /28/78 7 5. 507 $400 

Docket No. VINC 79-148-P 

Citation No. Date 30 CFR Section Assessment 

279550 08/02/78 75.1003(a) $700 

1683 
Docket No. VINC 79-llO-P 

Citation No. Date 30 CFR Section Assessment 

278046 05/11/78 75.503 $700 

Docket No. VINC 79-lll-P 

Citation No. Date 30 CFR Section Assessment 

278095 07 /20/78 75.200 $600 

Docket No. VINC 79-112-P 

Citation No. Date 30 CFR Section Assessment 

279997 08/08/78 75.402 $350 

Docket No. VINC 79-114-P -

Citation No. Date, 30 CFR Section Assessment -·------- -

277726 08/29/78 75.1405 $975 

Docket No. VINC 79-115-P ---------------

Citation No. Date 30 CFR Sec ti on Assesswent ------·--·· ---------

277736 09/ 12/78 7 5. 200 $900 

Respondent IS ORDERED to pay civil penalties, as shown above, 

totaling $5,447 within thirty (30) days of the date of these decisions 

and orders. 

Distribution: 

Linda Leasure, Esq., U.S. Department of Labor, Office of the 

Regional Solicitor, 888 Federal Office Building, 1240 E. Ninth 

Street, Cleveland, OH 44199 (Certified Mail) 

David M. Cohen, Esq., American Electric Power Service 

Corporation, P.O. Box 700, Lancaster, OH 43130 (Certified Mail) 

Standard Distribution 

1684 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

,.,., ' 

q~ j 

CONSOLIDATION COAL COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

UNITED MINE WORKERS OF AMERICA, 

Respondent 

') ~: r,. 

Application for Review 

Docket No. PENN 79-75 

Citation No. 0618570 

April 18, 1979 

Renton Mine 

DECISION 

Appearances: Michel Nardi, Esq., Consolidation Coal Company, 

Pittsburgh, Pennsylvania, for Applicant; 

Barbara K. Kaufmann, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, 

for Respondent MSHA. 

Before: Judge Merlin 

Statement of the Case 

This is a proceeding filed under section 105(d) of the Federal 

Mine Safety and Health Act of 1977 by Consolidation Coal Company for 

review of a citation issued by an inspector of the Mine Safety and 

Health Administration (MSHA) under section 104(d)(l) of the Act. 

By an amended notice of hearing, this case was set for hearing 

on October 10, 1979, in Pittsburgh, Pennsylvania. The notice of 

hearing required the filing of preliminary statements. The applicant and MSHA filed preliminary statements, and the case was heard 

as scheduled. The applicant and MSHA appeared and presented evidence. 

Bench Decision 

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 

1685 
decision rendered from the bench. Upon consideration of all documentary evidence and testimony, and after listening to oral argument, 

I rendered the following decision from the bench (Tr. 145-148): 

This case is an application for review of a citation 

issued under section 104(d)(l) of the Act for a violation 

of 30 CFR 75.400. 

Section 75.400 prohibits accumulations of coal dust, 

float coal dust and loose coal, and other combustible 

materials in active workings. Section 75.2(d)(4) defines 

"active workings" as any place in a coal mine where miners 

are normally required to work or travel. The subject 

citation cites accumulations of fine dry coal dust, loose 

coal, and float coal dust in several locations. 

I will consider the loading ramp first. The inspector testified that accumulations at the ramp were 4 feet 

wide, 60 feet long, and 7 inches deep. The operator's 

shift foreman admitted accumulations at the ramp were 

4 feet wide, 40 to 50 feet long, and 5-1/2 inches deep. 

The inspector further testified that the coal at the ramp 

was dry, packed tight and not rock dusted. Because the 

coal was packed so tight, the inspector believed it had 

been there 2 weeks. I accept the inspector's description 

of the coal accumulations at the ramp which was the most 

detailed description given with respect to the nature of 

these accumulations. 

Based upon the inspector's testimony, I conclude the 

coal had been there for a number of days in violation of 

section 75.400, and, most particularly, in violation of 

the clean-up plan which requires. that the ramp be shoveled 

as spillage occurs and that rock dust be applied at the 

end of each shift or more frequently if needed. Moreover, 

even the operator's shift foreman believed the coal at the 

ramp was left from the prior shift, and the operator's 

section foreman specifically admitted the ramp area should 

have been checked and cleaned up. Accordingly, even under 

the testimony of the operator's own witnesses, there was 

a failure to comply with the clean-up plan and meet the 

requirements of section 75.400. 

In light of the foregoing, I find the accumulations at the ramp constituted a violation. 

I further conclude this violation was significant 

and substantial. I accept the inspector's testimony 

that there were energized trailing cables in the area 

and that the nip station was nearby. Also, there was 

1686 
unwarrantable failure. The operator is charged with 

kaowledge of its clean-up plan. Moreover, through 

preshift and onshift examinations, the operator should 

have known about the accumulations at the ramp and 

taken care of them. 

Based upon the accumulations at the ramp, the citation must be upheld. 

The inspector also cited the operator for accumulations at five 'pillar splits. The determination whether a 

violation existed at those locations depends upon whether 

they were active workings , that is, places where miners 

are normally required to work or travel. This, in turn, 

requires a determination regarding credibility, because a 

clear conflict exists between the inspector and the operator's witnesses over the nature and character of the 

pillar splits. The inspector placed a continuous miner 

machine in the area in question. He said that when he 

arrived on the scene, men were ready to go to work there , 

and that the area had not been blocked off by posts. On 

the other hand, the operator's witnesses asserted that 

the area of the five pillar splits had been abandoned, 

that the continuous miner machine was not where the 

inspector placed it, and that the pillar area had been 

blocked off by posts and dangered off by a sign and wire. 

After careful consideration of the testimony and the 

demeanor of ail the witnesses, I have concluded that the 

inspector' s version should be a~cepted . I note the operator' s witnesses contradicted each other over how deep the 

water was in the splits and how well the coal had been 

cleaned up in the splits. I further accept the inspector's 

testimony that the coal in the splits was left over from 

mining and was not from sloughing and that this coal was 

dry. 

In light of the foregoing, I find a violation of 

section 75.400 existed in the five pillar splits as 

active workings in the manner testified to by the 

inspector. I further accept the inspector' s testimony 

that there were trailing cables in the area which constituted potential ignition sources. On this basi s , I 

conclude that the violation in the pillar splits was 

significant and substantial. Clearly, the operator ~ 

should have known of these conditions through pr_e.shift ~C 

and onshift examinations. Therefore , unwarrantabl e 

failur-;-on the part of the operator was present . 

Accordingly, the citation in all i ts respects is 

uphel d . 

1687 
ORDER 

The bench decision is hereby AFFIRMED. Accordingly, it is 

ORDERED that Citation No. 0618570 be UPHELD and that the operator's 

application for review be DISMISSED. 

~~\~ Paul Merlin 

Assistant Chief Administrative Law Judge 

Distribution: 

Michel Nardi, Esq., Consolidation Coal Company, Consol Plaza, 

1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail) 

Barbara K. Kaufmann, Esq., Office of the Solicitor, U.S. 

Department of Labor, Room 14480, Gateway Building, 

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

Joyce A. Hanula, Legal Assistant, United Mine Workers of 

America, 900 15th Street, NW., Washington, DC 20005 

(Certified Mail) 

Administrator, Coal Mine Safety and Health, 

U.S. Department of Labor 

Standard Distribution 

1688 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMr'11SS&ON 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRG !NIA 22203 

CONSOLIDATION COAL COMP ANY, 

Applicant 

Application for Review 

v. Docket No. PENN 79-72-R 

SECRETARY OF LABOR, Order No. 0622333 

MINE SAFETY AND HEALTH June 8, 1979 

ADMINISTRATION (MSHA), 

Respondent Renton Mine 

UNITED MINE WORKERS OF AMERICA, 

Respondent 

Appearances: 

Before: 

DECISION 

Michel Nardi, Esq., Consolidation Coal Company, 

Pittsburgh, Pennsylvania, for Applicant; 

Barbara K. Kaufmann, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, 

for Respondent MSHA. 

Judge Merlin 

Statement of the Case 

This is a proceeding filed under section 107(e) of the Federal 

Mine Safety and Health Act of 1977 by'~Consolidation Coal Company to 

review an order of withdrawal issued by an inspector of the Mine 

Safety and Health Administration (MSHA) under section 107(a) of the 

Act for imminent danger. 

By amended notice of hearing, this case was set for hearing on 

October 10, 1979, in Pittsburgh, Pennsylvania. The notice of hearing 

required the filing of preliminary statements. The applicant and 

MSHA filed preliminary statements, and the case was heard as 

scheduled. The applicant and MSHA appeared and presented evidence. 

1689 
Applicable Statute 

Section 107(a) of the Act provides: 

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 re~uiring the operator 

of such mine to cause all persons, except those referred 

to in section 104(c), to be withdrawn from, and to be 

pFohibited 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 unde~ section 104 or 

the proposing of a penalty under section 110. 

Bench Decision 

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. Upon consideration of all 

documentary evidence and testimony, and after listening to oral 

argument, I rendered the following decision from the bench (Tr. 123-

126). 

This case is an application.~ for review of a withdrawal 

order for imminent danger. Imminent danger is defined in 

the Act as the existence of any condition or practice in a 

coal or other mine ~1ich could reasonably be expected to 

JSe death or serious physical harm before such condition 

or practice can be abated. 

The evidence shows there was loose and scaly roof in 

the track haulageway. According to the inspector, the roof 

had cracks and there were two or three places he saw where 

rocks had fallen out. The inspector said the fallen rock 

could have been there for a few hours or a few days. He 

testified that he believed an imminent danger existed 

because there was so much of it,.!.·~·· such a large area 

was involved. 

The extent of the area involved is, however, not a sole 

basis for a finding of imminent danger. What is crucial 

1690 
is the time element, that is, that the condition cannot 

be abated before the reasonable expectation o~ death or 

serious physical harm. In other words, the nature of the 

peril posed is the relevant inquiry. Accordingly, based 

upon the inspector's own testimony, a finding of imminent 

danger must be vacated. 

In addition, however, the testimony of the operator's 

witnesses further demonstrates that an imminent danger did 

not exist. The operator's safety escort expressed the 

view that the roof was not going to come down immediately 

and that places where the roof could be scaled could be 

taken care of before they fell. So, too, the mine superintendent stated that the roof did not look like it would 

fall out right away, and the mine foreman said that it is 

a rare occurrence for rock such as this to fall out 

spontaneously and that usually it falls because it is 

pried out. The mine foreman also testified that the 

two or three pieces of fallen rock the inspector saw came 

from rock intentionally pried out by men the foreman had 

working in the area. I accept the foregoing testimony of 

the operator's witnesses. In this connection I particularly note that the day the inspector issued the subject 

order was only the second time he had been in the mine, 

whereas the operator's witnesses possessed a far greater 

familiarity with the area and with the roof. 

The Solicitor int~oduced evidence regarding a roof 

fall and accident in the area, which occurred three days 

before the subject order was i~sued. I do not find 

evidence of the prior fall persuasive regarding the 

existence of an imminent danger here, because in the prior 

instance a locomotive had knockeft out roof supports, 

causing the fall, a situation not presented in this case. 

However, the evidence regarding the prior fall is interesting because the operator's witnesses testified without 

contradiction that many MSHA experts, including roof 

control experts, were present in the subject area to 

investigate the roof fall and accident, but did not cite 

the roof as deficient in any respect, although as the 

operator's mine superintendent pointed out, they would 

have done so had anything been out of order. 

In addition, uncontradicted evidence from all the 

operator's witnesses indicating that after the withdrawal 

order was issued, the subject area was traveled many times 

by the inspector and the operator's personnel militates 

1691 
against a finding of imminent danger. If the inspector 

really believed an imminent danger existed, I do not think 

he would have walked the area or allowed the operator's 

people to walk it so many times. In this connection also 

I note the undisputed testimony from the operator's 

witnesses that the inspector first stated he would issue a 

withdrawal order for unwarrantable failure. When told by 

the mine superintendent that this could not possibly be 

correct, b~cause the area had just been worked on after 

the recent accident, he then changed the order to one for 

imminent danger. 

I cannot overlook any of these circumstances, and all 

of them indicate to me that an imminent danger did not 

exist. 

According to the evidence, the subject area was mined 

20 or 30 years ago. Moisture conditions, particularly in 

the summer, cause flaking and scaling. Continual vigilence 

on the part of the operator is therefore, called for. I am 

mindful that roof falls are serious and that as the former 

Board of Mine Operations Appeals of the Department of 

Interior stated in Zeigler Coal Company 2 IBMA at 220, they 

constitute a principal cause of serious injury in the mines. 

Roof conditions are consequently not to be taken lightly. 

However, every roof condition is not an imminent danger. 

Here the overwhelming evidence demonstrates that an imminent 

danger did not exist. 

The order is therefore, vacated. 

ORDER 

The bench decision is hereby AFFIRMED. Accordingly, it is 

ORDERED that Order No. 0622333 be VACATED and that the operator's 

application for review be GRANTED . 

.CV~~ Paul Merlin 

Assistant Chief Administrative Law Judge 

1692 
FEDERAL MINE SAFETY AND HEALTH REVIEW COl\Ut11SSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. CENT 79-13-M 

A.C. No. 23-00254-05001F 

v. 

Ava Quarry 

WELTON GRAVEL AND LIMESTONE 

COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION AND ORDER 

APPROVING 

SETTLEMENT OF CIVIL PENALTY PROCEEDING 

Robert S. Bass, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

J.ames E. Curry, Esq., Ava, Missouri, for 

Respondent. 

Administrative Law Judge Michels 

The above-captioned civil penalty proceeding was brought pursuant 

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

30 U.S.C. § 820(a). The petition for assessment of civil penalties 

was filed by the Mine Safety and Health Administration on April 3, 

1979, and Respondent filed a timely answer thereafter. A hearing was 

held on September 5, 1979, in Kansas City, Missouri, at which both 

parties were represented by counsel. 

At the beginning of the hearing, counsel for Petitioner moved 

for the court to approve a settlement for the two violations which 

are docketed in this case. !/ As grounds for the proposed settlement, 

counsel stated the following: 

1/ Exhibit "A" of the petition for assessment of civil penalties 

listed six other alleged violations besides the two involved in this 

case. At the hearing, Petitioner advised that these other violations 

had been settled at the assessment conference level. Thus, the petition had been incorrect in so listing these (Tr. 3-4). 

l,693 
MR. BASS: The penalty proposed for 191425(d) was 

$3,000.00. The parties have reached an agreement in which 

Respondent agrees to pay $1,500.00 for that violation. The 

proposed penalty for 191425(g) is $5,000.00. The Respondent has agreed, and I've accepted their offer of, to pay 

$3,000.00. Both of these violations came under a general 

classification of electrical violations. 

The violation in 191425(d) is a violation of 

30 C.F.R. 56.12-8; and that specific standard requires 

that power cables, going into metal boxes and other 

enclosures, have bushings or fittings, some kind of 

insulation around the particular conduit; [and] in this 

case [the cable] did not have a, I think it's referred 

to as a squeeze connector or a bushing around it. 

Part of the insulation around the live cable came 

in contact with the metal box, starter box, on a conveyer 

and thereby energized the conveyer, the framework around 

the conveyer. 

That particular violation, as I said, we have 

agreed to settle for $1,500.00. It's the opinion of 

the mine inspector, Ernest Scott, that the particular 

violation was the result of the ordinary negligence of 

the Respondent; and that it was not nearly as directly 

related to the fatality in the case as the other 

violation. 

One of the other reasons that we've, that I've 

agreed to accept less than the full amount for this 

violation is that the Office of Assessments, who I 

personally consulted yesterday, had not given any 

credit at all to Respondent for good faith in his 

abatement of the violation. 

It has, it's brought out in the file that--and I 

believe Your Honor has a copy of the prehearing response 

filed by Mr. Curry*** it's brought out in there that 

innnediately after the withdrawal order was issued to 

Respondent, Respondent caused the plant to be shut down 

for a period of approximately two months, during which 

time Respondent expended around $22,000.00 to have the 

entire plant rewired. Mr. Scott personally went back to 

the plant and viewed what had been done; and he can confirm that their steps were far and above that which was 

required to abate the violation. They could have very 

easily have done it for a very small outlay of money; 

but instead they chose to really reshape the plant up, 

converted from their diesel power generator to utility 

1694 
power; and they changed the method. I think they went 

from a three-phase Y to [a corner crowned delta system.] 

* * * I confirmed with him [Mr. Scott] this morning that 

the plant is in excellent shape from an electrical 

standpoint; and Mr. Scott is an electrician. 

One of the other factors we consider [in] mitigation 

is the prior history. Mr. Welton [Respondent's owner] has 

not been cited for any violations of the Act prior to 

this order. Specifically, he has been inspected on 

several occasions, by employees of what used to be MESA, 

under the Department of Interior; and never has an electrical violation been pointed out to him concerning, that 

concern the starter box or the grounding requirements at 

his plant. 

So we believe those factors, together with the fact 

that the Office of Assessment didn't properly evaluate 

good faith, lend credence to a lesser penalty than was 

originally proposed. We both believe, all the parties 

believe, that this would effectuate the purposes of the 

Act. Mr. Welton has come into compliance with the 

mandatory standards and has demonstrated some very, 

very good faith in his abatement requirement, abatement 

procedures; and I believe that the public interest would 

be served by accepting a $1,500.00 penalty for this 

violation. 

With respect to 191425(g), which is a violation of 

30 C.F.R. 56.12-25, that standard requires that the, that 

electrical equipment, or systems such as the one in this 

case, be grounded. Now, Mr. Welton had a type of grounding system in effect when the acoident occurred. That 

[system] is no longer approved by MSHA. It had been 

inspected prior, on previous occasions by MESA; and * * * 

there had never been any indication there was anything 

wrong with it. It consisted of having a lead wire coming 

off the framework of the generator and attached to a 

coal-metal pipe driven into the ground. 

Now, in this particular case, that system didn't 

prove to be effective because there, the framework of the 

side conveyer did become energized and an employee was 

electrocuted when he came into contact with it. 

It's Mr. Scott's opinion that this violation was far 

more severe than the other violation. Consequently, the 

higher penalty that was proposed. The parties agreed that 

the degree of negligence in this particular case was 

greater than ordinary negligence. However, there are 

1695 
mitigating circumstances, as I've already outlined. He 

had been inspected before by officials at MESA; and this 

system had been approved. 

It's our opinion that this indicates that it wasn't 

a willful negligence on the part of Mr. Welton to do 

anything, that the system is no longer approved. They are 

not disputing that there's a violation; but we don't 

believe the degree of negligence goes so far as to be a 

willful conduct on his part. 

We also believe that the element of good faith was 

not properly evaluated, as I've previously outlined. The 

company did spend a great deal of time and a great amount 

of money to get things in shape to protect its employees 

in the future; and we'd also submit that the gravity is 

not -- even though there was a fatality in this case --

Mr. Scott would support me in this, that * * * it was 

almost like a fluke accident, this wire that came in contact with the frame, with the box, that caused the frame 

to be energized. 

When he came out the next day, it wasn't in contact 

with it any more. It was just a fluke accident that 

caused -- due to the vibration of the equipment -- caused 

it to make contact, an arc, that the condition Gould have 

existed for a long period of time and no injury have 

occurred. As a matter of fact, employees have been 

climbing all over this piece of equipment during the same 

day that the employee, who was killed, suffered his fatal 

inJuries. So it was merely an unfortunate fortuitous 

event that the wire contacted the metal box the particular 

time the employee started to step up onto the framework. 

It's our opinion that payment of the $3,000.00 

penalty is in the public interest and that with respect 

to both of these violations, we would submit that [consideration should be given to the financial condition 

of the company.] Mr. Welton is the sole proprietor. He 

operates the Ava Quarry and another small quarry, both of 

which qualify as the smallest operations that the Act 

recognizes. 

His profit for the past year was very low and payll}ent 

of the full $8,000.00 for these two cases wouid amount to 

about 80 or 90 percent of his profit for the past year; 

and due to his financial condition, and the other factors 

I've outlined, we believe that the settlement is in the 

1696 
public interest and will effectuate the purposes of the 

Act; and we would request that you approve it. 

(Tr. 4-10). 

Following this, Respondent's counsel elaborated on the company's 

financial condition: 

MR. CURRY: May I? I want to commend Mr. Bass for 

his very fair statement of the facts, as I understand 

them. I would go one step further with respect to something about the company. 

As Mr. Bass indicated, the company is a sole 

proprietorship, owned solely by Mr. Welton, who, some 

two y~ars ago, purchased the interest of a deceased 

partner. Up until that time, this business had been 

operated as a partnership. He went into considerable 

debt at that time in order to accomplish the take-over 

of a business; and just before the hearing today, in 

that connection, I asked him if he could tell me what 

his debts were at this time. 

I thought it might have some bearing on this matter; 

and he tells me that he now owes C.I.T. in the neighborhood of $100,000.00. He owes the Citizen Bank at Ava 

approximately -- these are not exact figures --

$40,000.00; and, then, Production Credit Association, he 

owes the sum of $300,000.00. 

Now, that last item is not in connection with this 

business. He has a farm and -- which his wife operates 

and that last item was in connec~ion with the operation 

of the farm. 

This business is a seasonal business in that the 

chief customer of Welton Gravel is the State of Missouri, 

purchasing aggregate chips and gravel and crushed stone 

for the construction of the system of state highways in 

Missouri and down in that area. Those purchases are made 

on a bid basis. Mr. Welton has to bid against other 

gravel contractors to secure these jobs. 

Now, the reason I mention that at this time, Your 

Honor, is the fact that there are no bid lettings in the 

offing in Missouri at this time, for the balance of this 

year; and possibly for most of next year. 

(Tr. 10-11). 

1697 
After considering the parties' representations, the following 

decision was delivered from the bench approving the proposed 

settlement: 

THE COURT: Well, thank you very much, gentlemen, 

for the clear and comprehensive recitation of all the 

significant elements. I agree that the settlement 

arrived at here is wholly appropriate. As I understand 

it, and I'll just restate it for the record, the parties 

have agreed -- and you may affirm after I finish -- have 

agreed that in the case of 191425(d), in which case an 

assessment of $3,000.00 was originally levied, to settle 

for the sum of $1,500.00; and in the case of 191425(g), 

which was originally assessed at $5,000.00, the parties 

have agreed to settle for $3,000.00; and for the reasons 

stated by the parties on this record, I accept that 

settlement and those sums as being appropriate. 

(Tr. 12). 

This decision is hereby AFFIRMED. 

ORDER 

It is ordered that Respondent pay the agreed-upon penalties 

of $4,500 within 60 days of the date of this decision. 2/ 

Distribution: 

c/~P.~ Franklin P. Michels 

Administrative Law Judge 

Robert S. Bass, Esq., Offi.ce of the Solicitor, U.S. 

Department of Labor, 911 Walnut Street, Room 2106, 

Kansas City, MO 64106 (Certified Mail) 

James E. Curry, Esq., P.O. Box 728, Ava, MO 65608 

(Certified Mail) 

2/ This time period was requested by the parties at the hearing 

(Tr. 12-13). 

1698 
FEDERAL MINE SAFETY AND Hi£ALTH RIEVBEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRG !NIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Petitioner 

v. 

ST. JOE ZINC COMPANY, 

Respondent 

OCT 2 6 19~ 

Civil Penalty Proceedings 

Docket No. WILK 79-41-PM 

30-00591-05003 

Docket No. WILK 79-72-PM 

30-00591-05001 

Docket No. WILK 79-73-PM 

30-00591-05002 

Balmat 4/:2 Mine 

Docket No. WILK 79-74-PM 

30-01184-05001 

Balmat 4fa3 Mine 

Docket No. WILK 79-75-PM 

30-01688-05001 

Hyatt Property 

Docket No. WILK 79-76-PM 

30-00591-05001 

Edwards Mine & Mill 

DECISION 

Appearances: Anthony C. Ginetto and Deborah B. Fogarty, Esqs., 

Office of the Solicitor, U.S. Department of Labor, 

for Petitioner; 

Sanders D. Heller, Esq., Gouverneur, New York, for 

Respondent. 

Before: Administrative Law Judge Michels 

These proceedings were brought pursuant to section llO(a) of the 

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

1699 
petitions for.asessment of civil penalties were filed by the Mine 

Safety and Health Administration on December 7, 1978, and January 18, 

1979; timely answers were filed thereafter by Respondent. A hearing 

was held on September. 18 and 19, 1979, in Watertown, New York, at 

which both parties were represented by counsel. 

WILK 79-74-PM 

At the beginning of the hearing, the parties proposed to settle 

in Docket No. WILK. 79-74-PM, Citation Nos. 224253 for $44 which is the 

full amount of the original assessment; 224255 for $66, the original 

assessment; 224227 for $228, a reduction from the original assessment 

which was $255. As grounds for the proposed settlements, Petitioner 

represented that less negligence was involved than originally considered by the Assessment Office. Motions were introduced to vacate the 

two remaining citations in this docket, Nos. 224254 and 224257. Both 

parties indicated their agreement to this disposition for the citations in WILK 79-74-PM. The justification for the proposed action 

appears on pages 3-8 of the transcript. A decision was rendered at 

the hearing approving the settlement for the three citations and the 

vacation for the remaining two (Tr. 8-9). I hereby AFFIRM that 

decision. 

WILK 79-75-PM 

Thereafter, the parties moved to settle Citation_ Nos. 210406 and 

210407 in WILK 79-75-PM for the full amounts of the original assessments, $72 and $44 respectively (Tr. 9-11). This settlement was 

approved by the court under the terms and conditions mentioned on 

the record which included a reduction of Respondent's negligence 

points "l_/ (Tr. 11). The bench decision is hereby AFFIRMED. 

WILK 79-76-PM 

With regard to the one citation, No. 209615, in this docket, the 

parties proposed a settlement for the original assessment of $52 and 

a reduction of the negligence factor for assessment purposes (Tr. 

11-12). The settlement was approved and this decision is hereby 

AFFIRMED. 

1/ I have approved these and other settlements mentioned below 

because the parties have agreed to settle for the full amounts of the 

original assessments which were determined to be· proper penalties. As 

a part of the settlements MSHA agreed to reduce the negligence points 

charged against Respondent in the assessment process. It is not 

exactly clear how the Respondent is benefited from this, but because 

the parties incorporated such penalty point changes into their agreements, the procedure was accepted as part of the settlements. 

1700 
WILK 79-41-PM 

The parties agreed to the following stipulations for the remaining dockets: (1) Respondent has a prior history of violations, 

(2) Respondent had 3,061,602 production tons for the year 1978; the 

production for the particular mine was 359,402 tons, (3) Respondent 

would not introduce evidence of inability to pay any penalties (Tr. 

13-15). 

Thereafter, the· parties presented evidence in a consolidated 

fashion on Citation Nos. 210082, 210083, and 210084. 

The following bench decision found at pages 108-110 of the transcript, with some corrections, was issued at the hearing: 

JUDGE MICHELS: Unless there's something further, gentlemen, I'll proceed to make the decision. 

This matter, as I've stated before, involves 

WILK 79-41-PM. The petition for assessment of civil penalty charges St. Joe Zinc Company with violations of three 

mandatory standards. The nature of these charges and all 

other pertinent information has been fully developed on the 

record. A major defense, which is a threshold issue raised 

by the Respondent here, concerns the independent contractor 

issue, a matter which I was fully prepared to ad~ress 

myself to. However, based on the evidence, and specifically the testimony of the inspector, it now appears that 

the charges were addressed to a company that's not before 

this Court, namely, the E.K.P., Inc., a sub-contractor 

doing work for the Respondent, the St. Joe Zinc Company. 

Now, counsel for the Secretary has characterized this as a 

technical matter. It is extremel~ difficult for me to 

understand this as technical at all. The inspector knew 

who the mine owner was and he's specifically charged the 

E.K.P., Inc., rather than the mine owner. That was his 

intention, and the records reflect that. Now, then, at 

some later date, the Secretary in the petition charges 

St. Joe Zinc Company as the Respondent, but as I indicated, 

the citations here were addressed to an entirely different 

company, a company not here present. I know of no precedent in this field of law by the Board of Mine Operations 

Appeals or the courts that would suggest that this technicality, if you will, is such that you could sustain a 

charge against the company not cited in the citations. I 

previously alluded to the fact that part of the difficulty 

is that a dismissal on the ground of what is really a failure of proper notice would possibly subject the company to 

a citation for these same charges. As I have indicated, I 

think that would be a very bad result because there should 

1701 
be finality in these cases. It's been clearly brought out 

tha~ this lack of notice or the fact that St. Joe Zinc 

Company was not named was brought out in the answer. The 

Secretary has been aware of this, and it could have (within 

anJ appropriate time, amended the citations or issued new 

citations which would address themselves to St. Joe. Under 

those circumstances, I think the government has had its day 

in court. I think this matter ought to be final. On that 

basis, I will dismiss these charges with prejudice. That 

is my decision. 

The above decision vacating the citations and dismissing 

the petition in WILK 79-41-PM is hereby AFFIRMED. 

WILK 79-72-PM 

The parties agreed to settle Citation No. 210003 for $66, the 

full amount of the original assessment, based upon a lowering of the 

negligence categorization (Tr. 110-112). Additionally Petitioner 

moved to vacate Citation No. 210021 (Tr. 112-113, 255-256). Both 

proposals were approved at the hearing and I hereby AFFIRM that 

decision. 

Thereafter, evidence was introduced on Citation No. 210007. At 

the conclusion of the parties' presentation, the following bench decision found on pages 141-146 of the transcript, was issued: 

JUDGE MICHELS: My decision on this citation is as 

follows: Since prior to this I have not made findings on 

the criteria, I ~ill also do that now for this citation, 

but the general findings for the general criteria, I will 

not make hereafter. This is citation 210007. The inspector charged a violation of 30 CFR 5].15-4, alleging as a 

condition or practic.e, "Safety glasses were not worn by the 

driller while operating a jack leg drill." This mandatory 

standard reads as follows: "All persons shall wear safety 

glasses, goggles, or face shields, or other suitable protective devices when in or around an area of a mine or 

plant where a hazard exists which could cause injury to 

unprotected eyes." 

My finding as to the fact of the violation is as 

follows: It is clear, and there is no dispute that the 

miner in this instance was not wearing goggles. The question is, or seems to be whether he was, in fact, in or 

around an area where a hazard existed. The testimony .differs, at least to some extent, on that issue. The inspector clearly indicated his belief that there was a hazard, 

that material at different stages of the drilling can be 

thrown off and into the eyes of the miner. Mr. Stevens, 

1702 
witness for the operator, testified that he had never seen 

an accident to the eyes by such drilling due to the fact 

that the miner is some six feet away, at least in the 

beginning of the drilling, and that because of the nature 

of the material and the use of water, the danger of chips 

flying off did not exist. However, upon my question, as I 

understood it, he did admit that it was possible for chips 

to fly off and affect the eyes. In this instance, I will 

accept the testimony of the inspector. He was at the scene 

and saw the c.ondition as it existed. He also had responsibility of requiring goggles for such a situation even 

though at the particular or precise time there may not have 

been chips flying off. The situation such as he described 

in his testimony, that because of the blasts of air and 

other factors, show there are at least two stages where the 

eyes can be subjected to danger. I don't know that I can 

make a finding as to whether such injury is very likely, 

but it does seem at least that it could happen, and it is 

the purpose for the standard. Accordingly, I find that 

there was a violation of 57.15-4 as charged. 

My findings as to the criteria are as follows: A 

computer printout was submitted, Petitioner's Exhibit 10, 

showing the past history. The history is for previously 

issued citations and none of these are violations of this 

particular standard. In my judgement, this is not a 

significant history, and I so find. 

As far as the size of the con1pany is concerned, there 

is a stipulation for production tons -- 1 believe that it 

was 359,420 for this particular mine. There is no evidence 

as to the number of employees. I am not exactly clear in 

my own mind just from those production figures as to where 

that would place this mine and operator as far as size. It 

seems to me, however, that it is a substantial amount of 

production, and for the purposes of this record, at least, 

I would find that it was a medium-size operator. 

There is no evidence that the fines that will be 

levied here will affect the operator's ability to continue 

in business. I find as to the gravity of .the violation, 

since this involves a hazard to the eyes, it could be a 

.serious violation. However, taking into account the substantial testimony that.there is a relatively low likelihood of that happening, I would find it relatively minor 

seriousness, and I'm confining that to the circumstances 

of this record. On the negligence, the inspector testified 

to the affect, according to my notes, that the operator 

could not have known or predicted that this miner would not 

have worn these glasses. The testimony was that the mine 

1703 
operator did provide the glasses and also training in the 

mfo of glasses, so there is a slight negligence on that. 

On good faith, the violation was abated within the time 

set. 

On this violation, the assessment of the assessment 

officer was $30, but taking into account the very low 

negligence and the evidence that shows the low relative 

seriousness, I am going to reduce that by one-half, so my 

fine would be $15 for this violation. 

The above decision is AFFIRMED. 

Evidence was then introduced on Citation No. 210013. At the 

conclusion of which, the following decision was rendered from the 

bench (Tr. 168-170): 

JUDGE MICHELS: I will proceed to make the decision. 

This is citation 210013. The inspector issued a citation 

charging the violation of 57.9-2. The condition or practice which he alleged was as follows: "The 500 level Eimco 

911 loader left front wheel hub was not in good repair --

One stud was broken." This mandatory standard, that is, 

57. 9-2, reads as follows: "Equipment defects affecting 

safety shall be corrected before the equipment is used." 

On the fact of the violation, I find as fotlows: 

There is no dispute that a stud was missing from the wheel 

or from the hub in question; therefore, the machine was 

not in good repair. The defense has been raised, however, 

that the machine was not in use and was out of use for the 

purpose of being in repair. The testimony of Mr. Stevens 

is to that effect. Mr. Mitchell the inspector, testified 

that he did not know or had no reason to know whether the 

machine was out for repair. At this time, according to the 

testimony, the company was not using a tag to indicate on 

the machine being in repair status. I should add that this 

was shortly after the Act became effective, so far as this 

company was concerned. As I understand it, the company 

does now use such tags. In my view, the inspector, knowing 

what he knew, was justified in issuing the citation. However, the evidence received does indicate that the machine 

was out for repair. The inspector has admitted that had he 

known that it was not being used, but was in a repair 

status, he would not have issued this citation. So then I 

say he was justified on the basis of what he knew; nevertheless, because of .the circumstances now brought out, and 

we know, in fact, that it was out for repair, my finding 

would be that there was no violation. Accordingly, Citation No. 210013, is hereby vacated, and the petition as to 

that citation is dismissed. 

1704 
This bench decision vacating the citation is hereby AFFIRMED. 

Following this decision, evidence was introduced on Citation 

No. 210019. The following bench decision was issued on the merits 

of that citation (Tr. 251-255): 

JUDGE MICHELS: This citation is 210019. The inspector cited a violation of 57.3-22 alleging a condition or 

practice as.follows: "Adequate scaling and ground support 

was not provided at the water course zone in the surface 

decline. This was the principle travelway to the working 

faces." The standard in question, which is 57.3-22, contains a number of provisions, at least two of which require 

the testing and examination for conditions. The inspector 

testified to the effect that these two provisions were not 

complied with, but it would be my view that there was not 

substantial evidence to support that. Two other provisions, however, in the standard read as follows: "Loose 

ground shall be taken down or adequately supported before 

any other work is done. Ground conditions along haulageways and travelways shall be examined periodically and 

scaled or supported as necessary." Now, the issue before 

me is not whether or not the inspector was correct in 

issuing an imminent danger order. At least, as I understand it, the only issue before me is whether or not the 

conditions which I just read existed, and then, .if they 

did, of course, the penalty that should be assessed. I 

hope I'm clear on that, that I am not here passing on the 

exercise or the discretion of the inspector in issuing an 

imminent danger order. The fact is, he could issue such an 

order if he thought there were dangerous conditions even 

though no violation of any mandatory standard existed. 

In this case, it so happened that the inspector did 

charge, in addition that there was, in his words, a lack 

of adequate scaling and ground support. Now, the testimony 

is, I suppose you might call it, somewhat contradictory on 

the question of whether there was or was not adequate 

support, which I am addressing myself to. The inspector, 

on the one hand, considered that there wasn't adequate 

support, but as I understand it, that did not have to do 

with the water course itself. That had to do with the area 

around the water course, and the testimony of other witnesses, I believe it was Mr. Stevens, was that there was 

twelve to fifteen pins in this area, and that the purpose 

of these pins was to support the whole area. The inspector, on the other hand, was unable to testify as to the 

number of pins. The inspector testified that a rock was 

scaled down, and there is some other testimony that is in 

the nature of hearsay and indirect to the effect that there 

was nothing scaled down. 

1705 
I will accept the inspector's testimony that a rock 

was pulled down because he was the only person who testified who was there at the time. In spite· of the fact that 

other witnesses did testify, and I believe sincerely that 

they had examined this area, and that it was, in their 

opinion, safe, the fact that a rock could be scaled out of 

the area suggests to me that it was, in fact, not safe and 

needed additional support. My decision has no relation to 

the support that was eventually given to the roof. I am 

not passing on the abatement, but I am just simply stating 

and deciding that because of the fact of the loose rock 

to which the inspector testified, I find that the ground 

conditions had not been scaled or supported as necessary. 

On this basis, I find there was a violation of 30 CFR 

57.3-22. 

There are three criteria which, in addition to those 

previously found, that I will take into account. So far 

as the gravity is concerned, it is obvious that rocks and 

loose material which may fall represented a grave hazard, 

and I find that this was a serious violation. On the 

question of negligence, as I previously indicated, the 

witnesses for the operator testified uniformly that they 

had examined this area and had come to the conclusion it 

was safe. I don't think this record shows how common it is 

to require a fence or to put a fence up for protection such 

as was done here. I have the impression, however, that it 

may be extraordinary. Furthermore, there is at least the 

possibility that the loose rock was simply a type of rock 

that could not be ordinarily detected under the conditione. 

So for that reason, I would find a small degree of negligence in this case. There is no issue on the good faith 

abatement because the mine or the area was closed due to 

the imminent danger. No finding is necessary on that. The 

assessment, in this case by the assessment officer, was at 

$325. In view of the fact that I have found a small degree 

of negligence, * * * I will assess a penalty of $150 for 

this violation. That completes the decision on citation 

210019. 

The above decision on Citation No. 210019 is hereby AFFIRMED . 

. Thereafter, the parties presented evidence in a consolidated 

fashion on Citation Nos. 210027 and 210028 which both allege violations of 30 CFR 57.3-20. At the conclusion of the parties evidence, the following bench decision, recorded at pages 356-362 of 

the transcript, was delivered: 

JUDGE MICHELS: This is the decision on citation 

number 210027. The inspector charged a violation of 30 CFR 

1706 
57.3-20, listing the condition or practice as, "The ground 

c'ontrol method was not adequate to control deterioration 

between the roof bolts." The mandatory standard 57.3-20, 

[states]: "Ground support shall be used if the operating 

experience of the mine, or any particular area of the mine, 

indicates that it is required. If it is required, support, 

including timbering, rock bolting, or other methods shall 

be consistent with the nature of the ground and the mining 

method used. 11 I note that this was an order of withdrawal 

and it was issued on the basis of the inspector's determination that this was, in his view, an imminent danger. It 

is my understanding that the issue of imminent danger is 

not before me, except insofar as it may be applicable to 

one of the criteria, namely, the question of gravity. The 

operator may ask for a review of an imminent danger order, 

but it is not my understanding that such a review has been 

requested here. Accordingly, my decision is confined 

solely to the question of whether or not the mandatory 

standard was violated and, of course, if so, the amount of 

the assessment. 

In this citation, the evidence, as I understand it, is 

seriously in conflict on several vital points. The inspector has a basis for his\ determination and testified that 

there were roof bolts hanging down in the pertinent area 

which was fifteen-by-fifteen foot area, from two inches to 

one foot. Also, upon his request, a miner sounded out the 

area and, according to·the inspector's testimony, it was 

drummy. Mr. Streeter, who was 'with the inspection party, 

testified that there were not any hanging bolts. Furthermore, he testified that he did'not hear any drummy sounds. 

Mr. Stevens, who had seen the area before and also after 

the screen was put in, testifie~that there were no hanging 

pins or bolts. The decision that I'm going to make has 

nothing to do with the [truthfulness of the testimony] of 

any of the witnesses. So far as I can determine, they were 

telling the truth of the situation as they saw it. As is 

not unusual, different persons saw the same situation in 

entirely different ways, which brings me, then, to the 

precise decision. 

I emphasize that I'm not passing on the question of 

whether the inspector was entitled to ,issue an imminent 

danger order. It is not before me. I don't believe, however, that on the state of the record that I have, that I 

could conclude that the government has proved its case by 

a preponderance of the evidence, which is the requirement 

under the Commission's rules. There's equally plausible 

evidence on both sides. I should stress that I understand 

1707 
the inspector's determination to be based on his determinations that bolts were hanging down and that it was dry. It 

is my further understanding that he would not have issued 

that order had he not found those conditions. His findings, 

however, are contradicted by other evidence, and under the 

circumstances, it seems to me that there has been a failure 

of burden of proof. The witness that might have been helpful, who actually did the sounding, was not called, and 

there is no information in the record as to what his testimony might be. Accordingly, as to 210027, I find that 

because of the failure of proof by a preponderance of the 

evidence, there is no violation shown of 30 CFR 57.3-20. 

I hereby vacate the citation and the petition will be dismissed as to that citation. 

The decision as to citation 210028 is as follows: The 

inspector, again, charged a violation of 30 CFR 57.3-20, 

stating the condition or practice to be, "Loose ground was 

not removed on the llOO D-2 decline, the back and the ribs, 

from the llOO to the face." I have already quoted the mandatory standard of law. The inspector testified as to this 

citation that he saw hairline cracks in an area approximately one inch wide by two inches in length on the back or 

roof, and he also observed loose ground on the ribs. He 

testified that several small pieces of approximately one 

pound were removed. In this instance, he testified that 

the roof was sounded and it indicated a drummy sound. The 

inspector did not observe roof bolts. He further testified 

that, on returning to the area, he believed that a piece of 

material had been removed from the roof or back, based on 

the ·fact that the area looked clean. 

The witnesses for the Respondent were Mr. Streeter and 

Mr. Stevens. Mr. Stree~er testified that no material was 

brought down off the roof or back. However, he did agree 

that there was loose material on the side which was observable. He testified that it was gapped open. Mr. Stevens 

testified that he did not see, upon observing the area 

after abatement, any part of the roof or back in which 

material had been scaled down. It is obvious therefore, 

that the testimony is in disagreement as to the fact of 

whether there was loose material or ground on the roof or 

back. It is not in disagreement that there was loose 

material on the rib. It is my finding that this loose 

material on the ribs does violate the standard 57.3-20. 

[Further], I do not think the evidence sufficient to support a finding that there was loose, unsupported material 

on the roof or back. 

1708 
Findings have already been made heretofore as to the 

criteria except for gravity, negligence, and abatement. So 

far as the gravity is concerned, since the finding concerns 

only the loose material on the ribs, it is not as serious 

as if there had been loose material on both roof and ribs. 

However, I do find that it is a serious violation. On 

negligence, the inspector testified that the operator 

should have known of the condition, and he believed that a 

foreman passed through the area on a daily basis because it 

was a travelway. Mr. Streeter also conceded that the 

foreman would have inspected the area at least in the prior 

night shift, although, he might have missed observing this 

particular condition. I find ordinary negligence. There 

being nothing to the contrary, I find that the condition 

was abated rapidly in good faith. For the violation found 

in citation 210028, the assessment office has asked for a 

penalty of $395. In light of the finding of lesser gravity, 

I will reduce that penalty to $200. The sum of $200 is, 

therefore, the assessment for this violation. 

The above bench decision vacating Citation No. 210027 and 

assessing a penalty of $200 for Citation No. 210028 is hereby 

AFFIRMED. 

Following this, Petitioner proposed that Citation No. 210032 be 

settled for $90 and Citation No. 210036 be settled for $105. These 

citations were originally assessed at $180 and $210, respectively, 

but Petitioner stressed that a lesser degree of negligence was 

involved than that which was originally considered by the Assessment 

Office (Tr. 363-364). These settlements were approved at the hearing 

and I hereby AFFIRM that decision. 

Petitioner also proposed to vacate Citation No. 210039, which is 

the remaining citation in WILK 79-72-PM, and that the petition be dismissed as to that citation (Tr. 364-365). This action was approved 

at the hearing and that decision is AFFIRMED. 

WILK 79-73-PM 

Thereafter, the parties moved to settle in WILK 79-73-PM, Citation Nos. 210057 for $39 (originally assessed at $78), 210062 for 

$105 (originally assessed at $210), 210064 for $113 (originally 

assessed at $225), 210065, 210068, and 210069 for $150 each (originally individual 1 y assessed at $325 each). Petitioner represented that 

less negligence .s involved than was originally considered (Tr. 365-

372). Also, Per :ioner moved to vacate Citation No. 210063 since the 

equipment involv.: .. :l was out of service for repair (Tr. 367-368). 

Decisions were re11dered from the bench approving the settlements 

for the six citations and the vacation for the one. I hereby 

AFFIRM those decisions. 

1709 
The sununary of the dispositions in these dockets is as follows: 

Citation No. 

224253 

224255 

224227 

224254 

224257 

Citation No. 

210406 

210407 

Citation No. 

209615 

Citation No. 

210082 

210083 

210084 

Citation No. 

210003 

210021 

210007 

210013 

210019 

210027 

210028 

210032 

210036 

210039 

WILK 79-74-PM 

WILK 79-75-PM 

WILK 79-76-PM 

WILK 79-41-PM 

WILK 79-72-PM 

1710 

Action taken 

settled for $ 44 

settled for $ 66 

settled for $228 

vacated 

vacated 

Action.taken 

settled for $72 

settled for $44 

Action taken 

settled for $52 

Action taken 

vacated 

vacated 

vacated 

Action taken 

settled for $ 66 

vacated 

assessment of $ 15 

vacated 

assessment of $150 

vacated 

assessment of $200 

settled for $ 90 

settled for $105 

vacated 
WILK 79-73-PM 

Citation No. 

210057 settled for $ 39 

210062 settled for $105 

210064 settled for $113 

210065 settled for $150 

210068 settled for $150 

210069 settled for $150 

ORDER 

It is ORDERED that Respondent pay total penalties of $1,839 

within 30 days of the date of this decision. 

Distribution: 

Franklin P. Michels 

Administrative Law Judge 

Anthony C. Ginetto and Deborah B. Fogarty Esqs., U.S. Department 

of Labor, 1515 Broadway, Room 3555, New York, NY 10036 

(Certified Mail) 

Sanders D. Heller, Esq., 23 Main Street, Gouverneur, NY 13642 

(Certified Mail) 

1711 
FIEDIERAL fV:'HNE SAFETY AND HEALTH REViEW COl\~ilUSS:ON OFFICE OF ADMINISTRATIVE LAW JUDGES 

401!1 WILSON BOULEVARD 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COMINCO AMERICAN, . INC. , 

Respondent 

ARLl~GTON, VIRGINIA 22203 OCT 2 t ~97~ 

Civil Penalty Proceeding 

Docket No. WEST 79-212-M 

A/O No. 24-00146-05003 

·: Warm Springs Mine 

ORDER OF DISMISSAL 

On October 1, 1979, respondent Cominco American, Inc., filed 

a motion to dismiss the civil penalty complaint for the reason that 

it had not been filed within 45 days of the receipt of respondent's 

notice of contest as required by 29 CFR 2700.27. 

Petitioner has not responded to the motion within the time 

allowed by cur proc~dural rules nor has it responded at all. Tha 

motion is granted, the citation vacated and the case is DISMISSED. 

In view of this disposition the parties are directed to advise 

me if they still intend to pursue Docket No. DENV 79-49-M. 

Distribution: 

el~ e?JJ~~ (}.,. Charles C. Moore, Jr. 

Administrative Law Judge 

James H. Barkley, Esq., Office of the Solicitor, U.S. Dept. 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, CO 80294 

(Certified Mail) 

James M. Day, Esq., Cotten, Day & Doyle, 12th Floor, 1899 L 

Street, NW., Washington, D.C. 20036 (Certified Mail) 

1712 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v, 

WALKER STONE COMPANY, INC., 

Respondent 

Civil Penalty Proceedings 

Docket No. DENV 79-217-PM 

A.C. No. 14-00164-05001 

Kansas Falls Quarry & Mill Mine 

Docket No. DENV 79-367-PM 

A.C. No. 14-01200-05001 

P. F. Quarry and Mill 

DECISION 

Appearances: Keithley F. T. Lake, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

David S. Walker, President, Walker Stone Company, 

Inc., for Respondent. 

Before: Administrative Law Judge Michels 

The above-captioned civil penalty proceedings were brought pursuant to section llO(a) of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 820(a). On January 15, 1979, the Mine Safety and 

Health Administration (MSHA) filed a petition for the assessment of 

civil penalties, docketed in DENV 79~ll7-PM, alleging that Respondent 

committed violations of 30 CFR 56.12...:25, 56.12-8, and three separate 

violations of 56.5-50(a). Thereafter, on February 28, 1979, MSHA 

filed a second petition, docketed in DENV 79-367-PM, alleging that 

Respondent committed two violations of 30 CFR 56.12-1 and one violation of 56.14-1. On February 16 and March 12, 1979, Respondent filed 

answers contesting the violations in these dockets. A hearing was 

held on September 5, 1979, in Kansas City, Missouri, at which Petitioner was represented by counsel and Respondent was represented by 

its president, Mr. David S. Walker. 

Docket No. DENV 79-217-PM 

Citation No. 183004, March 22, 1978 

Evidence was first received on Citation No. 183004 which alleges 

a violation of 30 CFR 56.12-25. After the conclusion of the parties' 

1713 
presentation, a decision was made orally from the bench. It is 

recorded at pages 75-79 of the transcript and with certain necessary corrections and deletions reads as follows: 

THE COURT: All right. That completes, then, the evidence on this particular citation; and, as I announced, I 

will rule, or decide, this matter from the bench unless 

somebody objects to that at this time. 

Now, ordinarily, I would proceed and make a finding 

first as to the facts of the violation. However, we do have 

a number of alleged violations here, today; and, in order 

to dispose of certain criteria that would be involved in 

each and every one of those, if they were proved, I think 

that it might be orderly just to go ahead and make findings on those so that they can be applied, then, to each 

and every one of the citations, if any, that are found to 

be violations. 

Number one, as to the history of past violations: No 

evidence was presented, so I find there is no history. 

Number two, as to the size of the company: Based on 

the evidence presented, the acreages and the number of 

people working, I find that it is a small concern. 

Number three, I further find that the penalties which 

will be assessed here, will not affect the operator's 

ability to continue in business. 

Now, with respect to Citation No. 183004, the inspector alleged as the cpndition or practice the following: 

"Enclosures of the southside con.trol house were not properly 

grounded." He alleged that this violated 30 CFR 56.12-25. 

That provision of the mandatory standards reads as 

follows: "Al 1 metal enclosing or encasing electrical 

circuits shall be grounded or provided with equivalent 

protection. This requirement does not apply to batteryoperated equipment." 

The following is my decision as to the fact of the 

violation; and I'm going to preface it so that there will 

be no misunderstanding about my decision. I have no question or doubt about the seriousness of this condition. The 

matter that preceded this case [in another docket and concerning a different company] involved an exactly similar 

kind of condition; and the man was killed. So you simply 

cannot underrate, or understate, the seriousness. 

* * * But I am not dealing with that in this decision. 

My decision is based on the lack of sufficient specificity in the citation. I will try to explain that, if 

1714 
I can. * * * The inspector pointed out that he finds where 

some of the "enclosures" * * * had no ground at all; and 

some that were grounded; but, in his view, not properly. 

Furthermore, he indicated that his view, as to the, as to 

whether a grounding was proper or not proper, was based on 

his reading of the Electrical Code; and I believe that he 

indicated he relied on the 1975 edition. 

Now, having heard all of the evidence on both sides, 

it just seems to me that the statement made, as to the condition or practice, was such that Respondent would be hardput to defend itself. 

The rules do require that these citations be explicit. 

Now, then, what I mean by that is this: If we're relying 

here on the failure of grounding, the word "properly" 

should not have been used at all. In other words, not 

grounded, that would be one kind of a case and could be 

defended on that basis. 

Now, if it were, and apparently is, based, at least 

in part, on a so-called improper grounding, then I believe 

that this citation should specify if it was based as I 

understand it was, on a standard, if that's what they're 

called, as set out in the Electrical Code. I think that 

should be indicated so that the operator, or the Respondent, will know with which, with what he is charged. It's 

a question of exactness. 

If it, in fact, includes both these items, that, too, 

it seems to me, [should] have been stated. The operator 

did understand sufficiently to abate the problem because a 

new grounding system, or method, was installed; but * * * 

in this circumstance, I don't know that that cures the 

[problem]. 

The reason I was so careful .to distinguish that I am 

ruling only on the basis of the exactness, or specificity, 

of the citation is because I don't want to get into the 

problems and the questions of what is involved by, 

indirectly at least, incorporating the Code, the Electrical 

Code, in such a regulation as this. I am just not addressing myself to that question whatsoever. 

I hope that is clear in this record that I am basing 

my decision wholely on the language used in describing the 

citation; and since the inspector is here, I have to say 

that this is no criticism in any way, shape or form of his 

action; but I do honestly believe, in these circumstances, 

that is not a clear enough statement to defend. So that is 

my decision on this citation. 

1715 
Thus, as to Citation No. 183004, it was found that there was no 

violation since the citation was vague and ambiguous andthat it did 

not give sufficient notice as to the exact nature of the violation. 

The citation was vacated and the portion of the petition concerning 

that citation was dismissed (Tr. 132). I hereby AFFIRM this decision 

for Citation No. 183004. 

Citation No. 183005, March 22, 1978 

Following t~e above decision, Petitioner and Respondent introduced evidence on Citation No. 183005. After considering this evidence, a decision was issued from the bench. This decision found in 

the transcript at pages 90-93, with some corrections, is set forth 

below: 

THE COURT: On this citation, we ar~ here considering 

Citation No. 183005, the inspector charged, as a condition 

or practice, as follows: "Energized power conductors, 

entering the control switchboxes in the southside control 

room were not passing through insulated bushings." 

This was alleged to be a violation of 30 CFR 56.12-8 

which reads as follows: "Power wires and cables shall be 

insulated adequately where they pass into or out of electrical compartments. Cables shall enter metal frames of 

motors, splice boxes, and electrical compartments only 

through proper fittings. When insulated wires'· other 

than cables, pass through metal frames, the holes shall 

be substantially bushed with insulated bushings." 

This is my decision on this citation; and I should 

state, which I failed to state previously, that this is 

pursuant to 29 CFR 2700.65(a), which provides that this 

decision, will be reduced to wrfting after the filing of 

the transcript; and I want to specifically reserve the 

right to make appropriate corrections or changes; and, if 

necessary, I might make some additions. 

My decision on the fact of the violation is as follows: The evidence here, [which] as I understand it, is 

practically, if not wholly, undisputed, is that power conductors were entering the control switchboxes and were not 

passing through insulated bushings. Now, this is directly 

contrary to the mandatory standard which I cited. 

The defense, as I understand it in part, was that 

these provisions or standards do not act to give ~ warning 

to Respondent, or the operator, so that he will know specifically whether or not he is in violation. I think it 

should be noted that Congress, in passing this law, has 

1716 
provided little or no discretion where standards are violated. The only discretion that comes into it is the 

amount of the penalty which is based, then, on various criteria such as gravity and negligence; and so, therefore, 

in appropriate cases, the penalty can be very small, if 

those things are taken into account. But, otherwise, the 

legislation, the legislative history is clear that when the 

standards are violated, the inspector has no alternative 

but to issue a citation; and, unless for some reason the 

Commission should find that it would be unwarranted, I 

believe that it also is obligated to find a violation. 

So I do find that, in this case, the standard as 

charged was violated. My findings on the statutory criteria are as follows: I have already made findings on the 

prior history, size of the operator and effect on the operator's ability to continue in business. 

So far as good faith compliance is concerned, my 

recollection is that there was no specific evidence on 

this point; and so I will [make no finding] on this particular criterion, 

Gravity: The inspector testified as to the seriousness 

of it, the fact that it could cause a shock and even an 

electrocution; and I accept his testimony and find that it 

is serious. 

So far as negligence is concerned, there was some testimony, I believe, that the operator should have been aware. 

Mr. Walker, himself, has testified, however, that this 

installation was made by a qualified electrician, had been 

there for a number of years with.out any problem, and that, 

in the circumstances, he had no particular reason to be 

aware of the violation. However, as pointed out I believe 

during the course of the testimony, there is an obligation 

on the part of operators to be aware .of the regulations. 

So, in the circumstances of this case, I will find that 

there is some negligence. That completes the criteria. 

The Office of Assessments has asked the sum of $40 for 

this violation; and I believe that it is an appropriate 

amount in the circumstances; and I hereby assess the sum of 

$40. 

I hereby AFFIRM the above decision and assessment for Citation 

No. 183005. 

1717 
Citation Nos. 183014, 183016, 183018, April 20, 1978 

Thereafter, the parties introduced evidence in a consolidated 

fashion on Citation Nos. 183014, 183016 and 183018 which cite separate violations of 30 CFR 56.5-50(a). The following bench decision 

found at pages 128-131 of the transcript, with some necessary 

corrections, was issued at the hearing on the merits of the three 

violations: 

THE COURT: Both sides rest. I will make this decision 

pursuant to the same reservations I previously mentioned. 

My decision on the fact of the violation is as follows; and 

this concerns the following citations: 183014, 183016 and 

183018. Each of these citations allege a violation of 

30 CFR 56.5-50(a). 

·The inspector found, respectively, overexposure levels 

as follows: 245 percent, 319 percent and 479 percent. In 

terms of decibels, this has indicated noise level readings, 

respectively, in the three cases of 96, 101 and 94 to 97. 

The standard involved, which is 56.5-50; 

no employee shall be permitted an exposure to 

excess of that specified in the table below. 

specifies that any employee, working 8 hours, 

exposed to no more than 90 decibels. 

requires that 

noise in 

The table 

shall be 

In this case, the readings were made for periods of 

520 minutes, 480 minutes and 500 minutes, respectively; 

each of which .[equals or] exceeds an 8-hour period. 

Accordingly, at least as I understand this regulation, 

there has been a violation in each of the three instances. 

However, I recollect that the fact of the violations was 

tied into the failure to wear the personal protective 

devices; and this comes about because, under the measurements taken, if personal protective devices are worn and 

reduce ihe noise sufficiently to * * * the permissible 

noise exposures, * * * in these instances at least, there 

would be no violation. 

It seems to me that the matter of wearing these personal protective devices, in this case, is more of a 

policy matter on the part of the enforcement agency; and 

does not specifically raise a question in regard to whether 

or not this provision is violated. As I read it, the men 

were not wearing the devices; and they were overexposed, 

as found by the dosimeter; and, accordingly, the section 

has been violated. 

1718 
I <lon 1 t understand there being a question before me as 

to whether or not it would be violated had they been wearing the ear protection devices because that would raise 

whole new questions of fact about how much those particular 

devices would reduce the noise or other questions. To 

summarize, I do find violations, in the three cases cited, 

as charged. 

My findings on the criteria, other than history, size 

of operator and effect on the operator's ability to continue 

in business are as follows: 

Good faith compliance: I understand that the miners 

involved were provided with protective devices which provided the abatement in this instance. There being nothing 

to the contrary, I find that there is good faith compliance. 

So far as the gravity, or seriousness, is concerned, 

the inspector testified that serious ear injury could 

result. I accept his testimony and find that the violations are serious. 

On negligence, the inspector testified that the foreman, or other supervisors, could have observed the failure 

to wear the ear protective devices which, in this case, 

would have been satisfactory to meet the standard. 

Mr. Walker, testifying for the operator, has suggested 

that, or testified that it was company policy to provide 

to the miners these protection devices; and that if they 

did not wear them, there was not much the company could do 

about it. 

As has been brought out her~ in the course of the 

questioning, the standards are mandatory. This does create 

problems where you're dealing with individuals. The question of the failure of an employee to wear the proper equipment is one that, in other areas, has been raised. In the 

course of the negotiations, consultations, with Labor, I 

believe that, if this matter is properly approached and the 

seriousness of it impressed upon the union leadership, or 

the labor leadership, that they will, in most instances, 

comply. 

If there is an instance, and it's brought to my atten-. 

tion, where the operator has been in absolute good faith 

and has done everything that you could ask that operator to 

do and the men still. for one reason or another, fail to 

respond, then I would take that into account; and in all 

probability would find no violation in that particular 

instance. 

1719 
To sum it up, however, in view fall the circumstances 

mentioned, I would find [some] negligence in this instance. 

Because of the circumstances, however, in assessing a penalty, I would take into account the difficulties mentioned. 

The Office of Assessments has proposed a penalty of $38 for 

each of the three instances; and because of the circumstances, I would cut that in half and assess a penalty of 

$19 for each of the three instances. So that completes the 

record as far as these three citations are concerned. 

I hereby AFFIRM the above decision finding violations as to Citation Nos. 183014, 183016 and 183018, and assessing separate penalties 

of $19 for each violation. 

Docket No. DENV 79-367-PM 

Citation Nos. 183076, 183077, 183079, September 7, 1978 

Following the decisions made in DENV 79-217-PM, Petitioner made 

the following motion to approve a settlement for all the citations in 

DENV 79-367-PM: 

MR. LAKE: * * * At this time the Petitioner would like 

to present to the Honorable Judge Michels a proposed settlement for his consent and which has been reached between the 

Petitioner and the Respondent, Walker Stone. 

As to Citation 183076, which alleged a violation of 

30 CFR 56.12-1, where it was stated that the electrical 

circuits, originating in the control trailer, were not 

equipped with circuit breakers or fuses of the correct 

size and capacity to protect the circuits against excessive overloads or short circuits~ 

The aforesaid cit.ation was reviewed by the Office of 

Assessments and a penalty of [$24] was assessed. The Petitioner and the Respondent have agreed to reduce that to 

$16. It is the Petitioner's belief that the good faith 

exhibited by Walker Stone in removing this condition from 

the work premises was sufficient to warrant the reductions 

in that he [Mr. Walker] recognized, [and] he has rectified 

the condition and took immediate steps to abate it. 

We think, for [this] purpose, the Act and the public 

policy considered in the aforementioned Act would be very 

well served. We also point out that the negligence 

involved in this citation was not of the degree that would 

not warrant a reduction in the fine. In view of the fact 

of the cooperation of the Walker Stone Company and their 

history of complying with the various suggestions brought 

1720 
them by the Mine Safety and Health Administration, we 

think that a reduction in this instance would be in the 

best interest of the Act. 

In regards to Citation No. 183077, which alleged a violation of 30 CFR 56.12-8, in which electrical control boxes 

and the control trailer of the stacking conveyor were not 

equipped with proper fittings or insulated bushings where 

the power conductor entered the boxes. It has been stated 

that the Walker Stone Company had employed an electrical 

contractor to do this work. 

Mr. Walker stated that he was not that familiar with 

all the provisions of the Code as to all the fittings and 

the fact that he inunediately took steps to insure that the 

proper bushings were inserted, were taken into con·sideration in proposing the settlement. 

The Assessment Office, in this instance, assessed a 

fine of [$30]. We propose that this be ~educed to $24 in 

view of the good faith shown by Walker Stone Company and 

[its effort to] rectify the condition. We feel that this 

would effectuate the purposes of the Act in view of the 

fact that the Walker Stone Company is aware of the obligation it owes to its employees and has taken immediate steps 

to rectify the condition. 

Citation No. 183079, involving a violation of 30 CFR 

56.14-1, in which it was alleged that a V-belt drive on 

the primary crusher conveyor was not equipped with a guard 

to prevent persons from contacting the pinch point of the 

V-belt drive. [On] this violatipn an assessed penalty of 

[$34] was proposed by the Office of Assessments. 

In reviewing this particular citation, this piece of 

equipment is a portable piece of equipment, transported 

from .job site to job site; and had just been relocated at 

this particular facility; and the particular guard in 

question here was inadvertently left at a prior work site. 

The equipment did have a guard that was used at all times 

with the equipment; and it just happened to be a fortuitous 

circumstance. The equipment was brought on this particular 

work site and, in the process, the guard was left behind. 

We think that, in view of the facts, the circumstances 

here could be described as slight negligence [since] * * * 

there was a guard for the equipment and it just happened 

that it was not transported at that particular time to this 

particular location. 

1721 
We therefore propose to reduce the penalty to $24 in 

this instance. We think, due to the circumstances in this 

case, the purposes of the Act would be effectuated, again 

stating the machine was guarded, did have a guard. It just 

happened that it was not transported; and the time lapse 

between a transportation of th{s piece of equipment and 

the inspection was very short; and I think it was just a 

case of slight negligence. 

We therefore propose that the Judge approve the settlement as submitted by the Petitioner and agreed to by the 

Respondent; and we feel that this settlement * * * reflects 

the good faith effort of the Respondent to bring the conditions into compliance; and he has complied. We think 

that * * * the approval of the settlement would effectuate 

the purposes of the Act. Thank you. 

This settlement was approved at the hearing subject to the submission of a non-admissions clause (Tr. 138). On September 14, 1979, 

counsel for Petitioner filed the clause set out below which is hereby 

incorporated as part of the settlement agreement: 

Respondent's consent to the entry of a rinal Order by 

the Commission pursuant to the Settlement Agreement shall 

not constitute an admission by the Respondent of any violations of the Act, in any subsequent proceedings other than 

proceedings brought directly under the provisions of the 

Mine Safety and Health Act of 1977. 

The settlement for the three violations 1n DENV 79-367-PM 1s 

hereby AFFIRMED. 

The summary of the dispositions 1n these two dockets 1s as 

follows: 

Citation No. 

183004 

183005 

183014 

183016 

183018 

Citation No. 

183076 

183077 

183079 

Docket No. DENV 

Docket No. DENV 

1722 

79-217-PM 

Assessment or Action Taken 

VACATED 

$40 

19 

19 

19 

79-367-PM 

Settlement Amount 

$16 

24 

24 
ORDER 

It is ORDERED that Respondent pay total penalties of $161 within 

30 days of the date of this decision. 

Distribution: 

~~/?~ Franklin P. Michels 

Administrative Law Judge 

Keithley F. T. Lake, Esq., Office of the Solicitor, U.S. Department of Labor, 911 Walnut Street, Room 2106, Kansas City, MO 

64106 (Certified Mail) 

David S. Walker, President, Walker Stone Company, Inc., Box 563, 

Chapman, KS 67431 (Certified Mail) 

1723 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

PEABODY COAL COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

UNITED MINE WORKERS OF AMERICA, 

Respondent 

OCT 2 9 i9N 

Application for Review 

D9cket No. KENT 79-107-R 

Order No. 795972 

May 21. 1979 

Ken No. 4 North Underground Mine 

DECISION 

Appearances: Thomas R. Gallagher, Esq., St. Louis, Missouri, 

for Applicant; 

Joseph M. Walsh, Esq., Office of the Solicitor, 

Department of Labor, for Respondent Secretary of 

Labor; 

Joyce A. Hanula, Attorney, Washington, D.C., for 

Respondent United Mine Workers of America. 

Before: Administrative Law Judge Steffey 

Pursuant to an order issued June 5, 1979, a hearing in the aboveentitled proceeding was held in Evansville, Indiana, on June 13 and 

14, 1979, under section 105(d) of the Federal Mine Safety and Health 

Act of 1977. Although evidence was submitted to support findings pertaining to the civil penalty issues which will be raised if MSHA files 

a Petition for Assessment of Civil Penalty with respect to the violation which was alleged in Order No. 795972 which is under review in 

this proceeding, this decision will dispose only of the issues raised 

by the Application for Review filed by applicant. The civil-penalty 

issues will be decided only if the parties are unable to settle those 

issues at a conference with the Assessment Office and counsel for MSHA 

subsequently files a Petition for Assessment of Civil Penalty. 

Completion of the Record 

During the hearing, MSHA's counsel introduced Exhibits 5 through 

8 for the purpose of indicating that frequent unintentional roof 

1724 
falls have occurred in applicant's Ken No. 4 North Mine. Although it 

had been assumed when Exhibits 5 through 8 were received in evidence, 

that those exhibits covered unintentional roof falls only for the 

years 1975 through 1978, when I examined the reports after the hearing, I found that one of the reports of unintentional roof falls pertained to one roof fall which occurred in January 1979. That is the 

same roof fall about which one of applicant's witnesses testified at 

the hearing (Tr. 443). In such circumstances, it appears appropriate 

to make a separate exhibit for the report of the 1979 roof fall. Consequently, there is marked for identification as Exhibit 9 a one-page 

report of an unintentional roof fall which occurred in January 1979. 

Exhibit 9 is received in evidence. 

At the hearing, MSHA's counsel stated that he would submit at a 

subsequent time a computer printout pertaining to applicant's history 

of previous violations and also a copy of an order of modification 

which was issued by the inspector who wrote Order No. 795972 (Tr. 6-

7). MSHA's counsel filed a copy of the computer printout and a copy 

of the modification order with me on August 22, 1979. The letter of 

transmittal stated that a copy of the computer, printout and modification order had been sent to applicant's counsel. I have received no 

reply from applicant's counsel in opposition to receiving those proposed exhibits into evidence. 

Consequently, there is marked for identification as Exhibit 10 a 

three-page computer printout showing a history of previous violations 

for applicant's Ken No. 4 North Mine. There is marked for identification as Exhibit 11, a one-page Modification Order No. 795972~1 dated 

June 15, 1979. Exhibits 10 and 11 are received in evidence. 

Issue 

The issue raised by the Application for Review filed in this proceeding is whether an imminent danger existed on May 21, 1979, when 

Order of Withdrawal No. 795972 was issued pursuant to section 107{a) 

of the Act. At the conclusion of the hearing, counsel for all parties 

waived the 9pportunity of filing posthearing briefs (Tr. 448) • 

. Findings of Fact 

I shall hereinafter make the findings of fact upon which my decision in this proceeding will be based. Following the findings of 

fact, ·my decision will consider the arguments which are inherent in 

the parties' evidentiary presentations. 

1. Mr. Franklin D. Dupree, an MSHA inspector, arrived at 

Peabody's Ken No. 4 North Mine about 2:30 p.m. on May 21, 1979, for 

the purpose of making a routine spot inspection. When the inspector 

went to the bathhouse, he heard UMWA's representative at the mine and 

two roof bolters discussing what they believed to be separations in 

1725 
the roof in the No. 1 Unit - ID - 004 (hereinafter referred to as the 

No. 1 Unit). The roof bolters had concluded that there were separations in the roof strata because the drilling bit on the roof-bolting 

machine would jump about 2 inches almost every time a hole was drilled 

for the purpose of installing roof bolts. The insp·ector told the 

miners that he would check the roof conditions in the No. 1 Unit when 

he went underground (Tr. 9-15). 

2. The inspector was accompanied on his examination of the mine 

by Mr. Inman, one of Peabody's roof bolters (Tr. 14). As the inspector 

and Mr. Inman were about to go underground in the mantrip, Peabody's 

mine manager, Mr. Alton Fulton, called Mr. Ernie Brock, the secondshift foreman on the No. 1 Unit, to the mine office for a short 

discussion. When Mr. Brock returned to the mantrip, he remarked that 

he had been given.instructions to pull out of the No. 1 Unit and drive 

some rooms off to the left of that unit, but no explanation was given 

for the announced intention of withdrawing from the No. 1 Unit (Tr. 16; 

18; 47). 

3. When the inspector arrived in the No. 1 Unit, all of the men 

stopped at the dinner hole for a while, except fo+ Mr. Brock, the 

unit foreman, who made an inspection of the face area. The inspector and his companion, Mr. Inman, began examining conditions in the 

unit shortly thereafter by proceeding up the No. 4 entry toward the 

face. When they reached the second crosscut outby the face, the 

inspector noticed a broken place in the mine roof near the outby rib 

and water was coming through the roof in steady drops. The broken 

place extended the entire length of the crosscut between the Nos. 4 

and 5 entries. The.crack was about an inch or less in width, but it 

extended along the bottom of a V-shaped ridge which projected downward from the roof for a distance of about 3 inches. The legs of 

the V-shaped ridge were abQut 10 or 12 inches apart at the roof, or 

point of origin (Tr. 20-24; 56; 93). Xhe inspector considered water 

dripping from the roof at the site of the cracked roof to be a further sign of a weakened roof because water displaces material comprising roof strata and creates voids in the roof (Tr. 39). 

4. The inspector believed that the V-shaped broken place in the 

roof of the crosscut constituted an innninent danger which he defined 

as a condition which might cause injury or death before it could be 

corrected. (Tr. 31; 57; 107). The inspector thereafter orally issued 

an imminent danger order under section 107(a) of the 1977 Act and 

advised Mr. Brock, the unit foreman, that he would determine the 

extent of the area covered by his order as soon as he could complete 

his examination of the unit (Tr. 23-24; 108). 

5. The inspector then found another V-shaped crack in the roof 

of the second crosscut from the face between the Nos. 5 and 6 entries 

and still other cracks in the same crosscut between the Nos. 6 and 7 

entries (Tr. 31; Exh. 2). The inspector ~ould not divorce the cracks 

l726 
in the roof from the separations he had heard described by the miners 

before he began his underground examination (Tr. 32). Mr. Brock 

granted the inspector's request that the operator of the roof-bolting 

machine be permitted to drill test holes to determine whether separations still existed in the roof strata in the No. 1 Unit (Tr. 24-25). 

The inspector had the operator of the roof-bolting machine to drill 

about 35 test holes. The inspector concluded that actual separations 

in ·the roof strata existed because, when the test holes were drilled, 

the roof-bolting machine would suddenly jump about 2 inches after the 

drill had penetrated the roof for a distance of from 36 to 38 inches 

(Tr. 25-26; 74; 90-91). Resin-grouted roof bolts were being used and 

the inspector believed that the roof bolts were pushing the resin into 

the separations which existed near the ends of the bolts. The passage 

of the resin into the separations was seriously eroding the effectiveness of the resin bolts by preventing the resin from hardening along 

the full length of the bolts so as to pin the roof strata together 

and provide a secure beam (Tr. 73; 76; 85-86; 98; 105). 

6. The inspector found that the drill stem did not jump when 

test holes were drilled in the No. 4 entry at the No. 1 crosscut, nor 

at the crosscut between the Nos. 3 and 4 entries, nor in the No. 3 

entry at "the last open crosscut (Tr. 27) •. The inspector ultimately 

determined that the left side of the No. 1 Unit was the place where 

the roof was unsafe and Order No. 795972 specifically delineated the 

territory covered, namely, an area extending 175 feet outby the face 

in No. 7 entry, an area extending 130 feet outby the face in the No. 6 

entry, an area extending 110 feet outby the face in the No. 5 entry, 

an area extending 80 feet outby the face in the No. 4 entry, and an 

area in the No. 3 entry at the second open crosscut (Tr. 141-142; 

Exh. 1). 

7. After the inspector had orally advised Mr. Brock that an 

imminent-danger order had been issued, "'Mr. Brock responded by having 

the miners bring crossbars and legs into the mine (Tr. 37). The 

miners then completely crossbarred the crosscut between the Nos. 4 

ana 5 entries where the inspector had first observed a crack in the 

roof (Tr. 38; 103). 

8. The Ken No. 4 North Mine has a history of unintentional roof 

falls (Tr. 33). Although the inspector did not see any roof falls in 

the No. 1 Unit on May 21, 1979, at the time he issued his imminentdange~ order (Tr. 65), Peabody reported 10 unintentional roof falls 

in 1975, 16 unintentional roof falls in 1976, 20 unintentional roof 

falls in 1977, 14 unintentional roof falls in 1978, and 1 unintentional roof fall in 1979 up to the date of the hearing which was held 

on June 13 and 14, 1979 (Exhs. 5, 6, 7, and 8; Tr. 443). Additionally, Peabody has encoqntered places in its Ken No. 4 North Mine 

where the roof conditions were so adverse that it was not economically 

feasible to support the roof and Peabody was forced to discontinue 

mining in such areas (Tr.· 41-44; Exh. 2). 

1727 
9. Peabody's mine manager at the Ken No. 4 North Mine, Mr. Alton 

Fulton, refused to believe that roof conditions in the No. 1 Unit were 

serious enough to justify issuance of an imminent-danger order (Tr. 

35). Although the miners were withdrawn from the unit in compliance 

with the inspector's order, the adverse roof conditions cited in the 

inspector's order were never abated and the coal remaining in the unit 

was never extracted (Tr. 255). 

10. The inspector stated that Mr. Shemwell, the roof bolter who 

drilled the test holes, drilled the holes while exerting a steady pressure on the upthrust lever and the inspector said that he would have 

detected it if Mr. Shemwell had tried to manipulate the lever so as to 

fabricate the appearance of jumping. The inspector firmly believed 

that authentic jumping was occurring and that the jumping was caused 

by actual separations in the roof strata (Tr. 61; 64). The inspector 

also stated that hitting extremely hard rocks with the d~ill stem 

would have slowed the drill stem and that the speed of the drill would 

be restored to normal after the drill had passed through such rocks, 

but the inspector said that operators of roof-bolting machines are 

familiar with variations in types of roof strata and would not interpret reactions of the machine when rocks are encountered to be separations in roof strata (~r. 62-64; 68·69; 81). 

11. The inspector believed that if crossbars had been installed 

in the areas cited in his order as having separations, the No. 1 Unit 

would have been made safe for resumption of mining activity (Tr. 96; 

109). 

12. About a week before the imminent-danger order was issued, 

Mr. Inman told Mr. Brock about the jumping of the drill on the roofbolting machine, but Mr. Brock did not think it was bad enough to 

need extra support--that is, support in addition to the 42-inch 

resin bolts which were being installed at the time the order was 

issued (Tr. 34; 149-150). Mr. Brock took his hammer and pulled down 

some pieces of shale and decided that he would take no further precautions until such time as the roof appeared to become more adverse 

than it was when Mr. Inman warned him about it (Tr. 162). 

13. Mr. Charles Ford, the unit foreman in the No. 1 Unit on the 

day shift, stated that he had worked the day shift immediately preceding the issuance of the imminent-danger order (Tr. 167). Mr. Ford 

had also known about the jumps of 1 to 2 inches in the drill for about 

a week before the imminent-danger order was issued, but he had concluded that the drill was hitting soft places in the roof strata 

because the jumps occurred to within 10 inches of the working face 

and he felt that there would have had to have beeri a visible· break 1n 

the roof in order for separations to have occurred that close to the 

face (Tr. 168). 

14. Order No. 795972 was orally issued at about 3:30 p.m. on 

the evening shift of May 21, 1979 (Tr. 59-60). Toward the end of 

1728 
Mr. Ford's day shift of May 21, 1979, an operator of a roof-bolting 

machine, Mr. Charles Howard, called Mr. Ford's attention to some bad 

roof at a breakthrough near the face of the No. 5 entry. Mr. Ford 

thought that the roof was too hazardous for bolts to be installed 

until such time as crossbars could first be erected. Since it was 

then close to the end of Mr. Ford's day shift, Mr. Ford told 

Mr. Howard that he would report the bad top to the mine manager. 

Mr. Ford also made. an entry in the preshift book stating "All left 

side of unit--bad top and water" (Tr. 164; 175). When Mr. Ford 

reported to work on the following day, May 22, 1979, he was surprised 

to hear that the innninent-danger order had been issued on the evening 

shift because the mine superintendent, Mr. Clyde Miller, had given 

instructions for the men to withdraw from the No. 1 Unit and work in 

some rooms to the left of the No. 1 Unit. Mr. Ford said that he had 

expected to mov~ back into the No. 1 Unit after the miners had ''* * * 

made it safe to go back in there" (Tr. 171). Mr. Miller's decision to 

withdraw from the No. 1 Unit had been made after Mr. Ford had reported 

the jumping of the roof-bolting machine and the bad top in the No. 5 

entry. Mr. Ford expected to go back into the No. '1 Unit after about 

three shifts because Mr. Ford estimated that two shifts would be 

required to move a pump into the No. 1 Unit and that one shift would 

be required to install supporting timbers. Mr. Ford would not have 

objected to reentering the No. 1 Unit to work after the dangerous 

places had been timbered (Tr. 177). 

15. Mr. Alton Fulton, the mine manager, worked the day shift on 

May 21, 1979, and he received the aforementioned call from Mr. Ford 

about 2:15 p.m. The call' had been made by Mr. Ford to advise 

Mr. Fulton that crossbars were needed at two crosscuts. Mr. Fulton 

advised ~r. Ford that he would check into the matter and discuss the 

problem with Mr. Brock before Mr. Broe~ began working on the evening 

shift. Mr. Fulton made an inspection of the No. 1 Unit. He did not 

~ee any cracks. Mr. Fulton did not observe the roof-bolting machine 

in operation, but he had been told that jumps were occurring (Tr. 

190-191). 

16. Mr. Fulton had gone home on May 21, 1979, before it was 

reported to him by telephone that the imminent-danger order had been 

issued. Mr. Fulton called Mr. Conrad Bowen, the assistant mine superintendent, and Mr. Ford and Mr. Bowen went to the mine and tried to 

convince the inspector that the roof in the No. 1 Unit was not bad 

enough to warrant the issuance of an imminent-danger order, but the 

inspector adhered to his original position that the top constituted 

an imminent danger (Tr. 193-194). On May 22, 1979, Mr. Fulton, 

Mr. Bowen, Mr. Miller, and Mr. French, the mine safety director, 

went into the No. 1 Unit and made an inspection (Tr. 195). All of 

them concluded that the roof was safe. Mr. Fulton said he would work 

under the roof if he were a union employee (Tr. 202). Mr. Miller said 

he would spend his vacation under the roof (Tr. 247). 

1729 
17. Mr. Miller tried to get the supervisor of the inspector wno 

wrote the imminent-danger order to make a personal examination of the 

roof in the No. 1 Unit., but the supervisor declined to do so, explaining that he did not want to become involved in the controversy (Tr. 

252). Mr. Miller said that MSHA could force them to do almost anything, but in this instance he was in a position to make a test of 

MSHA's action. Therefore, he decided that he would not take any steps 

to abate the order because he believed that any work he might do to 

abate the conditions alleged in the inspector's order would be interpreted as a concession by applicant that an imminent danger actually 

existed (Tr. 222~ 255). 

18. Mr. French checked the top in the No. 1 Unit on May 23, 25, 

29, and June 11 to determine if the roof was taking weight, cracking 

along the'ribs, or breaking up. Mr. French found at the time all 

inspections were made that the roof was unchanged and had not as of 

June 11 fallen, although a period of 22 days had by then elapsed 

since the order was written (Tr. 221). Mr. Bowen also made additional 

checks of the roof in the No. 1 Unit after the order was written and 

Mr. Bowen authorized other personnel to make such follow-up examinations (Tr. 236). Mr. Bowen found that from 1 to 2 feet of water had 

accumulated in the Nos. 1 and 2 entries, but that water had stopped 

dripping from the roof of the No. 7 entry (Tr. 242), 

19. Mr. Miller doubted that it would be ecomically feasible to 

move equipment back into the No. 4 Unit in order to extract the coal 

which was abandoned when Mr. Miller decided not to abate the order. 

Mr. Miller stated that it would take 4 days or 12 shifts for the 

equipment to be moved back and for the necessary timbering to be done 

(Tr. 257). · Applicant presented testimony through an engineer and 

an accountant who estimated that applicant's decision not to continue mining in the No. 1 Unit resulted in a failure to produce 

22,280.5 tons of coal (Tr. 332) at an estimated loss to applicant of 

about $103,379 (Tr. 341). 

20. Mr. Guy McDowell, respondent's roof-control specialist, presented testimony and several exhibits which show that he has considerable expertise in designing roof bolts and resin-anchoring systems for 

trusses. Mr. McDowell has been given credit for technical assistance 

rendered to persons performing research and writing scientific 

treatises pertaining to roof control (Tr. 271-283). Mr. McDowell 

examined the roof in the No. 1 Unit at the request of management and 

made an inspection of the roof while accompanied by Messrs. French, 

Miller, and Bowen. Mr. McDowell saw no signs of roof failure during 

his examination which was made by testing the roof with the sound 

and vibration method and by visual observation (Tr. 284-285). 

Mr. McDowell also checked 100 of the 2,800 roof bolts in the area 

covered by the order and found that 50 bolts had resin on them at the 

bottom plate. Mr. McDowell concluded that the resin roof bolts were 

anchoring satisfactorily and he believed that the operators of the 

1730 
roof-bolting machines were inexperienced in using resin bolts and 

therefore did not have as much faith in the effectiveness of such 

bolts as the past performance of such bolts merited (Tr. 300-302). 

21. Mr. McDowell was of the opinion that it would not now be 

possible to return to the No. 1 Unit to produce the coal left when 

the miners withdrew from the No. 1 Unit on May 21, 1979. The reason 

given by Mr. McDowell in support of that opinion was that the water 

dropping from the roof had caused the pillars to sink into the fireclay with a resultant weakening of the roof which would make it 

unsafe to resume the mining of coal in the No. 1 Unit (Tr. 308). 

22. Mr. McDowell made no checks of the roof in the No. 1 Unit 

by any methods which were not also used by the operators of the roofbolting machines and by the inspector, that is,. he checked the roof by 

the sound and vibration method and by visual observation just as the 

inspector and operators of the roof-bolting machines did. Mr. McDowell 

stated that if there really were separations in the roof at or near 

the extreme end of the 42-inch bolts, the resin would go into the 

separations and not produce a proper.bond for supporting the roof. 

He also said that one of the signs of roof failure would be cracks in 

the roof. Moreover, he agreed that if the V-shaped cracks described 

by the inspector really existed, such cracks would be a preliminary 

sign of roof failure even when resin bolts are being used (Tr. 321; 

324). 

23. Mr. Inman, who accompanied the inspector during his examination of the No. 1 Unit, was the safety committeeman at the Ken No. 4 

North Mine and he corroborated the inspector's testimony as to the 

fact that the drill on the roof-bolting machine was jumping about 

2 inches in the Nos. 4, 5, 6, and 7 entries when the drill stem had 

penetrated the roof for a distance of about 36 inches (Tr. 350; 356). 

Mr. Inman also agreed with the inspect~r's description of the 

V-shaped crack in the second crosscut from the face (Tr. 352-354). 

24. Mr. Inman was normally the operator of the cutting machine, 

but he had been operating a roof-bolting machine prior to the issuance 

of the innninent-danger order because Mr. Shemwell, who drilled the 

test holes for the inspector, had temporarily stopped operating the 

roof-bolting machine because the resin used for anchoring the bolts 

had adversely affected his eyes (Tr. 359). Mr. Inman did not object 

to installing resin bolts because he recognized that resin bolts are 

more effective than conventional bolts (Tr. 360) 

~5. Mr. Inman was afraid to work under the roof in the No. 1 Unit 

as it existed just prior to issuance of the imminent-danger order (Tr. 

358). Mr. Inman said that resin will exude at the bottom or heads of 

resin bolts when no jumps or separations occur near the tops of the 

bolt holes, but the last night that Mr. Inman bolted before the 

imminent-danger order was issued, the drill stem was jumping in seven 

1731 
out ot eight holes drilled and resin was coming out at the bottom of 

only one or two bolts out of eight (Tr. 376-378). Mr. Inman did not 

cause the jumps by deliberately manipulating the roof-bolting machine 

to produce that sort of manifestation and Mr. Inman did not believe 

that it would be possible for anyone to operate a roof-bolting machine 

so as to create an artificial appearance of jumping (Tr. 366-367). 

Mr. Inman did not think the jumps could have been caused by the drill 

stem's encountering alternate soft and hard places in the roof strata 

(Tr. 379-380). 

26. Mr. Shemwell, who operated the roof-bolting machine for 

drilling test holes for the inspector, agreed with Mr. Inman's and the 

inspector's description of the jumps occurring when holes were drilled. 

Mr. Shemwell was still at the dinner hole on May 21, 1979, when he 

heard someone say that one of the working places had been designated 

as an imminent danger by the inspector (Tr. 388-389). Mr, Shemwell 

believed that the roof in the No. 1 Unit was definitely bad and he 

would have been afraid to have continued working in the unit without 

installation of support in addition to the resin bolts they were 

installing at the time the imminent-danger order was issued (Tr. 390). 

Mr. Shemwell said that every operator of a roof-bolting machine has 

experienced hitting hard rocks and soft places in the roof strata and 

knows the difference between the slowing down of the drill and speeding up of the drill at such times, as compared with the jumps which 

occur when the drill hits separations between the strata as was 

occurring in the No. 1 Unit prior to the issuance of the imminentdanger order (Tr. 394-395). Mr. Shemwell agreed with Mr. Inman that 

it was very dangerous to work in the No. 1 Unit and he said he would 

have joined with any other miners who might have been willing to 

decline to work under the roof. They had the right under the union 

contract to refuse work in a dangerous place (Tr. 396). 

27. Management had used conventional bolts in the No. 1 Unit 

up to May 15, 1979, but management had changed to use of resin bolts 

because water had been encountered and tests showed that torque 

was being lost on the bolts after they had been installed (Tr. 

266). Mr. Shemwell did not think the resin bolts were performing 

their intended function with respect to water leaking through the 

roof because he could install resin bolts and thereafter find water 

dripping off the bottom of them when he came by the same bolts 

again during the next mining cycle. In Mr. Shemwell's opinion, if 

the resin bolts had been anchoring as was intended, water would not 

have been running off the bolt heads (Tr. 401). 

28. Mr. Charles W. Howard preferred the position 0£ a laborer 

even though he had been working in coal mines for 13 years (Tr. 402; 

422). Among other things, he operated the roof-bolting machine and 

he had shortly before the imminent-danger order was issued declined 

to install resin bolts in the No. 5 entry· because he considered the 

1732 
roof unsafe. He reported the unsafe roof to Mr. Ford, the unit foreman, and Mr. Ford reported the hazardous condition to the mine manager 

(Tr. 407). Mr. Howard agreed with the other operators of roof-bolting 

machines that the drills cannot be made to jump by manipulating the 

upthrust lever to create such an impression (Tr. 418). 

29. Mr. Jerry D. Fulton has been a coal miner for about 11 years 

and has been an operator of a roof-bolting machine for approximately 

10 years (Tr. 424) •. He agreed with the other operators of roof-bolting 

machines that the roof was in fair to good condition in the Nos. 1, 2 

and 3 entries, but he believed that the roof in the Nos. 4, 5, 6, and 

7 entries was in poor condition because the drilling stem would jump 

in those entries. He had had to back up his roof-bolting machine in 

the No. 7 entry and install longer roof bolts when the conventional 

bolts then being used lost their torque (Tr. 425). Thereafter, management converted to using resin bolts (Tr. 426). Mr. Fulton tested 

the roof by using sound and vibration and visual observation and the 

roof appeared to be fair in the Nos. 1, 2 and 3 entries and substandard in the Nos. 4, 5, 6, and 7 entries. Mr. Fulton said that on previous occasions when the operators of the roof-bolting machines 

believed that they had encountered ~dverse conditions which warranted 

use of roof support in addition to roof bolts, management had provided the extra support, but for some reason, when the roof bolters 

encountered the jumps and the miners observed cracks in the roof in 

the No. 1 Unit shortly before the imminent-danger order was issued, 

management refused to provide the extra support the miners thought 

was needed (Tr. 428-429). 

30. Mr. Jerry Fulton doubted that the resin bolts were anchoring 

firmly because he found water dripping off of them on the left side of 

the unit after they had been installed for one mining cycle (Tr. 432). 

A. Evidentiary Support for Inspector's Finding that Imminent Danger 

Existed 

1. Reasons Given by Inspector for Finding of Imminent Danger 

Inspector Dupree issued his imminent danger order (a) because he 

found V-shaped cracks extending along the roof in the second crosscut 

outby the face (Finding No. 3, supra), (b) because the roof bolters 

had found separations in the roof strata (Finding No. 5, supra), (c) 

because water was leaking through the roof in steady drops (Finding 

No. 3, supra), and (d) because resin was showing at the bottom of 

only about one-eighth of the bolts (Finding Nos. 5 and 25, supra). 

The inspector could not divorce the danger associated with the 

cracked roof from the fact that separations were being encountered 

when holes were drilled for installation of roof bolts. The inspector believed that the entire roof on the left side of the No. 1 

1733 
Unit was unsafe. The water coming through the roof was eroding the 

stability of the roof and the lack of resin on the great majority of 

the bolt heads was an indication that the resin was being pushed into 

the separations or cavities between roof strata instead of hardening 

along the bolts so as to provide effective holding power. 

2. UMWA's Witnesses Supported the Inspector's Finding 

The inspector's views about the hazardous nature of the roof were 

supported by the testimony of four roof bolters who had been working 

in the Ken No. 4 North Mine for many years and who had been working in 

the No. 1 Unit for more than a week during which the separations continued to occur. The miners could not understand why management had 

installed crossbars on other occasions when hazardous roof conditions 

were encountered, but declined to do so shortly before tbe imminentdanger order was written on May 21, 1979 (Finding Nos. 23-30, supra) 

All four roof bolters believed that separations in roof strata existed 

and that the roof needed support in addition to the resin bolts which 

were then being used (Finding Nos. 23-24; 26; 28-30, supra). 

B. Applicant's Counterarguments 

1. Applicant's Contention that Actual Separations of Roof 

Strata Did Not Exist 

Applicant's witnesses attempted to explain the jumps in the drill 

stem by claiming that the operators of the roof-bolting machines were 

feigning the jumping of the drill stem by applying sudden pressure on 

the upthrust lever (Finding No. 10, supra). The operators of the 

roof-bolting machines denied that the jumps were artificially created 

and disputed applicant's claim that the jumps could be fabricated even 

if the operators of the roof-bolting machines had been inclined to do 

so (Finding Nos. 25-26 and 28, supra). No one ever explained on the 

record what motive the operators of the roof-bolting machines could 

have had for creating a false impression that the roof was unsound. 

I think that the preponderance of the evidence clearly supports a 

rejection of applicant's contention that the operators of the roofbolting machines were feigning the occurrence of jumps when holes 

were drilled for installation of roof bolts. 

2. Applicant's Claim that the "Jumps" Were Caused by Drilling 

Through Alternate Hard and Soft Roof Strata 

Applicant's supervisory witnesses agreed that the occurrence of 

jumping by the roof-bolting machines had been reported to them, but 

they claimed that the jumps had occurred when the drill stem 

alternately encountered very hard rocks or strata followed by very 

soft strata (Finding Nos. 13 and 15, supra). Applicant's witnesses 

believed that the high pressure under which the drill operates would 

cause the drill stem to jump suddenly after it had passed through 

L734 
hard rocks. The inspector and the operators of the roof-bolting 

machines all agreed that the rate of penetration of the drill stem 

would be decreased when very hard materials were encountered and 

that the normal penetration rate would be resumed after the drill had 

passed through hard materials, but the operators of the roof-bolting 

machines were all experienced miners and knew the difference in the 

reaction of the roof-bolting machines when actual separations are 

encountered as opposed to the slowing and speeding up of the drill 

when alternate hard and soft materials are encountered (Finding No. 

10, supra). Applicant's supervisory witnesses did not actually 

operate the roof-bolting machines and some of applicant's supervisors did not actually see the roof-bolting machines operating 

(Finding No. 15, supra; Tr. 310). Therefore, X find that the testimony of the miners who operated the roof-bolting machines is more 

credible than that of applicant's witnesses with respect to the 

question of the existence of actual separations in the roof. 

3. Mr. Brock's Response 

The innninent-danger order was written on May 21, 1979, on the 

evening shift which was supervised by Mr. Brock. The operator of the 

roof-bolting machine had reported the separations in the roof strata 

to Mr. Brock and had asked for erection of additional supports, but 

Mr. Brock had concluded that the roof did not need additional support. 

He had simply reported the matter to the mine manager without taking 

any action other than pulling down a few pieces of roof which he 

thought were loose. Although Mr. Brock testified that he was having 

crossbars installed at the time the innninent-danger order was verbally 

issued, that is inconsistent with his own testimony and that of other 

witnesses on his shift because they stated that Mr. Brock had gone to 

the face area to make an onshift examination and that the inspector 

had verbally issued his order to Mr. Brock at the time Mr. Brock 

returned from checking the face area (Finding No. 12, supra; Tr. 149-

150; 159). 

4. Mr. Ford's Conclusion that the Roof Was Unsafe 

Mr. Ford was the supervisor of the No. 1 Unit on the day shift 

and his testimony shows that the operator of the roof-bolting machine 

on his shift on May 21, 1979, encountered such a hazardous place in 

the roof that Mr. Ford believed that crossbars should be erected 

before resin bolts could be safely installed. Mr. Ford advised the 

mine manager that crossbars were needed and Mr. Ford made the follow-· 

ing entry in the preshift book: ''All left side of unit--bad top and 

water.'' Moreover, Mr. Ford said that he was surprised to hear of the 

issuance of the imminent-danger order because the mine superintendent 

had given instructions for the miners to withdraw from the No. 1 Unit 

and Mr. Ford did not expect any more work to be done in the No. 1 

Unit until enough crossbars had been installed to make it "* * * safe 

to go back in there" (Finding No. 14, supra). 

1735 
Mr. Ford's testimony fully supports the issuance of the innninentdanger order because Mr. Ford's description of the No. 1 Unit was 

based on his evaluation of conditions in that unit just a few hours 

prior to the issuance of the inspector's withdrawal order. 

5. Mr. McDowell's Testimony Was too General in Nature To 

Offset the Miners' and Inspector's Opinion that Imminent 

Danger Existed 

Mr. McDowell was an impressive witness who obviously possessed 

considerable expertise in designing and working with resin roof bolts 

and trusses. Mr. McDowell inspected the roof in the No. 1 Unit after 

the imminent-danger order had been issued. He only checked the condition of 100 resin bolts out of a total of 2,800 in the area covered 

by the order. Although the inspector was criticized by applicant for 

failure to examine the interior of the holes drilled by the roofbolting machine with a borescope for the purpose of determining 

whether separations in the roof strata existed, Mr. McDowell was not 

called in by management to make an evaluation by means of a borescope 

when the separation~ were first encountered and reported to the unit 

foremen and other supervisory personnel. Therefore, when Mr. McDowell 

examined the roof in the No. 1 Unit, he checked the roof by means of 

sound and vibration and visual observation. Since the inspector and 

the operators of the roof-bolting machines had used the same methods 

in examining the roof, Mr. McDowell's conclusions to the effect that 

the roof was safe does not rise to a higher level of proof than the 

opinions of the inspector and operators of the roof-bolting machines 

because the inspector and roof bolters had not only checked the roof 

with sound and vibration and visual observation, but had also either 

operated ·the roof-bolting machine or had watched the roof-bolting 

machine in operation, whereas Mr. McDowell had not observed the roofbolting machine in operation (Finding Nos. 20-23; 29, supra). 

6. The Cracks and Water Seepage Were Serious 

Respondent's supervisory witnesses avoided making statements to 

the effect that no cracks existed in the roof. They either stated 

that they did not see cracks, or minimized the cracks they saw, or 

said that they did not examine the entries in which the cracks may 

have existed. Additionally, Mr. McDowell stated that if the cracks 

did exist, their existence would be a sign of roof failure. Inasmuch 

as the inspector, Mr. Inman, and Mr. Brock all agreed that the cracks 

existed, the inspector's conclusion that an imminent danger existed 

is supported by Mr. McDowell's testimony because Mr. McDowell believed 

that occurrence of cracks would be a preliminary sign of roof failure in a unit where resin bolts were being used (Finding Nos. 22-23, 

supra; Tr. 157). 

The significance to be attached to the fact that water was seeping through the roof is considerable. Although some of applicant's 

1736 
supervisory witnesses claimed that water had stopped dripping from 

the roof by June 11, Mr. Inman said that water was continuing to drip 

from the roof when he last made an examination just outby the area 

covered by the imminent-danger order (Finding No. 18, supra; Tr. 371). 

Regardless of whether the water had stopped dripping by June 11, 1979, 

it is a fact that more than a foot of water had accumulated in some 

places in the area covered by the order and it was Mr. McDowell's 

opinion that the water had allowed the pillars to sink and had 

weakened the roof sufficiently to make it unsafe for miners to 

return to the No. 1 Unit to work even if it had been economically 

feasible to do so (Finding No. 21, supra). 

C. Legal Support for Inspector's Finding of Imminent Danger 

The concept of imminent danger is fully discussed by the courts 

in the following decisions: Eastern Associated Coal Corp. v. Interior 

Board of Mine Operations Appeals, 491 F.2d 277 (4th Cir. 1974); Freeman 

Coal Mining Co. v. Interior Board of Mine Operations Appeals, 504 F.2d 

741 (7th Cir. 1974); and Old Ben Coal Corp. v. Interior Board of Mine· 

Operations Appeals, 523 F.2d 25 (7th Cir. 1975).' In the Old Ben 

opinion, supra, the court reaffirmed the holding in its prior Freeman 

opinion to the effect that imminent danger may be said to exist if it 

can be reasonably expected that injury or death would occur before the 

hazardous condition can be corrected if normal mining procedures are 

continued. The court agreed with the former Board that an irrnninent 

danger exists if a reasonable man would conclude that the feared accident is just as likely as not to occur before the condition.can be 

corrected. 

In light of the court's discussions of the definition of imminent 

danger, I conclude that the inspector reasonably found on May 21, 1979, 

that an imminent danger existed in the No. 1 Unit of the Ken No. 4 

North Mine. The testimony of the inspector and of four roof bolters, 

who had been working for many years in the Ken No. 4 North Mine, 

unequivocally supports findings that the resin bolts were not anchoring thoroughly, that water was seeping through the roof strata, that 

resin was not appearing at the bottom of the bolts to show thorough 

adhesion along the full length of the bolts, and that ominous cracks 

had appeared in the roof of the second crosscut from the face in 

several locations. The aforesaid hazardous conditions, when coupled 

with the fact that the roof outby the area covered in the imminentdanger order had previouisly required rebolting with longer bolts than 

were normally used, support the inspector's belief that the roof could 

have fallen at any time. The large number of unintentional roof falls 

which have historically occurred in the Ken No. 4 North Mine show that 

the roof is generally hazardous and should be supported with the 

crossbars requested by the operators of the roof-bolting machines when 

separations, cracks, water seepage, and other signs of ro~ failure 

are encountered and reported to management by both the operators of 

the roof-bolting machines and by the unit foremen, especially Mr. Ford 

1737 
who had made an entry in the preshift book just a few hours before 

the order was issued indicating that the roof was hazardous in the 

area covered by the order. 

The Seventh Circuit also noted in its Old Ben opinion that an 

inspector has a very difficult job because he is primarily concerned 

about the safety of men, while the operator is concerned about production and profit. The court indicated that an inspector should be 

supported unless he has clearly abused his discretion (523 F.2d at 

31). The court said that an inspector cannot wait until the danger 

is so immediate that no one can remain in the mine to correct the 

condition, nor can the inspector wait until an explosion or fire has 

occurred before issuing a withdrawal order (523 F.2d at 34). Following the co~rt's reasoning, the MSHA inspector in this proceeding 

could not wait until he saw pieces of roof falling on the miners 

before determining that miners should be withdrawn from the No. 1 

Unit until crossbars could be installed. 

Applicant seemed to believe that if an imminent danger had really 

existed, the inspector would not have remained in the No. 1 Unit long 

enough for 35 test holes to be drilled for the purpose of determining 

the areal extent of the imminent danger (Tr. 60). The inspector hardly 

had any choice but to remain in the No. 1 Unit until the test holes 

had been drilled because section 107(a) of the Act provides that if an 

imminent danger is found to exist, the inspector "* * * shall determine the extent of the area of such mine throughout which the danger 

exists. 11 Since neither the inspector nor anyone else could see up into 

the roof to determine the extent of the separations in the roof strata, 

the inspector could not have determined the area "throughout which the 

danger exists'' if he had not had the test holes drilled for the purpose of determining the area·l extent oJ the imminent danger. Cf. 

Old Ben, supra at 32-33. 

Ultimpte Findings and Conclusions 

(1) Pursuant to the parties' stipulations, Applicant Peabody 

Coal Company is subject to the provisions of the Act and to the regulations promulgated thereunder (Tr. 6; 8-9). 

(2) The preponderance of the evidence introduced in this proceeding shows that an imminent danger existed on May 21, 1979, in the 

No. 1 Unit of the Ken No. 4 North Mine and, consequently, Withdrawal 

Order No. 795972 issued May 21, 1979, should be affirmed and Peabody 

Coal Company's Application for Review should be denied. 

(3) For the purpose of issuing this decision, all civil penalty 

questions are severed from the issues raised by the Application for 

Review; if MSHA files a Petition for Assessment of Civil Penalty with 

respect to the violation of section 75.200 cited in Order No. 795972, 

as modified June 15, 1979, that civil penalty case should be forwarded 

1738 
to me for decision on the basis of the record already made in this 

proceeding. 

WHEREFORE, it is ordered: 

(A) The Application for Review filed May 29, 1979, by Peabody 

Coal Company in Docket No. KENT 79-107-R is denied and Withdrawal 

Order No. 795972 dated May 21, 1979, is affirmed. 

(B) The civil penalty questions consolidated for hearing in this 

proceeding are severed from the issues raised by the Application for 

Review; if MSHA files a Petition for Assessment of Civil Penalty with 

respect to the alleged violation of 30 CFR 75.200 cited in Order No. 

795972, as moμified on June 15, 1979, that civil penalty case should 

be forwarded to me for decision on the basis of the record already 

made in this proceeding. 

Distribution: 

~ C. <x8*--lli2 .. Richard c. Steffey~ Administrative Law Judge 

Thomas R. Gallagher, Esq., Attorney for Peabody Coal Company, 

P.O. Box 235, St •. Louis, MO 63166 (Certified Mail) 

Joseph M. Walsh, Trial Attorney, Office of the Solicitor, 

U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, 

VA 22203 

Joyce A. Hanula, Attorney for United Mine Workers of America, 

900 - 15th Street. NW., Washington, DC 20005 (Certified Mail) 

1739 
FEDERAL MINE SAFETY AND HEALTH REVIEW COIWMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BUFFALO MINING COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. HOPE 78-333-P 

A/O No. 46-02140-02005 S 

No. 5 Preparation Plant 

DECISION 

Appearances: John H. O'Donnell, Esq., Office of the Solicitor, 

U.S. Depqrtment of Labor, for Petitioner; 

James w. St. Clair, Esq., Marshall and St. Clair, 

Huntington, West Virginia, for Respondent. 

Before: Judge Cook 

I. Procedural Background 

On April 19, 1978, the Mine Safety and Health Administration 

(MSHA) filed a petition for assessment of civil penalty against 

Buffalo Mining Company in the above-captioned proceeding. This 

petition, filed pursuant to section llO(a) of the Federal Mine 

Safety and Heal th Act of 1977, 30 U.S. c. "§ 820(a) (1978) (1977 Mine 

Act), alleged violations of 30 CFR 77.1401, 77.1402-1, 77.1403(a), 

and 77.404(a). These alleged violations are embodied in an imminent 

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

Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 814(a) 

(1970) (1969 Coal Act), against Buffalo Mining Company subsequent to 

a fatal injury suffered by an employee of Lester Construction Company, an independent subcontractor, during the installation of a 

c-0al stacker on mine property owned by Buffalo Mining Company. 

An answer was filed by Buffalo Mining Company on May 17, 1978. 

Notices of hearing were issued on May 19, 1978, and July 21, 1978. 

On August 3, 1978, Buffalo requested a continuance, which request was 

granted by an order dated August 14, 1978. The hearing was held on 

October 24, 1978, and October 25, 1978, in Charleston, West Virginia. 

Representatives of both parties were present and participated. 

1740 
A schedule for the submission of posthearing briefs was agreed 

upon at the conclusion of the hearing, but a delay in the receipt of 

transcripts forced a revision of the schedule. Buffalo submitted 

its posthearing brief on February 22, 1979. MSHA submitted its posthearing brief on March 16, 1979. Buffalo submitted its reply brief 

on April 10, 1979. Although MSHA did not file a reply brief, it submitted a letter on April 10, 1979, wherein it addressed certairi statements contained in Buffalo's reply brief. 

II. Violations Charged 

Order No. 6-0012 (1 BA), November 26, 1976, 30 CFR 77.1401 

30 CFR 77.1402-1 

30 CFR 77.1403(a) 

30 CFR 77.404(a) 

III. Evidence Contained in the Record 

(A) Stipulations 

During the course of the hearing, counsel for both parties 

entered into stipulations which are set forth in the findings of 

fact, infra. 

(B) Witnesses 

MSHA called as its witnesses James E. Davis, Jesse P. Cole, 

Birkie Allen, and Kennis A. Mullins, MSHA inspectors; and Tony D. 

Travis, a mechanical engineer for the MSHA Technical Support Group 

in Beckley, West Virginia. 

Buffalo called as its witnesses Edgar M. Wode, the assistant 

sales manager at the Walker Machinery Company in Belle, West Virginia; 

Mayo Lester, who identified himself as the owner of Lester Construction 

Company; Travis Ellison, Jr., the safety director for Lester Construction Company; and W. R. Counts, a supervisor employed by Lester Construction Company. 

(C) Exhibits 

(1) MSHA introduced the following exhibits into evidence: 

(a) M-1 is a computer printout compiled by the Office of 

Assessments listing Buffalo's history of paid assessments for violations occurring at the No. 5 Preparation Plant. 

(b) M-2 is a copy of Order No. 6-0012 (1 BA); November 26, 

1976, 30 CFR 77.:401, 77.1402-1, 77.1403(a), and 77.404(a). 

1741 
(c) M-2-A is a typewritten copy of the "condition or practice" paragraph of M-2. 

(d) M-3 is the "fatal machinery accident" report dated 

June 1, 1977. 

(e) M-4 is a modification of M-2. 

(f) M-5 is a termination of M-2. 

(g) M-6 is a copy of a legal identity report relating to 

the No. 5 Preparation Plant. (Received into evidence by an order 

dated December 14, 1978.) 

(h) M-7 is a photograph. 

(i) M-8 is a two-page extract from M 11.1-1960 U.S.A. 

"Standard Specifications for and Use of Wire Ropes for Mines." 

(j) M-9 is a wire rope analysis and tensile test report 

compiled by the Denver Technical Support Center. 

(k) M-10 is a photograph. 

(1) M-11 is a schematic of the accident scene, prepared by 

Buffalo at the request of the Mining Enforcement and Safety Administration (MESA) accident investigators. 

(m) M-12 is a photograph. 

(2) Buffalo introduced the following exhibits into 

evidence: 

(a) 0-1 is a purchase order. 

(b) 0-2 is a copy of Lester Construction Company's safety 

rules in effect on November 26, 1976. 

(c) 0-3 is a Lester Construction Company memorandum bearing the signatures of Lester Construction Company employees. 

(d) 0-4 is a copy of M 11.1-1960 U.S.A. "Standard Specifications for and Use of Wire Ropes for Mines." 

IV. Issues 

Two basic issues are involved in the assessment of a civil 

penalty: (1) did a violation of the Act occur, and (2) what amount 

should be assessed as a penalty if a violation is found to have 

occurred? In determining the amount of civil penalty that should 

1142 
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 Buffalo Mining Company was the operator of the No. 5 

Preparation Plant (Tr. 13). 

(2) The No. 5. Preparation Plant is located near Saunders, in 

Logan County, West Virginia (Tr. 13-14). 

(3) The crew employed by Lester Construction Company, under a 

subcontract with the Long-Airdox Company, and under the supervision 

of foreman W. R• Counts, began work at 7 a.m. on Friday, November 26, 

1976 (Tr. 19). 

(4) Exhibit M-8 is M 11.1-1960 U.S.A. "Standard Specifications 

for the Use of Wire Ropes for Mines" (Tr. 232). 

(B) Motion to Dismiss 

The Respondent, Buffalo Mining Companf (Buffalo), moved for dismissal of the proceeding on the grounds that the owner of mine property cannot be held responsible for violations of mandatory safety 

standards created by independent subcontractors performing work on 

such mine property where the evidence fails to establish that the 

mine owner either caused the violations or possessed a right to 

direct the independent subcontractor's employees in the performance 

of their t.asks (Tr. 431, 445-446, 557). Statements in support of 

this motion are contained in the Respondent's posthearing submissions (Respondent's Posthearing Brief, pp. 15-22; Respondent's Reply 

Brief). 

Buffalo was the operator of the No. 5 Preparation Plant at all 

times relevant to this proceeding (Exh. M-6). The preparation plant 

produced approximately 5,800 tons of coal daily (Tr. 404-406, Exh. 

M-3). Buffalo is a West Virginia corporation (Exh. M-6). Both 

before and after the accident, Buffalo was a subsidiary of the 

Pittston Company (Exh. M-6). The legal identity report filed on 

April 6, 1973, lists the Pittston Company's address as 4514 Pan Am 

1743 
Building, New York, N.Y. 10017 (Exh. M-6), while the change notice 

filed on November 2, 1977, lists Pittston's address as One Pickwick 

Plaza, Greenwich, Connecticut 06830 (Exh. M-6) •. After the coal is 

processed by the No. 5 Preparation Plant, it is loaded aboard 

Chesapeake and Ohio Railway coal cars for transportation to various 

points (Tr. 107). 

Buffalo entered into an agreement with Long-Airdox Company for 

the purchase and installation of a raw coal storage and conveyor 

system on mine property owned by Buffalo. (Exh. M-3 at p. 3, Tr. 342, 

420). Long-Airdox Company subcontracted the project to build the 

raw coal silo or stacker to Lester Construction Company (Exhs. M-3 

at p. 3, 0-1, Tr. 420, 447). 

A crane owned by Lester Construction Company and operated by one 

of Lester's employees was involved in an accident on November 26, 1976, 

during the course of the construction of the raw coal stacker (Tr. 123, 

450). Buffalo's employees never worked on the project (Tr. 451, 523), 

and Buffalo had no supervisory control over the job site (Tr. 473, 

523). Buffalo was cited with several alleged violations of the Code 

of Federal Regulations relating to mining safety in connection with 

the operation of the crane at the time of the accident (Exh. M-2). 

The Federal Mine Safety and Health Review Commission (Commission) 

recently addressed the respective liabilities of both coal mine owners 

and independent contractors performing work on mine property in Cowin 

and Company, Inc., Docket No. BARB 74-259, IBMA 75-57, 1979 OSHD par. 

23,456 (FMSHRC, filed April 11, 1979), and Republic Steel Corporation, 

Docket No. IBMA 76-28, 77-39, 1979 OSHD par. 23,455 (FMSHRC, filed 

April 11, 1979). 

In Cowin, the Commission concluded that an independent contractor performing work on coal mine property is an "operator" 1/ of a 

"coal mine" 2/ under the 1969 Act for the' reasons set forth-in 

Association of Bituminous Contractors v. Andrus, 581 F.2d 853, 861-

862 (D.C. Cir. 1978), and Bituminous Coal Operators' Association, 

Inc. v. Secretary of Interior, 547 F.2d 240, 244-246 (4th Cir. 1977). 

1/ Section 3(d) of the 1969 Act provides: 

"'Operator' means any owner, lessee, or other person who operates, controls, or supervises a coal mine." 

2/ Section 3(h) of the 1969 Act provides: 

- "'Coal mine' means an area of land and all structures, facilities, machinery, tools, equipment, shafts, slopes, tunnels, excavations and other property, real or personal, placed upon, under, or 

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

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

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

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

extracted, and includes custom coal preparation facilities." 

1744 
In Association of Bituminous Contractors v. Andrus, supra, 

the Court observed that under section 109(a) of the 1969 Coal Act, 

30 U.S.C. § 819(a)(l) (1970), "the operator of a coal mine in which 

a violation occurs" is liable for civil penalties. The "operator" 

may be the "owner" of the mine, a "lessee" or an "other person." In 

this context, the term "other person" must be read ejusdem generis 

to refer to other similar persons "of like kind and character to 

the designated 'owner[s or] lessee[s] designated' ... Thus, "other 

persons" must be similar in nature to owners or lessees, and would 

include independent contractors who operate, control or supervise a 

"coal mine," as the term "coal mine" is defined in the statute. 

An "other person" does not have to supervise the entire coal mine 

in order to be an "operator." All that is required is that they have 

control or supervision over one or more of the areas or facilities 

designated in the statutory definition of a coal mine. Coal mine construction operations are under the "supervision" of the construction 

company, thus bringing the independent contractor within the scope of 

the phrase "ot,her person" and thereby defining the contractor as an 

"operator." 

The District Court had reached a contrary conclusion, holding 

that independent contractors could not be "operators" within the 

meaning of the statute because, in the District Court's view, only 

one party could actually be operating, controlling, or supervising 

the mine. The Court of Appeals, in disagreeing with this position, 

stated that there must be some cases where the person who operates, 

controls or supervises,the mine is not the owner, and that in such 

cases, the definition of "operator" must encompass both the owner 

and such other person. 

In Bituminous Coal Operators' Association, Inc. y. Secretary of 

Interior, supra, the Court held that construction companies must 

observe the health and safety standards set forth in the 1969 Coal 

Act and the regulations implementing them. In reaching this conclusion, the Court turned to the statutory definition of a "coal mine," 

and stated that: "When a contractor sinks a mine shaft, excavates a 

tunnel, or builds a coal preparation plant, it is constructing a 

facility 'to be used in' the work of extracting or processing coal." 

547 F.2d at 245. 

Additionally, the Court observed that an independent contractor's 

employees are frequently subjected to the same hazards as miners, 

causing the Court to conclude that Congress did not implicitly exclude 

such employees from the 1969 Coal Act's protection. 

The Court then found that independent contractors fall within 

the definition of an "operator," and can therefore be held liable for 

failing to comply with the health and safety standards. 

1745 
In Republic Steel Corporation, _supra, the Commission held that 

a mine owner can be held responsible for violations of the 1969 Coal 

Act created by its independent contractors even though none of the 

owner's employees were exposed to the violative conditions and the 

owner could not have prevented the violations. 

Previous decisions by the Interior Board of Mine Operations 

Appeals (Board) had taken a different approach. The Board had recognized that both the coal mine owners and the independent contractors 

fell within the 1969 Coal Act's definition of an "operator," but held 

that only the operator responsible for the violation and the health 

and safety of the endangered employees could be held liable. 

Affinity Mining Company, 2 IBMA 57, 80 I.D. 229, 1971-1973 OSHD par. 

15,546 (1973); Laurel Shaft Construction Company, Inc., 1 IBMA 217, 

79 I.D. 701, 1971-1973 OSHD par. 15,387 (1972). Subsequent Board 

cases modified this approach by holding the mine owner liable for an 

independent contractor's violations of the health and safety standards 

where the owner's employees were endangered by the violation and the 

owner could have prevented the violation with a minimum degree of 

diligence. Armco Steel Company, 6 IBMA 64, 83 I.D. 77, 1975-1976 

OSHD par. 20,512 (1976); West Freedom Mining Corporation, 5 IBMA 329, 

82 I.D. 618, 1975-1976 OSHD par. 20,230 (1975); Peggs Run Coal Com-

~, 5 IBMA 175, 82 I.D. 516, 1975-1976 OSHD par. 20,033 (1975). 

This approach, described by the Commission as the "endangerment/ 

preventabili ty test," was reevaluated by the Commission in Republic_ 

Steel Corporation, supra, in light of the United States Court of 

Appeals for the District of Columbia and Fourth Circuit's decisions 

in Association of Bituminous Contractors v. Andrus, supra, and 

Bituminous Coal Operators' Association, Inc. v. Secretary of Interior, 

supra. 

The Commission held that, as a matter of law under the 1969 Coal 

Act, "an owner of a coal mine can be held responsible for any violations of the Act committed by its contractors." The Commission was 

unable to find any provision in the 1969 Coal Act requiring that any 

consideration be given to the owner's ability to prevent the violations as a qualification for holding the owner liable for such 

violatiol).S• 

The fact that the only employees endangered by the violation are 

the independent contractor's employees does not prevent the owner from 

being held responsible for such violations arising on mine property. 

According to the Commission: 

The Act seeks to protect the safety and health of 

all individuals in a coal mine. 30 u.s.c. §§ 80l(a) and 

802(g). In order to achieve this goal, the Act places 

a duty on each operator to comply with its provisions. 

30 u.s.c. § 803. The purpose of the Act is not served 

by interpreting these provisions to allow an operator to 

1746 
limit the benefit of the protection it affords to its 

own employees. * * * The duty of an operator, whether 

owner or contractor, extends to all miners. * * * 

It bears emphasis that the miners of an independent 

contractor are invited upon the property of the mine 

owner to perform work promoting the interests of the 

owner. A mine owner cannot be allowed to exonerate 

itself from its statutory responsibility for the 

safety and health of miners merely by establishing a 

private contractual relationship in which miners are 

not its employees and the ability to control the safety 

of its workplace is restricted. 

It should be pointed out that since an independent contractor 

performing work on coal mine property is an "operator" of a "coal 

mine," as those terms are defined in the 1969 Coal Act, the employees 

of such contractors are "miners" within the meaning of section 3(g) of 

the 1969 Coal Act, 30 u.s.c. § 802(g) (1970). The term "miner" is 

therein defined as "any individual working in a coal mine." 

Cowin and Company, Inc., supra, and Republic Steel Corporation, 

supra, when read together, establish a rule of law whereby either the 

coal mine owner or the independent contractor performing work on coal 

mine property, may be held liable for any health or safety violation 

of the 1969 Coal Act committed by the independent contractor. 

Accordingly, on the facts and the law as set forth herein, the 

Respondent's motion to dismiss is DENIED. 

(C) Occurrence of Violations 

At approximately 10:20 a.m. on Friday, November 26, 1976, 

Mr. James D. Grant, an employee of the Lester Construction Company, 

sustained a fatal injury when a wire rope on a Lorain 1971 MC 30-H 

Moto Crane separated causing Mr •. Grant to fall approximately 70 to 

75 feet to. the ground. The crane was owned by the Lester Construction Company and was being used to hoist two men to the top of a raw 

coal stacker being installed at the No. 5 Preparation Plant owned by 

the Buffalo Mining Company when the accident occurred. The second 

man, Mr. Wayne Taylor, who was also an employee of the Lester Construction Company, escaped injury. Subsequent thereto, MSHA inspectors were summoned to the scene of the accident and conducted a fatal 

accident investigation (Tr. 101, 121, 123, 160, 410, 524, 544, Exh. 

M-3). The crane involved in the accident had been obtained from the 

factory of the Lorain Crane Company thru the Walker Machinery Company 

of Belle, West Virginia (Tr. 64, 338). 

MSHA inspector James E. Davis testified that Mr. Taylor was 

interviewed in connection with the fatal accident investigation and 

1747 
that he gave.a description of what had occurred (Tr. 108, 120). The 

statements made by Mr. Taylor, in conjunction with the testimony of 

the witnesses at the hearing, establish the circllinstances surrounding 

the accident as set forth below. 

The employees of the Lester Construction Company on the job site 

were under the supervision of Mr. W. R. Counts, a foreman employed by 

the Lester Construction Company (Tr. 130, 522-525). When the 

employees started work on the day in question, they began by installing a belt on a new conveyor trestle that had been attached to the 

stacker tube (Tr. 525-527). Mr. Counts testified that after the belt 

had been installed, he instructed Messrs. Taylor and Grant to get 

their bolts and belts from the tool trailer and go to the top of the 

stacker tube (Tr. 528, Exh. M-3). Mr. Taylor and Mr. Grant were 

hoisted to the top of the stacker in a basket, or cage, attached to 

the crane. The cage was approximately 4 feet in length and 3 feet 

in width. It was constructed of angle iron with a floor made from 

metal grating. It had no roof or cover (Tr. 127-128). 

According to Inspector Davis, Mr. Taylor stated that when he 

and Mr. Grant observe<l the cage being hoisted up in close proximity 

to the "shed" wheel, they started shouting to the crane operator to 

stop. When he looked at the "overhaul" ball ]._/ a second time, the 

rope was still being hoisted. Therefore, he jumped onto the platform 

at the top of the stacker. Simultaneously, the "overhaul" ball was 

pulled into the jib boom head sheave causing the rope to break. 

Mr. Taylor further stated that Mr. Grant jumped and thereby managed 

to grab hold of the end of the jib for a few moments before falling 

to the ground (Tr. 134-135, Exh. M-3). 

Information provided to Inspector Davis by Mr. Mario Varrassi, 

the safety director for the Buffalo Mining Company (Tr. 393), indicated that Mr. Grant was transported to the Man Appalachin Regional 

Hospital where he was pronounced dead on arrival between 11 and 

11:20 a.m. (Tr. 410, 423-424, Exh. M-3). 

According to Inspector Davis, Mr. Dent, the crane uperator, testified during the interview (Tr. 136) that the cage blocked his view 

and prevented him from seeing the head sheave of the crane. Mr. Dent 

also stated that an observer was not provided to watch the hoisting 

operation so as to signal him to stop the hoist when the cage had 

reached the top of the "shed" wheel (Tr. 138). 

l_/ An overhaul ball is a counterweight connected to the end of a 

crane rope and serves to maintain tension on the rope (Tr. ·133-134). 

The term "overhaul ball" was used synonymously with the term "headache 

ball" (~r. 134). At one point in his testimony, Inspector Davis 

referred to the "overhaul" or "headache" ball as a "counterweight." 

(Compare Tr. 134 with Tr. 135.) 

1748 
The testimony reveals that when the accident occurred Mr. Counts 

was standing on a hill adjacent to the job site watching employees of 

the Buffalo Mining Company take the old belt apart (Tr. 128-130, 529-

530, Exh. M-11). Mr. Counts testified that he saw Mr. Grant fall, 

but indicated that he did not see what had occurred prior to the fall 

(Tr. 530). 

MSHA inspector Birkie Allen visited the job site after the accident (Tr. 212), examined the crane, and thereupon issued the subject 

imminent danger order of withdrawal. He cited the Respondent for 

violations of four sections of the Code of Federal Regulations (Exh. 

M-2, Tr. 213). The order states, in pertinent part, as follows: 

77.1401. The Lorain 1971, MC30-H Moto Crane used 

for manhoisting was not equipped with an overspeed, 

overwind and automatic stop controls. 

77.1402-1. The American National Standards 

Institute "Specifications for the Use of Wire Ropes 

for Mines M 11.1-1960 was not used as a guide in the 

selection and use of the wire rope used to hoist men 

on the Lorain MC 30-H Moto Crane. 

77.1403(a). The daily examination of the Lorain 

MC 30-H Moto Crane used as a manhoist was not made or 

recorded. 

77.404(a). The hoisting facilities used to transport 

men (Lorain MC 30-H Mota Crane) was not being maintained 

in a safe operating condition in that the wire rope was 

severely damaged beginning near the wedge socket and 

extending about 50 feet along the rope (Numerous broken 

wires). 

It was a normal work procedure to ride the crane. 

The construction work was being done by Lester 

Construction Company. 

This was issued during a fatal investigation. 

(Exhs. M-2, M-2-A). 

30 CFR 77.1400 and 30 CFR 77.1401 provide as follows: 

Subpart 0 - Man Hoisting 

§ 77.1400 Man hoists and elevators. 

The standards set forth in this Subpart O, apply only 

to hoists and elevators, together with their appurtenances, 

that are used for hoisting men. 

1749 
~ 77.1401 Automatic controls and brakes. 

Hoists and elevators shall be equipped with overspeed, overwind, and automatic stop controls and with 

brakes capable of stopping the elevator when full loaded. 

The crane was being used as a manhoist when the accident occurred 

(Exh. M-3, Tr. 120-121, 131). In fact, the cage, or basket, in which 

the men were riding was constructed for the express purpose of being 

attached to the crane for use in manhoisting (Tr. 523). It was constructed for such purpose on instructions from Mr. Counts, Lester's 

foreman on the job site (Tr. 523). The evidence in the record shows 

that the crane had been used as a manhoist throughout the installation 

of the coal stacker, and that this procedure was authorized by the 

Lester Construc,tion Company (Tr. 266, 462, 468, 472, 502-503, 508, 

523-524). 

A conflict is present in the testimony as to whether a suggestion had been made to Messrs. Taylor and Grant on November 26, 1976, 

expressly authorizing them to use the crane as a manhoist. According 

to Inspector Davis, Mr. Taylor stated that Mr. Counts suggested using 

the crane as an avenue of transport to the top of the stac~er on the 

day of the accident (Tr. 131, Exh. M-3). Mr. Counts denied this at 

the hearing (Tr. 529). I am unable to accord great probative value 

to the hearsay statement of Mr. Taylor in view of the fact that 

Mr. Counts' testimony is in direct conflict with the statement of 

the hearsay declarant. However, the resolution of this conflict in 

the testimony in favor of the Respondent as to whether Mr. Counts 

specifically told Messrs. Grant and Taylor to use the cage on the 

day in question does not resolve the real issue as to whether the men 

were authorized to use the cage since the evidence in the record 

unmistakably points to the conclusion that the use of the crane as a 

manhoist was authorized by the Lester Construction Company throughout 

the installation of the stacker. 

The Respondent's witnesses attempted to establish that this 

authorization was no longer in effect on November 26, 1976, because 

the belt line and adjacent walkway had been installed, thus providing 

an alternative route to the top of the stacker (Tr. 461-462, 469, 

508, 524, 529). However, the various accounts given by the Respondent's witnesses contain certain inconsistencies indicating that this 

authorization was still in effect on November 26, 1976. 

Some testimony was elicited with respect to two adjacent wooden 

boards used to connect the walkway to the adjacent hillside (Tr. 459-

460). According to Mr. Lester, the boards had been installed on 

either the morning of November 26, 1976, the day of the accident, or 

the previous day (Tr. 460). However, he indicated that they were 

most likely installed on the morning of November 26, 1976 (Tr. 460). 

The boards were approximately 10 feet long (Tr. 460). Mr. Counts 

1750 
testified that he had last observed someone riding in the cage approxiimately 5 days prior to the accident (Tr. 534), while Mr. Lester testified that the cage had been removed from the crane 3 days earlier, 

..!.·~·,upon completion of.the belt line and walkway (Tr. 461-462). 

But the inescapable conclusion remains that the use of the crane as 

a manhoist was clearly authorized at least until the morning of 

November 26, 1976, because, prior to the installation of the two 

wooden boards, it remained the sole means of access to the top of 

the stacker. Furth~r, there is no indication that any of Lester's 

employees had been specifically informed prior to the accident that 

company authorization to use the crane for manhoisting had been 

rescinded, if it in fact had. 

In fact, Mr. Counts specifically stated that he did not direct 

Taylor and Grant "in any manner" as to how to get to the top of the 

stacker (Tr. 529), a statement with overriding implications. The 

inferences drawn from the evidence in the record reveal, as noted 

above, that authorization to use the crane as a manhoist could not 

as a practical matter be rescined, until the morning of November 26, 

1976. Prior to the installation of the boards, there was no other 

means of reaching the top of the stacl:.er except via the crane because 

there would have been no means of crossing the abyss separating the 

hillside from the walkway. There is no indication that any employee 

of Lester was on the job site on November 26, 1976, who possessed 

more authority than Mr. Counts (Tr. 523). As such, he would have 

been the individual most likely to inform the employees of a change 

in company policy with regard to using the crane as a manhoist. The 

fact that he did not direct Messrs. Grant and Taylor in any manner as 

to how to get to the top of the stacker indicates that any change 

in company policy, if there was any, had not been effectively communicated to those men. 

Mr. Ellison, Lester's safety director, testified that individuals 

who violate company safety rules are subjected to company-impused discipline (Tr. 515). First offenders are suspended for 3 days, while 

recidivists are fired (Tr. 515). If company authorization to use the 

crane as a manhoist had been rescinded, then Mr. Dent, the crane operator (Tr. 340, 450), and Mr. Taylor, the employee riding in the cage 

who escaped injury (Exh. M-3), should have at least been suspended for 

3 days. Yet, they were not suspended (Tr. 518, 519). In fact, no 

consideration was given to suspending them after the accident (Tr. 

521). 

The existence of these disciplinary rules is highly probative for 

an additional reason. Statements made by Mr. Counts reveal that from 

his vantage point on the adjacent hill he could have seen the activities occurring on the job site if his attention had been directed 

there. It can be inferred that the employees could also see him. I 

find it highly improbable ·that the three employees directly involved 

in the accident would knowingly violate company safety rules in the 

1751 
presence of the foreman and thereby intentionally subject themselves 

to company disciplinary proceedings. 

Accordingly, it is found that Lester Construction Company not 

only condoned the use of the crane as a manhoist, but also authorized 

such use. Such authorization was either still in effect on the date 

of the accident, or, if it had been rescinded, the change in company 

policy had not been effectively communicated to Messrs. Dent, Grant 

and Taylor. 

The evidence also establishes that the crane was not equipped 

with overspeed, overwind, or automatic stop controls (Tr. 214-215, 

379). Furthermore, the Respondent conceded at the hearing that the 

crane was not so equipped (Tr. 8). Accordingly, it is found that a 

violation of 30 CFR 77.1401 has been established by a preponderance 

of the evidence. 

As relates to the second alleged violation, 30 CFR 77.1402-1 

provides as follows: 

§ 77 .1402-1 Ropes and cables; specifications. 

The American National Standards Institute "Specifications for the Use of Wire Ropes for Mines," M 11.1-1960, 

or the latest revision thereof, shall be used as a guide 

in the use, selection, installation, and maintenance of 

wire ropes used for hoisting. 

According to inspector Birkie Allen, a specialist in hoisting, ele--

vators, and major construction (Tr. 208), the wire rope on the crane 

was a five-eighths-type, 18 by 7 classification-type rope (Tr. 233-

234). The M 11.1-1960 U.S.A. "Standard 9pecifications for the Use 

of Wire Ropes for Mines" (Exhs. M-8, 0-4) specifies both the recommended and minimum tread diameters for sheaves and drums (Exhs. M-8, 

0-4, Table 36, Columns 1 and 2; Tr. 233-234). The minimum standards 

require the tread diameters of the sheaves and drums to be 34 times 

the rope diameter for an 18 by 7 classification (Exhs. M-8, 0-4, 

Table 36, Column 2; Tr. 233-234). Therefore, according to Inspector Allen, the sheaves and drums should have had a tread diameter 

of approximately 22-1/4 inches in order to comply with the minimum 

-requirements (Tr. 234). However, a recomputation based on the 

formula set forth in Exhibits M-8 and 0-4, Table 36, Column 2, 

for an 18 by 7 classification reveals that the precise figure is 

21-1/4 inches. 

The crane's sheave had a 12-inch inside tread diameter, and its 

drum was approximately 14 inches in diameter (Tr. 234). Inspector 

Allen determined the sheave diameter by measuring it (Tr. 234). Since 

rope remained on the drum, the drum diameter was determined by checking the crane manufacturer's specifications (Tr. 234-235). He used a 

1752 
caliper to determine that the hoist rope was five-eighths of an inch 

in diameter (Tr. 298). The inspector testified that the minimum standards had not been met because the sheave and the drum were smaller 

than 34 times the rope diameter (Tr. 234). 

The Respondent stressed both at the hearing and in its posthearing brief that it does not matter whether the rope failed to meet the 

standards as long as the rope was safe (Tr. 229-230; Respondent's 

Posthearing Brief, p. 9). However, this is not material to the question of whether a violation occurred. 

Accordingly, it is found that a violation of 30 CFR 77.1402-1 has 

been established by a preponderance of the evidence. 

As relates to the third alleged violation, 30 CFR 77.1403(a) provides as follows: 

§ 77.1403 Inspection and maintenance. 

(a) Hoists and elevators shall be examined daily 

and such examination shall include, but not be limited to, 

the following: 

(1) A·visual examination of the rope for wear, 

broken wires, and corrosion, especially at excessive 

strain points; 

(2) An examination of the rope fastenings for 

defects; 

(3) An examination of the elevator for loose, 

missing, or defective parts; 

(4) An examination of sheaves for broken flanges, 

defective bearings, rope alignment, and proper lubrication; and 

(5) An examination of the automatic controls and 

brakes required under § 77.1401. 

As regards the daily examinations of the crane, Mr. Lester testified 

that the crane operator had been instructed, via letters and posted 

bulletins, to examine the crane each day prior to starting the day's 

work (Tr. 463). Inspector Allen, who arrived on the job site shortly 

after the accident, asked Mr. Dent, the crane operator, whether he 

had made a daily examination of the crane (Tr. 263). According to 

Inspector Allen, Mr. Dent stated that although he normally would have 

made such examinations, he had not made any "since he had been on 

this job" (Tr. 263). Inspector Allen asked Mr. Counts whether the 

Lester Construction Company kept any inspection records pertaining 

1753 
to the crane used for manhoisting (Tr. 263). He testified that 

Mr. Counts was unable to produce one (Tr. 263). According to Inspector Allen, Mr. Counts stated that the company had no such record, 

that he depended on the crane operator and that the crane operator 

had not made the inspection (Tr. 263). 

Accordingly, it is found that a violation of 30 CFR 77 .1403(a) 

has been established by a preponderance of the evidence in that the 

required examinations had not been made. 

As relates to the fourth alleged violation, 30 CFR 77.404(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." Inspector Allen's examination of the wire rope revealed that 

it was damaged in several locations (Tr. 264, 309). One lay of the 

rope contained as many as six broken wires, and there were some randomly distributed broken wires throughout the rope for a distance of 

50 feet (Tr. 264, Exhs. M-2, M-2-A). Inspector Allen stated that 

normally six broken wires are sufficient to cause the wire rope's 

removal from service (Tr. 264). 

He determined that the rope was damaged by means of visual 

observation and through measuring some of the distortion in the rope 

with a caliper (Tr. 267). Although he was unable to remember the 

exact dimensions, the rope was .somewhat flattened in areas where the 

wires were broken (Tr. 267). 

The order of withdrawal alleges that the basis for the charge 

that the hoisting facility was not being maintained in a safe operating condition, is the condition relating to the broken wires. To 

constitute a violation upon this basis there would have to be proof 

that the broken wires existed prior to the accident. There does not 

appear to be clear cut proof to this effect in the record, although 

it may be argued that the description and opinions of the experts for 

the Petitioner infer that the broken wires may have existed prior to 

the accident. 

There was no testimony by anyone who observed broken wires before 

the accident. In addition there is no actual statement of any of the 

Petitioner's experts which clearly states an opinion that the broken 

wires did exist prior to the accident. 

To the contrary there is an opinion set forth in the record by 

the owner of Lester Construction Company that a strain on the cable 

enough to cause it to break would cause the breaklng of strands at 

different intervals (Tr. 473). The owner of the construction company, 

Mr. Lester, may not have been shown to be as experienced an expert 

as the Petitioner's expert on hoisting equipment; however, Mr. Lester 

had operated a crane and had been in this type of construction 

1754 
business for about 10 years prior to the date of his testimony (Tr. 

481). 

The experts for the Petitioner were of the opinion that the rope 

failure which occurred during the accident was due to excessive tension on the rope (Exh. M-3, p. 5, Exh. M-9, p. 5). And the evidence 

shows that this excessive tension occurred when the "two-blocking" 

took place. Therefore the possibility exists that the broken wires 

could have been caused by the same tension. 

The Administrative Procedure Act provides that a sanction may 

not be imposed unless it is supported by and in accordance with the 

reliable, probative, and substantial evidence, 5 U.S.C. § 556(d). In 

this case it cannot be said that the record contains substantial, 

probative evidence that the broken wires actually existed before the 

accident took place. 

Therefore it is found that Petitioner has not proved a violation 

of 30 CFR 77.404(a) upon a basis that the hoist was unsafe because 

"numerous broken wires" allegedly existed in the rope prior to the 

accident. It is, however, true that a violation existed under 30 tFR 

77.404(a) in that the hoisting facilities were not maintained in safe 

operating condition since such facilities were used for hoisting men 

and were not equipped with overspeed, overwind, or automatic stop 

controls and since the type of wire rope used did not properly match 

the size of the sheave and drum on the crane. 

However, the order does not allege a violation of 30 CFR 

77.404(a) in such terms, but confines the allegations under that 

regulation to the subject of "broken wires." In addition, two separate violations are already alleged in the order as relates to those 

bases upon which the hoist was unsafe. Those are under 30 CFR 77.1401 

and 30 CFR 77.1402-1. Apparently the inspector decided not to mention 

such bases under 30 CFR 77. 404(a) since J-ie had already covered such 

unsafe practices under specific regulations in the first part of his 

order (Exh. M-2, Exh. M-2-A). 

Accordingly, findings as to violations under 30 CFR 77.1401 and 

77.1402-1 are made herein but no finding will be made as to a violation of 30 CFR 77.404(a). 

(D) Gravity of the Violation 

Two of Lester's employees were directly exposed to the hazard. 

Mr. James Grant sustained a fatal injury when the wire rope separated, 

falling approximately 70 to 75 feet to his death (Tr. 101, 134-135, 

524, 544, Exh. M-3), Mr. Wayne Taylor narrowly escaped death or 

serious injury by jumping to the platform at the top of the stacker 

(Tr. 134-135, Exh. M-3). The cable separation occurred when the 

crane "two-blocked," i.e., when the overhaul ball was pulled into the 

sheave (Tr. 360-361, 369). 

1755 
The rope broke at a location 23 feet from the socket where the 

counterweight was attached (Tr. 296, Exh. M-3 at P• 6). The significance of this lies in the fact that 23 feet is the exact dimension 

of the jib on the end of the crane, indicating that the rope broke 

where the main boom sheaves were located (Tr. 324). 

Inspector Allen explained the function of overspeed (Tr. 215, 

349-350, 355), overwind (Tr. 216-218, 369), and automatic stop controls (Tr. 225), during the course of his testimony. According to 

Inspector Allen, the overwind control in itself would have completely 

prevented two-blocking. Activation of the overwind control would 

have caused the automatic stop to bring the hoist to a safe stop. 

There was no problem with overspeed in connection with the accident 

( Tr • 3 5 5 , 3 6 9 ) • 

As relates to the physical characteristics of the wire rope, 

according to Inspector Allen, the 18 by 7 classification rope used on 

the crane at the time of the accident was a nonrotating-type rope 

(Tr. 233). This type of rope is of very rigid construction with a 

high resistance to bending (Tr. 233). A rope bending over a small 

diameter sheave eventually develops fatigue (Tr. 237). If the rope 

is bent over a small sheave, and one end of the rope is free to 

rotate, an immediate loss of breaking strength results (Tr. 237). 

The rope in question was free to rotate because no guides were 

present where the rope was attached to the cage (Tr. 363). 

Passing a rope over small sheaves and drums over a period of 

time causes case hardening of the crovm wires (Tr. 240). This causes 

the rope to attain a strength greater than the catalogue breaking 

strength (Tr. 240). However, it is a false strength because the 

hardening of the outer crown wires causes them to become brittle 

(Tr. 240-241). As the report (Exh. M-9) notes, the rope broke at 

a greater strength than the catalogue br~aking strength (Tr. 240). 

As regards the effect of the drum on the rope, Inspector Allen 

stated: 

On the drum you have a secondary reason. If we had 

a recommended drum diameter of twenty-two and a quarter 

inches, if you visualize this as the drum (indicating), 

this rope is rigid. It resists bending due to the type 

of construction. As seen in the table, it requires a 

greater sheave size. If you intend to wind this on a 

drum, it will not wind. 

I think we're all maybe familiar with the rod and 

reel. The fleet angle normally determines how it's 

spooled onto the drum. However, with a rope that's as 

rigid as this, it will not spool properly. It will tend 

to overlap itself. Any time that you allow slack to 

1756 
come in, ·it acts as a spring and will tend to open up 

and crush and destroy itself. 

(Tr. 241-242). 

The inside strand wires had nicks (Exhs. M-3 at p. 5, M-9). 

According to Inspector Allen, this condition is normally caused by 

bending the rope over small diameter sheaves and drums (Tr. 311). 

Accordingly, it is found that the violations of 30 CFR 77.1401, 

and 1402-1, were extremely serious. 

A daily examination of the crane, according to the procedure outlined by Inspector Allen (Tr. 269-270), would have revealed both the 

noncompliance with the M 11 standards and the absence of overspeed, 

overwind, and automatic stop controls. Accordingly, it is found that 

the violation of 30 CFR 77.1403(a) was moderately serious. 

(E) Negligence of the Operator 

The evidence contained in the record indicates that Lester Construction Company demonstrated gross negligence with respect to each 

of the three violations of the mandatory safety standards. The question presented is whether the negligence of an independent contractor 

can be imputed to a mine owner who neither exercises control, nor 

possesses a contractual right of control, over the actions of the 

independent contractor or his employees. 

One approach would be to determine whether the mine owner demonstrated actual negligence or whether the mine owner either exercised 

control, or possessed a contractual right of control, over the independent contractor's employees. Under tqe control theory, the negligence of the independent contractor would be imputed to the mine 

owner. This would require a specific finding that such control 

existed. See, e.g., Old Ben Coal Company, VINC 79-119-P (April 27, 

1979). - - -

The evidence in the record reveals that the employees of Lester 

Construction Company were under the exclusive supervision of 

Mr. Count's, Lester's foreman. There is no probative evidence in the 

record indicating that Buffalo Mining Company supervised Lester's 

employees or directed or controlled them in the performance of their 

tasks. Nor is there any evidence of a contract provision granting to 

Buffalo such a right of control. 

The record is also devoid of any probative evidence as to direct 

negligence on Buffalo's part. There is no indication that Buffalo 

knew, or, through the exercise of due diligence, should have known 

of the conditions giving rise to the violations of the cited mandatory safety standards. Nor is there any probative evidence indicating 

1757 
that Buffalo materially abetted the violations or that Buffalo was 

negligent in selecting Long-Airdox as an independent contractor. 

Accordingly, the application of this approach to the facts presented in the case at bar would preclude a finding that Buffalo 

demonstrated any negligence. 

Another approach is found in the concept of the independent contractor as the "statutory agent" of the mine owner. In Bituminous 

Coal Operators' A$sociation, Inc. v. Secretary of the Interior, 

547 F.2d 21+0, 247 (4th Cir. 1977), the Court recognized that a construction company may be considered the statutory agent of the mine 

O\·mer. Section 3(e) of the 1969 Coal Act, 30 U.S.C. § 802(e) (1970), 

defines an "agent" as "any person charged with responsibility for the 

operation of all or a part of a coal mine or the supervision of the 

miners in a cO'al mine." l\.s noted prev.iously in this decision, the 

employees of independent contractors performing work in a "coal mine," 

section 3(h) of the 1969 Coal Act, 30 U.S.C. § 802(h) (1970), fall 

within the statute's definition of a "miner," section 3(g) of the 

1969 Coal Act, 30 u.s.c. § 802(g) (1970). The Court observed that the 

supervision of the "miners" in their employ brings the construction 

company "squarely within that part of the definition of a statutor~ 

agent which embraces 'any person charged with responsibility for * * * 

the supervision of miners in a coal mine.'" 547 F.2d at 247. Accordingly, the court held that "operators may be held liable for construction company violations, because the construction companies are 

statutory agents of the owners and lessees of coal mines." 547 F.2d 

at 247. 

The question presented is whether the concept of statutory agent, 

mentioned by the Court of Appeals in the context of holding the mine 

owner liable for the independent contractor's v.iolations of the 

1969 Coal Act, can be employed to impute -the independent contractor's 

negligence to the mine owner when determining the appropriate civil 

penalty to assess. 

The Commission's decision in Republic Steel Corporation, Docket 

No. IBMA 76-28, 77-39, 1979 OSHD par. 23,455 (FMSHRC, filed April 11, 

1979), does not directly address this issue, but does set forth 

certain principles providing guidance. The Commission observed that 

the Fourth Circuit had agreed with the District Court's conclusion in 

Bituminous Coal Operators' Association v. Hathaway, 400 F. Supp. 371 

(W.D. Va. 1975), as to the application of the statutory agent concept. 

However, the Commission stressed the text.of the statute when it held 

that, as a matter of law under the 1969 Coal Act, "an owner of a coal 

mine can be held responsible for any violations of the Act committed 

by its contractors." 

However, this is leES than a repudiation of the statutory agent 

concept. The Commission did observe that the "Act seeks to protect 

1758 
the safety and health of all individuals working in a coal mine," and 

that the "purpose of the Act is not served by interpreting these provisions to allow an operator to limit the benefit of the protection 

it affords to its own employees." 

The question presented must be resolved so as to promote the purposes of the 1969 Coal Act. Statements contained in the legislative 

history indicate that the civil penalty provisions of the 1969 Coal 

Act are remedial in nature,.!.·~·, the penalty assessed should be 

designed to deter future violations of the mandatory health and safety 

standards. See HOUSE COMMITTEE ON EDUCATION AND LABOR, LEGISLATIVE 

HISTORY OF THE FEDERAL COAL MINE HEALTH AND SAFETY ACT, 9lst Cong., 

2nd Sess. at 462-463 (1970). See also, Robert G. Lawson Coal Com-

_E._~_Y., 1 IBMA 115, 118, 79 I.D.~7~71-1973 OSHD par. 15,374 

(197 2). 

Thus, the amount of the penalty imposed should be sufficient to 

encourage the mine owner to insure protection for the employees of 

the independent contractors. This purpose is promoted by imputing 

the negligence of the independent contractor to the mine owner 

because it is only through such action that an appropriate and truly 

remedial civil penalty can be devised. 

It should also be pointed out that in this case the attorney for 

the Respondent stated that he represented Lester Construction Company, 

the independent contractor. He made the following statement at the 

hearing: 

In the contract there are certain provisions pertaining to the fact that we are an independent contractor 

and we hold Buffalo Mining harmless. As a practical 

matter, only through the hold harmle.ss agreement do we 

represent Buffalo Mining, but we do j.n effect represent 

them because of the fact that we ultimately will be 

responsible for any outcome of this proceeding. 

(Tr. 4, Exh. 0-1). 

Accordingly, it is found that the gross negligence demonstrated 

by Lester Construction Company can be imputed to the Respondent. 

(F) Good Faith in Attempting Rapid Abatement 

The order of withdrawal was issued by Inspector Allen at 3:35 p.m. 

on November 26, 1976 (Exh. M-2). It was terminated by inspector 

William S. Pauley at 4 p.m. on December 1, 1976 (Exh. M-5). Exhibit 

M-5 describes the action taken to abate the violation as follows: 

The practice of hoisting and-lowering men with the 

Lorain MC 30 H crane has been discontinued. Instructions which prohibit persons from being hoisted or 

1759 
lowered with the crane have been posted in the cab of 

the crane. Also the defective hoist rope has been 

removed from the crane. 

Accordingly, it is found that the Respondent demonstrated good 

faith in attempting rapid abatement of the violation. 

(G) History of Previous Violations 

The history of violations for which penalties have been paid at 

the Respondent's No. 5 Preparation Plant during the 2-year period 

preceding the issuance of the subject order is summarized as follows 

(Exh. M-1): 

30 CFR Year 1 

Standard 11/27/74 - 11/26/75 

All Sections 24 

77.1401 0 

77.1402-1 0 

77.1403(a) 0 

Year 2 

11/27/75 - 11/26/76 

9 

0 

0 

0 

(Note: All figures are approximations.) 

Totals 

33 

0 

0 

0 

No evidence was presented as to any possible history of violations as relates to Lester Construction Company. 

(H) Size of the Operator's Business 

The No. 5 Preparation Plant processes 5., 800 tons of coal daily 

(Exh. M-3, p. 2). The plant is owned by the Buffalo Mining Company 

(Tr. 13). Btiffalo Mining Company is a subsidiary of The Pittston 

Company (Exh. M-6). However, the record contains no evidence regarding the total annual coal production of either Buffalo Nining Company 

or The Pittston Company. No significant evidence as to the size of 

the Lester Construction Company was presented. 

(I) Effect of the Assessment of a Civil Penalty on the Operator's Ability to Continue in Business 

The Respondent introduced no probative evidence indicating that 

an assessment in this case would adversely affect the Respondent's or 

Lester Construction Company's ability to continue in business. The 

Interior Board of Mine Operations Appeals has held that evidence 

relating to whether a penalty will affect the ability of the operator 

to remain in business is within the operator's control, and therefore, 

there is a presumption that the operator will not be so affected. 

Hall Coal Company, 1 IBMA 175, 79 I.D. 668, 1971-1973 OSHD par. 15,380 

(1972). I find, therefore, that penalties otherwise prcperly assessed 

in this proceeding will not impair the operator's ability to continue 

in business. 

1760 
(J) Jurisdictional Issues 

During the course of the hearing, the attorney for the Respondent 

stated that there was a question as to jurisdiction in that he took 

the position that the Occupational Safety and Health Administration 

(OSHA) rather than MSHA should have jurisdiction because he questioned 

whether the factual circumstances came under the 1969 Coal Act. He 

stated that no coal mining people were involved. 

The Respondent's attorney is in error on this issue since it has 

already been pointed out in the prior portions of this decision that 

the area involved herein comes within the definition of a coal mine 

and that the employees of a contractor working at such mine come under 

the definition of miners. 

All of the Respondent's attorney's arguments as relates to the 

jurisdictional issues revolve around the same issues argued in the 

motion to dismiss which was disposed of in Part V(C) of this decision 

wherein it was held that the Respondent could be helq liable for 

safety violations committed by the independent contractor, Lester 

Construction Company. 

In his reply brief, Respondent's attorney stated that Buffalo may 

be in interstate commerce but Lester Construction Company is not. 

However, the question of whether Lester is or is not in interstate 

commerce is immaterial since Buffalo is properly charged with the 

violations. 

Based upon all of the findings of fact and conclusions of law 

previously set forth in this decision it is found that Buffalo 

Mining Company and its No. 5 Preparation Plant have been, during the 

pertinent periods involved herein, subject to the 1969 Coal Act and 

the 1977 Mine Act. 

VI. Conclusions of Law 

1. Buffalo Mining Company and its No. 5 Preparation Plant have 

been subject to the provisions of the 1969 Coal Act and 1977 Mine 

Act during the respective periods involved in this proceeding. 

2. Under the Acts, this Administrative Law Judge has jurisdiction over the subject matter of, and the parties to, this proceeding. 

3. MSHA inspector Birkie Allen was a duly authorized representative of the Secretary of Labor at all times relevant to the issuance of the order of withdrawal which is the subject matter of this 

proceeding. 

4. The violations charged as to 30 CFR 77.1401, 77.1402-1, and 

77.1403(a) are found to have occurred as alleged. 

1761 
5. MSHA has failed to prove, by a preponderance of the evidence, 

a violation as to 30 CFR 77.404(a) as alleged in the subject order. 

6. The Respondent's motion to dismiss is denied as contrary to 

the law and the facts. 

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. Buffalo submitted 

a reply brief. Subsequent thereto, MSHA submitted a letter aoting 

its disagreement with certain statements contained in Buffalo's 

reply 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 penalties is warranted as follows: 

Order No. Date 30 CFR Standard Penalt:i: 

1 BA 11/26/76 77 .1401 $6,000 

77.1402-1 1,500 

n .14o3(a) 500 

$8,000 

ORDER 

A. Respondent is ORDERED to pay a civil penalty in the amount of 

$8,000 within 30 days of the date of this decision. 

B. The petition is dismissed as relates to an alleged violation 

of 30 CFR 77.404(a). 

Judge 

1762 
FEDERAL MINE SAFETY AND HEALTH REVIEW COtVIMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRG !NIA 22203 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

Docket No. BARB 78-674-P 

Assessment Control 

No. 15-07212-02008 

v. 

No. 10 Mine 

DEBY COAL COMPANY, 

Respondent 

DECISION APPROVING SETTLEMENT 

Appearances: Stephen P. Kramer, Esq., Office of the Solicitor, 

Department of Labor, for Petitioner; 

No one appeared at the hearing on behalf of Respondent 

Before: Administrative Law Judge Steffey 

When the hearing in the above-entitled proceeding was convened in 

Barbourville, Kentucky, on September 12, 1979, counsel for petitioner 

asked that I approve a settlement agreement under which respondent had 

already paid the full civil penalties totaling $590 which had been proposed 

by the Assessment Office. The penalties proposed by the Assessment Office 

were derived by a proper consideration of the six criteria set forth in 

Section llO(i) of the Federal Mine Safety and Health Act of 1977. 

Respondent's No. 10 Mine produces approximately 31,250 tons of coal 

on an annual basis or about 125 tons of coal per day. Therefore, I agree 

that the Assessment Office appropriately_ found that respondent operates a 

small business and that any penalties which might be assessed in this proce~ding should be in a low range of magnitude under the criterion of the 

size of respondent's business. There is no evidence in the record to show 

that payment of penalties would cause respondent to discontinue in business. 

In the absence of any evidence to the contrary, I find that payment of 

civil penalties will not cause respondent to discontinue in business. 

All of the alleged violations involved in this proceeding were 

corrected within the period of time allowed by the inspector and therefore 

the Assessment Office correctly found that respondent demonstrated a normal 

good faith effort to achieve rapid compliance. The Assessment Office allowed 

from 10 to 12 penalty points for respondent's history of previous violations 

which also appears to be reasonable. 

The penalties proposed by the Assessment Office are based on the 

Assessment Office's findings that all of the alleged violations were the 

result of ordinary negligence with penalty points fixed midway in the 

1763 
MSHA v. Deby Coal Company, Docket No. BARB 78-674-P 

allowance for ordinary negligence. The alleged violations were all 

considered to be associated with a moderate degree of gravity with the 

exception of two alleged violations of Section 75.202. 

The Assessment Office arrived at penalties of $58 each for six 

alleged violations. The first $58 penalty was proposed for a violation 

of Section 75.1100-2(i)(2) alleging that respondent did not have 5 tons 

of rock dust which could be delivered to the mine within a period of 

1 hour. The second $58 penalty was proposed for a violation of Section 75.202-1 alleging that respondent did not have a supply of supplemental roof support materials as close as practical to the working section. The third $58 penalty was proposed for a violation of Section 

75.313 alleging that the methane monitor on the loading machine was inoperative. The fourth $58 penalty was proposed for an alleged violation 

of Section 75.1704 alleging that the No. 2 designated escapeway was not 

properly marked, The fifth $58 penalty was proposed for a violation of 

Section 75.1713-7(c) alleging that first-aid supplies were not being 

stored in a suitable manner. The sixth $58 penalty was proposed for a 

violation of Section 75.316 alleging that respondent had failed to install 

a permanent stopping in the third crosscut from the working face. I find 

that 'the proposed penalties of $58 each were appropriately determined by 

the Assessment Office for the above-described six alleged violations 

since they were correctly found to be the result of ordinary negligence 

and to involve a moderate degree of gravity. 

The Assessment Office appropriately found that a penalty of $46 should 

be assessed for an alleged violation of Section 75.512 alleging that respondent failed to record the last date on which electical equipment was 

inspected. The Assessment Office found that this alleged violation of 

Section 75.512 was the result of ordinary negligence and was nonserious. 

The Assessment Office proposed a penalty of $86 for violation of 

Section 75.202 alleging that 36 posts had been dislodged along the haulage 

roadway where men and coal are transported daily. Although the Assessment 

Office classified the alleged dislodging of posts to be the result of 

ordinary negligence, the penalty points were increased above the mid range 

for the criterion of negligence and the gravity of the violation was considered to be more serious than the other violations which have been 

discussed above. A penalty of $86 for dislodging 36 posts along the 

haulageway is acceptable for a small mine such as the one here involved. 

The Assessment Office proposed a penalty of $110 for the final 

violation in this proceeding. That notice of violation alleged that 

respondent had failed to support adequately a rock in the roof of the 

haulageway. The rock was about 16 feet wide and 6 feet long. The Assessment Office rated respondent's negligence in this instance to be close to 

the maximum for ordinary negligence and considered that the violation 

involved a high degree of gravity. The penalty of $110 is acceptable for 

1764 
MSHA v. Deby Coal Company, Docket No. BARB 78-674-P 

a serious violation involving a small mine such as the one under consideration in this case. 

For the reasons set forth above, I find that the settlement proposed 

by the parties should be approved. 

WHEREFORE, it is ordered: 

(A) The request for approval of settlement is granted and the 

settlement agreement is approved. 

(B) If Deby Coal Company has not already done so, it shall pay 

civil penalties totaling $590 within 30 days from the date of this 

decision. The penalties are allocated to the alleged violations as 

follows: 

Notice No. 1 HM (8-1) 1/17/78 § 75 .1100-2 (i) (2) ........... $ 

Notice No. 4 HM (8-4) 1/17/78 § 75.202-1 .................. Notice No. 1 HM (8-7) 1/24/78 § 75.512 .................... Notice No. 2 HM (8-8) 1/24/78 § 75.313 .................... Notice No. 4 HM (8-10) 1/24/78 § 75 .1704 . ................. Notice No. 1 HM (8-11) 2/23/78 § 75.1713-7(c) ............. Notice No. 2 HM (8-12) 2/23/78 § 75.202 ................... Notice No. 3 HM (8-13) 2/23/78 § 75.202 .................. Notice No. 2 HM (8-15) 2/28/78 § 75.316 . .................. Total Settlement Penalties in This Proceeding ........ $ 

~ui~C.r:J~ Richard C. Steffey ~ -

Administrative Law Judge 

Distribution: 

58.00 

58.00 

46.00 

58.00 

58.00 

58.00 

86.00 

110.00 

58.00 

590.00 

Stephen P. Kramer, Trial Attorney, Office of the Solicitor, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Deby Coal Company, Attention: James D. Sturgill, Manager, Manchester, 

KY 40962 (Certified Mail) 

1765 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRG tNIA 22203 

CONSOLIDATION COAL COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

·" -

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

Respondent 

'. ·;~r~ 

Application for Review 

Docket No. DENV 79-59 

Order No. 389458 

October 17, 1978 

Glenharold Mine 

DECISION 

Appearances: Kar~ T. Skrypak, Esq., Consolidation Coal Company, 

Pittsburgh, Pennsylvania, for the Applicant; 

Stephen P. Kramer, Esq., Office of the Solicitor, 

U.S. Department of Labor, for the Respondent. 

Before: Judge Cook 

I. Procedural Background 

On November 14, 1978, Consolidation Coal Company (Applicant) filed 

an application for review pursuant to section 105(d) 1/ of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d) (1978) (Act). 

1/ Section 105(d) provides: 

"If, within 30 days of receipt thereof, an operator of a coal or 

other mine notifies the Secretary that he intends to contest the issuance or modification of an order issued under section 104, or citation or a notification of proposed ass~ssment of a penalty issued 

under subsection (a) or (b) of this section, or the reasonableness 

of the length of abatement time fixed in a citation or modification 

thereof issued under section 104, or any miner or representative of 

miners notifies the Secretary of an intention to contest the issuance, 

modification, or termination of any order issued under section 104, or 

the reasonableness of the length of time set for abatement by a citation or modification thereof issued under section 104, the Secretary 

shall immediately advise the CoUL~ission of such notification, and the 

Commission shall afford an opportunity for a hearing (in accordance 

with section 554 of title 5, United States Code, but without regard 

to subsection (a)(3) of such section), and thereafter shall issue an 

order, based on findings of fact, affirming, modifying, or vacating 

the Secretary's citation, order, or proposed penalty, or directing 

other appropriate relief. Such order shall become final 30 days after 

its issuance. The rules of procedure prescribed by the Commission 

shall provide affected miners or representatives of affected miners an 

opportunity to participate as parties to hearings under this section. 

The Commission shall take whatever action is necessary to expedite 

proceedings for hearing appeals or orders issued under section 104.'' 

1766 
The application seeks review of Order of Withdrawal No. 389458, dated 

October 17, 1978, issued pursuant to section 104(d)(l) 2/ of the Act. 

In the application for review, it was alleged: 

1. At or about 1335 hours on October 17, 1978, Federal 

Coal Mine Inspector, Rudolph Isgler [sic] (A.R. 1639) representing himself to be a duly authorized representative 

of the Secretary of Labor (hereinafter "Inspector") issued 

Order No. 389458 (hereinafter 11 0rder 11 ) pursuant to the provisions contained in Section 104(d)(l) of the Act to Joel 

Grace, Safety Inspector, for a condition he allegedly 

observed during a 11 CAA" inspection (spot inspection) at 

the Glenharold Mine, Identification No. 32-00042 located in 

North Dakota.. A copy of this Order is attached hereto as 

Exhibit 11A11 in accordance with 29 C.F.R. Section 2700.2l(b). 

2. Said Order under the heading captioned "Condition 

or Practice11 alleges that: 

The trailing cable for the 1250 BE Dragline 

is not protected against damage from falling materials at 001 pit. The loaded bucket was being 

swung over the cable yesterday and now although 

not observed by this inspector, this practice was 

discussed with the operator during the last inspection, 09/13/78. 

2/ 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 staudard, and if he also finds that, 

while the conditions created by such violation do not cause imminent 

danger, such violation is of such nature as could significantly and 

substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard, and if he finds such violation to be 

caused by an unwarrantable failure of such operator to comply with 

such mandatory health or safety standards, he shall include such 

finding in any citation given to the operator under this Act. 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 s~ch violation has been abated." 

1767 
3 .. Said Order contains the allegation that the above 

condition or practice constituted a violation of 30 C.F.R. 

77.604, a mandatory health or safety standard, but that 

the violation has not created an imminent danger. Further, 

the Inspector stated that the alleged violation was of such 

a nature that it could significantly and substantially contribute to the cause and effect of a mine safety or health 

hazard and was caused by an unwarrantable failure to comply 

with the stated standard. 

4. Said Order additionally contained the allegation 

that the violation was found during a subsequent inspection 

made within ninety (90) days after Citation No. 389434 was 

issued on September 13, 1978, asserting that said Citation 

was caused by an unwarrantable failure of the operator to 

comply with a mandatory standard. A copy of this Citation 

issued under Section 104(d)(l) of the Act is attached 

hereto as Exhibit "B".* 

5. At or abor [sic] 1400 hours on September 13, 1978, 

Inspector Isgler [sicTJ:"ssued a termination of said Order. 

A copy of this termination is attached hereto as part of 

Exhibit "A". 

6. Consol avers that the Order is invalid and void, 

and in support of its position states: 

(a) That it did not violate 30 C.F.R. 77.512 as 

alleged in the underlying 104(d)(l) Citation; 

(b) That the underlying 104(d)(l) Citation did not 

state a condition or practice which was of such a nature 

as could significantly and substantially contribute to the 

cause and/or effect of a mine safety or health hazard; and 

(c) That underlying 104(d)(l) Citation did not state 

a condition or practice caused by an unwarrantable failure 

of Consol to comply with the mandatory safety standard 

cited in the Citation. 

7. Consol further avers that the Order is invalid and 

void for the additional reasons as follows: 

(a) That the Order fails to cite a condition or practice which constitutes a violation of mandatory health or 

safety standard 30 C.F.R. 77.604. 

(b) That the Order fails to state a condition or practice caused by an unwarrantable failure of Consol to comply 

with any mandatory health or safety standard; and 

1768 
(r.) That the Order fails to state a condition or practice which could significantly and substantially contribute 

to the cause and/or effect of a mine safety or health 

hazard. 

* * * * * * * 

WHEREFORE, Consol respectfully requests that its Application for Review be granted and for all of the above and 

other good reason; Consol additionally requests that the 

subject Order and underlying Citation be vacated or set 

aside and that all actions taken or to be taken with 

respect thereto or in consequence thereof be declared 

null, void and of no effect. 

In a footnote to paragraph 4 of the application, the Applicant 

states: 

Said ·citation under the heading "Condition or Practice" alleges that: 

The cover plate on the Brown and Sharpe Milling Lathe in use at the machine shop was removed by 

a certified Electrician about a week ago to remove 

a motor. It is an opening about 10 by 22 inches 

exposing conductors energized with 220 volts three 

phase power to two switches. The Electrician said 

it takes too long to replace cover. The machinist 

was aware of the condition. 

On November 17, 1978, the United Mine Workers of America (UMWA) 

filed an answer, which states, in pa~t, as follows: 

1. The International Union, United Mine Workers of 

America, is the representative of the miners at the Glenharold mine for collective bargaining and safety purposes, 

and is therefore a party to this matter under 29 CFR 

§ 2700.lO(a). 

2. Issuance of the above-noted withdrawal order is 

admitted, but all other allegations contained in the 

application for review are denied. 

The answer of the Mine Safety and Health Administration (MSHA) 

was filed on November 24, 1978. It states, in part, as follows: 

"MSHA admits the issuance of order No. 384458 dated 10/17 /78 and 

citation No. 389434 dated 9/13/78. MSHA avers that both the order 

and citation were in all respects properly issued under Section 

104(d)(l) of the Act. 11 

MSHA then requested dismissal of the application for review. 

1769 
The hearing was held on April 10, 1979, in Bismarck, North Dakota, 

pursuant to a notice of hearing issued on January 25, 1979. Representatives of the Applicant and MSHA were present and participated. No 

representative of the UMWA was present at the hearing (Tr. 4). )_/ 

A schedule for the submission of posthearing briefs was agreed 

upon at the conclusion of the hearing. MSHA submitted its posthearing brief on May 23, 1979. On May 30, 1979, counsel for the Applicant 

requested an additional 30 days in which to file a posthearing brief, 

which request was granted on June 4, 1979. Under the revised schedule, the brief was due on or before June 24, 1979, and reply briefs 

were due on or before July 9, 1979. The Applicant did not file a 

posthearing brief. No reply briefs were submitted. 

II. Issues 

1. Whether the condition cited in Order No. 389458 existed and, 

if so, whether it constitutes a violation of 30 CFR 77.604. In this 

regard, the parties' joint statement of the issue is whether 30 CFR 

77.604 requires that the trailing cable going from the substation to 

the dragline be protected in the area where the bucket swings over 

said cable to prevent damage caused by objects falling from the 

bucket of said dragline (Tr. 159). 

2. If the condition cited in Order No. 389458 existed and constitutes a violation of 30 CFR 77.604, whether said violation was 

caused by the unwarrantable failure of the operator to comply with 

said mandatory safety standard. 

3. Whether the conditions cited in Citation No. 389434, issued 

on September 13, 1979, existed and, if so, whether they constituted 

a violation of 30 CFR 77.512. 

4. If the conditions cited in Citation No. 389434 existed and 

constituted a violation of 30 CFR 77.512, whether said violation was 

of such a nature as could significantly and substantially contribute 

to the cause and effect of a coal mine safety hazard, and whether 

said violation was caused by the unwarrantable failure of the operator to comply with said mandatory safety standard. 

3/ The Applicant thereupon moved to dismiss the UMWA as a partyRespondent (Tr. 4). This motion was considered in conjunction with 

this decision, but was disposed of in a separate order, issued 

immediately prior to the issuance of this decision, so that the 

caption on this decision would reflect only the remaining parties. 

1770 
III. Evidence.Contained in the Record 

A. Stipulations 

The parties entered into stipulations which are set forth in the 

findings of fact, infra. 

B. Exhibits 

1. MSHA introduced the following exhibits into evidence: 

(a) M-1 is a copy of Citation No. 389434, September 13, 

1978, 30 CFR 77.512, issued pursuant to section 104(d)(l) of the Act. 

(b) M-2 through M-5 are photographs of the milling machine 

cited in Citation No. 389434. 

(c) M-6 is a copy of Order No. 389458, October 17, 1978, 

30 CFR 77.604, issued pursuant to section 104(d)(l) of the Act. 

2. The Applicant introduced the following exhibits into 

evidence: 

(a) 0-1 is a photograph of the milling machine cited in 

Citation No. 389434. 

(b) 0-2 is a scale drawing of the dragline involved in 

Order No. 389458. 

(c) 0-3 is a drawing representing the arc that the boom 

of the dragline would follow if it were to swing over the trailing 

cable. 

(d) 0-4 is a page from MSHA's policy manual referring to 

30 CFR 77.604. 

C. Witnesses 

MSHA called as its witness Rudolμh Iszler, an MSHA inspector. 

The Applicant called as its witnesses Philip Wanner, an electrical engineer and electrical foreman at the Applicant's Glenharold 

Mine; and Michael B. Quinn, the safety director at the Applicant's 

Glenharold Mine. 

IV. Opinion 

A. Stipulations 

1. Consolidation Coal Company is the owner and operator of the 

Glenharold Mine located in North Dakota (Tr. 6). 

1771 
2. Consolidation Coal Company and the Glenharold Mine are subject to the jurisdiction of the Federal Mine Safety and Health Act 

of 1977 (Tr. 6). 

3. The Administrative Law Judge has jurisdiction of the case 

pursuant to section 105 of the 1977 Act (Tr. 6). 

4. The inspector who issued the subject order and citation was 

a duly authorized representative of the Secretary of Labor (Tr. 7). 

5. A true pnd correct copy of the subject order and citation 

were properly served upon the operator in accordance with section 

104(a) of the 1977 Act (Tr. 7). 

6. Copies of the subject order and citation 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 (Tr. 7). 

7. With respect to the subject 104(d)(l) citation and section 

104(d)(l) order, an imminent danger did not exist (Tr. 7). 

8. As relates to Citation No. 389434, a violation of 30 CFR 

77.512 existed on September 13, 1978 (Tr. 7-8). 

9. As relates to the condition cited in Order No. 389458, the 

operator knew that the dragline was operating without the protective 

covering that Inspector Iszler had requested over the trailing cable 

(Tr. llO). 

B. Findings of Fact 

MSHA inspector Rudolph Iszler visited the Applicant's Glenharold 

Mine on October 17, 1978, to conduct a health and safety inspe~tion 

(Tr. 103). He traveled to the area of the 1250 dragline, accompanied 

by Joel Grace, the safety director for the Glenharold Mine, and Sam 

Drath, the union representative (Tr. 103). As they approached the 

dragline from the rear, the inspector observed the loaded bucket on 

the end of the boom swinging over the dragline's trailing cable (Tr. 

103-106). Upon examining the area, the inspector observed chunks of 

"hard" clay lying on and beside the trailing cable (Tr. 104-105). 

Exhibit 0-2 reveals that a dragline is essentially a large crane. 

The bucket is attached to a cable which runs from the bucket up to a 

pulley on the end of the boom and thereafter to the vicinity of what 

appears to be the dragline operator's compartment. A second cable 

runs from the vicinity of the bucket to what appears to be a drum 

located at or near the point at which the boom is attached to the 

main portion of the machine. 

1772 
Inferences drawn from the testimony of the witnesses (Tr. 131-

132, 139, 143), interpreted with reference to statements contained in 

the parties' joint statement as to the key issue in this proceeding 

(Tr. 159), indicate that the trailing cable ran from the dragline 

back to a substation. However, this was never stated directly by 

any of the witnesses. The only testimony as to the voltage passing 

through the trailing cable came from Inspector Iszler, who testified 

that he thought it was 7,200 volts (Tr. 108). 

The testimony of Inspector Iszler and Exhibit 0-3 reveal that 

at the time of the order's issuance, the dragline was being used to 

uncover a seam of coal (Tr. 129, 149). Thus, the material being 

transported in the bucket was newly dug (Tr. 129). The dragline 

was positioned b~tween the coal seam and some "spoils" piles 

(Exh. 0-3). The material was being taken from the vicinity of the 

areas denominated as "cut A" and "cut B" on Exhibit 0-3, swung over 

the trailing cable, and deposited in the area labeled "spoils" on 

Exhibit 0-3 (Tr. 104-105). The inference is that the material on or 

near the trailing cable had fallen from the bucket. Normally, the 

"cut A" material is not swung over the cable (Tr. 149). 

According to Mr. Quinn, a second piece of equipment called a 

"loading shovel" is used to load the uncovered coal into trucks. 

These trucks approach their loading point by way of the coal seam 

level, not the level upon which the dragline is located. Mr. Quinn 

stated that the difference in elevation between these two levels is 

probably 30 to 40 feet (Tr. 151-152). Thus, the trucks could not 

have damaged the d~agline trailing cable. 

The subject order of withdrawal was issued at 1:35 p.m. (Exh. 

0-6), citing the following "condition or practice" as a violation of 

the mandatory safety standard embodied in 30 CFR 77.604: 

The trailing cable ior the 1250 BE dragline is not 

protected against damage from falling materials at 001 pit. 

The loaded bucket was being swung over the cable yesterday 

and now. Although not observed by this inspector, this 

practice was discussed with the operator during the last 

inspection, 09/13/78. 

As relates to the phrase " [ t] he loaded bucket was being swung 

over the cable yesterday and now, 11 the inspector testified that he 

had not seen the bucket being swung over the cable "yesterday" (Tr. 

106), but that this information was acquired from the dragline operator (Tr. 106). 

As relates to the phrase "[a]lthough not observed by this 

inspector, this practice was discussed with the operator during the 

last inspection, 09/13/78, 11 the inspector testified as follows: 

1773 
Q. And this next sentence you state that "Although 

not observed by this inspector this practice was discussed 

with the operator during the last inspection--9-13-78 . 11 

Now, this phrase "not observed by this inspector"--what 

dates were you referring to when you made that statement? 

A. It had been brought to my attention that--that 

they were swinging a loaded bucket over the cable and 

dropping material on the cable occasionally, and it was 

also pointed out to me by a federal mine inspector who 

was stationed at Billings, Montana, that this was going 

on, and he alerted me to the fact, and he also told me 

that the company was notified of this during his inspection. I don't have the exact time, but it was, I believe, 

in May or June of 1978. 

Q. And what was the name of that inspector? 

A. H9ward Clayton. 

Q. Now, I don't believe you still quite answered 

my original question about dates. The statement "not 

observed by this inspector 11 --what dates does that refer 

to? Does that refer to some dates previous to the 17th? 

Q. And what dates would those be? 

A. It probably could have been the last inspection, 

because he mentioned this during several inspections. I 

asked whether they were making a practice of this here. 

Q. Do you recall who you had discussions with concerning the subject during that inspection? 

A. That was at a close-out conference, the one I 

am referring to there. That was at a close-out conference. It was a safety director, and--! am not certain, 

no, sir. It was a--I don't have my notes with me. I 

got them in Dickinson. 

Q. Was this close-out conference the only time that 

you discussed this problem with the Management previous 

to the conditions of this Order? 

A. No, sir. I mentioned that to the safety director previously. 

Q. And this was an incident other than the closeout conference? 

17.74 
A. Yes. 

Q. And who was that safety director? Do you recall? 

A. Joel Grace. 

(Tr. 106-108). 

The mandatory safety standard embodied in 30 CFR 77.604 provides: 

"Trailing cables shall be adequately protected to prevent damage by 

mobile equipment . 11 In determining whether the "condition or practice" 

cited in the subject order of withdrawal constitutes a violation of 

the mandatory standard, the parties are in agreement that the question 

presented is whether the regulation "requires that the trailing cable 

going from the substation to the dragline be protected in the area 

where the bucket swings over said cable to prevent damage caused by 

objects falling from the bucket of said dragline" (Tr. 159). For the 

reasons set forth below, I find that it does not. In resolving this 

issue, it has been necessary to interpret the regulation's requirements, determine whether the dragline was a piece of mobile equipment, 

and determine whether the manner in which the dragline was being used 

in relation to the cable is contemplated as a violation under the 

regulation. 

At the outset, it is found that Inspector Iszler observed the 

dragline bucket swinging over the trailing cable on October 17, 

1978, and that at the time the dragline's trailing cable was not 

protected so as to prevent objects falling from the bucket from 

damaging the cable. 

A question is presented as to whether the dragline is a piece of 

mobile equipment. The regulations nev~r specifically define the term 

"mobile equipment, 11 perhaps because the drafters believed the definition to be self-evident. The following definition is found 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) 

( 1968) at page 719: "Mobile equipment. Applied to all equipment 

which is self-propelled or which can be towed on its own wheels, 

tracks, or skids . 11 Accordingly, it is appropriate to use this 

accepted definition in determining whether the piece of equipment 

involved is mobile. 

ln view of Inspector Iszler's assertion that the dragline is 

self-propelled (Tr. 110-111), it is found that it is mobile equipment within the meaning of the subject regulation. 

Exhibit 0-4, a page from an MSHA surface manual, contains a 

policy guide for the enforcement of 30 CFR 77.604, which states the 

following: 

1775 
77.604 ·Protection of trailing cables. 

* * * * * * * 

POLICY 

Trailing cables shall be placed away from roadways and 

haulageways where they will not be run over or damaged by 

mobile equipment. Where trailing cables must cross roadways 

and haulageways they shall be protected from damage by: 

1. Suspension over the roadway or haulageway; 

2. Installation under a substantial bridge capable 

of supporting the weight of the mobile equipment using the 

roadway or haulageway; or 

3. An equivalent form of protection. 

When mobile equipment is observed running over unprotected trailing cables a violation of Section 77.604 exists. 

[Emphasis added.] 

The policy guide refers to two specific situations. Generally, 

it provides that the cables be "placed away from roadways and haulageways where they wil 1 not be run over or damaged by mobile equipment . 11 

However, where they must cross such areas, one of the three designated 

methods must be employed to protect them from damage. 

Although the language of the regulation, when taken in context, 

appears to refer to damage caused solely by physical contact by 

mobile equipment primarily by running_ over the trailing cable, a 

question is presented as to the meaning of the phrase "run over or 

damaged" contained in Exhibit 0-4. At first glance, it appears to 

reflect a recognition by MSHA that a trailing cable can be damaged by 

mobile equipment either by the equipment running over the cable or by 

some other means. This interpretation is supported by the testimony 

of Inspector Iszler (Tr. 114-117), who stated that the policy includes, 

but is not limited to, running over the cables (Tr. 115). A careful 

review of the policy statement, when taken as a whole, reveals that 

such an inference is unwarranted. 

I conclude that the terms "run over" and "damaged," as contained 

in the policy statement are being used interchangeably to refer to the 

same thing, and that the damage referred to is of a type caused by 

mobile equipment running over the cable. Two considerations weigh 

heavily in this determination. First, the policy guide indicates that 

the trailing cables must be protected from "damage" where they must 

cross roadways and haulageways. The term "run over" is not specifically mentioned. Yet, the three forms of protection prescribed are 

1776 
designed to prevent mobile equipment from running over,. and thus from 

damaging, the cable. In this context, it is clear that the terms 

"run over" and "damaged" are being used interchangeably. Second, 

Exhibit 0-4 states that when "mobile equpment is observed running over 

unprotected trailing cables a violation of Section 77 .604 exists." 

(Emphasis added.) It does not state that when "mobile equipment is 

observed running over or otherwise damaging unprotected trailing cables 

a violation of Section 77. 604 exists," or a statement to that effect. 

This fact, coupled with the fact that Exhibit 0-4 provides no guidelines for identifying other means of damaging the cable, further 

indicates that the word "damage" has been interpreted by MSHA to mean 

"run over." 

Accordingly, I conclude that MSHA's interpretation as contained 

in Exhibit 0-4, provides that trailing cables be protected in such 

a manner so as to· prevent damage from physical contact by mobile 

equipment running over the cables. 

Above and beyond this policy statement by MSHA addressed to 

"running over" cables, it appears that the regulation does include 

damage caused by any physical contact of the piece of mobile equipment 

with the cable. This could be caused by the equipment actually 

running into the cable rather than over it. However, it must be 

recognized that MSHA's policy statement is as stated since in almost 

all instances the danger would be caused by the "running over" of 

the cable. However, it does not appear that the regulation or MSHA's 

policy statement ever contemplated the type of situation presented 

in this case which does not involve physical contact of the piece of 

equipment with the cable. 

The question presented is whether the dragline's use in relation 

to the cable is the type of activity contemplated by the subject regulation. Once again, Exhibit 0-4, as interpreted in context, is 

instructive, revealing that MSHA has interpreted the regulation to 

require physical contact with the cable before a violation can be 

found to have occurred. In the instant case, the dragline bucket did 

not make physical contact with the cable. 

Accordingly, I conclude that the "condition or practice" cited 

in Order No. 389458 did not constitute a violation of 30 CFR 77.604. 

It is therefore unnecessary to address the issue of unwarrantable 

failure. 

It may well be that it is desirable that a regulation be enacted 

to protect against any possible damage which could be caused by the 

falling of material from a dragline bucket as it swings over a cable, 

but such was not contemplated by the subject regulation and its 

interpretation by MSHA. 

1777 
In view of the foregoing, it is unnecessary to address those 

issues pertaining to Citation No. 389434, the 104(d)(l) citation 

underlying the subject 104(d)(l) order of withdrawal. The Applicant 

pleaded the invalidity of Citation No. 389434 solely as an incident 

to the determination of the validity of the subject order of withdrawal. See, generally, Zeigler Coal Company, 3 IBMA 448, 81 I.D. 

729, 1974-1975 OSHD par. 19,131 (1974), reaffirmed on reconsideration, 4 IBHA 139, 82 I.D. 221, 1974-1975 OSHD par. 19,638 (1975). 

In view of the foregoing findings of fact and conclusions of 

law, the application for review will be granted, and Order No. 389458 

will be vacated. 

V. Conclusions of Law 

1. The Administrative Law Judge has jurisdiction over the subject matter of, and the parties to, this proceeding. 

2. Consolidation Coal Company and its Glenharold Mine have been 

subject to the provisions of the Federal Mine Safety and Health Act 

of 1~77 at all times relevant to this proceeding. 

3. MSHA inspector Rudolph Iszler was a duly authorized representative of the Secretary of Labor at all times relevant to this 

proceeding. 

4. The condition cited in Order No. 389458 existed, but did 

not constitute a violation of 30 CFR 77.604. 

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 

MSHA submitted a posthearing brief. Counsel for the Applicant 

made a closing statement, but did not submit a posthearing brief. The 

brief and the closing statement, 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. 

1778 
ORDER 

Accordingly, based on the above findings of fact a.nd conclusions 

of law, the application for review is GRANTED, and Order No. 389458 is 

herewith VACATED. 

Law Judge 

Distribution: 

Karl T. Skrypak, Esq., Consolidation Coal Company, 1800 Washington 

Road, Pittsburgh, PA 15241 (Certified Mail) 

Stephen P. Kramer, Esq., Mine Safety and Health Administration, 

Office of the Solicitor, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 

Harrison Combs, Esq., Joyce A. Hanula, Legal Assistant, United 

Mine Workers of America, 900-15th Street, NW., Washington, DC 

20005 (Certified Mail) 

Administrator for Coal Mine Safety and Health, U.S. Department 

of Labor 

Standard Distribution 

1779 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

4015 WILSON BOULEVARD 

ARLINGTON, VIRG !NIA 22203 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

ISLAND CREEK COAL COMPANY, 

Respondent 

Civil Penalty Proceeding 

Docket No. WEVA 79-170 

A/O No. 46-01383-03007 

Guyan No. 1 Mine 

ORDER OF DISMISSAL 

The Solicitor has filed a motion to withdraw the petition in the 

above-captioned proceeding. In his motion, the Solicitor advises the 

only citation in this petition was issued in error. 

I accept the Solicitor's representations. Accordingly, the 

Solicitor's motion is GRANTED, and this proceeding is hereby DISMISSED. 

Assistant Chief Administrative Law Judge 

Distribution: 

David E. Street, Esq., Office of the Solicitor, U.S. Department of 

Labor, Rm. 14480-Gateway Building, 3535 Market Street, 

Philadelphia, PA 19104 (Certified Mail) 

William K. Bodell II, Esq., Island Creek Coal Company, 2355 Harrodsburg 

Road, P.O. Box 11430, Lexington, KY 40575 (Certified Mail) 

*U.S. GOVERNMENT PRINTING OFFICE: 19790- 311-143/3309 

1780