INDEX SEPTEMBER 1980 

Commission Decisions 

9-02-80 Eastern Associated Coal Company 

9-26-80 Paramont Mining Company 

9-26-80 Sewell Coal Company 

9-29-80 Mulzer Crushed Stone Co. 

Administrative Law Judge Decisions 

9-03-80 

9-03-80 

9-03-80 

9-04-80 

9-05-80 

9-05-80 

9-05-80 

9-08-80 

9-09-80 

9-09-80 

9-09-80 

9-10-80 

9-11-80 

9-11-80 

9-11-80 

9-11-80 

9-11-80 

9-12-80 

9-12-80 

9-12-80 

9-12-80 

9-16-80 

9-16-80 

9-18-80 

9-19-80 

9-19-80 

9-19-80 

9-22-80 

9-22-80 

9-23-80 

9-25-80 

9-25-80 

9-26-80 

9-26-80 

9-26-80 

9-26-80 

9-26-80 

9-26-80 

9-29-80 

9-29-80 

9-30-80 

9-30-80 

United Nuclear Homestake Partners 

Mulzer Crushed Stone Co. 

C.C.C.-Pompey Coal Co. 

Allied Products Co. 

Pittsburg & Midway Coal Mining Co. 

Burgess Mining & Construction Corp. 

Burgess Mining 7 Construction Corp. 

Cowin & Company Inc. 

Kaiser Steel Company 

U S Steel Corp. 

The New River Company 

Bethlehem Mines Corp. 

Michael Jiles & Rickey C. Bennett 

National Mines Corp. 

Jewell Ridge Coal Corp. 

Island Creek Coal Company 

Virginia Pocahontas Company 

Middle Kentucky Construction Inc. 

San Juan Cement Company Inc. 

Karber Gravel Company 

Laurel Shaft Construction Co. 

Baker Coal Company 

United Nuclear-Homestake Partners 

Island Creek Coal Co. & Langley & Morgan Co. 

U S Steel Corp. 

Consolidation Coal Co. 

Leslie Coal Mining Co. 

Consolidation Coal Co. 

Quarto Mining Co., Nacco Mining Co. etc. 

Ranger Fuel Corp. 

Local 9800 UMWA v. Thomas Dupree 

Peabody Coal Co. 

General Portland Inc. 

Garrco Coal Co. 

Harlan Fuel Co. 

Eastern Associated Coal Corp. 

Patco, Inc. 

Eastover Mining Co. 

Erie Mining Company 

Arkansas Lime Company 

Itmann Coal Company 

H S Jackson Sand & Gravel Inc. 

HOPE 75-699 

VA 79-51 

HOPE 79-6-P 

LAKE 80-201-M 

· CENT 79-3 77-M 

LAKE 80-57-M 

PIKE 79-19-P 

SE 79-46-PM 

BARB 79-307-P 

SE 79-10 

SE 79-9 

HOPE 76-210-P 

DENV 78-512-P 

WEST 80-12-M 

WEVA 80-308 

PENN 80-52-R 

WEVA 80-59 

KENT 80-130-R 

VA 79-78 

VA 79-74-R 

VA 79-131-R 

KENT 80-92 

BARB 79-222-PM 

LAKE 80-110-M 

PITT 72-23 

WEVA 80-284 

CENT 80-45-M 

VA 79-81-D 

WEVA 80-466 

WEVA 80-224-R 

KENT 79-51 

PENN 80-254-R 

LAKE 79-119 et al 

WEVA 79-217-R 

KENT 80-216-D 

KENT 80-103 

DENV 79-277-PM 

KENT 79-37 

KENT 80-328-D 

HOPE 76-289 

KENT 80-34 

VA 80-60-D 

DENV 79-23-M 

CENT 79-213-M 

WEVA 80-132-R 

CENT 80-259-M 

Pg. 2467 

Pg. 2476 

Pg. 2479 

Pg. 2484 

Pg. 2489 

Pg. 2497 

Pg. 2512 

Pg. 2517 

Pg. 2528 

Pg. 2534 

Pg. 2538 

Pg. 2543 

Pg. 2548 

Pg. 2555 

Pg. 2560 

Pg. 2564 

Pg. 2570 

Pg. 2576 

Pg. 2578 

Pg. 2583 

Pg. 2586 

Pg. 2589 

Pg. 2602 

Pg. 2620 

Pg. 2623 

Pg. 2626 

Pg. 2632 

Pg. 2640 

Pg. 2644 

Pg. 2647 

Pg. 2654 

Pg. 2665 

Pg. 2669 

Pg. 2675 

Pg. 2680 

Pg. 2677 

Pg. 2688 

Pg. 2693 

Pg. 2697 

Pg. 2701 

Pg, 2711 

Pg. 2715 

Pg. 2717 

Pg. 2725 

Pg. 2738 

Pg. 2743 

Commission Decisions 
SEPTEMBER 

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

Secretary of Labor, MSHA v. Old Ben Coal Company, LAKE 79-238, etc. 

(Judge Bernstein1 July 25, 1980) 

Secretary of Labor, MSHA v. Jim Walter Resources and Cowin & Company, 

BARB 76X465-P and BARB 77-266-P (Judge Koutras, July 25, 1980) 

Secretary of Labor, MSHA v. Homestake Mining Company, CENT 79-27-M, etc. 

(Judge Bernstein, August 28, 1980) 

Secretary of Labor, MSHA v. Mulzer Crushed Stone Company, LAKE 80-201-M 

(Judge Koutras, September 3, 1980) 

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

Secretary of Labor, MSHA v. Consolidation Coal Company, WEVA 79-115-R, 

etc., Petition for Interlocutory Review (Judge Cook, August 4, 1980) 

Secretary of Labor, MSHA v. Island Creek Coal Company, KENT 79-216-R, 

etc. (Judge Melick, July 30, 1980) 

Secretary of Labor, MSHA v. Itmann Coal Company, WEVA 80-9-R, etc. 

(Judge Laurenson, July 31, 1980) 

Local _6025, UMWA v. Bishop Coal Company, WEVA 80-429-D (Judge Lasher, 

August 7, 1980) 

Secretary of Labor, MSHA v. Monterey Coal Company, LAKE 80-185-R 

(Judge Moore, August 13, 1980) 

Secretary of Labor, MSHA v. Sewell Coal Company, WEVA 80-264-R, etc. 

(Judge Laurens on, . August 11, 1980) 

Secretary of Labor, MSHA v. Evansville Materials, Inc., LAKE 80-195-M. 

(Judge Koutras, August 20, 1980) 

Review was Vacated in the following cases during the month of September: 

Secretary of Labor on behalf of A. Santistevan v. CF & I Steel Corp., 

WEST 80-85-D. 

Secretary of Labor, MSHA v. Valley Camp Coal Company, MORG 78-46-P. 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AHD HEALTH 

ADMINISTRATION (MSHA) , 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 2, 1980 

Docket No. HOPE 75-699 

IBMA 76-98 

EASTERN ASSOCIATED COAL COMPANY 

DECISION 

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

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

and involves the interpretation of section 103(f) of that act. 1/ 

Section 103(f) provided: 

In the eve:nt of any accident occurring in a coal 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 mine, and the operator of such mine shall obtain 

the approval of such representative in consultation with the 

appropriate state representative, when feasible, of any plan to 

recover any person in the mine or to return the affected areas of 

the mine to normal. 

On January 8, 1975, an inspector of the Interior Department's 

Mining Enforcement and Safety Administration ("MESA") issued to Eastern 

Associated Coal Company ("Eastern") an order under section 103(f). The 

order required the withdrawal of miners from a section of Eastern's 

Keystone No. 1 Mine. 

The MESA inspector had been in another area of the mine when he was 

informed by the general mine foreman that a miner had been pushed 

against a rib by a shuttle car. The administrative law judge described 

the circumstances as follows: 

The accident had occurred as coal was being loaded from a shuttle 

car into mine cars. Shuttle cars loaded with coal go to the track 

entry by means of a slight ramp. The coal is discharged from the 

shuttle car into the mine cars by a boom. The mine cars are 

1/ Conunissioner Backley did not participate in the consideration or 

decision of this case. 

2467 

80-9-1 
located on a track just below the shuttle car ramp. There were 

eight cars in this particular mine car trip. The mine cars were 

initially placed in the loading area by a locomotive. After 

arriving in the area, an electric hoist, using a hook attached to a 

rope, was connected to the rear car of the mine car trip in order 

to position the mine cars in the loading area1. The locomotive 

leaves once the cars are hooked to the hoist. The loading area 

track has a slight grade, approximately 2 percent, hence the 

electric hoist, rope, and the hook prevent the mine car trip from 

rolling down the grade under th~ influence of gravity. As each 

mine car is loaded with coal from the shuttle car boom, an empty 

mine car is positioned to be loaded by the electric hoist. In this 

case, empty oil drums were also placed on the loaded mine cars. 

The oil drums were placed there in order to haul them out of the 

mine (Tr. 45-48, 50-56). 

In this case, the victim was unloading his shuttle car, which was 

properly located in the entry ramp to the loading area. The hook 

which was attached to the mine car trip from the hoist became 

dislodged. The mine car trip then began to move down the slight 

grade. As it did so, the shuttle car boom came in contact with an 

empty oil drum on one of the mine cars which had already been 

loaded with coal. As the shuttle boom came in contact with the oil 

drum, it pushed the shuttle car crossways into the rib, trapping 

the victim [the shuttle car operator] between the rib and the 

shuttle car (Tr. 50, 51, 56). 

* * * Upon arriving [at the accident scene, the inspector] observed that 

the victim was conscious and being treated for shock and a possible 

broken back. The inspector felt that the victim had been seriously 

injured although he did not have positive knowledge of the extent 

of these injuries at that time. There was no one in the mine then 

capable of accurately ascertaining the victim's injuries (Tr. 41, 

43, 48-50, 63). . 

The judge relied upon the inspector's testimony that the accident 

was precipitated by the hoist hook coming loose, that he was uncertain 

as to why the hook had come loose, and that he considered himself 

unqualified to conduct the investigation. The judge found the inspector 

was prompted to issue the section 103(f) order to preserve the evidence 

pending an investigation of why the hook came loose. The next day the 

inspector issued an order modifying the initial section 103(f) order. 

The modification order stated: 

This modification will permit the operator to operate 4 mains 

section provided that: 

2468 
(I) Persons involved in loading operations will be 

instructed to inspect the hoist hook to ascertain th~t the 

hook is properly positioned prior to uncoupling the iocomotive 

from the trip. 

(II) To provide the hois~ rope with a device to preclude 

twisting, which may dislodge tht:! hook. 

(III) To provide and install a device to maintain control 

of mine cars in the event of a runaway. 

(IV) Until such time that item No. 3 can be provided the 

operator will provide a suitable locomotive manned by a 

competent motorman, which will be coupled to the mine cars at 

all times during loading operations. 

The order was terminated when a device was installed in the loading 

track to stop runaway mine cars. 

Eastern filed an application for review with the Interior Depart~ 

ment's Office of Hearings and Appeals. The administrative law judge 

held ,that he had no authority to review the order. Eastern appealed to 

the Interior Department's Board of Mine Operations Appeals, which held 

that the judge did ;"lave autho::it to ::-eview the order and remanded for a 

decision on the merits. 5 IBMA 74, 1975-76 CCH OSHD ,119,921 (1975). In 

his decision of June 4, 1976, the judge affirmed the section 103(f) 

order and the modification. Eastern then appealed again to the Board. 

While the appeal was pending before the Board, the 1969 Act was substantially amended by the Federal Mine Safety and Health Amendments Act 

of 1977, and was re-named the Federal Mine Safety and Health Act of 

1977, §801 et ~· (Supp. II 1978) ["the 1977 Act"]. The 1977 Act 

transferred adjudication functions to this Commission and transferred 

investigation, inspection, prosecution and rule-making functions to the 

Secretary of Labor. 

The United Mine Workers of America (the "Union") argued to the 

Board t:iat it co:ml-~ not :ceview section 103(f) orders, MESA concurred 

with the Union's position that the Board could not do so, but for a 

different reason--that the Board was not authorized by the Secretary of 

the Interior to review section 103(f) orders and that, in effect, the 

Interior Secretary had reserved this power, if it existed,to himself. J:../ 

];./ See Oral Argument Tr. 28-29, 35 (July 9, 1975)(before the Board). In 

deciding this case, we considered the arguments of these same parties in 

a similar case, Eastern Associated Coal Corp., Docket No. HOPE 76-289, 

IBMA 77-20. 

2469 
We observe at the outset that the issue of whether section 103(f) 

orders are administratively reviewable is not quite in the same posture 

as it was before the Board. The Board was merely a delegatee of some 

of the Secretary of the Interior's adjudicative functions. The transfer 

provision of the 1977 Amendments Act transferred to the Connnission the 

adjudicative powers of the Secretary of the Interior, .!!2!. those oi his 

Board 3/ nor his. Office of Hearings and Appeals. The adjudicative 

powers-of the Conrn.is3ion of cases under the 1969 Act that were pending 

on i.:'.1e 2ff·.:ctive ::.at.:; of ::he 1977 Act are therefore not derivative of 

the Board's powers, but are derivative of the Secretary of the Interior's 

powers. Accordingly, the question is not whether the Board was authorized 

by the Secretary of the Interior to decide this case, but rather,whether 

the Secretary of the Interior could have reviewed this order. 

We conclude that the Secretary of the Interior could have reviewed 

this section 103(f) order. As the superior of the MESA inspector the 

Secretary of the Interior had the power to voluntarily review the actions 

of his subordinate. We see no reason why he could not have done so in 

an adjudicative manner. !!../ The 1969 Act contained no express prohibition that would have prevented the Secretary from voluntarily creating 

an administrative adjudicative system for reviewing section 103(f) 

orders. The mere absence of a requirement that the Secretary review 

these orders, even coupled with the express requirement of review of 

orders issued under section 104, does not sufficiently indicate that 

Congress formed an intent to forbid such review. There is no indication 

in the legislative history of the 1969 Act that Congress so intended and 

review of section 103(f) orders can cause no deprivation of the protection accorded to miners by the Act. Compare Mine Workers v. Andrus 

(Carbon Fuel Co.), 581 F.2d 888, 892-894 (D.C. Cir.), cert. denied, 439 

U.S. 928 (1978). The Board concluded, when it first considered this 

case, that the Interior Secretary had established an administrative 

adjudication system for review of section 103(f) orders, and we agree 

with that conclusion. 5 IBMA 74. 

1/ -Sectior 30l(a) or tl 1977 Amendments Act, 30 U.S.C. §86l(a), reads 

in 'rt aL follows: 

(a) [T]he functions of the Secretarz. of the Interior under the 

Federal Coal Mine Health and Safety Act of 1969, as amended, and 

the Federal Metal and Nonmetallic Mine Safety Act are transferred 

to the Secretary of Labor, except those which are expressl¥ transferred to the Commission L.1 this Act. [Emphasis added.] 

!!._/ Cf. Wong Yang Sung v. McGrath, 339 U.S. 33, 50 (1950)(agency holds 

hearing by "special dispensation"); Cross-Sound Ferry Services, Inc. v. 

United States, 573 F.2d 725, 732 n. 4 (2d Cir. 1978)(hearings on 

environmental impact statement discretionary with agency); Attorney 

General's Manual on the Administrative Procedure Act, at 41 (1947) 

(hearing held "as a matter of agency policy or practice"). 

2470 
We also conclude that the Commission succeeded to the Interior 

Secretary's power to adjudicate this case. Although section 301 of the 

1977 Amendments Act does not clearly state the particular adjudicative 

powers that were transferred, we think it obvious that Congress intended 

all adjudicative matters pending before the Secretary of Interior on the 

effective date of the 1977 Act be continued before the Commission, 

except those which the Secretary of Labor had been given the function of ~o 

deciding under the 1977 Act, such as petitions for modification. See 

section 30l(c) of the 1977 Act. 5/ This view is most consistent with 

Congress' preference under the 1977 Act for independent, administrative 

review by the Commission, not the Secretary of Labor. Accordingly, we 

conclude that the Commission may decide this case. 2._/ 

We now turn to Eastern's arguments that both the section 103(f) 

order and its modification were invalid. Eastern argues that the 

section 103(f) order continued beyond the period of danger to the safety 

of the miners caused by the accident, and that section 103(f) did not 

authorize issuance of "post-inspection withdrawal orders to serve the 

purpose of future accident prevention". MESA (now MSHA) maintains that 

issuing a section 103(f) order to preserve evidence is authorized by 

section lOJ(f) because the resumption of mining operations would have 

resulted in the loss of evidence that could have established the 

underlying cause of the accident and thus assure that a similar accident 

would not recur on the same equipment. Preservation of the evidence in 

such circumstances thereby helped insure miner safety, MSHA argues. 

'l_/ Section 30l(c)(3) of the 1977 Amendments Act, 30 U.S.C. §86l(c)(3), 

reads in part as follows: 

The provisions of this section shall not affect any proceedings 

pending at the time this section takes effect before any department, agency, or component thereof, functions of which are transferred by this section, except that such proceedings, to the 

extent that they relate to functions so transferred, shall be 

continued before the Secretary of Labor or the Federal Mine Safety 

and Health Review Commission, by a court of competent jurisdiction, 

or by operation of law •... [Emphasis added.] 

!!_! The Union maintains that this case is moot because Eastern complied 

with the order even before it filed its application for review. The 

Board briefly rejected the argument on the authority of Eastern Associated 

Coal Corp. v. IBMOA, 491 F.2d 277 (4th Cir. 1974), and Freeman Coal 

Mining Co. v. IBMOA, 504 F.2d 741, 743 (7th Cir. 1974). See 5 IBMA at 

80 n.3. The Union in its renewed mootness argument vigorously maintains 

that these cases are distinguishable and furnish no authority for the 

Board's holding. We find no need to resolve this dispute for we have 

placed our holding on a different ground. The philosophy of review of 

both the 1969 and 1977 Acts is that operators are to comply with 

administrative orders first and litigate their merits later. The 

Union's argument would contravene this approach. It would condition the 

operator's opportunity to be heard on his disobedience to an order, and 

would eviscerate the opportunity to be heard for conscientious mine 

operators. 

2471 
The judge concluded that a section 103(f) order cannot be routinely 

issued for the sole purpose of preserving evidence pending a postaccident investigation. He observed, however, that there may be circumstances in which a section 103(f) order issued to preserve evidence 

might be appropriate. The judge concluded that where there is "a strong 

possibility that the accident might be repeated if operations were 

allowed to resume," a section 103(f) order may be used to ensure that the 

accident scene remains undisturbed if "the accident investigation ·has a 

direct relationship to the accident ••• and [if] the investigation is 

necessary to determine the cause of the accident and means to prevent a o 

recurrence." He concluded that this was the case here because one 

accident had resulted in injuries to the shuttle car operator, and the 

inspector's inability to determine why the cable hook became loose 

caused concern that the accident might recur. Finally, the judge found 

the inspector "acted reasonably" in imposing in the later modification 

of the order conditions precedent to terminating the order because "the 

conditions were directly related to insuring that a similar accident 

would not occur while mining was in progress". The judge rejected 

Eastern's argument that the modification of the order was invalid 

because it imposed duties upon the operator that were not imposed by any 

mandatory mine health or safety standard. The judge noted that section 

103(f) expressly required the operator to obtain the approval of the 

inspector in order to return the mine to normal after an accident, and 

stated that "I am not persuaded that the inspector exceeded his 

authority by modifying the order to insure the safety of miners in the 

area." 

With respect to the original order, we adopt the judge's views. On 

the facts of this case, the judge correctly found that the order comported with the express, remedial purpose of section 103(f)--to insure 

the safety of any person in the coal mine. 

We also agree with the judge's view that the requirements in the 

modification of the order were valid. Section 103(f) permits an 

inspector to issue orders "he deems appropriate to insure the safety of 

any person in the mine", and requires that "the operator of such mine 

shall obtain the approval of [the inspector] ••• of any plan ••• to 

return the affected areas of the mine to normal." Nothing in section 

103(f) restricted the inspector to enforcing only mandatory safety 

standards or preventing imminent dangers. Compare secti 1 (a) 

(imminent danger), 104(b) and (c)(standards), d 104(i) standard) LI 

Accordingly, the judge's 

LI We have no occasion here to determine whether the inspector's action 

is reviewable on an "arbitrary or capricious", "reasonableness", or de 

novo basis. 

2472 
Distribution 

Thomas A. Mascolino, Esq. 

U.S. Department of Labor 

Office of the Solicitor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

Frederick W. Moncrief, Esq. 

U.S. Department of Labor 

Office of the Solicitor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

Mary Lu Jordan, Esq. 

United Mine Workers of America 

900 15th·Street, N.W. 

Washington, D.C. 20005 

Nancy Sproul Bif ulco 

Robert C. Brady, Legal Assistants 

Eastern Associated Coal Corp. 

1728 Koppers Building 

Pittsburgh, Pennsylvania 15219 

Administrative Law Judge George Koutras 

5203 Leesburg Pike, 10th Floor 

Building 2 

Falls Church, Virginia 22041 

2473 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 2, 1980 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. HOPE 76-289 

v. IBMA 77-20 

EASTERN ASSOCIATED COAL COMPANY 

DECISION 

The decision of the administrative law judge 

case is remanded for reconsideration in light of, 

decision consistent with, Eastern Associat Coal 

vacated and the 

HOPE 75-699, IBMA 76-98 (September 2, 

80-9-2 

2474 
·Distribution 

Thomas A. Mascolino, Esq. 

U.S. Department of Labor 

Office of the Solicitor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

Mary Lu Jordan, Esq. 

United Mine Workers of America 

900 15th Street, N.W. 

Washington, D.C. 20005 

Nancy Sproul Bifulco 

Eastern Associated Coal Corp. 

1728 Koppers Building 

Pittsburgh, Pennsylvania 15219 

Administrative Law Judge Charles Moore 

5203 Leesburg Pike, 10th Floor 

Building 2 

Falls Church, Virginia 22041 

2475 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PARAMONT MINING COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 26, 1980 

Docket No. VA 79-51 

DECISION 

This civil penalty proceeding concerns the interpretation of 30 

C.F.R. §75.313 (1979) 1/. The question is whether the administrative 

law judge erred in holding the Secretary must prove that coal was being 

mined, cut or loaded in order to establish a violation of that mandatory 

safety standard. We hold that he did. 

Paramont Mining Company was cited for a violation of 30 C.F.R. 

§75.313. The Secretary petitioned for assessment of a civil penalty. 

At the hearing the inspector who issued the withdrawal order testified 

that when he reached the working section of the mine, he saw the 

continuous mining machine backing out from inby the last open crosscut. 

He inspected the machine and found that its methane monitor was bridged 

out (i.e., there was an electric detour around the methane monitor so 

that the machine could function when the monitor was not operating). 

This testimony was undisputed. 

1./ That standard, which restates section 303(1) of the Federal Mine 

Safety and Health A·ct of 1977, provides in relevant part: 

The Secretary or his authorized representative shall require, 

as an additional device for detecting ·concentrations of methane, 

that a methane monitor, ••• be installed, when available, on any 

electric face cutting equipment, continuous miner, longwall face 

equipment, and loading machine, ••• When installed on any such 

equipment, such monitor shall be kept operative and properly 

maintained and frequently tested as prescribed by the Secretary. 

The sensing device of such monitor shall be installed as close to 

the working face as practicable. Such monitor shall be set to 

deenergize automatically such equipment when such monitor is not 

operating properly and to give a warning automatically when the 

concentration of methane reaches a maximum percentage determined by 

an authorized representative of the Secretary which shall not be 

more than 1.0 volume per centum of methane. 

80-9-15 

2476 
The administrative law judge held, however, that the Secretary must 

prove not only that the continuous miner was not equipped with an 

operative methane monitor, but also that coal was actually being pro-· 

duced, i.e., cut, mined, or loaded, while the monitor was bridged out, 

in order to establish a violation of §75.313. He found that the 

Secretary failed to prove the latter element. 

We reverse. Production of coal is not a necessary element of a 

violation of this safety standard. The language of the standard is 

clear. It requires that monitors "be kept operative and ••• be set to 

deenergize automatically such equipment when such monitor is not 

operating properly •••• " The facts show that six days after its monitor 

had failed, this continuous miner was energized and moving near the face 

with an inoperative methane monitor. We hold that this is sufficient to 

establish a prima facie violation of 30 .C.F.R. §75.313, and that 

Paramont has not rebutted the Secretary's case by proving, for example, 

that the equipment was being moved elsewhere to be repaired. 

The decision of 

case is remanded for 

and the 

A. E. Lawson, Commissioner 

~lo..t\ ~~\fuw{~-W<. Marian Pearlman Nease, Commissioner 

2477 
Distribution 

Galen C. Thomas, Esq. 

c/o Barber Oil Corporation 

245 Park Avenue 

New York, New York 10017 

Cynthia L. Attwood, Esq. 

Judith N. Macaluso, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Va. 22203 

Chief Administrative Law Judge 

James A. Broderick 

FMSHRC 

1730 K Street, N.W. 

Washington, D.C. 20006 

2478 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 26, 1980 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

SEWELL COAL COMPANY 

Docket Nos. HOPE 79-6-P 

HOPE 79-227-P 

DECISION 

On June 5, 1979, the administrative law judge issued a prehearing 

order in this penalty proceeding, stating that if the parties were 

unable to settle the case, they were to "reconnnend a mutually acceptable 

time and site for hearing." In letters to the judge, Sewell Coal 

Company reconnnended several hearing dates in October 1979, while the 

Secretary stated that he "has no preference." 

On January 2, 1980, the judge set these cases for hearing on 

February 5, 1980, in Charleston, West Virginia, apparently without 

calling counsel first to inquire if that would be a /'mutually acceptable time ••• for hearing." Two days later, the counsel for Sewell 

notified the judge that he had a schedule conflict because a case before 

a different Commission judge had previously been scheduled to be heard 

in Arlington, Virginia, on February 5. Sewell's counsel requested that 

the hearing in this case be postponed until March. On January 15 the 

judge denied the request, stating that "[o]ur exceedingly heavy docket 

makes it impossible to delay or adjust hearing dates based on the 

availability of one attorney." 

The hearing was convened on February 5; no attorney appeared on 

behalf of Sewell. The judge held Sewell to be in default, and a 

decision was entered assessing a total of $1,220 in penalties, the 

amount originally proposed by the Secretary. 

80-9-16 

2479 
In his decision, the judge noted that the case load of the Commission's judges has become increasingly heavy and complex, that he is 

often required to travel to all parts of the country to conduct hearings, 

and that his itinerary is of ten tightly packed with hearing dates and 

involves numerous lawyers. He noted, as the Commission has, 1/ that 

Congress has forcefully expressed its desire that penalty cases be 

expeditiously adjudicated by the Commission. The judge considered the 

desire of Sewell to have its present counsel represent it in these 

cases, but rejected Sewell's argument that 'this attorney's expertise in 

mine safety and health matters is so great that only he can adquately 

represent Sewell. The judge also stated that "our moving this large 

number of cases cannot be dependent on [present counsel's] availability." 

We granted Sewell's petition for discretionary review on April 21, 

1980. 1:.J We now reverse and remand. 

In its brief on review, Sewell relies heavily upon the alleged 

expertise of its present attorney in arguing that the judge abused his 

discretion in refusing to grant a continuance. Sewell notes that this 

attorney has been the only lawyer, with the exception of two instances 

within the past two years, to represent the large Pittston Group of mine 

companies, of which Sewell is a part, in MSHA and surface mining matters. 

Sewell's argument, however, overlooks that right to couns~l of its 

choice is not unqualified. The public interest in the expeditious 

adjudication of penalty cases demanded under the 1977 Mine Act and the 

convenience of the administrative law judge also must be considered. 11 

We are of the view that due process is given in this regard when a party 

has been afforded the opportunity to obtain competent counsel, since the 

public and Congress' interest in expediting adjudication is compelling, 

and the agency's flexibility cannot be limited in the manner suggested 

by the operator's counsel in this instance. This is not the extraordinary case in which due process requires that a party's choice of one 

particular counsel is overriding. 

1./ Scotia Coal Mining Co., 2 FMSHRC 633, 1 BNA MSHC 2327, 1980 CCH OSHD 

,124,333 (1980), pet for~· filed, No. 80-3303 (6th Cir., April 29, 

1980). 

2/ In its petition, Sewell did not object to the default sanction 

Imposed by the judge. It raised only the question of whether the judge 

lawfully denied a continuance. We therefore have no occasion to discuss 

the use of a default here. Section 113(d)(2)(A)(iii) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. §801 et~· (Supp. II 

1978)["the 1977 Mine Act"]. 

3/ N.L.R.B. v. Glacier Packing Company, Inc., 507 F.2d 415 (9th Cir. 

l974); N.L.R.B. v. American Potash & Chemical Corp., 98 F.2d 488 (9th 

Cir. 1938). 

2480 
Nevertheless, the judge's discretion in setting a date for a hearing 

is not absolute. Section 5(a) of the APA, 5 U.S.C. §554(b), which is 

made applicable by section 105(d) of the 1977 Mine Act, states that 

"[i]n fixing the times and places for hearings, due regard shall be had 

for the convenience and necessity of the parties or their representatives." 

The administrative law judge must therefore balance the public interest 

and the due execution of the agency's functions with the convenience of 

the parties. f!/ The amount of "due regard" given in this case to the 

convenience of Sewell and its lawyer before the hearing was scheduled 

was little or none. In the prehearing order, the judge requested that 

all parties provide him with a list of proposed hearing dates. The 

Secretary responded that he had no preference for a date; Sewell's 

attorney specifically requested that the hearing be held on one of 

various dates in October 1979. There was no response from the judge 

until January 2, 1980, when he scheduled the hearing. It does not 

appear from the record that the judge considered Sewell's response to 

his prehearing order regarding hearing dates. 

After the judge docketed the hearing for February 5, 1980, the 

attorney for Sewell inunediately notified the judge of his schedule 

conflict. In denying Sewell's motion for a continuance, the judge said 

that his heavy caseload and docketing problems made rescheduling the 

hearing impossible. The judge's consideration was heavily influenced by 

the fact that he had already set a hearing date. The judge, to a large 

extent, presented Sewell with a fait accompli and did not consider the 

matter afresh when Sewell objected. 

Although the question is a very close one, we conclude that, in the 

circumstances of this case, the judge abused his discretion in denying a 

short continuance without any apparent indication that the suggested 

October dates were considered and rejected. Although the judge may not 

have been required to solicit a "mutually acceptable time ••• for hearing" 

in this case, once he embarked upon this course, it was arbitrary for 

him to have forced the operator to a hearing without even attempting the 

minimal scheduling accommodation sought by Sewell' s counsel. We do not 

mean to imply, however, that a judge must schedule hearing dates only to 

suit the needs or desires of the parties. The considerations voiced by 

the judge are very real and legitimate ones. However, had the judge in 

this instance acknowledged Sewell's response to his prehearing order, and 

inquired of counsel's availability prior to establishing his hearing 

schedule, an accommodation might (though not necessarily) have been 

possible, and "due regard" to the parties' needs, in addition to the 

4/ See Attorney General's Manual on the Administrative Procedure Act, 

46 (1947). See also Burnham Trucking Co. v. United States, 216 F. Supp. 

561, 564 (E.D. Pa. 1963): 

The statute expressly speaks of the convenience of the "parties" 

and we interpret this to mean that in scheduling an application for 

hearing, the convenience of all persons concerned ••• must be 

accorded due recognition. Due regard for the convenience and 

necessity of the parties cannot be divorced from the convenience of 

the agency. 

2481 
agency's; could have been accorded at the outset. Because he did not do 

so, the judge was required to flexibly exercise his discretion anew when 

Sewell objected. If a judge inquires of the parties before setting a 

hearing date, he should at least give consideration to their responses. 

Whether he should accommodate such responses is.a matter that falls 

within his discretion, dependent upon several factors, including~ but 

not limited to, the convenience of the parties. 

Nevertheless, the conduct of counsel for Sewell i~ ignoring the 

judge's hearing order and neither appearing at the hearing· as scheduled, 

nor providing a representative even for purposes of setting forth on 

the record his client's position, is not condoned and we trust will not 

be repeated. 

Accordingly, the judge's_order is vacated and the case is remanded 

for further proceedings. 

A. E. Lawson,.· Commissioner 

~l(U,l Marian Pearlman ~~n-~oJe Nease, Commissioner 

\.,,,./ --

2482 
Distribution 

Gary W. Callahan, Esq. 

Sewell Coal Company 

Lebanon, Virginia 24266 

Cynthia L. Attwood, Esq. 

Dennis R. McDaniel, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Va. 22203 

Administrative Law Judge Michael Lasher 

FMSHRC 

5203 Leesburg Pike 

Skyline Center #2, 10th Floor 

Falls Church, Va. 22041 

2483 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 29, 1980 

Docket No. LAKE 80-201-M 

MULZER CRUSHED STONE COMPANY 

DIRECTION FOR REVIEW AND ORDER 

The petition for discretionary review filed by Mulzer Crushed Stone 

Company is granted with respect to the following issue raised: whether 

a prejudicial error of procedure was connnitted by the Administrative Law 

Judge in that the mine operator was denied an opportunity to submit a 

brief with proposed findings and conclusions prior to issuance of the 

decision. 

An August 12, 1980, order issued by the Judge set September 15, 1980, 

as the deadline for filing post-hearing briefs. Prior to receiving any 

briefs the decision was issued on September 3rd. A post-hearing brief 

was received at the Commission from counsel for Mulzer on September 

11th. On the face of the record before us, it does appear that Mulzer, 

· as well as the Secretary, was improperly denied an opportunity to submit 

its brief prior to the issuance of the judge's decision. Accordingly, 

the judge's decision of September 3rd is vacated, and the case is remanded 

for the sole purpose of permitting the judge to reconsider his decision 

in view of briefs submitted. ,.· 

2484 
Distribution 

Philip E. Balcomb, Manager 

Mulzer Crushed Stone Co. 

P.O. Box 248 

Tell City, Indiana 47586 

Office of the Solicitor 

attn: Cynthia Attwood 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Va. 22203 

Administrative Law Judge George Koutras 

FMSHRC 

Skyline Center, 10th Floor 

5203 Leesburg Pike 

Falls Church, Va. 22041 

William C. Posternack, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

280 South Dearborn, 8th Floor 

Chicago, Illinois 60604 

2485 
• 
Administrative Law Judge Decisions 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COU AX AVENUE 

DENVER, COLORADO 80204 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

) 

Petitioner, ) 

) 

v. ) 

) 

UNITED NUCLEAR-HOMESTAKE PARTNERS, ) 

) 

Respondent. ) 

~~~~~~~~~~~~~~~~~~~ 

) 

) 

SEP 3 1980 

CIVIL PENALTY PROCEEDING 

DOCKET NO. CENT 79-377-M 

ASSESSMENT NO. 29-00591-05004 

DOCKET NO. CENT 79-378-M 

ASSESSMENT NO. 29-00591-05005 

MINE: SECTION 25 

DECISION 

APPEARANCES: 

Eve Chesbro, Esq., Office of the Solicitor, United States 

Department of Labor, Dallas, Texas 

for the Petitioner, 

Wayne E. Bingham, Esq., of Albuquerque, New Mexico 

for the Respondent. 

Before: Judge Virgil E. Vail 

I. Procedural Background 

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). The proposals for penalties allege three violations of 

mandatory safety standards contained in 30 CFR Part 56. 

Pursuant to notice, a hearing on the merits was held in Albuquerque,, 

New Mexico, on February 26, 1980. Charles H. Sisk, federal mine inspector, 

testified on behalf of the petitioner. Ronald W. Guill and Roy Souther 

testified for the respondent. 

II. Stipulations 

During the course of the hearing, counsel for both parties entered into 

the following stipulations: 

2489 
(a) Respondent had 26 previously assessed violations during 

the 14 month period preceding the issuance of the citations 

involved herein. 

(b) Respondent acted in good faith in abating the citations 

within the specified time allowed. 

(c) The proposed penalties would not adversely affect the 

ability of the company to continue in business. 

(d) Respondent employed approximately 66 people at Section 25 

during 1978. 

II I. Exhibits. 

Petitioner introduced the following exhibits into evidence: 

(a) P-1 is a diagram drawn by Charles Sisk. 

(b) Petitioner requested that the record be left open 

after the hearing in order to allow counsel to submit 

a computer printout sheet from the Office of Assessments. 

At the time of the hearing, respondent's counsel objected 

to the admittance of the printout into evidence. The 

undersigned Judge instructed respondent's counsel to 

restate his objection after he received a copy of the 

printout. Since counsel has failed to do so, the printout 

will be admitted into evidence for the sole purpose of 

examining respondent's prior history of assessments. 

Respondent introduced the following exhibits into evidence: 

Respondent's exhibits were incorrectly labelled as 

'defendant.' They will be referred to herein 

as respondent's exhibits. 

(a) R-A is a photograph. 

(b) R-B is a photograph. 

(c) R-C through R-I are weekly shaft inspection reports. 

(d) R-J through R-L are photographs. 

(e) R-M is a diagram of the gate prepared by Roy Souther. 

(f) R-N is a diagram of the bonnet and shaft measurements 

prepared by Roy Souther. 

(g) R-0 through R-V are photographs. 

490 
IV. ·Findings of. Fact and Conclusions. 

Docket CENT 79-378-M. 

Citation No. 151653 

Citation ~o. 151653 alleges a violation of 30 CFR 57.15-5 1 and 

states that the action was taken under section 107(a) of the Act. At th~ 

hearing, counsel for the petitioner moved to amend the citation to allege 

section 104(a) as an alternative basis for the citation. 

Respondent objected to the motion and requested that counsel for both 

parties be permitted to submit briefs. Counsel for the petitioner submitted 

a ~osition paper and respondent's counsel has, by letter dated March lC, 

1980, concurred with the Secretary's motion to amend the citation to allege; 

in the alternative, that the action waa taken under section 104(a) of the 

Act. 

The citation was issued on June 22, 1979, by Charles Sisk, federal mine 

·inspector. Mr. Sisk testified that duririg the course of his inspection he 

requested that Hr. Johnson, the company supervisor, who was ac_companying him 

during the inpection prepare the conveyance for a shaft inspection. 

In order to inspect the shaft a bonnet, which is an overhead protective 

device, is placed over the top of the conveyance so one can stand on top of 

the conveyance in the open shaft (Tr. 24). 

According to Mr. Sisk 's testimony, two men p.ositioned the bonnet on the 

conveyance; however, since the conveyance had not been spotted precisely at 

collar level, it was necessary for one of the miners to step up 

1/ 57.15-5 Mandatory. Safety belts and lines shall be worn when men 

work where there is danger of falling; a second person shall tend 

the lifeline when bins, tanks, or other dangerous areas are entered. 

2491 
approximately one foot onto the conveyance in order to tighten an 

attachment to the hoisting rope. The miner who climbed up onto the 

conveyance was wearing a safety belt, but failed to attach it to the safety 

line which was provided. 

Mr. Sisk testified that he issued a withdrawal order based on his 

belief that the miner could have fallen or tripped, and in doing so, could 

have fallen into the adjoining shaft. Since the conveyance had not been 

spotted perfectly, Mr. Sisk believed that it would also have been possible 

for the miner to have fallen into a hole on the other side of the conveyance 

or a gap on the back side (Tr. 27). 

Mr. Guill, mine superintendent at Section 25, testified that on the 

west side of the conveyance there is an open shaft. The two shafts are 

separated by a guide and three dividers. As illustrated by Respondent's 

Exhibits V and P, the first divider is approximately one foot or eighteen 

inches from the ground and the second is three and a half feet from the 

ground. The third divider is seven feet above collar level. Mr. Guill 

stated that he believed there existed only a remote possibility that someone 

could fall into the open shaft (Tr. 113). 

Roy Souther, safety director at Section 25, testified that he concurred 

with Mr. Guill's opinion as to the remote possibility of someone injuring 

himself by falling from the shaft conveyance (Tr. 124). 

I find that a violation did occur. There was conflicting testimony 

presented as to the amount of space between the conveyance and the front and 

back of the shaft. The parties also disagreed as to the depth of the drop 

from the collar level to the ground on the east side of the conveyance. I 

find the testimony of the respondent's witnesses and its exhibits to be more 

persuasive than that presented by the petitioner. On that basis, I conclude 

2492 
that there was no danger of someone falling off the conveyance either on 

the east side or front or back and, therefore, no violaiion of the standard. 

However, I find that there was a possibility of someone falling off the 

conveyance and into the open shaft. Mandat-ory Safety Standard 57 .15-5 

requires that safety belts and lines be worn when there is a danger of 

falling. I conclude th~t a danger did in fact exist. 

Section llO(i) of .the Act directs that in assessing a penalty, I 

consider six criteria: (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 violatio·ns. 

As stated above, the parties stipulated to three of the criteria. The 

respondent employed approximately 66 employees in 1978 and is therefore to 

be considered as a medium size business. 

Although I have concluded that the possibility of someone falling into 

the open shaft was unlikely, if it were to happen, it would result in 

serious injury. 

The company was unaware that the violation existed. This fact coupled 

with the fact that the possibility of injury was remote, I reduce the 

proposed penalty and assess a penalty of $100.00 for the violation. 

Docket Cent 79-377-M 

Citation No. 151649 

Citation No. 151649, issued on June 21, 1979, alleges a violation of 

2493 
mandatory safety standard 57.19-100. 2 

Mr. Sisk testified that he got off the conveyance at the 745 level. 

The gate at that level which had a metal frame with wire mesh over it, had a 

hole approximately 1 X 1 1/2 feet. Mr. Sisk stated that he issued the 

citation based on his belief that the skip tender or anyone else working 

below the gate could be injured if materials fell through the hole. The 

inspector stated that there were no materials stored in the immediate area, 

however, there was a storage area across the track from the gate where trash 

was stored until it was removed (Tr. 40). 

Mr. Guill disagreed with the inspector's testimony that the skip tender 

worked below the gate and would therefore be in danger (Tr. 98). However, 

Mr. Guill did state that on occasion someone could be in the bottom of the 

shaft to perform an inspection or to change the shaft pump (Tr. 97). In 

explaining the loading procedures used in removing the trash, Mr. Guill 

stated that there would be a remote chance that something could fall through 

the hole and even less chance that someone would be injured (Tr. 99 - 100). 

I find that a violation did occur. As depicted in Respondent's Exhibit 

A, the hole was large enough for materials to fall t.hrough, and therefore 

constituted a violation of the Act. The hole was obvious and the company 

knew or should have known of its existance. There was a possibility of 

serious injury resulting from the violation. I assess a penalty of $140.00 

for the violation. 

2/ 57.19-100 Mandatory. Shaft landings shall be equipped with 

substantial safety gates so constructed that ~aterials will not 

go through or under them; gates shall be closed except when 

loading or unloading shaft conveyances. 

2494 
Citation 151654 

On June 22, 1979, Mr. Sisk iss1,1ed a citation alleging a violation of 

mandatory safety standard 57.19-106. 3 While traveling on top of the 

conveyance, Mr. Sisk testified that he was using a dead blow hammer to 

strike the guides and sets in an attempt to determine if there was any loose 

material in the shaft. Mr. Sisk testified that when he began to hear a 

different sound, he hooked the hammer onto the guide and jerked it. As he 

did so the conveyance moved. He stated that the 37th set up from the 640 

level was broken and that 10 to 12 other sets were loose. 

Respondent offered Exhibits C through I into evidence which are the 

company's weekly shaft inspection forms. Exhibit F indicates that a shaft 

inspection had been performed on June 22, 1979, the same day Mr. Sisk 

conducted his inspection. The respondent's records show that the employees 

who inspected the shaft found nothing wrong and did not indicate that any 

work needed to be performed. 

Mr. Guill testified that he went down into the shaft on June 23, 1979, 

and during his inspection concluded that the guides were in good condition 

(Tr. BO). Although he found that there was slight movement of the cage, 

Mr. Guill attributed it to dryness in the shaft which causes movement in the 

pivot points around the guide hangers (Tr. 81 and 87). He testified that 

there were no broken sets, although one was cracked (Tr. 86). 

I find that a violation did exist. In the opinion of Mr. Guill all 

that was needed was to put water into the shaft in order to swell the 

timbers (Tr. 83). This, however, had not been done and Respondent's Exhibit 

F indicates that the employees who inspected the shaft did not think it was 

~/ 57.19-106 Mandatory. Shaft sets shall be kept in good repair 

and clean of hazardous material. 

2495 
necessary and had not recommended that it be done. In considering the 

number of employees who were exposed to the danger. and the type of injuries 

which could result, I conclude that the violation was serious. The 

testimony reveals a conflict as to whether the Respondent should have known 

that the violation did exist. I find that Respondent's negligence was 

slight in light of its weekly inspection and record keeping procedures. I 

therefore assess a penalty of $100.00 for the violation. 

ORDER 

Wherefore, it is ordered that Respondent pay the penalty of $340.00 

within 30 days of the date of this decision. 

Administrative Law Judge 

Distribution: 

Eve Chesbro, Esq., Office of the Solicitor, United States Department 

of Labor, 555 Griffin Square Building, Suite 501, Dallas, Texas 75202 

Wayne E. Bingham, Esq., PICKERING AND BINGHAM, 920 Ortiz, N.E., 

Albuquerque, New Mexico 87108 

2496 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 3 1980 

Petitioner 

Cnvil Penalty Proceedings 

Docket No. LAKE 80-57-M 

A.O. No. 12-01397-05001 

MULZER CRUSHED STONE COMPANY, 

Respondent 

Docket No. LAKE 80-201-M 

A.o. No. 12-01423-05002 

Derby UG Quarry 

. DECISIONS 

Appearances: William c. Posternak, Attorney, Office of the Solicitor, 

u.s. Department of Labor, Chicago, Illinois, for the 

petitioner; 

Philip E. Balcomb, Tell City, Indiana, for the respondent. 

Before: Judge Koutras 

Statement of the Proceedings 

These proceedings concern proposals for assessment of civil penalties 

filed by the petitioner against the respondent pursuant to section llO(a) 

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), 

charging the respondent with two alleged violations of certain mandatory 

safety standards found in Part 57, Title 30, Code of Federal Regulations. 

Respondent filed timely answers contesting the civil penalty proposals 

and requested a hearing. A hearing was convened on June 25, 1980, in 

Evansville, Indiana, and the parties appeared and participated fully therein. 

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 proposals for assessment of civil penalties filed 

in these proceedings, and, if so, (2) the appropriate civil penalties that 

should be assessed agaisnt the respondent for the alleged violations based 

upon the criteria set forth in section llO(i) ~f the Act. Additional issues 

raised by the parties are identified and disposed of in the course of these 

decisions. 

2497 
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 charged, (3) whether the operator 

was negligent, (4) the effect on the operator's ability to continue in business, (5) the gravity of the violation, and (6) the demonstrat~d good faith 

of the operator in attempting to achieve rapid compliance after notification 

of the violation, 

Applicable Statutory and Regulatory Provisions 

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

30 u.s.c. § 801 .!:!. ~· 

2. Section llO(i) of the 1977 Act, 30 u.s.c. § 820(i). 

3, Commission Rules, 29 C,F,R, § 2700.1 .!:!.~· 

Discussion 

Docket No. LAKE 80-201-M 

Citation No. 366596, November 27, 1979, 30 C.F.R. § 57.6-168, states as 

follows: "Two missed holes were noted in the left rib of tunnel 14, crosscut 

3 East Drift. The area had been mucked out and missed holes were readily 

visible to indicate that they had not been reported or no effort was made to 

dispose of them." 

30 c.F.R. § 57.6-168 provides as follows: "Misfires shall be reported to 

the proper supervisor and shall be disposed of safely before any other work 

is performed in that blasting area." 

Ry motion filed June 20, 1980, petitioner moved to amend its pleadings to 

charge a violation of section 57.6-177 rather than 57.6-168. In support of 

the motion, petitioner asserted that standard 57,6-168 was cited in error in 

that the standard applies to surface mines, whereas the mine in question was 

an underground mine. Standard 57.6-177 is the appropriate standard in that 

it pertains to reporting and disposing of misfired holes in underground 

mines, and the condition charged has not changed, and the obligation of the 

respondent under both 57,6-168 and 57.6-177, as it pertains to the citation, 

is the same, 

The parties were afforded an opportunity to present arguments in support 

and opposition to the motion, and after· due consideration of those arguments, 

petitioner's motion was granted (Tr, 3-16), 

Stipulations (Exhs. P-1 and P-5) 

1. Respondent's Derby Slope Mine and Underground Quarry are subject to 

the provisions of the Act. 

2498 
2. Respondent is a small mine operator and the proposed penalties will 

not adversely affect its ability to remain in business. 

3. During the 24-month period prior to the issuance of Citation 

No. 366596, respondent had only two assessed violations at its Derby Slope 

Mine, and three citations at its quarry. 

Petitioner's Testimony and Evidence 

MSHA inspector George LaLumondiere confirmed that he conducted a safety 

inspection of respondent's Derby Underground Mine, that he was accompanied 

by mine superintendent Bill Tsantis, assistant safety engineer Bob Scheible, 

MSHA inspector Jerry Spruell, and that he issued Citation No. 366596 after 

finding two misfired blasting holes that did not totally detonate during an 

ammonium nitrate blast. Ammonium nitrate was still in the two holes. He 

observed two lead wires with an electric cap protruding some 6 inches out 

of the holes in the face, and since there were no indications that the misfires were reported or disposed of, he issued the citation. Mr. Tsantis 

and Mr. Scheible denied any prior knowlege concerning the two misfired 

holes, and one cannot determine whether they had been fired until they 

were washed out. He saw no evidence that any attempts were made to dispose of the misfires since the rock from the blast had already been loaded 

and cleaned out and the holes were still there. The two wires he observed 

were not shunted off, and he believed that respondent should have known of 

the two misfires because the area should have been checked before the men 

went back in to work. 

Inspector Lalumondiere explained that he marked the item "improbable" 

on the gravity portion of his inspector's statement (Exh. P-4) because at 

the time of his observations the area had been cleaned up and no work was 

taking place. However, he indicated that ammonium nitrate is an explosive 

that could possibly be detonated by a sudden jarring or striking by a loading machine, and since there was no way to determine whether the firing 

cap was still "live," this added to the potential hazards. Eight to nine 

men are usually underground at the mine, but no one was working at the location cited (Tr. 19-26). The misfires were immediately taken care of by 

washing them out with water under pressure and abatement was rapidly 

achieved (Tr. 31, 35-40). 

On cross-examination, Inspector Lalumondiere testified that one of the 

misfired holes was located in the upper lef thand corner of the face and the 

second misfired hole was located in the lower lefthand corner. The likelihood of an accidental explosion was very low, but an accidental drilling 

into the misfired holes from the back of the drift could result in an accident. While he could not determine whether the caps and primer had fired, 

it was obvious to him that there was a partial firing failure because parts 

of the holes were still present in the face area noted (Tr. 40-53). 

The inspector stated that he believed the respondent was negligent 

because section 57.3.3-20 requires each worker to check his work area before 

2499 
he starts work and periodically while work is being performed. He identified Exhibit R-2 as an MSHA program directive dealing with the examination 

of working places under mandatory standards 55, 56, and 57.18-2. He confirmed that the directive defines "working place" as i'anyplace in or about 

a mine where work is being performed," and that no work was being performed 

when he discovered the conditions cited. The work had been completed and 

the area had been cleaned and no workers were there. He could not determine 

when the area had last been worked, and he believed that the holes were not 

subsequently checked because they were so readily visible and stated that 

"I don't see how anybody could miss them, if they had checked the area at 

all" (Tr. 54-63). 

In response to bench questions, the inspector stated that it was not 

likely that the remaining charges could have detonated by a stray charge, 

and that normally a face is drilled and loaded for 30 holes to detonate, but 

in the instant case, he was told that less than 30 were loaded, two holes 

remained, and the cap wires were not shunted or tied together to prevent 

stray current from getting to it (Tr. 64-73). However, until such time as 

the hole is washed out, it is difficult to determine all of the conditions 

by observation (Tr. 78). 

Respondent's Testimony and Evidence 

Dennis Riddle testified that he has worked at the mine in question for 

some 4 years as a miner and was present during the inspection of November 27. 

He identified Exhibit R-1 as a sketch of the face area in question, and 

explained that the dimensions of the face were 32 feet wide and 21 feet high 

with standard-sized drill holes prepared for blasting. Nine men were working in the mine on the day in question, and he identified the locations of 

the holes which were drilled for blasting and the two which did not totally 

detonate by marking them with an "X" on the sketch. He also explained the 

drilling, shooting, and cleanup procedures, and indicated that it was impossible to see holes which may have misfired until the blasted rock is removed 

because the bulk of the face area which is shot is covered by blasted rock. 

The night-shift mucking crew is responsible for cleaning and removing the 

rock, but there are times when all of the rock is not removed and the next 

oncoming shift may not detect misfires which may be covered or obscured by 

rock which is still left in the area. One man usually loads the rock out 

with a front-end loader and he checks for misfires, and if any are detected 

he shunts them out, reports it, and tests may then be made with a galvanometer. If it is not tested, the hole is washed out. He also explained that 

up to seven headings a day may be shot and cleaned up in a routine and 

progressive manner, and a person has no reason to go back into an area that 

has been shot out and is uncleaned until the routine procedure is followed. 

On the day in question, the nearest men were some 400 feet away in several 

other rooms and he believes they were well protected from any possible 

hazard (Tr. 83-97). 

Mr. Riddle stated that in his opinion the top hole was not a misfire, 

but he was not sure about the bottom one without testing it. The shot was 

fired between 3:30 and 4 p.m. on the evening before the citation issued, 

2500 
and it is normal procedure to fire shots at the end of the day shift so 

that the night shift can start mucking and loading out the rocks. Misfires 

are not comm.on occurrences, average less than one a month, and they are generally very obvious because one can see the rock still protruding. Five to 

seven faces are drilled and fired every day, and it is common for a hang-up 

to occur in the corner of the face, and the top holes are difficult to check 

because of the bad top which has to be roof bolted first (Tr. 96-103). 

On cross-examination, Mr. Riddle stated that his duties include drilling and loading holes for blasting, and that the day before the citation 

issued, he was helping with the loading and mucking operations. He was not 

in the section cited and was working 400 feet away and saw the holes only 

after they were brought to his attention. He saw the two holes and they 

were not obstructed by any rocks. He agreed that the detonating wires were 

protruding from the two holes and that anpho explosive was in the two holes, 

a little in the top one, but quite a bit in the bottom one. The top hole 

had blown at the backside of the face, but that before he could examine it 

closely, there was no way to determine how much anpho w'as still in the hole 

by standing and looking at it from 21 feet below the face. The clean-up 

loader operator is responsible for inspecting for and reporting misfires. 

No one was cleaning in the area in question because the morning shift was 

working in another heading (Tr. 104-111). If the holes are not visible, 

one cannot tell whether the detonator has fired until the hole is tested 

or washed out (Tr. 112). Anpho-blasting agent sometimes does not detonate 

or explode if it is wet and he did not inspect the face on the morning of 

the inspection before the inspector arrived because no one had been in the 

area that morning.and the boss had not conducted his daily inspection of 

that area (Tr. 113-117). Abatement was achieved by bringing in a generator 

from another area 400 feet away to pump in water used to wash the hole 

(Tr. 122). The misfired holes which he washed out would have been visible 

the night before after the mucking operation had taken place if someone had 

gotten out of their machine to inspect them but the night shift does not 

leave their equipment to inspect if they do not observe any knots humped out 

of the face, and on this occasion, the face was straight and square. If 

drilling were to take place, the driller would inspect the face area, and 

if not, Superintendent Tsantis would inspect it sometime during the day 

(Tr. 123-124). 

Findings and Conclusions 

Fact of Violation 

As indicated earlier,. respondent was originally charged with a violation 

of sectio~ 57.6-168, and the petitioner was permitted to amend its pleadings 

to charge a violation of section 57.6-177, which provides as follows: 

Misfires shall be reported to the proper supervisor. The 

blast area shall be dangered-off until misfired holes are 

disposed of. Where explosives other than black powder have 

been used, misfired holes shall be disposed of as soon as 

possible by one of the following methods: 

2501 
(a) Washing the stemming and charge from the borehole 

with water; 

(b) Reattempting to fire the holes if leg wires are 

exposed; or 

(c) Inserting new primers after the stemming has been 

washed out. 

Petitioner's counsel asserted that its charges of a violation are 

limited to the contention that the misfired holes were not reported and were 

not disposed of in any manner. Counsel also asserted that petitioner is not 

charging the respondent with a failure to danger off the area~ nor is petitioner requiring that respondent undertake to dispose of the misfires by 

alternative method (c) found in section 57.6-177. The essence of the charge, 

asserted counsel, is the contention that respondent failed to dispose of the 

misfires by any method (Tr. 8-12). Counsel asserted that respondent is 

obliged to report misfires and to dispose of them as soon as possible and 

that the critical question is whether the misfires were disposed of as soon 

as possible (Tr. 141). Insofar as the requirement that misfires be reported, 

counsel conceded that the standard contains no time frame as to when they 

must be reported, but the implication is that they must be reported as soon 

as they become known (Tr. 151). 

Petitioner argues that the misfired holes should have been detected and 

properly disposed of during the evening shift at the time the mucking cycle 

was taking place. Since such misfires can be readily detected by observation, 

and since the presence of the explosive anpho is a sign that a misfire has 

occurred, the holes in question should have been detected at the conclusion 

of the mucking operation since both holes would not have been obstructed by 

the materials which were shot from the face. Since the mucking crew had left 

the area and the oncoming crew was working in another section, petitioner 

asserts that it is reasonable to infer that no one detected or reported the 

misfires, and had the inspector not discovered them, it is also reasonable to 

inf er that mi.ne management would not have discovered them until such time as 

men had sow:: reason to go back to the area when the mining cycle again 

reached that ~ ,1t, and this ·rould not have been "as soon as possible." Both 

holes were clearly identi. tal " at the conclusion of the mucking operation 

and the ·ilure ~o dispose oi them at that time constitutes a violation 

since t' were not disposed of as soon as possible as required by the cited 

standa,.d. Correction and disposition of the misfires was no monumental task 

and immediate detection and disposition of the condition should have been 

made by the respondent (Tr. 127-133, 140-143). 

Respondent argues that while it is true that the large bulk of the 

material blasted had been mucked out, the final cleanup of the area cited, 

including the careful examination of the face, had not been accomplished. In addition, no one was working in the area, but as soon as the 

orderly mining cycle had returned the men back to the area which had been 

shot, the misfired holes would have been discovered and disposed of in the 

normal course of business. Respondent maintains that its mining method, 

2502 
which entails proceeding in an orderly manner from one heading to the next, 

by blasting, mucking, and then cleaning carefully while inspecting for misfires and disposing of them as soon as they are discovered, is reasonable, 

proper, and safe. Respondent further argues that during the mucking operation, the loader operator is working with a machine which is nearly as high 

as the roof in front of him and he has a large bucket in front of him. 

Thus, he is in no position to alight from his machine to carefully inspect 

for misfires as an inspector would do when he goes in later with his head 

lamp. Respond.ent believes it is proper to do as was done in this case, 

since within a few hours after the face was blasted, the face area would 

have been cleaned out (Tr. 143-146). 

Respondent believes further that any misfires could not have been determined by any reasonable standards until such time as the cleanup man returned 

to the face area to make a detailed inspection for such misfires (Tr. 147). 

The thrust of respondent's defense is its belief that since five to seven 

headings are shot down every day, there are five to seven muck piles which 

obscure most of the holes constituting the blasting pattern, and some reasonable judgment must be exercised as to when it is feasible to realistically 

make a determination as to the presence of any misfires. That determination, 

maintains the respondent, cannot be made until total cleanup has been accomplished (Tr. 153). In its operation, the superintendent inspects the faces 

and muck piles immediately after firing before he goes home at the end of 

the day shift and after the air is cleared out enough to facilitate his 

inspection, and this cannot be done until the face is totally exposed and 

the holes can be observed. In the instant case, respondent maintains that 

the area cited had been mucked out, but not totally cleaned up. While most 

of the material is removed during any mucking operation, a third of the 

material may still be present which would obscure some of the face (Tr. 154). 

Respondent submits that the reason the standard language contains no specific time frame is to permit an operator some flexibility to follow his own 

mining cycle which, in this case, calls for orderly and safe sequential 

mining procedures which are so necessary to any successful mining operation 

(Tr. 151-152). 

The inspector conceded that he could have cited the respondent with a 

violation of section 57.6-106, which specifically requires examination of 

faces and muck piles by a competent person for undetonated explosives or 

blasting agents, and requires the disposition of such explosives or agents 

when they are found. He did not do so because he considered the holes to be 

misfires and believed that section 57.6-177 was more appropriate (Tr. 137). 

MSHA's counsel also believed that the misfire standard is more specific than 

the general requirement found in section 57.6-106, requiring a general 

inspection after an explosion (Tr. 138). 

When asked whether there is any specific mandatory standard requiring 

examination of any area which has been blasted for hazards such as misfires, 

the inspector replied "57.3-22" (Tr. 65). That section requires that miners 

examine and test the back, face, and rib of their working places "at the 

beginning of each shift and frequently thereafter." "Working place" is 

defined by section 57.2 as "any place in or about a mine where work is being 

2503 
performed." ·(Emphasis added.) There is no dispute that at the time the 

citation issued no one was working in the face area in question, and the 

inspector issued no citation for failure to examine the area during the 

mucking operation. I assume that he did not do so because he ~ade no determination that the face area was not inspected while work was being carried 

out there. 

In addition to section 57.2, section 57.18-2 requires examinations of 

working places by a competent person designated by the operator or at least 

once each shift for conditions which may adversely affect safety or health. 

If such conditions are detected, an operator is required to promptly initiate appropriate action to correct such conditions. MSHA's program directive 

dealing with the application of this standard (Exh. R-2), indicates that 

this standard shall be cited where there is a failure to conduct an examination of the working place or to record the fact such an examination has 

been made. 

The theory of petitioner's case rests on its assertion ~hat the 

inspector discovered two misfired holes which were clearly visible to him 

after the face area had been blasted and cleaned out. Since the misfires 

were still present, petitioner believes that it is obvious that they were 

not reported, nor disposed of, since respondent's own people advised the 

inspector that they had no knowledge of the existence of the misfired holes 

(Tr. 148-149). Petitioner's counsel conceded that section 57.6-177 contains 

no specific time frame for the disposition of misfired holes and that the 

language "as soon as possible" implies that they are to be reported when 

they become known (Tr. 150151). It seems obvious to me, however, that petitioner's case relies on an assumption that there was no way that the respondent could not have known about the existence of the misfires. 

At the time the citation issued, the inspector did not inquire of 

Mr. Riddle as to when the face was blasted, but he did ask Mr. Scheible, the 

assistant safety engineer, who told him that he did not know when the blasting had taken place (Tr. 59). The inspector made no determination as to the 

time interval between the mucking of the face area in question and the time 

he observed the misfires, nor did he know when the blasting had taken place 

(Tr. 67). He also testified that he has operated front-end loaders, has 

engaged in mucking out places in a mine, and believed the one top misfired 

hole should have been visible at anytime during the mucking process, and that 

it would take very little mucking to be able to detect the bottom misfire. 

He knew of no reason which would have prevented the mucking operator from 

observing the misfired holes on the day in question (Tr. 133-135). He agreed 

that the mining cycle calls for mucking to be done on the. evening shift and 

that it was possible that the face area was shot down the day before his 

inspection and that it was cleaned out the night before his arrival on the 

scene (Tr. 136). 

As indicated earlier, the thrust of petitioner's case, including the 

basis for the alleged violation of section 57.6-177, rests on petitioner's 

assertion that the respondent failed to dispose of the two misfired holes 

2504 
as soon as possible after they were detected or should have been detected. 

Since it is obvious from the evidence adduced in this case that they were 

not detected by the respondent until the inspector arrived on the scene and 

issued the citation, the threshold question is whther the respondent's failure to detect the two misfires after it completed its initial mucking operation and prior to the final cleanup and inspection of the area which had 

been blasted constitutes a violation. In other words, does the requirement 

"as soon as possible" impose an obligation on the respondent to detect and 

dispose of any misfires immediately after completion of any blasting, or may 

the respondent wait until it completes its final cleanup and inspection of 

the area before it is obligated to inspect for and dispose of misfires? 

Respondent's testimony regarding its mining cycle, including the blasting and cleanup sequence, is not rebutted by the petitioner. Further, I 

have to assume that the mining sequence and cleanup procedures are accomplished in accordance with an MSHA approved plan, and petitioner has not 

indicated otherwise. In these circumstances, I believe. that it is permissible for an operator to complete its regularly approved and routine mining 

cycle before conducting any inspection for misfired holes, and if its plan 

calls for the inspection and disposition of such misfires after it has completed its cleanup, then I believe it is reasonable to find that the operator 

is in compliance with section 57.6-177, because complete inspection of a face 

cannot be thoroughly examined until such time as all of the blasted material 

has been removed from the face area, and once that is accomplished, I believe 

that it then becomes possible to inspect for misfires. However, on the facts 

of this case, I cannot conclude that the respondent complied with the standard, and I find that the petitioner has established a violation. My reasons 

for this follow. 

Inspector La.lumondiere testified that the face area which had been 

blasted on the evening before his inspection had been cleaned up and no one 

was working there. The mining crew had obviously moved on to anothe~ section of the mine~ Although respondent's witness Riddle testified as to the 

general cleanup procedure and indicated that no one has any reason tb go 

back to an area which had previously been blasted until it is completely 

cleaned up, he also indicated that when the two misfires were called to his 

attention after the issuance of the citation, he observed that the two holes 

were not obstructed by any debris or rocks. This leads me to conclu~e that 

the face area in question had been cleaned up to the point where the two 

misfired holes were readily visible to anyone in the area, and it supports 

the inspector's testimony that the area had been cleaned up. In other words, 

while I accept respondent's assertions concerning the general cleanup and 

mucking procedures, I conclude and find that on the day the citatation issued, 

mucking and cleanup had been completed, the two misfired holes were readily 

visible, and at that point in time they should have been detected and disposed of. 

Respondent's assertion that it should have been given an opportunity to 

go into the face area to inspect for misfires as part of its routine mining 

cycle in advance of the inspector's arrival on the scene is rejected as a 

2505 
defense to the citation issued in this case. According to the testimony, 

the responsibility for inspecting the area after it is shot down and mucked 

rested with the loader operator who mucked the area out after it was shot 

down. However, he did not testify. Under the circumstances, the only 

credible testimony of the conditions which prevailed on the day the citation issued is the testimony of the inspetor and Mr. Riddle, and, as indicated above, the inspector's testimony supports the citation as issued. 

In addition, I also find that petitioner has established the fact that the 

two holes were in fact misfires as that term is defined in section 57.2. 

The citation is AFFIRMED. 

Gravity 

While it is true that no one was working in the area which had been 

blasted on the day the citation issued, the fact remains that men were 

underground working some 400 feet away in another section. Although the 

possibility of an accidental detonation was rather remote due to the fact 

that no one was working in the area, the fact is that no one can predict 

such an occurrence, and I believe that failure to detect or dispose of 

misfired holes constitutes a serious violation, particularly in an underground mine. I find that the violation was serious. 

Negligence 

Respondent's suggestion that it is not feasible or convenient for a 

loader operator to ·alight from his machine during the mucking operation to 

inspect for misfired holes is rejected. Mr. Riddle testified that after 

the initial mucking operation, it is the responsibililty of the front-end 

loader operator to inspect the area for misfires during the asserted "final 

and careful" cleanup of the area. Since I have found that the testimony 

adduced supports a finding that the area had been cleaned up when the 

inspector arrived on the scene, I conclude that it is reasonable to assume 

that the loader operator either did not inspect the area at all after 

finishing his cleanup chores, or he did so in such a casual manner that he 

did not detect the two holes located in the corner of the face which was 

blasted. In these circumstances, I conclude and find that the violation 

resulted from the respondent's failure to exercise reasonable care and that 

this constitutes ordinary negligence. 

Good Faith Compliance 

The evidence adduced reflects that the two misfired holes were immediately washed out as soon as they were brought to the attention of mine management, and I conclude that this constitutes rapid good faith compliance on 

respondent's part. 

Prior History of Violations 

The evidence adduced supports a finding that respondent has a good 

safety record and that its prior history of violation at the mine in 

question is excellent. 

2506 
Size of Business and Effect of Penalty on Respondent's Ability to Continue 

in Business 

The parties stipulated that respondent is a small mine operator and 

that the penalties assessed will not adversely affect its ability to remain 

in business. I ~dopt these stipulations as my findings on these issues. 

Docket No. LAKE 80-57-M 

Citation No. 364712, May 9, 1979, 30 C.F.R. § 57.20-20, states as 

follows: 

The unattended mine openings were not restricted by gates 

or doors. Two men were seen in the mine. These men did not 

have self rescuers, individual lights, and had not checked in. 

This mine has not operated for at least 6 months and is being 

used for some storage at present time. The men in the mine 

work at the Derby Quarry. 

30 C.F.R. § 57.20-20 provides as follows: "Access to unattended mine 

openings shall be restricted by gates or doors, or the openings shall be 

fenced and posted." 

Petitioner's Testimony and Evidence 

MSHA inspector Raymond Roesler testified that he conducted a safety 

inspection of respondent's Derby Underground Mine on May 9, 1979, and that 

he was accompanied by Bill Tsantis and inspector George Lalumondiere. He 

confirmed that he issued the citation charging that the respondent failed 

to have gates or doors to entrances of the mine. He observed two men working underground, and they were loading a pickup truck with some lumber in 

the second crosscut from the mine face. The mine had been shut down for 

some 6 months and the two men did not check in and were not equipped with 

self-rescuers or cap lamps. He described the mine as an underground limestone mine which uses the room and pillar mining method, and he observed 

some five mine openings which were not restricted by any barrier devices. 

The only barrier he observed was a large pipe that swung across the surf ace 

road by the entrance to the property approximately a quarter of a mile from 

the five openings. Although the pipe barrier was swung open at the time, 

even if it were closed, anyone could easily climb over, under, or around it. 

Inspector Roesler stated that he cited section 57.20-20 because the 

mine adit is on the surface and the required barriers are for installation 

on the surface of an underground mine, and the area cited was just that. 

The mine was not abandoned, but was worked on an intermittent basis when the 

weather is good. He discussed the lack of gates or doors with underground 

superintendent Bill Tsantis, and Mr. Tsantis advised him that the two men 

were in fact surface miners who normally worked at the quarry and that they 

were not his responsibility. The pipe gate was some 4 feet high, and while 

it could prevent someone from driving on the property if it were locked 

closed, anyone on foot could go past it while it was closed. None of the 

2507 
other four op~nings were restricted by gates, doors, or other barriers. He 

extended the abatement time because work was still required to be done to 

correct the conditions when he first went back to the mine, and the conditions were subsequently abated the next time he had occasion to visit the 

mine (Tr. 161-173). 

Mr. Roesler described one of the mine openings as large enough for a 

truck to drive through, or some 15 feet high by 20 feet wide. The smallest 

opening was approximately 10 feet by 10 feet, and all of the openings were 

provided with gates and fences to abate the citation. He determined that 

the respondent should have been aware of the conditions cited because the 

opening were plainly visible, but the chances of the men in the mine being 

injured as a result of the cited conditions were remote. However, for a 

nonminer who might venture into the mine, loose rocks or pillars could present a possible hazard. There was a mine check-in and check-out system at 

the adit and he and his inspection party checked in, but the two men underground had not. Abatement was achieved in good faith (Tr. 173-177). 

On cross-examination, Mr. Roesler identified Exhibit R-3 as a sketch 

of the area cited, and it depicts the approximate locations of the pipe 

entrance gate and the unguarded adits he was concerned with. He conceded 

that many underground limestone quarries are used for a variety of nonmining purposes, including storage facilities (Tr. 180-182). 

In response to bench questions, the inspector indicated that the 

unattended mine openings were in fact adits that had been shot out from 

the inside of the mine to the outside. Several were originally intended 

to be used as adits, but since the rock, shale, and roof conditions were 

bad in these areas, they were barricaded from the inside of the mine and 

not used as adits, but they would extend into the mine for approximately 

a quarter of a mile (Tr. 180-188). The usual procedure for attending 

these openings when active mining is taking place is to check in and out 

when anyone goes into the mine. The normal check-in location is at the 

mine office across the highway alongside the Derby Slope Mine (Tr. 190). 

Respondent's Testimony and Evide9ce 

Arnold Mulzer, one of the ntj.ne owners, testified that he has been 

engaged in limestone quarrying since 1942. He confirmed that mining underground was dependent on dry weather and he indicated that the mine roof is 

in good condition and that the mtne is used for storage of ltunber, tires, 

and other mining equipment and materials. Storage of materials underground 

is a common practice because the: roof is high .and storage costs are cheap. 

Anyone who wishes to get into a mine can do so regardless of what type of 

barriers are installed. Four of the open adits in question are used only 

for ventilation and vehicles cannot drive through the openings. They are 

simply shot out and left that way, and are not intended to be used as a 

regular means of mine access. They are barred from the inside some 50 feet 

into the mine (Tr. 197-201). 

2508 
On cross-e~amination, Mr. Mulzer could not state whether any limestone 

production had taken place subsequent to May 9, 1979, and that he visits the 

operating drifts and slopes about once a week. He did not deny that the 

two miners were underground securing lumber on the day in question,, but maintained that the adits were primarily used for ventilation and ·the mine was 

primarily a storage area (Tr. 203). The truck drove through the tiruck mine 

opening and not through any of the ventilation adit openings, which he 

characterized as "holes" which.are simply shot through to facilita;te ventilation so that the installation of mine fans is unnecessary (Tr. 204). The 

pipe gate at the main road entrance was installed at the insistence of a 

MESA mine inspector in 1973 to achieve compliance with the identical standard cited by Mr. Roesl.er (Tr. 206), and respondent takes the position that 

this should satisfy the requirements imposed by MSHA in this case (Tr. 207). 

The men in the mine were simply picking up some lumber and were ntit bolting 

faces or mining and the place is clean (Tr. 208). 

Findings and Conclusions 

Fact of Violation 

Petitioner takes the position that since no one was attending the mine 

area cited by the inspector, that is, no one was physically present to check 

people in and out, the mine openings in question were unattended kithin the 

meaning of the cited standard • Petitioner's counsel took the pobition that 

if someone were stationed at the main road entrance where the pip~ gate was 

swung open to check people in and out of the mine, compliance ·wou[d have 

been achieved since that person would have prevented unauthorized persons 

from going beyond that pipe gate and into the remaining adit openings which 

were unprotected by gates or barriers and possibly injuring themselves. On 

the other hand, if the pipe gate were swung shut and locked and no one was 

present to check anyone in and out, compliance would not be achieved because 

anyone could easily go through or around the closed pipe gate and gain entry 

into the remaining open adits (Tr. 190-193). Since the mine was totally 

unattended, it necessarily follows that the mine openings were also and that 

a violation has been established (Tr. 214). 

Respondent does not dispute the fact that the mine openings cited and 

testified to by the inspector did in fact exist and that they we~e unattended 

and not provided with gates or other devices restricting anyone who wanted 

to enter the mine at those openings from doing so, nor were they fenced or 

posted. Responent's defense is that the pipe gate at the main road entrance 

to the mine sufficiently restricted any unauthorized persons from entering 

the mine, and that regardless of the type of devices installed t~ prevent 

persons from entering mine openings, someone will find a way to ~nter if 

they so desire. 

Respondent's reliance on the pipe gate as a defense to the citation is 

rejected. While that gate may have offered some protection against unauthorized entry, I cannot conclude that it was sufficient to provide protection 

against entry into the other unattended mine openings. Section 57.20-20 

requires that unattended mine openings be restricted by gates or doors or 

that they be fenced and posted. Since none of these devices were being 

utilized at the time the citation issued, I conclude and find that the petitioner has established a violation and Citation No. 364712 is .AEWIRMED. 

2509 
Negligence 

The inspector found two miners underground who went into the mine 

through one of the larger openings used for vehicle entry and.there was no 

indication that they had checked in with anyone, although the usual mine 

procedure is for persons who go underground to check in and out at the mine 

office used for that purpose. Although Respondent maintained that the pipe 

gate at the mine road entrance was placed there in 1973 in order to comply 

with a prior citation for section 57.20-20, I do not consider that to be a 

defense to the citation issued by another inspector on May 9, 1979, some 

6 years later. The fact is that aside from the pipe gate, the other mine 

openings cited"were the direct result of respondent's blasting them out to 

facilitate its mine ventilation and to permit vehicles to enter for purposes 

of storing and retrieving equipment, and there is no evidence that these· 

openings were present during any prior inspection which may have resulted in 

the 1973 inspection. Further, since the prior inspection resulted in a citation, I believe it is reasonable to expect an operator to be aware of the 

fact that' additional mine openings may require him to install barriers or 

other protective devices to provide the protection required by section 

57.20-20. In these circumstances, I conclude and find that the respondent 

failed to exercise reasonable care to prevent the conditions cited and that 

its failure in this regard constitutes ordinary negligence. 

Gravity 

The evidence adduced in this proceeding reflects that the underground 

mine in question was mined on a seasonal and intermittent basis and that at 

the time the citation issued, no mining was taking place and the men underground went there only to retrieve some lumber from the storage area. 

Further, the mine road is usually locked with the pipe gate, and a check-in 

and out system is in use at the mine, although there is no indication that 

the two men underground used it on the day the citation issued. Based on 

the circumstances of this case, and in light of the inspector's finding that 

the possibility of the men underground being injured as a result of the conditions cited was rather remote, I conclude that the violation is nonserious. 

Good Faith Compliance 

The evidence establishes that abatement was achieved within the extended 

time fixed by the inspector and the open adits were protected with gates or 

fences to achieve compliance. I conclude that respondent exercised good faith 

abatement in correcting the cited conditions. 

History of Prior Violations 

Respondent's history of prior violations at its Derby Slope Mine consists 

of two prior citations during the 24-month period prior to the issuance of the 

citation in issue in this case. I conclude that this is an indication of a 

good record of prior citations on respondent's part and I have considered this 

fact in the amount of the penalty assessed in this matter. 

2510 
Size of Business and Effect of Civil Penalty on Respondent's Ability to 

Remain in Business 

The parties stipulated that respondent is a small mine operator and that 

the penalties assessed will not adversely affect its ability to remain in 

business. I adopt these stipulations as my findings and conclusions on these 

issues. 

Penalty Assessments 

On the basis of the foregoing findings and conclusions, and after consideration of the criteria for penalty assessments set forth in section llO(i) 

of the Act, civil penalties are assessed as follows in these proceedings: 

Docket No. LAKE 80-201-M 

Citation No. Date 30 C.F.R. Section Assessment 

366596 11/27 /79 57.6-177 $75 

Docket No. LAKE 80-57-M 

Citation No. Date 30 C.F.R. Section Assessment 

364712 05/09/79 

The respondent IS ORDERED to 

these proceedings, in the amounts 

the date of these decision. Upon 

ceedings are DISMISSED. 

Distribution: 

57.20-20 $25 

ORDER 

pay the civil penalties assessed by me in 

shown above, within thirty (30) days of 

receipt of payment by MSHA, these proWilliam C. Posternak, Esq., Miguel J. Carmona, Esq., Office of the 

Solicitor, U.S. Department of Labor, 230 S. Dearborn, 8th Floor, 

Chicago, IL 60604 (Certified Mail) 

Philip E. Balcomb, Manager, Evansville Materials, Inc., P.O. Box 248, 

Tell City, IN 47586 (Certified Mail) 

2511 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SEP 3 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket Nos. Assessment Control Nos. 

Petitioner 

v. 

C.C.C.-POMPEY COAL COMPANY, 

INC., Respondent 

PIKE 79-19-P 

PIKE 79-111-P 

PIKE 79-112-P 

PIKE 79-117-P 

PIKE 79-125-P 

KENT 79-116 

No. 3 Mine 

15-09727-03002 

15-09727-03005 

15-09727-03006 v 

15-09727-03003 v 

15-09727-03004 v 1./ 

15-09727-03007 v 

DECISION ON REMAND IN DOCKET NO. PIKE 79-125-P 

AND AMENDMENTS OF FINDINGS AND ORDER ACCOMPANYING 

ORIGINAL DECISION ISSUED IN DOCKET NOS. PIKE 79-19-P, ET AL. 

The Commission on June 12, 1980, issued its decision in Secretary of 

Labor v. C.C.C.-Pompey Coal Company, Inc., Docket No. PIKE 79-125-P, 

2 FMSHRC 1195 (1980), remanding my decision iri the above-entitled proceeding 

with instruction that I rewrite the portion of my decision disposing of an 

alleged violation of 30 C.F.R. § 75.400 cited in Order No. 66869 dated 

May 12, 1978, so as to apply the holding of the Commission in Secretary of 

Labor v. Old Ben Coal Co., 1 FMSHRC 1954 (1979), instead of the holding of 

the former Board of Mine Operations Appeals in Old Ben Coal Co., 8 IBMA 98 

(1977), which had, in effect, been reversed by the: Commission's Old Ben 

decision, supra. 

In footnote 6 on page 1197 of its decision on remand, the Commission 

indicated that I might wish to give the parties an opportunity to comment 

upon the effect of applying the principles set forth in the Commission's 

Old Ben decision to the facts surrounding the issuance of Order No. 66869 

before complying with the Commission's instructions on remand. In response 

to the Commission's suggestion in footnote 6, I issued an order on July 7, 

1980, providing that counsel for the parties could file appropriate comments 

by August 11, 1980. Counsel for the Secretary of Labor filed a three-page 

memorandum on August 7, 1980, in response to my order of July 7, 1980, but 

no comments have been received from counsel for respondent. 

!/ The Commission's remand pertained only to one alleged violation out of the 

11 violations alleged by the Petition for Assessment of Civil Penalty filed 

in Docket No. PIKE 79-125-P. This decision on remand, however, can appropriately be issued only in the consolidated proceeding because the 

evidence concerning all alleged violations was introduced in the consolidated proceeding and the result of the remand requires changes in the 

findings and order which accompanied the decision originally issued in 

Docket Nos. PIKE 79-19-P, et al. Also, I have had to deal with respondent's untimely request to---Z:-eopen the entire consolidated proceeding. 

2512 
Inasmuch as the Commission's remand applies only to a single violation 

alleged by the Petition for Assessment of Civil Penalty filed in Docket No. 

PIKE 79-125-P, my decision on remand will be written under that docket 

number. 

Docket No. PIKE 79-125-P 

Order No. 66869 dated 5/12/78 § 75.400 

Findings. Section 75.400 provides that coal dust, including float coal 

dust deposited on rock-dusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be permitted to accumulate in active 

workings, or on electric equipment therein. Respondent violated section 

75.400 because oil and float coal dust had been allowed to accumulate to a 

depth of from 1/8 inch to 1 inch· on and around the electrical components of 

the S and S Scoop having Serial No. 168 (Tr. 398). The scoop was being used 

to load coal and contained permissibility violations consisting of eight 

missing bolts around the control panel and missing conduits around power 

wires (Tr. 410; 416). The lack of permissibility increased the gravity of 

the violation because it would have been possible for a spark from an electrical component to produce a fire inasmuch as oil and float coal dust had 

accumulated around the electrical components (Tr. 416-417). A high degree 

of negligence was associated with the violation because the last electrical 

inspection had been made only 2 days before the order was written and an 

electrical inspector (who had checked the scoop for permissibility, but who 

did not write Order No. 66869) testified that the amount of combustible 

materials he had observed on the scoop could not have accumulated within a 

period of 2 days (Tr. 421). Respondent demonstrated a good faith effort to 

achieve complianceo 

Conclusions. In its decision in the Old Ben case, supra, the Commission 

stated that one of the primary purposes of the Act is to prevent death and 

injury by fire and explosions. In the Commission's opinion, section 75.400 

was designed to prevent accumulations rather than to require that accumulations be cleaned up within a reasonable period of time as the Board had 

held. Under the Commission's view of section 75.400, there is no doubt but 

that a violation of section 75.400 occurred. 

Both of respondent's witnesses agreed that there were accumulations of 

coal, mud, and oil on the scoop (Tr. 423; 430). The primary point made by 

respondent's witnesses was that the inspector who cited respondent for the 

violation of section 75.400 with respect to the scoop should have written a 

routine citation under section 104(a) .of the Act instead of an unwarrantable 

failure order under section 104(d) of the Act. While the validity of the 

order itself was not under review in this civil penalty proceeding, the evi= 

dence.did show that the violation was serious and that a high degree of negligence was associated with it because the accumulations were caked in a 

form which showed that they had existed longer than the 2 days which had 

elapsed since the scoop had been given an electrical inspection on May 10, 

1978, or 2 days prior to the writing of the ord~~ on May 12,, 1978. Thus, 

2513 
there is evidence to sho~ that the violation was a definite hazard to the 

miners and that respondent knew ~r should have kndwn about the violation, 

but had done nothing to clean up the accumulation~. 

The findings I have made above are consistent with the recommendations 

as to the criteria of gravity, negligence, and good faith effort to achieve 

compliance which are contained in the memorandum £iled by the Secretary's 

attorney. While the inspector who wrote the ordeli said that he felt the 

operator had not shown good faith in aehieving compliance, he based that 

conclusion on the fact that he wote the order on May 12, 1978, and it was 

not terminated until MilY 25,.1978(Tr. 406; 413). An inspector other than 

the one who wrote Order .No. ·:6.6869 Wx:ot.e the subsequent action sheet which 

terminated the order. Also-other.evidence in the record shows that respondent had received a large number of .orders and citations on May 12, 1978, so 

that a considerable amourit of time was required to correct them. Consequently, it would be improper to find that responclent failed to demonstrate 

a good faith -effort to achieve compliance solely because several days 

elapsed between the time the order was written and the time it was terminated. Additionally, inspectors do. not fix an abatement period in orders 

because no production can be.performed in any ever).t until the hazardous conditions cited in the order have been corrected. 

The stipulations of the parties in this proceeding show that respondent 

produced about 60,000:tons of coal annually and employed between 20 and 

40 miners (Tro 5) o Ori the basis of the stipulaticjm, I find that respondent 

operates a relatively small- coal business. 

In my original decision I stated that payment of penalties would not 

have an adverse effect on respondent's ability to continue in business 

because respondent had not introduced any evidence with respect to its 

financial condition (Buffalo Mining Co., 2 IBMA 226 (1973), and Associated 

Drilling, Inc., 3 IBMA 164 (1974)). · Although cou*sel for respondent filed a 

letter with me on March 5, 1980, asking that I te<j>pen the record to permit 

him to introduce facts about tesporident's present financial condition, I 

denied the request bec;iuse ;r had· 1o·st jurisdiction over the case at the time 

his letter was received inasmuch as my decision had been issued on 

January 28, 1980. 

I explained in niy letter in response to the tequest for reopening the 

record that the Commission had granted the Secretary's petition for discretionary review and L sμgge$ted that he take up the matter of having the 

record reopened for reetdp·t. frf additional evidence with the Commission when 

he filed his brief inthe·reviewproceedings. In my order issued July 7, 

1980, I gave additiOnal reasons for my .belief that I am precluded from 

reopening the recordo ·.· . Respondent's· counsel did not file a brief in the 

review proceedings before the CommisSion and did not file any comments in 

response to my order·of July 7, 19800 Therefore, I feel that I must adhere 

to the finding originally made in this proceeding with respect to the criterion of whether the payment of penalties would cause respondent to discontinue .in businessq 

2514 
The discussion above has dealt with all of the six criteria except the 

criterion of history of previous violations. EXhibit 1 shows that respondent 

violated section 75.400 twice in 1976 and eight times in 1977. That is a 

very adverse trend in number of violations of section 75.400. Therefore, the 

penalty for the instant violation of section 75.400 should be $100 under the 

criterion of history of previous violation$• 

The findings and conclusions above show that respondent is a relatively 

small operator, that the violation was serious, that there was a high degree 

of negligence, that respondent.demonstrated a·good faith effort to achieve 

compliance, and that payment of penalties wf11 not cause respondent to discontinue in businesso Based on those findings~ a penalty of $300 should be 

assessed and that penalty should be increased by $100 under the criterion of 

history of previous violations to the total penalty of $4'00 recommended in 

the Secretary's memorandum. · · 

WHEREFORE, it is ordered: 

(A) Paragraph (1) on page 23 of my decisiori•issued in this proceeding 

on January 28, 1980, is amended by inserting ·under the heading "Docket Noo 

PIKE 79-125-P" the following entry: . · · 

Order Noo 66869 5/12/78 §75.400 eeoe (Contested) o•o• $ 400.00 

(B) Paragraph (1) on page 23 of my d~cision iSsuedin this.proceeding 

on January 28, 1980, is amended by changing the totai settlement and con-· 

tested penalties for Docket No. PIKE 79;...125-P from"$3,550.0011 to "$3~950.00." 

(C) Paragraph (1) on page 23ofniy decision issued in this proceeding 

on January 28, 1980, is amended by changing th¢ total settlement and contested penalties to be assessed from "$12,965.00" to "$13,365000." 

(D) Paragraph (B) on page 24 of my decision issued in this proceeding 

on January 28, 1980, is amended to require respondent to pay, within 30 days 

from the date of this decision, civil penalties totiling $13,365.00 instead 

of total penalties of $12,965.00 as originally prov'ided~ If respondent has 

already paid the civil penalties of $12,965~oo·required by paragraph (B) of 

my decision issued January 28, 1980, respondent should within 30 days from. 

the date of this decision on remand submit an additional penalty of $400000 

for the violation of section 75.400 cited in Order No. 66869 dated May 12, 1978. . . 

~ ~. oS+:/J/2._ 

Richard (:, Steffey"'~ Administra:tivl:i Law Judge · (Phone: 703-7'56-6225) 

2515 
Distribution: 

Robert A. Cohen, Esq., and Michael C. Bolden, Esq., Trial Attorneys, 

Office of the Solicitor, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 (Certified Mail) 

Garred o. Cline, Esq., Attorney for C.C.C.-Pompey Coal Company, 

Inc., Farley Building, Pikeville, KY 41501 (Certified Maii) 

Cynthia L. Attwood, Attorney, Office of the Solicitor, u.s. Department 

of Labor, 4015 Wilson Bouvelvard, Arlington, VA 22203 (Certified Mail) 

2516 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6230 

4 SEP 198Cl 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Do.cket No. SE 79-46-PM 

Petitioner AC No. 01-00040-05006 F 

v. Montevallo Quarry & Mill 

ALLIED PRODUCTS COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION 

Murray A. Battles, Office of the Solicitor, U.S. Department 

of Labor, for Petitioner; 

Gilbert E. Johnston, Counsel for Respondent. 

Judge William Fauver 

This proceeding was brought by the Secretary of Labor under section 

llO(a) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 

et~·· for assessment of civil penalties for alleged violations of mandatory safety standards. The case was heard at Birmingham, Alabama. Both 

parties were represented by counsel, who have submitted their proposed findings, conclusions, and briefs following receipt of the transcript. 

Having considered the contentions of the parties and the record as a 

whole, I find that the preponderance of the reliable, probative, and substantial evidence establishes the following: 

FINDINGS OF FACT 

1. At all pertinent times, Respondent Allied Products Company operated 

a lime quarry and mill known as the Montevallo Lime Plant in Shelby County, 

Alabama, which produced crushed limestone for sales in or substantially 

affecting interstate commerce. 

2. Respondent employed about 135 people at the plant and operated the 

quarry in two 8-hour shifts, 6 days a week and the mill in three 8-hour 

shifts, 1 days a week. Limestone was mined from the quarry and hauled to the 

mill, where it was crushed and screened before being transported by conveyor 

belt for storage or further processing in rotary kilns and ball mills. 

2517 
3. An elevated dirt haulage road with a crushed limestone surface led 

to a spoil dump about 1 mile from the plant. The road was 33 feet wide, on a 

7-percent grade, and had an elevation ranging from. 5 to 30 feet. Berms along 

the road were 6 to 18 inches high. However, at some points along the road 

the berms were washed away by drainage. 

4. William E. Evans, the quarry foreman, was responsible for maintaining the berms along the dump haulage road. The berms, which were a mixture 

of clay and stone, were left behind as road scrapings when the road was constructed. When the berms washed out, they were purposely left unrepaired so 

that water would drain off the road instead of into the quarry. 

5. Between September 5, 1974, and March 30, 1977, Respondent was ~ssued 

12 citations charging violations for inadequate berms throughout the quarry 

and pl int. 

6. On Saturday morning, November 25, 1978, one of Respondent's employees, Herman Shirley, was fatally injured while operating a Clark 620 Bobcat 

front-end loader on the dump haulage road. Shirley, who was 67 years old, 

worked in Respondent's storeroom and would normally travel to supply houses 

in Montevallo and Birmingham to pick up parts and accessories for the plant's 

machinery and equipment. He was under the direct supervision of Respondent's 

purchasing agent, Charlie Thornton and the storekeeper, S. D. Posey. When 

he was not picking up parts, Shirley would clean in and around the storeroom 

and haul trash to the spoil dump in a pick-up truck, which the general mill 

foreman, Joe Dial, used to drive to and from work. 

7. Shirley normally worked on Saturday. However, he was not scheduled 

to work on November 25, 1978, because all laborers and clerks were off until 

Monday, November 27, following the Thanksgiving holiday. He reported for work 

anyway at his usual time, 7 a.m. The packing yard foreman, J. C. Smith, and 

the day shift leadman were in charge because Joe Dial was off. Smith did not 

question Shirley's presence or tell him to go home for the holiday week-end. 

The shop needed to be cleaned and he decided to let Shirley work that day. 

After Shirley cleaned the shop and bathhouses, he proceeded to load trash on 

the Bobcat because the company truck that he normally used to carry trash 

was not available. Edward Majors, a co-worker and friend of Shirley's, saw 

Shirley about 9 a.m. in the lunchroom removing trash to haul to the dump. 

He warned Shirley not to use the Bobcat because he believed it was dangerous 

for Shirley to operate it. 

8. Shirley made one trip to the dump, apparently hauling two 55-gallon 

barrels of trash in the bucket of the Bobcat. On the second trip, about 

10:30 a.m., when he was hauling two 55-gallon drμms, the Bobcat overturned 

on his return down the haulage road. The vehicle went tqrough a washed-out 

area that had no berm overturned down a 6-foot embankment and landed on 

Mr. Shirley, who was killed in the accident. At about 4:45 p.m., Paul 

Misenhimer, Respondent's safety and personnel director, notified the MSHA 

field office in Birmingham of the fatality and an investigation began the 

following day. 

2518 
9. On November 26, 1978, Joe Garcia, a federal mine inspector, inspected 

Respondent's plant after learning of the fatality the preceding evening. He 

was accompanied by Bart Collinge, his supervisor for mining safety, Paul 

Misenhimer, Respondent's personnel and safety director, and an insurance consultant. When they arrived at the accident site, the area was barricaded and 

the Bobcat was still upside down. When Shirley's body was removed the day 

before, the back end of the Bobcat was picked up and swung around 90 degrees 

and laid back down. They found the bucket to be lowered but not in its 

lowest position. Inspector Garcia observed a green fluid leaking from the 

Bobcat, which he determined to be motor oil. No hydraulic fluid appeared to 

be leaking from the Bobcat in its position at the accident site. The rollover protective structure (ROPS) had been removed from the Bobcat before the 

accident. 

10. Normally, the Bobcat was used in confined areas in the plant, which 

was level, for cleaning spillage under overhead conveyor belts, horizontal 

rotary kilns and coolers. However, Terry Davidson, an oiler, regularly used 

the Bobcat about twice each month to travel up a ramp that ied into the 

cooler pit on the No. 2 kiln. Rich Gilbert, the usual operator, was also 

observed using the Bobcat on this ramp on several occasions, including the 

night before the accident. 

11. The Bobcat came eq~ipped with a roll-over protective structure. 

Respondent removed the ROPS so that the Bobcat could maneuver inside the 

plant. Normally, the operator wore a hard hat and no employee, before 

Mr. Shirley, had been injured while operating the Bobcat with the ROPS 

removed. Respondent did not obtain an MSHA modification approval to remove 

the ROPS. After ·the accident, Respondent replaced the 620 Bobcat with a 

720 Bobcat and reduced the ROPS about 5 inches so that it could be used 

inside the plant. Also, Respondent built a suitable berm of large rocks, 

which allowed drainage over the edge of the dump haulage road. 

12. The Bobcat, which weighed about 3 tons, was powered by two hydrostatic motors and could attain a speed of 6.6 mph. The opera~or powered and 

steered the Bobcat with two hand levers located directly in front of his 

seat. To move forward or backwards, he would push or pull both levers simultaneously in the direction he wanted to travel. If he wanted to turn 

right or left, he would push one lever forward and pull the other lever 

back. To stop the machine, he would release both levers and a spring 

mechanism would return them to an upright position. 

13. The hydrostatic motors were located under the operator's seat. 

When the operator pushed the levers forward or pulled them back, a valve was 

activated, causing a vane pump to draw hydraulic fluid from two reservoir 

tanks, which were joined by a cross-pipe or manifold so that they would 

always contain an equal amount of fluid. The tube through which fluid was 

drawn was about 1 inch from the bottom of the reservoir tanks. 

14. The Bobcat developed a hydraulic fluid leak several weeks before 

the accident. The hydrostatic system depended on an equal balance of 

pressure so that the more air that became trapped in the system, the less 

2519 
efficiently the Bobcat would operate. As the level of fluid in the reservoir 

tanks diminished, the operator would experience increasing difficulty in 

driving, steering and operating the bucket, which was controlled by a separate valve. Symptoms of an imbalance in pressure ranged from squeaking 

noises to erratic or "jerky" movements when engaging the hand levers. Occasionally, the operator would have to stop the machine to add more fluid and 

some of the other employees using the Bobcat experienced difficulty keeping 

the engine running. Freddie Smitherman, who was unaware of the leak, noticed 

that the bucket would squeak when raised or lowered. Terry Davidson, who was 

aware of the leak, testified that as the machine traveled forward, it left a 

stream of hydraulic fluid in its path. He also testified that while operating 

the Bobcat, he would sometimes have difficulty turning and occasionally he 

would hear squeaking noises. One time, when he wanted to stop the machine, 

the levers remained in the forward position, causing the machine to creep 

forward. 

15. For about 3 weeks before the accident, the Bobcat was leaking hydraulic fluid from the rear axle and from the pump and pump fittings, causing the 

machine to malfunction. The loading yard foreman had been aware of the leak 

for about 3 weeks before the accident. The Montevallo Welding Company had 

been requested to pick up the Bobcat for servicing on Friday, November 24. 

However, it picked up a different piece of equipment, which also needed servicing, and the Bobcat was not repaired before Mr. Shirley's accident. 

16. In investigating the accident site, Inspector Garcia observed two 

faint impressions in the road that he determined to be tire tracks. The right 

track was 142 feet long and veered gradually to the right side of the road 

where the Bobcat overturned. Before photographs were taken of the accident 

site, the right tire track was painted to ensure that it would be visible. 

17. The Bobcat was transported to the shop on Monday, November 27, to 

conduct tests on its driving, steering and bucket functions. Inspectors 

Garcia and Scotty Wallace, safety director Misenhimer, State Inspector 

Henson, Rich Gilbert, the operator, and others were present. Motor oil was 

added to the engine before the tests began. No hydraulic fluid was added. 

The level of hydraulic fluid in the reservoirs was measured to be about 

1-1/2 inches, which was about 10 gallons. The Bobcat's reservoir capacity 

was 17-1/2 gallons. No hydraulic fluid leaked from the machine while upside 

down following the accident. 

18. The first test involved operating the Bobcat on the level concrete 

surface inside the shop. All the machine's functions, including steering 

and movement of the bucket, operated smoothly. 

19. The Bobcat was then taken outside with the motor running and driven 

into a small ditch to approximate the grade on the haulage road. With the 

front of the Bobcat lower than its rear, the fluid was expected to run to the 

front of the machine; this test was to determine whether the pumps were able 

to pick up fluid from the reservoirs on a downward grade. When the operator, 

Rich Gilbert, tried to move the mac'hine from the ditch, none of its functions 

(forward and reverse movement, steering, bucket operation) would operate. 

2520 
20. The Bobcat was left in that position for about two weeks until the 

sales representative from Altanta, Mr. Shoeback, arrived. He determined that 

the level of hydraulic fluid had decreased about one-quarter inch since 

November 27. Before more tests were conducted, the sales representative 

added 7-1/2 gallons of fluid to the reservoirs. With the reservoir tanks 

filled, the operator was able to move the Bobcat out of the ditch without 

difficulty. After driving aound the yard and returning to the ditch, the 

operator released the hand levers. However, they remained in a forward position instead of returning to an upright position. 

21. In the MSHA inspector's opinion, three factors contributed to the 

cause of the accident and Mr. Shirley's death: a defect in the equipment 

that caused hydraulic fluid to leak and affect the Bobcat's steering; the 

absence of roll-over protection; and the absence of a berm on the elevated 

haulage road where the Bobcat left the road and overturned down an embankment. 

22. On November 26, 1978, Inspector Garcia issued a citation to Respondent, reading in part: "The road leading up the elevated ramp to the spoil 

dump was not provided with a berm to prevent equipment from going over the 

bank on the open side." The cited condition was abated on November 28, 1978, 

after Respondent constructed adequate berms. 

23. On November 27, 1978, Inspector Garcia issued a citation to Respondent, reading in part: "An oil leak existed in the hydraulic system on the 

Clark 620 Bobcat front-end loader which adversely affected steering and contributed to a fatal accident on 11/25/78." The cited condition was abated 

on January 23, 1979, by repairing the source of the leak.· 

24. On December 4, 1978, Inspector Garcia issued an order of withdrawal 

to Respondent, reading in part: "The roll-over protection structure had· been 

removed from the Clark Melroe Bobcat model 620 front-end loader, serial 

4970-M-11013 that was involved in a fatal accident on November 25, 1978." 

The cited condition was abated on January 23, 1979, by installing a modified 

ROPS on the Bobcat. No exception had been taken to the absence of ROPS on 

the Bobcat during the last inspection of the Montevallo Plant in March, 

1977. 

25. In May 1978, when Harry Reeves became general manager of Respondent's plant, there was no safety program and he directed Paul Misenhimer to 

establish a program that would meet the needs of the company and the requ~rements of MSHA. The safety program that was subsequently established required 

that the minutes of every meeting be forwarded to Reeves' office for review. 

The meetings were conducted by Misenhimer and Respondent's supervisors, 

including Joe Dial. Misenhimer conducted 12 to 15 meetings in 1978. However, 

he was unable to maintain accurate records of all the meetings because he did 

not conduct all of them. 

26. Terry Davidson testified that he could not recall one way or the 

other whether he attended any safety meetings prior to the accident. Freddie 

Smitherman testified that he could not say how many safety meetings were held 

in 1978. 

2521 
27. Respondent's safety rules prohibited any employee from starting or 

operating any machine or piece of equipment without authorization or without 

being qualified to operate it,·which included knowing how to start, stop 

and operate it in a safe mariner. Mr. Shirley was required to sign a written 

statement that acknowledged receipt of Respondent's safety rules booklet. 

28. Authority to operate the Bobcat and other pieces of equipment was 

given by the plant superintendent, the general manager, Harry Reeves, or the 

plant manager, Joe Dial. Rich Gilbert, Wesley Smith and the leadman, Freddie 

Smitherman, were authorized to operate the Bobcat. Before an employee could 

obtain authorization to operate the Bobcat, which was considered more difficult to operate than other pieces of·'equipnient, he was supposed to become 

qualified. Normally, when an employee successfully bid on a piece of equipment for which he had no prior experience he would be placed in a training 

program with an experienced operator so that he could gain the necessary 

experience to become qualified'and ~uthorized. As shown below, Respondent 

did not enforce its equi"pment.;,.qualifying rule with any regularity or by an 

established program. · · · · · 

· 29. · Fre'ddie · Smitheruian oJ)erat'ed the Bobcat before he was "qualified" 

to operate i't. 

30. Various employees who were not authorized to operate the Bobcat, 

including, Herman Shirley, we~e s.een operating it. Terry Davidson, the 

oiler, operated the ·Bobca:t Without autho.riza'tion at times when he needed a 

heavy object moved 'between 'oil stations loc.a'.ted on either side of the plant 

and a regular opera.tor ~as' not present. He ruid been using the Bobcat about 

twice a week during :the'.5 months before 'the accident. Dial was aware that 

Davidson drove the Bobcat •. &ill mill helpers and the burner helpers also 

drove the Bobcat 'without authorization. In: July, 1978, Dial observed Shirley 

operating the Bobcat in<·tryi'ng to remove a piece of equipment from a pick-up 

truck and .told him that he.Was riot.authorized to operate it and that he 

should get a regular Bobcat operator to ·.handle the job. Another time, a few 

months later, Dial told Shirley, in the presence of Freddie Smitherman, to 

stop using the Bobcat when he observed him moving the machine out of the path 

of a truck he was driving. The former plant superintendent, Lyle Butterworth, 

also told Shirley on another occasion, in Dial's presence, to get off the 

Bobcat. 

31. Dial testified that Shirley was not qualified to operate the Bobcat 

because he was tempermental and preferred to do things his own way, and that 

he also tended to handle equipment roughly. 

32. Shirley was never disciplined for operating the Bobcat without 

authorization. Evans had reprimanded a riumb~r of employees for violating 

safety rules but he never fired anyone for a safety violation. While Evans 

was in charge, there were a total of 5 fatalities in the whole plant. 

2522 
DISCUSSION WITH FURTHER.'fINDINGS . . ' . . . . 

On November 26, 1978, Inspector·Garcia ~hatg~dhsp()n:dent with a violation 30 c.F.R. of § 56.9-22, which proviqes.! ~rm.s,or guards shall be provided on the outer bank of elevated roadwayi;a. 11 .. n;.e basic·issue as to this 

citation is whether the berm on the outer bank of Respo~dent's elevated 

haulage road was adequate to prevent equipment fro~ going over the side of the 

road. 

The Secretary argues that the berms along Respondent's haulage road were 

inadequate and that this condition contributed to the death of Herman Shirley 

when the Bobcat he was operating left the toad and overturned on him. 

The Secretary recommends a penalty of .$iO,OOO. 

Respondent contends that the citedstandardiip "vague .and uncertain" 

because it does not specify a required height for her~ o~ guards. Respondent also contends that the Secretary's application of ·section 56.9-22, which 

requires a berm to be as high as the ·mid-axle of the .ia~g~st piece of equipment that travels the road, is not published j,.n 30 C.F.·R. ·Part 56 and, therefore, is not binding on Respondent. Respondent argues that the berm along 

the road, which was 6 to 18 inches, was adequat,e to $top the Bobcat from 

going over the side. . · 

I find that Respondent violated 30 C.F.R. •. § 56.;9-22 by failing to pro:... 

vide or maintain a berm on the outer bank of the lia:ulage road at the site of 

the accident. A preponderance. of the evidence shows ·that the berm was cor1-

s tructed of road scrapings, that it was 6to 18. inches high and that at the 

site of the accident it was washed out and deliberately allowed to remain 

open for drainage. A visual examination of ·the photographs taken on · 

November 26 shows an absence of a bermwhere the.Bobcat.overturned. William 

Evans, the quarry foreman, testified that when .berrils were.washed out they 

were left unrepaired. I find that Respondent~was aware that the berm was 

inadequate and that this condition allowed the Bobcat toleave the road and 

contributed to the fatal accident on November 25, 1978. 

Respondent's argument that the cited standard is "vague and uncertain" 

is unpersuasive. There was no berm at the point where the Bobcat overturned. 

This was not a situation in which the inspector was given unbridled discre-:-

tion to determine whether or not a berm was adequate •. ··. In this case, the berm 

had washed out and Respondent purposely left it unre.paired in spite of the 

obvious safety hazard. 

On November 27, 1978, Inspector Garcia charged Respondent with a violation of 30 C.F.R. § 56.9-2, which provides:. "Equipment defects affecting 

safety shall be corrected before equipment j,.s used. fl ·. The basic issue as to 

this citation is whether the leak in the Bobcat's hydraulic system affected . the safety of its operation. · 

The Secretary argues that the Bobcat leaked hydraulic fluid, that 

Respondent was aware of the leak and that the leak caused the operation of 

2523 
the Bobcat, including steering and bucket movement, to malfunction. The 

Secretary contends that the leak constituted a defect that prevented the 

hydrostatic pump from drawing enough fluid into the system, causing the 

Bobcat to operate improperly, and that this defect contributed to the fatal 

accident. 

The Secretary recommends a penalty of $10,000. 

Respondent argues that the Bobcat was not defective and that the leak 

in the hydrostatic system did not affect the operation of its driving and 

steering functions. Respondent argues that the Bobcat was supposed to be 

used only on the level surface of the plant's shop and that no one had previously taken it on the haulage road. Respondent contends that the Bobcat 

operated satisfactorily during the 3 weeks prior to the accident even though 

the pumps leaked hydraulic fluid and that it was used the night before the 

accident without incident. Respondent contends that the tests conducted 

after the accident show that the Bobcat operated smoothly on the level plant 

surface even though its reservoirs contained only 10 gallons of fluid. 

I find that Respondent violated 30 C.F.R. § 56.9-2 by allowing the 

Bobcat to be used before a defect in the hydrostatic system was corrected. A 

preponderance of the evidence shows that the Bobcat had been leaking fluid 

for about 3 weeks prior to the accident and that Respondent was aware of the 

leak. At the time of the accident, 7-1/2 gallons of fluid had leaked from 

the machine and it was scheduled to be repaired. Terry Davidson, the oiler, 

testified that the leak was very obvious and as the Bobcat traveled forward 

it left a stream of fluid in its path. He also testified that sometimes he 

would have trouble turning the Bobcat and that he heard it make squeaking 

noises. He stated that on one occasion he released the levers to stop the 

machine but they remained in the forward position. This defect would prevent 

stopping the vehicle so long as the motor was running. Freddie Smitherman, 

who used the Bobcat the night before the accident, testified that the bucket 

squeaked when raised or lowered and Rich Gilbert testified that he would 

occasionally have to stop the machine to add more fluid. 

On irregular terrain, an operator could stop the Bobcat by lowering the 

bucket and causing it to stike a substantial mound or hill before the machine. 

However, I find that the bucket was neither intended to serve nor functioned 

reliably as a brake on a graded surf ace such as the dump haulage road. Lowering the bucket could not stop the Bobcat on the elevated road to the spoil 

dump. 

The tests conducted on November 27, 1978, show that the Bobcat operated 

smoothly on a level surface. However, when placed in a ditch with its front 

end down to approximate the grade of the haulage road, the Bobcat would move 

neither forward or backward. This test would not explain why the Bobcat 

seemed to operate properly on the haulage road on Shirley's first trip to and 

from the dump but it raises a substantial question about the machine's reliability. A preponderance of the evidence shows that the Bobcat's steering, 

driving and bucket functions were adversely affected by the leak, particularly 

when the Bobcat was used on a downward slope. 

2524 
On December 4, 1978, Inspector Garcia charged Respondent with a violation of 30 C.F.R •. §56.9-88, which provides in pertinent part: " * * * all 

* * * front-end loaders * * * as used in metal and nonmetal mining operations, with or without attachments, shall be used in such mining only when 

equipped with * * *Roll-over protective structures (ROPS)." 

The Secretary contends that this violation contributed to the fatal 

accident, and recommends a penalty of $10,000. 

The basic issue as to this citation is whether Respondent's Bobcat 620 

front-end loader was required to be equipped with ROPS. Respondent admits 

that it removed the roll-over protective structure from the Bobcat so that it 

could manuever inside the plant to clean in and around confined areas under 

overhead conveyor belts and rotary kilns and coolers. Respondent argues that 

because the Bobcat was used only in the plant area the equipment was subject 

to 30 C.F.R. § 56.14-13, which requires all front-end loaders to be equipped 

with protective canopies "when necessary to protect the operator," rather 

than the cited standard. Respondent contends that since all operators using 

the Bobcat in the plant area wore hardhats, it was not necessary to install 

an overhead canopy, and it was also unnecessary to provide ROPS because there 

was no danger of the Bobcat overturning. Respondent argues that the Bobcat 

was used only in the plant area, that the operator always wore a har4hat, and 

that no employee had been previously injured while operating the Bobcat 

without ROPS. Respondent contends that no exceptions were taken by inspectors 

during the last inspection of the Montevallo Plant in 1977 after the Bobcat's 

ROPS had been removed. 

I find that Respondent violated 30 C.F.R. § 56.9-88 by allowing the 

Bobcat to be used with the roll-over protective structure removed. The cited 

standard unabiguously requires that ROPS be provided on all front-end loaders. 

I find unpersuasive Respondent's argument that because the Bobcat was used in 

the plant area it was relieved of this requirment and I also find unpersuasive its argument that section 56.14-13 applied rather than section 56.9-88. 

Respondent's arguments confuse the purpose of protective canopies with the 

purpose of ROPS. The standard that requires overhead canopies only when 

needed to protect the operator does not supersede or negate the requirement 

that all front-end loaders be provided with ROPS. In many instances, an 

overhead canopy will provide the same protection afforded by ROPS. However, 

when an overhead canopy is not required, the operator must still be protected 

should the piece of equipment overturn, which is what ROPS are designed to 

do. In addition, the fact that the Bobcat was regularly driven on the elevated ramp in the plant refutes the contention that it was confined to level 

areas. 

Respondent contends that it should not be held responsible for the 

negligence and unauthorized conduct of an employee, and asserts that the 

cause of the fatal accident was Shirley's unauthorized and unsafe use of the 

Bobcat in direct violation of the company's safety rules. Respondent contends that on three previous occasions Shirley had. been reprimanded for 

using the Bobcat and that he knew he was not allowed to operate equipment 

without authorization or without knowing how to operate it. 

2525 
The evidence shows that a safety program was established about 5 months 

before the accident. However, the testimony of Paul Misenhimer, the safety 

director, and Harry Reeves, the general manager, indicate that records of 

the meeting ~ere not well kept. Terry Davidson and Freddie Smitherman, the 

only employees to testify about the substance of the safety meetings, which 

were supposedly held once a week, remembered very little about the meetings 

or whether any were held. 

I find that Respondent did not adequately train its employees about the 

dangers of operating equipment without being qualified or without obtaining 

authority. There was evidence that Herman Shirley acknowledged receipt of 

the company's safety handbook and that he knew of the rule against operating 

equipment without authorization. However, a preponderance of the evidence 

shows that various employees who were not authorized to operate the Bobcat 

used the machine anyway and on three previous occasions management personnel 

observed Shirley using it. When observed using the equipment without authorization, he was not disciplined but was'told simply to cease using it. There 

was also evidence, which I credit, that Respondent permitted its employees 

to use the Bobcat without being qualified. Freddie Smitherman stated that 

he used the Bobcat with the consent of Joe Dial, the plant foreman, before 

becoming qualified. Only after gaining experience in this fashion did he 

become qualified and, subsequently, authorized. 

I find that Respondent was negligent in not taking appropriate measures 

to prevent or deter Shirley (1) from operating the Bobcat without authorization and (2) from operating it on the dump haulage road. I find that Respondent's safety program failed to impress upon Shirley an absolute necessity to 

refrain from using equipment without authorization. I find that Respondent 

took no measures, such as a warning sign, to prevent employees from using the 

Bobcat on the dump haulage road. I also find that Respondent neglected to 

warn its employees who used the haulage road, including Shirley, of the 

washed out berms on the outer bank. 

Respondent also asserts that the Secretary failed to prove by a prepon=· 

derance of the evidence that the accident was caused by a defect in the 

Bobcat's steering and driving systems and argues that it was just as likely 

the result of Herman Shirley suffering a heart attack while operating the 

Bobcat. Respondent argues that the fact that Shirley was 67 years old and 

that the Bobcat veered gradually for 142 feet to the side of the road lead to 

a reasonable inference that Shirley became unconscious and slumped forwarq 

onto the levers, causing the machine to continue traveling down the haulage 

road and to leave the road. However, there was no medical evidence to 

support a conclusion that Herman Shirley was rendered unconscious before 

the machine left the road, and I find this theory to be mere speculation. 

The preponderance of the evidence establishes that death was due to a combination of defects negligently caused and permitted by Respondent, including: 

(1) the hydraulic fluid leak; (2) the missing berm; and (3) the removal of 

the ROPS. These negligent defects combined with Respondent's negligence in 

not taking more effective and reasonable measures to prevent or deter Shirley 

from operating the Bobcat without authorization and from operating it on the 

dump haulage road. 

2526 
CONCLUSIONS OF LAW 

1. The undersigned Judge has jurisdiction over the parties and subject 

matter of this proceeding. 

2. Respondent violated 30 C.F.R. § 56.9-22 by failing to provide a berm 

on the outer bank of the elevated roadway as alleged in Citation No. 81004. 

Based upon the statutory criteria for assessing a civil penalty for a violation of a mandatory safety standard, Respondent is assessed a penalty of 

$10,000 for this violation. 

3. Respondent violated 30 C.F.R. § 56.9-2 by using defective equipment, 

i.e., the Bobcat front-end loader, as alleged in Citation No. 81007. Based 

upon the statutory criteria for assessing a civil penalty for a violation of 

a mandatory safety standard, Respondent is assessed a penalty of $5,000 for 

this violation. 

4. Respondent violated 30 C.F.R. § 56 .• 9-88 by failing to provide rollover protection on the Bobcat front-end loader as alleged in Citation/Order 

No. 81053. Based upon the statutory criteria for assessing a civil penalty 

for a violation of a mandatory safety standard, Respondent is assessed a 

penalty of $10,000 for this violation. 

ORDER 

WHEREFORE IT IS ORDERED that Allied Products Company shall pay the 

Secretary of Labor the above-assessed civil penalties, in the total amount of 

$25,000.00,within· 30 days from the date of this decisiono 

tJ~::±~v~ WILLIAM FAUVER, JUDGE 

Distribution Certified Mail: 

Murray A. Battles, Esq., US Department of Labor, Office of the Solicitor, 

1929 9th Avenue South, Birmingham, AL 35205 

Gilvert E. Johnston, Esq.,Johnston, Barton, Proctor, Swedlaw & Naff, Twelfth 

Floor Bank for Savings Building, Birmingham, AL 35203 

·2527 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210/ll/12 

5 SEP 1980 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

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

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

v. Docket No. BARB 79-285-P 

A.O. No. 15-11348-03001 

THE PITTSBURG & MIDWAY COAL 

MINING COMPANY, Docket No. PIKE 79-129-P 

Respondent A.O. No. 11348-03004 F 

Docket No. KENT 79-74 

A.O. No. 15-11348-03006 

Docket No. KENT 79-180 

A.O. No. 15-13348-03007 

Docket No. KENT 79-367 

A.O. No. 15-13348-03009 

Docket No. KENT 79-269 

A.O. No. 15-11348-03008 

Docket No. KENT 79-99 

A.O. No. 15-11348-03003 

Pleasant Hill Surface Mine 

Docket No. KENT 79-229 

A.O. No. 15-02021-03005 

Colonial Strip Mine 

DECISIONS 

In its Decision of August 4, 1980, the Connnission remanded the 

captioned "independent contractor" cases to me for the limited purpose 

of affording the Secretary an opportunity to consider several enforcement options available to him as a result of my decisions of February 8, 1980, 

2528 
affirming his decision to proceed against the respondent mine owneroperator rather than against a number of independent contractors. As 

I interpret the Commission's remand, the Secretary had thirty (30) days 

to make up his mind, and to inform me as to any enforcement decision 

in this regard. On September 4, 1980, the Secretary filed a response 

to the Commission's decision on remand and a copy is attached and incorporated 

herein by reference. 

In view of the fact that the Secretary. indicated to the Commission 

during the appeal of these cases that he now desires to achieve "fair 

enforcement" of the Act in independent contractor cases, and in view of 

Commissioner Jestrab's observations in his dissent concerning the 

Secretary's concession that the respondent is not the operator, it seems 

to me that it is incumbent on the Secretary to decide how he now wishes 

to proceed in these cases, and that is precisely how I interpret the 

Connnission's remand. However, rather than doing this, the Secretary is 

now attempting to shift the burden to the respondent and to the contractors 

to take the initiative for the substitution or parties, and in the alternative 

he suggests that the case be reopened to permit the respondent to .implead 

the contractor as a third party. The Secretary's apparent refusal to comply 

with the Commission's decision that he take the enforcement initiative 

in these cases is apparently based o~some mysterious policy question 

which is characterized by the Secretary at pg. 2 of his remand statement 

as something not in his interest. 

It seems obvious to me that the Secretary has not complied with 

the Commission's decision on remand. Accordingly, in order to give 

the Secretary a· fresh .opportunity to apply his new enforcement policy, 

and in keeping with his avowed intent to insure that "fair enforcement 

of the Act'' will be followed in contractor cases, IT IS ORDERED that 

all of these dockets be DISMISSED, without prejudice to the Secretary 

instituting new proceedings against any and all parties who he believes 

should be pursued. 

Attachment 

Distribution: 

Marvin Tincher, Esq., U.S. Department of Labor, Office of the Solicitor, 

280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 (Certified Mail) 

George M. Paulson, Jr., Esq., The Gulf Companies, Law Dept., 1720 S. 

Bellaire St., Denver, CO 80222 (Certified Mail) 

2529 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SECRETARY OF LABOR, } CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH } 

ADMINISTRATION } DOCKET NOS. 

Petitioner } 

} 

v. } 

} 

PITTSBURG & MIDWAY COAL } 

MINING COMPANY 

Respondent 

} 

} 

} 

) 

) 

) 

SECRETARY OF LABOR'S 

STATEMENT ON "REMAND 

BARB 79-307-P 

BARB 79-285-P 

PIKE 79-129-P 

KENT 79-74 

KENT 79-180 

KENT 79-367 

KENT 79-269 

KENT 79-99 

KENT 79-229 

On August 4, 1980, the Federal Mine Safety and Health Review 

Commission (Commission) remanded this case in order to afford the 

Secretary of La_bor (Secretary) "an opportunity to determine whether 

to continue to prosecute these citations against Pittsburgh & Midway 

Coal Mining Company (P&M}, or any independent contractors which 

are claimed to have violated the standards cited, or both." As 

noted by the Commission in its order, the Secretary suggested a 

remand concerning this case at oral argument. 

In making his reply to the remand order, the Secretary 

recognizes that his response may not neatly fit the categories 

outlined in the Commission's order. In the Secretary's view, 

. each case stands in its own right and his action must be geared 

to that particular case. However, one central point remains 

unchanged: mine operators remain liable for violations committed 

by independent contractors at their mine site. 

2530 

What has changed 

FEDERA~ MIM~ SAFETY ArlD 

REC. SEP 4 ml 

HEALTH REVIEW COMMISSIOtl 
is the enforcement policy of citing the production operator and 

only the production operator for these violations. Under.new 

policy guidelines effective in late June, independent contractors, 

in most instances, will be cited in their own right for violations 

they have committed. Only in limited circumstances will production 

operators be cited for such violations. See 45 F.R. 44494 ·et seq. 

July 1, 1980. This enforcement policy is essentially prospective, 

i.e., it affects enforcement actions taken after the policy change. 

It was not intended, nor should it be so construed, as an admission 

that previously issued citations given to production operators are in 

any way legally unenforceable. However, the new policy directive 

does permit some additionaL flexibility in trying the older· cases. 

Several options are potentially open. The Secretary could attempt 

to either SQbstitute the contractor-operator for the owner-operator 

or attempt to join the contractor. While legal efforts of this 

nature may be possible in some cases (procedural difficulties may 

exist in both courses of action), they do not appear to be in the 

Secretary's interest in this case. Two other courses remain. One 

is for the producer and contractor to join in a motion to substitute 

contractor for producer. The Secretary, based on his new policy, 

would not oppose this cou~se. If the private parties agree to this 

action and the contractor in consenting to this course clearly 

waives all possible procedural objections, the Secretary would 

have no reason to object to a result which would conform to the 

new policy. The other option is to reopen the case to permit the 

operator an opportunity to perfect an attempt to implead the 

2531 
contractor as a third party respondent. As you may know, this 

course was recently taken in Secreta·ry of Labor v. Morton Salt 

Division v. Frontier-Kemper -Contra·ctors, CENT 80-59-M, April 14, 

1980. 

Accordingly, the Secretary sugg~sts that the record should 

remain open to permit the production operator, P&M, to explore 

either of its options and advise the presiding judge if it wishes 

to pursue either course. While the-secretary may, in other as yet 

untried cases, consider and attempt to involuntarily join the 

contractor, that course does not appear appropriate in this case 

where the initial decision of the presiding judge is favorable to 

the Secretary and attempting to retry the case would be of little 

value. 

2532 

Respectfully submitted, 

TOmaSA.~scoino ~ 4 "?fie=.£. 

Counsel for Trial Litigation 

Attorney for Mine Safety and 

-Health Administration 

U. s. Department of Labor 

Office of the Solicitor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

Telephone: (703) 235-1153 
CERTIFICATE OF SERVICE 

A copy of the foregoing Secretary of Labo~'s Statement on 

Remand was served by U. s. Mail, postage prepaid, this 

day of September, 1980, upon: 

Terrance M. Cullen, Esq. 

The Pittsburg & Midway Coal 

Mining Company 

1720 South Bellaire St. 

Denver, Colorado 80222 

Thomas A. Mascolino 

2533 

sL!d-
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYL.INE TOWERS NO. 2, lOTH FLOOR 

52oS LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

5 SEP 1980 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. SE 79-10 

Petitioner 

v. 

BURGESS MINING AND CONSTRUCTION 

CORPORATION, 

Respondent 

A/O No. 01-01492-03005 V 

Blocton Strip Operation 

DECISION 

ORDER OF DISMISSAL 

Appearances: Murray A. Battles, Esq., Office of the Solicitor, 

U.S. Department of Labor, Birmingham, Alabama, for 

Petitioner, MSHA; 

w. E. Prescott III, Burgess Mining and Construction 

Co~poration, Birmingham, Alabama, for Respondent, 

Burgess Mining and Construction Corporation. 

Before: Judge Merlin 

This case is a petition for the assessment of a civil penalty filed by 

the Government against Burgess Mining and Construction Corporation. A hearing was ;,"'ld on August 20, 1980. 

At the he'lring, tht pa .Les agreed to the following stipulations (Tr. 

4-5): 

1. The operator is the owner and operator of the subject mine. 

2. The operator and the mine are subject to the jurisdiction of the Federal Mine Sa .. :ety and Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction over 

these proceedings. 

4. The inspector who issued the subject citation and 

termination was a duly authorized repres~ntative of the 

Secretary of Labor. 

2534 

I 
5. A true and correct copy of the subject citation 

and termination were properly served upon the operator in 

accordance with the Act. 

6. Copies of the subject citation and termination 

are authentic and may be admitted into evidence for the 

purpose of establishing their issuance but not for the 

purpose of establishing the truthfulness or the relevancy 

of any statements asserted therein. 

7. The operator is medium in size. 

8. The alleged violation was abated in a timely 

manner and the operator demonstrated good faith in 

obtaining abatement. 

9. The assessment of a civil penalty in this proceeding will not affect the operator's ability to continue in business. 

At the hearing, documentary exhibits were received and witnesses testified on behalf of MSHA and the operator (Tr. 10-96). At the conclusion of 

the taking of evidence, the parties waived the filing of written briefs, 

proposed findings of fact and conclusions of law. Instead, they agreed to 

make oral argument and have a decision rendered from the bench (Tr. 96). 

A decision was rendered from the bench setting forth findings, conclusions, 

and determinations with respect to the alleged violation (Tr. 105-107). 

BENCH DECISION 

The bench decision is as follows: 

This case is a petition for the assessment of a civil 

penalty. The alleged violation is of section 77.130l(a) 

which provides as follows: "Detonators and explosives 

other than blasting agents shall be stored in magazines." 

The subject citation sets forth, in pertinent part, that 

a box-type magazine used to store explosives or detonators 

in the work areas was not provided in the drilling and hole 

loading area of the coal pit where three men were working at 

drilling and loading holes, and that there were five caps 

and five primers and approximately 100 ammonium nitrate fuel 

oil bags in the cargo space of a flatbed truck located within 

50 feet of holes already loaded and the men working in the 

area on the drill bench. 

The MSHA inspector testified that he did not know how 

the caps, primers, and ammonium nitrate bags were brought to 

the pit area from their permanent storage magazines, which 

2535 
magazines had.4 inches of steel around them. At the time the 

inspector. saw these materials in the pit area, the hopper 

truck, which was the approved means to transport them, was 

being used elsewhere and the materials were lying on the 

flatbed truck referred to in the citation. According to the 

inspector, when the citation was issued the holes were being 

drilled and the caps, primers, and ammonium nitrate would be 

used in a short period of time, .!..·~·, a matter of minutes. 

The Solicitor argues that 130l(a) applies because everything is stored until it is actually used. I am unable to 

accept this argument. 

First, the verb to "store" is defined as "to put aside, 

or accumulate, for use when needed;"·Webster's New World 

Dictionary, Second Edition. These articles were not put 

aside. On the contrary, they had been taken from the storage 

magazine, where they had been put aside, and now had been 

brought to the pit area where they were just about to be used. 

Secondly, application of 130l(a) to this case would 

ignore the entire scheme· and sequence of subpart "N" whicl} 

deals with "Explosives and Blasting." Section 1301, with 

its many subparts, obviously deals with explosives when 

they are not going to be immediately used. Sec.tion 1302 

deals with the transportation of explosives and, finally, 

section 1303 sets forth the many requirements for the handling of explosives as they are about to be used. In particular, se~tion 1303(f) provides that "Explosives shall 

be kept separated from detonators until charging is started." 

The Solicitor admitted that 1303(f) and 130l(a) might 

overlap. However, I do not believe I should attribute needless overlapping and sloppy drafting to the regulations 

where it· is neither necessary nor appropriate. The sequence 

set forth in subpart "N" is clear. Accordingly, I conclude 

section 130l(a) does not apply and that the instant petition 

must be dismissed. 

I must state, however, that the operator hardly covers 

itself with glory in this matter. The juxtaposition of 

these materials on the flatbed truck appears to have been 

hazardous. It may be that, despite the time lapse, consideration should be given by the Secretary to amending the 

citation by changing the cited mandatory standard and to 

filing another petition. 

In light of the foregoing, therefore, the instant petition is dimissed and no penalty is assessed. 

2536 
DENIAL OF MOTION TO AMEND 

After the close of the hearing and rendition of the bench decision, the 

Solicitor on August 25, 1980, filed a written motion to amend the instant 

petition for civil penalty to substitute section 77.1303(f) instead of 

section 77.130l(a). The operator then filed a vigorous objection. I find 

the Solicitor's motion wholly without merit. At the hearing in this case, 

the operator defended itself only against a charge of violating section 

77.130l(a). As set forth above, the bench decision raised only the possibility that another petition for assessment of a civil penalty might be 

filed in the future based upon an amended citation. If the citation were 

amended by MSHA and a new petition filed by the Solicitor, the operator 

would then be entitled to all the Secretary of Labor's prehearing procedures 

with respect to any alleged violation including the assessment conference. 

The bench decision here did not and indeed, could not decide that there 

was a violation of section 77.1303(f). To grant the Solicitor's request 

would result in a denial to the operator of_ fundamental due process. This 

I cannot do. The motion is denied. 

ORDER 

The foregoing bench decision is hereby AFFIRMED. 

The petition to assess a civil penalty in the above-captioned proceeding 

is DISMISSED. 

The Solicitor's 

Administrative Law Judge 

Distribution: 

Murray A. Battles, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1929 South Ninth Avenue, Birmingham, AL 35205 (Certified Mail) 

w. E. Prescott III, Authorized Representative, Burgess Mining and 

Construction Corporation, P.O. Box 26340, Birmingham, AL 35226 

(Certified Mail) 

2537 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520S LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

5 SEP 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. SE 79-9 

Petitioner A.C. No. 01-01897-03002 

v. 

Gurnee Strip Operation No.. 2 

BURGESS MINING AND CONSTRUCTION 

CORPORATION, 

Appearances: 

Before: 

Respondent 

DECISION 

ORDER TO PAY 

Murray A. Battles, Esq., Office of the Solicitor, U.S. 

Department of Labor, Birmingham, Alabama for Petitioner, 

MSHA; 

w. E. Prescott III, Burgess Mining and Construction 

Co.rporation, Birmingham, Alabama, for Respondent, Burgess 

Mining and Construction Corporation. 

Judge Merlin 

This case is a petition for the assessment of a civil penalty filed by 

the government against Burgess Mining and Construction Corporation. A hearing was held on August 20, 1980. 

At the hearing, the parties agreed to the following stipulations 

(Tr. 4-6): 

1. The operator is the owner and operator of the subject 

mine. 

2. The operator and the mine are subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction over 

this proceeding. 

4o The inspector who issued the subject citation was a 

duly authorized representative of the Secretary. 

2538 
' 

5. A true and correct copy of the subject citation and 

termination was properly served upon the operator in accordance with the Act. 

6. Copies of the subject citation and termination are 

authentic and may be admitted into evidence for the purpose 

of establishing their issuance but not for the purpose of 

establishing the truthfulness or the relevancy of any statements asserted therein. 

7. In 1977, the Gurnee Strip Operation No. 2 produced 

an annual tonnage of 55,772. The controlling company, 

Burgess Mining and Construction Corporation, had an annual 

tonnage of 540,361. The operator is medium in size. 

8. Gurnee Strip Operation No. 2 had no assessed violations in the preceding 24 months and the company, as a whole, 

had 116 assessed violations. 

9. The alleged violation was abated in a timely 

manner: and the operator demonstrated good faith in obtaining abatement. 

10. The assessment of a civil penalty in this proceeding will not affect the operator's ability to continue in 

business; b~t it noted that the Gurnee Strip Operation No. 2 

is no longer operating although, of course, Burgess Mining 

continues to operate other mines. 

At the hearing, documentary exhibits were received and witnesses testified on behalf of MSHA and the operator (Tr. 7-56). At the conclusion of 

the taking of evidence, the parties waived the filing of written briefs, 

proposed findings of fact and conclusions of law. Instead, they agreed to 

make oral argument and have a decision rendered from the bench (Tr. 56). A 

decision was rendered from the bench setting forth findings, conclusions, 

and determinations with respect to the alleged violation (Tr. 75-79). 

BENCH DECISION 

The bench decision is as follows: 

This case is a petition for the assessment of a civil 

penalty. The alleged violation is of Section 77.410 of the 

mandatory standards, which provides the following: "Mobile 

equipment, such as trucks, forklifts, front-end loaders, 

tractors, and graders, shall be equipped with an adequate 

automatic warning device which shall give an audible alarm 

when such equipment .is put in reverse." 

2539 
The subject citation recites in pertinent part that the 

mechanics truck, working in the pit area, was not provided 

with an automatic warning device which would give an audible 

alarm when it was put in reverse. 

It is undisputed that the cited truck did not have a 

backup alarm. The operator contends, however, that S~ction 

77.410 is so ambiguous that it should be invalidated. I 

reject this argument because I am convinced that the 

standard is not ambiguous. On the contrary, its meaning 

is plain and clear. Mobile equipment such as trucks must 

have automatic backup alarms. The regulation, therefore, 

applies to all specified equipment which moves. 

The Court of Appeals for the Third Circuit, in Lucas 

Coal Company v. Interior Board of Mine Operations Appeals, 

522 F.2d. 581 (1975), not only recognized the validity of 

this standard but went further and applied it to bulldozers 

which are not specifically mentioned in this standard. The 

Third Circuit held that the examples given in the mandatory 

standard are not all inclusive. This case, therefore, is 

even stronger than Lucas for application of the standard. 

The cited equipment in this case is a truck, which is 

mobile. It falls, therefore, squarely within the terms 

of 77.410. I find, therefore, that a violation exists. 

In addition, I note that 77.410 does not distinguish 

between various types of trucks. I will not create an exception to the plain language of the standard for pickup trucks 

or for.any other kind of trucks. If it is desirable to do 

so, then proper procedures exist through the rulemaking process. Administrative Law Judge Melick in Secretary of Labor 

v. King Knob Coal Company, WEVA 79-360, (June 27, 1980), held 

that pickup trucks were covered by this standard. 

A great deal of testimony was taken with respect to 

whether the rear view from the truck was obstructed. I find 

it more probative and accept·the inspector's testimony that 

it was.. The operator's witness did not see the truck on the 

day in 'question. It appeared from-the testimony of the 

inspector and from statements by the Solicitor that the 

Secretary has adopted a policy whereby these warning devices 

need not he provided for pickup trucks unless the rear view 

is obstructed. I was not furnished with any documentary evidence of this policy. However, I have with me the particular 

page from the March 9, 1978, MSHA Surface Manual which provides in pertinent part as follows: "The warning device 

required by this Section need not be provided for automobiles, 

jeeps, pickup trucks, and similar vehicles where the operator's view directly behind the vehicle, is not obstructed." 

2540 

I 
I believ~ that if the Secretary wishes to so circumscribe 

this standard, then he should follow the rule-making process 

rather than just placing a change in the inspector's manual. 

I am not bound by the manual. North American Coal Corporation, 

3 IBMA 93, 106 (1974). Kaiser Steel Corporation, 3 IBMA 489, 

498 (1974). Indeed, the Third Circuit, in Lucas said: "We need 

only say that there is nothing in 77.410 which limits its 

coverage to vehicles with an obstructed view to the rear." 

522 F.2d at 585. 

In any event, having accepted the inspector's testimony, 

I find a violation existed even under the interpretation set 

forth in the manual because based upon the inspector's testimony the rear view from the truck was obstructed. 

I conclude the violation was serious because a major 

injury could result. This truck was used in areas where 

people work. 

I conclude the operator was negligent because, as I have 

already stated, the language of the mandatory standard is so 

clear. I further conclude the operator was negligent because 

even under the interpretation set forth in the inspector's 

manual the operator knew, or should have known, that the rear 

view from the truck should not be obstructed. 

I reject the operator's contention with respect to what 

customary u~age of various terms are in the mining industry 

as a basis for not applying the standard. It would be an easy 

matter for the mandatory standard to specifically incorporate 

industry interpretation. This standard does not do so. Its 

meaning is plain on its face. 

Other criteria have been stipulated to and I take them 

into'account into fixing the penalty. 

In light of the foregoing, and having due regard for all 

the statutory criteria, a penalty of $250.00 is assessed. 

ORDER 

The foregoing bench decision is hereby, AFFIRMED. 

The operator is ORDERED to pay $250 within 30 days from the date of 

this decision. 

Paul Merlin 

Assistant Chief Administrative Law Judge 

2541 
Distribution: 

Murray A. Battles, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1929 South Ninth Ave., Birmingham, AL 35205 (Certified Mail) 

W. E. Prescott III, Authorized Representative, Burgess Mining and 

Construction Corporation, P.O. Box 26340, Birmingham, AL 35226 

(Certified Mail) 

2542 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR; 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

COWIN AND COMPANY, INC., 

Respondent 

SEP 8 1980 

Civil Penalty Proceedings 

Docket Nos. HOPE 76-210-P 

HOPE 76-211-P 

HOPE 76-212-P 

HOPE 76-213-P 

Beckley No. 1 Mine, 

DECISION 

Appearances: J. Philip Smith, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, for Petitioner, Secretary of Labor; 

William H. Howe, Esq., Loomis, Owen, Fellman & Howe, 

Washington, D.C., for Respondent, Cowin and Company, 

Inc. 

Before: Chief Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

This case was originally tried under section 109(c) of the 

Federal Coal Mine Health and Safety Act of 1969, 30 u.s.c. § 819(c). 

The decision was issued on September 14, 1978. The Fourth Circuit 

Court of Appeals held on December 28, 1979, that Respondent should 

not have been charged as "an "agent" of an operator under section 

109(c) of the Act, but as an operator under section 109(a). Cowin 

and Company, Inc. v. FMSHRC, 612 F.2d 838, 840 (4th Cir. 1979). 

The case was remanded so that the administrative record could be 

reopened "for the submission of additional relevant evidence and 

arguments before Cowin's civil liability is determined and· penalties can be assessed under the proper section." Id. at 841. 

By order dated March 27, 1980, I granted leave to amend the 

petition for assessment of civil penalties to allege liability 

under section 109(a)(l) of the Act. Respondent's answer was 

filed on April 18, 1980. The parties have stated that they do not 

wish to submit additional evidence. A briefing schedule was set on 

June 4, 1980. Respondent filed a brief on June 26, 1980, and Petitioner filed a reply brief on July 11, 1980. Respondent has 

elected not to respond to Petitioner's reply brief. 

2543 
STATUTORY PROVISIONS 

Section 109(a)(l) provides: 

The operator of a coal mine in which a violation 

occurs of a mandatory health or safety standard or 

who violates any other provision of this Act, except 

the provisions of title 4, shall be assessed a civil 

penalty by the Secretary under paragraph (3) of this 

subsection which penalty shall not be more than 

$10,000 for each such violation. Each occurrence of 

a violation of a mandatory health or safety standard. 

may constitute a separate offense. 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. 

Section 109(c) provides: 

Whenever a corporate operator violates a mandatory health or safety standard or knowingly violates 

or fails or refuses to comply with any order issued 

under this Act or any order incorporated in a final 

decision issued under this Act, except an order 

incorporated in a decision issued under subsection 

(a) 0£ this section or section 110(b)(2) of this 

title, any director, officer, or agent of such 

corporation who knowingly authorized, ordered, or 

carried out such violation, failure, or refusal 

shall be subject to the same civil penalties, fines, 

and imprisonment that may be imposed upon a person 

under subsections (a) and (b) of this section. 

FINDINGS OF FACT 

The discussions entitled "The Eleven Alleged Violations" 

(pp. 9-15) and "Appropriate Penalties" (pp. 19-21) in my decision 

of September 14; 1978, are incorporated herein by reference. 

ISSUES 

1. Did Respondent violate the s·tandards as charged by 

Petitioner? 

2. Is 30 C.F.R. § 77.1903(b) a mandatory standard? 

2544 
3. Is Respondent an "operator" within the meaning of section 

109(a)(l)? 

4. Should the case be dismissed because of Petitioner's 

alleged failure to follow its own procedures for assessment of 

civil penalties? 

DISCUSSION 

Four arguments have been raised by Respondent since the remand. 

Two may be disposed of by referring to my prior decision. Respondent 

claims that 30 C.F.R. § 77.1903(b) is not a mandatory standard upon 

which an order may be issued and a penalty imposed. This.claim was 

raised and rejected in the first decision, on pages 12-13. Respondent also argues that there were no violations of mandatory standards, 

referring to its brief filed on July 10, 1978. The first decision 

also took account of this claim and rejected it. This case is before 

me "for the submission of additional relevant evidence and arguments." 

Cowin and Company, Inc. v. FMSHRC, supra. No additional evidence 

has been offered and these two arguments are not new. The court of 

appeals considered the whole record and it disagreed only with the 

finding that Respondent was liable under section 109(c). "No merit" 

was found in Respondent's other contentions. Id. I have found unpersuasive the additional analysis put forth in support of the first 

argument since the remand. Respondent's first two arguments are 

rejected. 

Respondent next asserts that the Secretary cannot now deviate 

from its "operators only" policy of enforcement, adopted in 1975 

and sustained by the Commission in MSHA v. Old Ben Coal Company, 

1 FMSHRC 1480 (October 29, 1979). According to that policy, Ranger 

Fuel, the mine operator, would be the party responsible for any 

violation on the part of Cowin and Company, Inc. 

The independent contractor problem has long plagued enforcement of coal mine safety regulations. At the time of the accident on January 7, 1974, the controlling view was that independent 

contractors could be liable as "operators" under the 1969 Coal 

Act. Affinity Mining Company, 2 IBMA 57 (1973). In May of 1975, 

a district court disagreed, after which the Secretary adopted his 

"operators only" policy. Association of Bituminous Contractors v. 

Morton, No. 1058-74.(])~D.C. 1975). The petition for assessment of 

penalties was filed on January 15, 1976. Before the case was 

decided in September of 1978, two circuit courts had concluded 

that independent contractors could be liable as "operators," 

reincarnating the Affinity rule. Association of Bituminous Contractors v. Andrus, 581 F.2d 853 (~.c. Cir., February 22, 1978); 

BCOA v. Secretary of Interior, 547 F.2d 240, 246 (4th Cir. 1977). 

Despite this, the Commission in Old Ben approved the Secretary of 

Labor's "interim" policy of citing only mine operators, for two reasons. First, "unpredictability, confusion and potential unfairness" 
-. 

were sa-id to be threatened by giving inspectors blanket discretion 

to decide who is the "operator" for purposes of liability. Second, 

tolerance for the Secretary's -policy was warranted since the Secretary. of Labor bad been assigned responsibility for m:j.ne safety just 

·recently. 

The Secretary's new rules on independent contractor liability 

have been published-. 45 Fed. Reg. 44494; (July 1, 1980) •. No unpredicta·bili ty, confusion or. potenti~l -u.nfai,rne_ss $!an,, re.s.ult_ .from ,,, . 

holding· Cowin and Comp,any,- Inc,.,. to -the. section_ 109(,i) StfindH~ .· 

in any event. The violations were clearly caused by the compa~y 

and it had ample opportunity to present evidence on all matters 

bearing on section 109(a) (.l.); liabi:!-itY• ' , 

Furthermore,. the, s.imple fact- is t.hat, d.espite ~he SE?cretary' s 

policy,- the' law .prevailing at t:he:c.time of. the ... first. deci05ipn. anq . 

'still prevailing is' that ·i:ndep,~n,dent contractors ID-\iY· l?e liab].e .as 

operators under the 1969 Coal Act. The court, therefore, appears 

to have decide'd that:, con·tinu~d--.adherence-~to.· t}le, '~peratprs only" 

policy is insupportable in this case. ,•·• 11 ',. • ,.. 1 .. : ':;·. 

Even assuming that the policy is a rule which the_ Secretary.is 

ordinarily bound to observe, the purpose of the doctrine that an 

agency• is hound ,by its own rules is. "to px;e:vent _the :ar-bitrainess 

Which is inherently characteristic Of an- ·agency~ S• ~Vi.ola•ti,on Of ·its 

own procedures." United States v. Heffner, 420 F.2d 809, 812 (4th 

Cir. 1970). Rooted as it is in notions of due process, this 

doctrine is not inflexible. Adherence to agency policy in this 

case produced a result more arbitrary than departure from it: 

failure to cite an ·independent contractor. under·- the provi~ion of 

law intended by Congress to apply to such entiti~s.. Moreove.r, the 

decision_to depart ;from the policy was not the result of agency 

caprice but was ditectedby a· federal court. I conclude that Respondent is subject to liability as an ·operator under section 109(a) (1). 

Respondent's final claim is that the petition should be dismissed since the Secretary failed to follow his own regulations for 

assessment of civil penalties. Specifically, Respondent states it 

was not afforded a conference with an assessment officer or a chance 

to negotiate a reduction in penalties before the assessments became 

final. 

It is true that 30 C.F.R. Part 100, as.· it read. from 1974 to 

1978, detailed penalty assessment procedures only for section 109(a) 

cases. However,; Petitioner: states in its reply brief that Respondent was, in fact, originally charged as an operator under section. 

109(a) and thus had the opportunity to avail itself of Part 100 

procedures. Due to the change in enforcement policy discussed 

above, Respondent had to be recharged as an agent of an operator. 

Petitioner also states that it offered to enter into settlement 

discussions with Respondent after this case was remanded by the 

Fourth Circuit. 

2546 
Respondent's assertion tha~· t._e procedures in 30 c.F .. R., Part 100, 

were not followed 9 evE!nU.true, i.s.:lnconse'1uentbl. The Petitioi'i.er and 

his predecessor, the !;Jtt.cretaty of tnterior 9 alwttys have been vested with 

prosecutorial discretion to engage in settiement negotiations in civil 

pertalty cases of this n~ture. Respondent does not contend that it ever 

requested art opportunity to discuss s~ttlement which was denied by the 

charging party. Respo~dent s final claim ts rejected. 

Petitioner to its tt!})ly brief stat~s that the civil penalties previously assessed shoulcl remain the sue and be reaffirmed. Respondent 

has not addressed the bsue ·of· .the apptopriate penalty. No new evidence 

having been introduced, the~e is no basis to·change the penalty originally 

imposed. · 

CONCLUSIONS OF LAW 

l• Based '1n my deciston of S~ptembe~ 14, 1978, l find that Respondent violated.the mandatory standards as all~ged in Petitioner's 

amended petition for asse~mnen~ ~f civil penalty' filed on April 7, 1980. 

2. JO c.F.R. t 17.1903(b) is a mandatory standard. 

j. Respondent is subject to liability as an operator under section 

lo9(a)(l) of the.1969 Act. 

4, The elaim that Re!ipondebt has· not.been afforded.the procedures 

in JO C.F.R•; Part 100 even if true d0es not watrant dismissal of this . ,' 

case. 

Respondent is OlIDEttED tt> pay the sum· of $74,000 within 30 days of 

the date of this decision. 

~ .Afi 111'6n~ · · James A. Btoderick 

. · Chief Adminis tra ti ve La~ Judge 

•• 

Distribution~ By certified. mail• . : ' 

WUH1:1m H. tlo\<fe; Esq., Attorn~y for Cmrirt & Company, lnc., toomis, Owen, 

'Fellman & Howe; 2020 K Street, N.W.; Washington, DC 20006 

J. PhiHp Smith, trial Attbrney, Offtce·of the Solicitor, U.S. Department 

of Labor, 4015 Wilsohlo\al~a~d, Arlit.tgton, VA 22103 

Assessment ofHce, MShA• u.s. Department Of Labor, 4015 Wilson Bc>ulevard, 

Arlington, VA 2i203 · 

2547 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 29006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KAISER STEEL CORPORATION, 

Respondent 

September 9, 1980 

Civil Penalty Proceeding 

Docket No. DENV 78-512-P 

A/O No. 29-00095-02021V 

York Canyon No. 1 Mine 

DECISION 

Appearances: Manuel Lopez, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, for 

Petitioner, Secretary of Labor; 

David Reeves, Esq., Oakland, California, for 

Respondent, Kaiser Steel Corporation. 

Before: Chief Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

Respondent is charged with a violation of 30 C.F.R. § 75.301, a 

mandatory standard dealing with ventilation of working areas in 

underground mines. The order forming the basis for this charge was 

issued by a Federal mine inspector on February 2, 1977. The case thus 

arose under the Federal Coal Mine Health and Safety of 1969, 30 U.S.C. 

§ 801 et ~· (1970). 

A hearing was held at Raton, New Mexico, on November 1, 1979, 

before Administrative Law Judge Michels. Witnesses were Lawrence 

Rivera, a Federal Mine inspector, George Krulyac, foreman for 

Respondent, and Paul McConnell, a mine safety inspector employed by 

Respondent. Because of the retirement of Judge Michels, the case 

was, with the consent of counsel, assigned to me for decision on the 

transcript of the hearing before Judge Michels. 

I issued a decision on May 13, 1980. The Commission then 

granted Respondent's petition for discretionary review. Upon discovering that several of the exhibits introduced at the hearing 

were absent from the record, the Commission vacated my decision and 

2548 
remanded the case for further proceedings or appropriate reconsideration. Copies of the missing exhibits have been received and 

placed in the record. I have reexamined the entire record, and 

reconsidered the contentions of the parties. Based on that reexamination and reconsideration, I am issuing a new decision which 

follows. 

ISSUES 

1. Did Respondent· violate 30 C.F.R. § 75.301 as charged by 

Petitioner? 

2. If so, was the violation due to Respondent's negligence? 

3. Can accumulations of methane at the working face be taken 

into account in determining the gravity of a violation of 30 C.F.R. 

§ 75.301? 

4. If a violation occurred in this case, what is the 

appropriate penalty? 

REGULATION 

The portion of 30 C.F.R. §, 75.301 most pertinent to this case 

reads: 

All active workings shall be ventilated by a 

current of air containing not less than 19.5 volume 

per centum of ·oxygen, not more than 0.5 volume per 

centum of carbon dioxide, and no harmful quantities 

of other noxious or poisonous gases; and the volume 

and velocity of the current of air shall be sufficient to dilute, render harmless, and to carry 

away, flammable, explosive, noxious, and harmful 

gases, and dust, and smoke and explosive fumes. 

The minimum quantity of air reaching the last open 

crosscut in any pair or set of developing entries 

and the last open crosscut in any pair or set of 

rooms shall be 9,000 cubic feet a minute, and the 

minimum quantity of air reaching the intake end of 

a pillar line shall be 9,000 cubic feet a minute. 

FINDINGS OF FACT 

1. Respondent is the operator of the York Canyon No. 1 Coal 

Mine in Raton, New Mexico. 

2. Respondent's operations in York Canyon produce near1y a 

million tons of coal per year and it employs approximately 

400 employees. I conclude that Respondent is a large operator and, 

2549. 
there being no evidence to the contrary, I further conclude that 

imposition of the penalty proposed by Petitioner would have no 

effect on Respondent's ability to continue in business. 

3. On February 2, 1977, in section 6L of the subject mine, 

the last open crosscut was not being ventilated by a current of 

air at least 9,000 cubic feet per minute in velocity. Based on 

the testimony, I find that there was no perceptible movement of 

air in the last open crosscut. ~ 

4. The loss of air flow was caused by a brattice in the previous open crosscut which was not functioning properly. 

5. The brattice was improperly installed; its condition was 

obvious and should have been noticed by Respondent during the prior 

working shift. 

6. Another brattice, hung from the last open crosscut to the 

working face, was so severely damaged.that it could not have provided sufficient air flow across the working face. 

7. At the time the lack of air flow was detected, the air in 

the working face area contained 3.55 percent methane. 

8. Four miners were in the vicinity of the face area at the 

time the methane was detected, three of them performing maintenance 

work on an energized continuous miner. 

9. Paul McConnell, a mine safety inspector working for Respondent, was with Federal inspector Lawrence Rivera when the latter 

detected the absence of air flow in the last open crosscut .at 

6 a.m. He did not attempt to correct the problem at that time but 

left for other areas of the mine, before Mr. Rivera began to check 

for methane. 

10. After ordering all miners out of the affected area and 

ordering the power deenergized, Mr. Rivera issued an order of withdrawal to George Krulyac, the foreman of the morning shift, at 

7:15 a.m. The air flow was restored and the area cleared of harmful quantities of gas by 8:45 a.m. 

DISCUSSION 

Federal inspector Lawrence Rivera arrived at the York Canyon 

No. 1 Mine at about 1 a.m. on February 2, 1977. At 3 a.m., during 

the maintenance shift, he and Paul McConnell, a mine examiner 

employed by Respondent, entered the mine. The two arrived at section 6L at approximately 6 a.m. Mr. Rivera attempted to test the 

air velocity in the last open crosscut, first with an anemometer 

and then with a smoke tube. He was unable to obtain any readings. 
He told Mr. McConnell that something was wrong with the air supply, 

whereupon, he says Mr. McConnell told him he had other locations to 

check and would have to leave (Tr. 20). Mr. McConnell admits that 

he left the section but thinks that on the way to his other duties, 

he tightened the brattice in the previous open crosscut to correct 

the loss of air flow (Tr. 86). Mr. Rivera disputes this (Tr. 37) 

and I find that Mr. McConnell left without investigating the condition further and attempting to correct it. 

After Mr. McConnell departed, Mr. Rivera walked to the working 

face and obtained a reading of more than 2 percent methane. 

Laboratory tests on bottle samples taken by Mr. Rivera revealed 

that the methane concentration exceeded 3.5 percent (Exh. P-3). 

Mr. Rivera, recognized at the hearing as an expert on mine safety 

(Tr. 11), believed this to be a dangerous condition and ordered the 

miners in the area to deenergize the power center and leave the section. They had been performing maintenance work on an energized 

continuous miner. A concentration of methane at or above 5 percent 

is explosive. Less than 1 percent methane at the face is what is 

acceptable (Tr. 20-22). 

Mr. Krulyac arrived at the section at 7:15 a.m. at which time 

he was handed the subject order. He left his crew behind the 

power center and proceeded to correct the loss of air flow. By 

ensuring that brattices at the previous open crosscut and the last 

open crosscut were functioning properly, he abated the violation 

before 8:45 a.m. I find that, as the parties stipulated, Respondent abated the violation in good faith. 

Respondent does not deny that it violated 30 C.F.R. § 75.301 

and I find that it did. The issue is the appropriate penalty to 

be imposed. I have previously found that Respondent is a large 

operator, that its ability to continue in business will not be 

affected by the proposed penalty, and that Respondent displayed 

ordinary good faith in abating the violation. The criteria 

remaining to be evaluated are negligence, history of previous violations and gravity. 

HISTORY OF PRIOR VIOLATIONS 

Exhibit P-5 shows that during the period from February 2, 1975, 

to February 2, 1977, there were 170 paid violations of mandatory 

standards at the subject mine. Four were violations of 30 C.F.R. 

§ 75.301; 11 others were violations of other ventilation standards. 

In addition to these violations, Respondent was cited on February 1, 

1977, the day before the order herein was issued, for a ventilation 

violation in another section of the mine. After a hearing before 

Judge Koutras, a penalty was assessed for a violation found to have 

been serious and caused by Respondent's negligence. The decision 

was affirmed by the Commission. MSHA v. Kaiser Steel Corp., DENV 

2551 
78-31-P, 1 FMSHRC 984 (August 3, 1979). I find that these facts 

demonstrate a significant history of prior violations. 

GRAVITY 

The failure of ventilation in an underground coal mine can have 

serious, even tragic, consequences. The Senate Committee Report on 

the Federal Mine Safety and Health Act of 1977 states: "* * * 

ventilation of a mine is important not only to provide fresh air to 

miners, and to control dust accumulation, but also to sweep away 

liberated methane before it can reach the range where the gas could 

become explosive. In terms then of the safety of miners, ·the 

requirement that a mine be adequately ventilated becomes one of the 

more important safety standards under the Coal Act." s. Rept. 

No. 95-181, 95th Cong., 1st Sess. 41 (1977), reprinted in LEGISLATIVE HISTORY OF THE. FEDERAL MINE SAFETY AND HEALTH ACT OF 1977 at 

629 (1978). 

The evidence in this case shows the absence of any movement of 

air in the last open crosscut at a time when the continuous miner 

was energized, a short time prior to the beginning of a production 

shift. This is a serious violation of the standard. It is compounded by the finding that 3.55 percent methane was present in the 

air at the working face. Although the percentage of methane was 

not in the explosive range, it could easily and swiftly build up to 

that range. Ignition sources were present and an explosion could 

have resulted. I conclude that the condition was very serious. 

Respondent argues that the methane concentration should not be 

considered in assessing a penalty because it was charged with a 

ventilation violation. It is sufficient ·response to note that 

one of the most important reasons for the ventilation requirements is to "dilute, render harmless, and to carry away * * * 

noxious and harmful gases * * *·" 

NEGLIGENCE 

The subject order charges a failure of ventilation. The evidence shows that it was primarily due to the condition of the 

brattice in the crosscut outby the last open crosscut (point "C" on 

Exh. P-6). There is evidence that the brattice cloth in the last 

open crosscut (point "B" on Exh. P-6) was "spaced and damaged" (Tr. 

24). The latter condition, even if it did not cause the ventilation problem, is evidence that Respondent was careless in maintaining brattice in the section. The condition was obvious and 

had been present for some.time. 

The testimony is conflicting as to the condition of the 

brattice cloth at point C. The inspector testified that it was too 

short to cover the opening by about 3-1/2 feet, causing the air flow 

to be "short circuited." Mr. Krulyac testified that the brattice 

2552 
was ripped and blowing open in one corner. The inspector stated 

that the condition was abated by adding a new strip of brattice 

across the "whole length" of the existing brattice. Mr. Krulyac 

stated that he corrected the condition by nailing a strip along-

''sl.de the rip to a timber to hold it down. 

I accept the testimony of the inspector and find that the 

brattice at point C on Exhibit P-6 was too short to seal the crosscut. The inspector's testimony was inconsistent on the question 

of whether this brattice was damaged, but he was steadfast in his 

insistence that it was too short to cover the crosscut opening. 

It seems to me inherently unlikely that the inspector would either 

invent such a claim or that his memory would fail him on a question so vital to his order. His notes (Exh. P-1) are not inconsistent with his testimony. Mr. Krulyac's written statement (Exh. 

R-5) describes what was done to abate the violation: "We went back 

to the next X cut and sealed it tight with brattice. Although 

there already was a curtain there but the air was going through in 

some places." This indicates that additional brattice was used to 

cover the crosscut. 

Therefore, I find that the brattice was improperly installed. 

It is reasonable to infer that it was there at least since the 

prior production shift. I reject as unreliable the preshift report 

indicating sufficient ventilation in the section and conclude that 

the ventilation problem had existed since the production shift. 

Therefore, Respondent should have been aware of it and corrected 

it. The carelessness shown by the record includes (1) the improperly installed brattice; (2) an additional damaged brattice; (3) 

an energized continuous miner in the face area with no air ventilation and in the presence of 3.55 percent methane; (4) a ventilation 

violation had been cited in another section the previous day and, 

(5) the subject order was charged as an unwarrantable failure to 

comply with the standard as a part of a 104(c)(l) chain. 

These factors persuade me that the condition was caused by 

Respondent's gross negligence. 

In view of the fact that the violation in this case was very 

serious, a substantial penalty must be imposed to induce an operator of this size to prevent similar violations in the future. 

CONCLUSIONS OF LAW 

1. Respondent on February 2, 1977, violated 30 C.F.R. 

§ 75.301. 

2. Accum~lations of methane at the working face may be taken 

into account in fixing an appropriate penalty for violation of 

30 C.F.R. § 75.301. 

2553 
l. Under the c~r~"•staftce~ ~f ·t~ls case, tl similar violation 

occuJ"ring on February le 1977.·at tl\e $ame mine. ls relevaQt and 

may be considered in fixing an appropdate penalty. ' ~. . ' ; 

4. 'nle violation described Jn ~nciuaton No. 1 was Vefy 

serious. 

5. Ttte violation descrlbedia Col\cl-.stpn Noel was the result 

of Re&J>Andent's gross negligen~e. " 

6_. Based on the above findings ~f fact and conciusions of 

law, and considering the -.tatuto11y ~riter~~. l conclud~.that the 

'ppropriate pena~ty in thi~ case-i-. $4.000, 

ORDER. 

- ~espandent is ORDEUD tQ pay thesUll of $4•?00 t4thin 30 days 

of the _.ate Qf ~his decisl9ne _ _ _ _ 

.1~s. A/Jrvhd___ · ~ - James A. Broderick -

Ch~ef Actainistratlve L~w Judge 

Distribution~ ly cerUfled •U. 

David a. Reeves, Esq,.•• ~ttorney at; Law,. Kaiser $te~1 ·corporation, -300 

Lakeside Drive, ~ 2608• Oaklarid, ~ 94666 _ ' - -- ·. ' . ·,, ' ' . . 

Manuel Lopez, Attorney, Office of ~.h~:_Solii:itor.~ u.s. Qepartment of Labor, 

4015 Wilson Boulevard, Arlington, VA 22203 · ' -

Asses~ment Office, ttSHA. U.~. Depa~tment of Labor, 4Q15 Wil~on 6oQlevard. Arlington, VA 22203 

. - .· ~ . 

.25.$4 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

:}~3;W. COLFAX-AVENUE· 

DENVER, COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA) ,·. 

Petitioner, , ·• 

) 

) 

) 

) 

) 

)" 

) . 

) 

) 

9 . SEP 1980 

Civil Penalty Proceeding· 

DOCKET NO. wEST 80_;12-M 

MSHA Case'No. 48-00145-05005 

DOCKET NO. WEST 80-13-M 

' MSHA Case No •. 48-0014'5.;..05004 

UNITED · STATES STEEL CORPORATlON, .. ) -

Respondent. 

.: ,' ' ) 

) 

) 

Mine: ·· Atlantic·. Ci~y Ore ·· 

Operations and Plant 

~~~~~~~~~~~~~~~~-) ' .· . t.· '.lo ·'·'·' 

DECISION AND ORDER .. : '" ',, ,'. + 

APPEARANCES·=, ·';: ·., . • r ·~ .. • "t. ' 

Phyllis K. Caldwel-1., ,.E~q.,. Off:ice of ·the Solicitor, United States 

Department of.Labor; ~585Federa;l Building, 1961 Stout Street, 

Denver, Colorado 80294, 

for the Petitioner; 

.Louise Q. ~ymons, E_sq., 600 Grant;: ~treet, .P.ittsb_μrgh, Pennsylvania 

·152'30, 

for the Respondent. 

Before: Judge Jon D. 'Boltz 

STATEMENT OF THE CASE, 

. ' 

Pursuant to provisrnns of the Federal Mine'Safety and Health Act 

of 1977, 30 U.S.C. § 801 et seq., the Petitioner seeks an order assessing 

civil monetary penalties against the Respondent for violations alleged 

in the three citations involved in the above-captioned cases. The 

cases were consolidated for a hearing held in Denver, Colorado, on June 

12, 1980. The Respondent denies it violated any of the standards cited 

by the Petitioner. 

FINDINGS OF FACT 

Based upon stipulation of the parties, the following Findings of 

Fact are made: 

1. Respondent is a large operator, employing 529 employees at the 

plant where the alleged violations took place. 

2. The penalties imposed will not affect Respondent's ability to 

continue in business. 

2555 

, ....... 
3. The citations were issued by an authorized representative of 

the Secretary of Labor. 

4. In the 24 months prior to the issuance of the citations involved 

in these cases, there were 33 assessed violations against the Respondent. 

ADDITIONAL FINDINGS OF FACT AND DISCUSSION 

DOCKET NUMBER WEST 80-12-M 

Citation Number 33865 

A violation of 30 CFR § 55.18-20 is alleged. 1 

5. In a building located at the Respondent's taconite plant there 

is a tripper gallery approximately 200 feet long. The gallery may be 

reached by means of an elevator or by a stairway. (Tr. 11, 22, 55.) 

6. A conveyor brings the material up to the tripper gallery where 

a tripper mechanism causes the material to fall through a pants chute. 

The chute directs the material through two rows of grizzlies which are 

located over openi~gs in the floor. The grizzlies are located on each 

side of the conveyor and after the material falls through the grizzlies 

and openings in the floor it goes into t~e ore bin, located approximately 

60 feet below the floor of the tripper gallery. (Tr. 14, 76.) 

7. The openings in the floor are approximately 60 feet in length 

and approximately 10 to 16 inches in width. They are covered by metal 

grizzlies bars spaced about 1 foot apart. A seal belt covers the bars. 

(Tr. 11, 55, 56, 76.) 

8. At the time of the inspection, some of the grizzly bars on both 

side~ of the conveyor were missing, thus leaving an opening approximately 

10 feet in length and 10 to 16 inches in width. (Tr. 72.) 

9. ·On May 15, 1979, by assignment of the Respondent, an employee 

was working alone washing down the floor of the tripper gallery with a 

water hose •• (Tr. 11.) 

10. While working in the tripper gallery, this cleanup person could 

not been seen nor could her voice be heard by other employees. (Tr. 

16.) 

11. None of the equipment in the tripper gallery is in operation 

when the cleanup employee is working there. (Tr. 61.) 

12. Light bulbs were located in the tripper gallery ceiling, 

approximately 15 feet above the gallery floor. (Tr. 58.) 

1./ Mandatory. No employee shall be assigned, or allowed, or be required 

to perform work alone in any area where hazardous conditions exist that 

would endanger his safety unless he can communicate with others, can be 

heard, or can be seen. 

2556 
13. At the time the cleanup employee was working in the gallery, 

the drive motor.of the equipment was locked out at the electrical junction 

box. (Tr. 52, 58.) 

The citation should be affirmed. The first determination to be 

made is whether the area where the employee was assigned to work by 

herself was an area where hazardous conditions existed that could endanger 

her safety. 

"Hazardous" is defined as "[e]xposed to or involving danger; perilous; 

risky." Black's Law Dictionary 850 (rev. 4th ed. 1968). The mine 

inspector testified that there were several hazardous conditions present, 

including the possibility of an employee stumbling in the dust and the 

possibility of hose water contact with the light bulbs. These possible 

incidents are too remote to be considered "perilous" or "risky." The 

inspector testified that the most hazardous condition present was the 

open area in the floor where the grizzly bars were missing. I agree. 

Although there is some confusion as to what the employee told the inspector 

on the date of the violation, the import of the testimony was that the 

employee was mucking directly over the open hole in the floor on that 

date (Tr. 26). If the grizzly bars had been in place, so that the 

opening would have been approximately 10 to 16 inches in width and 1 

foot in length, there probably would have been no hazardous condition 

present within the meaning of 30 CFR § 55·.18-20. However, . because the 

openings wer.e about 10 feet long, due to the absence of the bars, I find 

that a hazardous condition did exist which would· endanger the safety of 

the employee due to the possibility of the employee slipping and falling 

into the opening. 

Since there was a hazardous condition in the area where the employee 

worked, it was necessary that she be able to connnunicate with others. 

Turning again to the dictionary, to "connnunicate" is defined as follows: 

"To bestow, convey, make known, recount, impart; to give by way of 

information." Id, at 349. 

The Respondent argues in its brief that there were two means of 

communication available, a "pager" and the alarm bell in the elevator. 

The evidence shows that there was a paging system available for use by 

the employee and presumably she could "make known, impart, or give 

in,formation" by means' of this equipment. However, the equipment was not 

operable at the time of the inspection. As far as the alarm bell in the 

elevator is concerned, even if the definition of to "communicate" were 

stretched sufficiently to sanction use of the elevator alarm bell, there 

was no evidence showing that the elevator would always be available and 

would not be in use on a different floor when the employee would need to 

use it. Such evidence falls far short of the communication definition. 

I find that the employee was unable to communicate with others 

within the meaning of the regulation. The citation was abated immediately 

by the assignment of an additional employee to work in the area. (Tr. 

18.) 

2557 
DOCKET NUMBER WEST 80-13-M 

Citation Number 339622 

2 A violation of 30 CFR § 55.20-3(a) is alleged. 

14. In the electrical shop on May 7, 1979, approximately 30 wooden 

blocks were located behind some lockers in an area used to dry electric 

motors. The girth of the blocks measured 4 by 4 inches and 4 by 6 

inches and they were from 1 to 3 feet long. (Tr. 84, 87, 92.) 

15. The wooden blocks were in a 2 by 3 foot pile and a maximum of 

four candy wrappers were observed in and around the wooden blocks. (Tr. 

92.) 

16. The wooden blocks were used in connection with work on electric 

motors. (Tr. 96.) 

This citation should be vacated. The evidence shows that the 

blocks were used in the shop to block electric motors, auto engines, and 

other equipment so that slings, cables and forklift trucks could secure 

and lift them. The blocks are heavy and when not in use were tossed 

into the area in which they were observed by the inspector. (Tr. 103, 

104.) However, the inspector testified that there was no safety hazard 

in regard to the method in which the blocks were piled (Tr. 100), 

although it appeared to him that the employees had begun to use the area 

as a refuse pile (Tr. 95). Under these circumstances it would be a 

strained interpretation of the regulation.to find that up to four candy 

wrappers located in or near the wood blocks constituted a failure-to 

keep the work place clean and orderly, particularly when there was no 

evidence as to how long the paper might have.been there, 1 hour or 1 month. 

Citation Number 339620 

3 A violation of 30 CFR § 55.12-30 is alleged. 

17. An electric grinder with two grinding wheels measuring approximately 

16 inches in diameter was located in the dozer and loader repair area. 

The wheels were contained within a housing, the top of which was 3 1/2 

to 4 feet above the. floor. (Tr. 120, 140, Exhibit P-4.) 

18. When a grinding wheel is spinning under electrical power and 

the power is turned off, the wheel continues to spin for 6 minutes 

before coming to a·full stop. (Tr. 107.) 

19. Each wheel is contained within a cast iron peripheral guard 

that encloses the wheel except for the opening where grinding takes 

place. (Tr. 135.) 

2:_/ Mandatory. At all mining operations: (a) Workplaces, passageways, 

storerooms, and service rooms shall be kept clean and orderly. · 

1_/ Mandatory. When a potentially dangerous condition is found it shall 

be corrected before equipment or wiring is energized. 

2558 
This citation should be vacated. From the evidence presented, I 

cannot find that a potentially dangerous condition existed in regard to 

the electric grinder. The Petitioner showed that the grinder was in a 

well traveled area of the. shop and that the citation would not have been 

issued if the equipment had been located in an area where fewer persons 

came into contact with it. Thus, there was no defect complained of in 

regard to the equipment itself--just its location. There ~ere other 

grinding wheels in the shop. When turned off, it took approximately 

1 1/2 minutes for their grinding wheels to come to a full stop. Since 

the grinding wheels are well guarded with a cast iron guard that completely 

surrounds each wheel, except for the small opening where grinding takes 

place, I find that the risk of injury is too remote to be considered a 

"potentially dangerous condition" within the meaning of the cited regulation. 

CONCLUSIONS OF LAW 

1. The undersigned Judge has jurisdiction over the parties and the 

subject matter of these proceedings. 

2. The Respondent violated 30 CFR § 55.18-20 as alleged in Citation 

Number 33865. 

3. The Petitioner failed to prove that Respondent violated the 

regulations cited in Citation Numbers 339622 and 339620. 

ORDER. 

Citation Numbers 339622 and 339620 and the penalties there·for are 

VACATED. Respondent is ORDERED to pay a civil penalty of $72, in regard 

to Citation 33865 within 30 days of the date of this Decision. 

Administrative Law Judge 

Distribution: 

Phyllis K. Caldwell, Esq., Office of the Solicitor, United.States Department 

of Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado 

80294 

Louise Q. Symons, Esq., 600 Grant Street, Pittsburgh, Pennsylvania 15230 

2559 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

THE NEw RIVER COMPANY, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6210111112 

9 SEP 1980 

Civil Penalty Proceeding 

Docket No. WEVA 80-308 

A.O. No. 46-01297-02026 V 

Siltix Mine 

DECISION AND ORDER 

The parties move for approval of a settlement of a willful violation 

of the prohibition against by-passing the ground fault protection on 

the circuit breaker feeding the high voltage circuit to the belt feeder 

on the 023 section of the Siltix Mine. ·Counsel for the parties advise 

that the perpretrator has never been identified. It further appears 

that at ·the time of the violation, June 14, 1979, no concerted effort 

was made either by MSHA or the operator to determine, by the use of 

appropriate investigative techniques,. the culpable individual or individuals. !/ 

For these reasons, I conclude an investigation at this· late date to 

determine the identity of the individual or individuals chargeable with 

this act of reckless indifference to the safety would be unproductive. 

!/ The inspector's statement furnished an investigatory lead that 

was never followed. Under his remarks on negligence the inspector 

stated: 

"The person who did this has a thorough knowledge of the 

electrical circuit and knew exactly where to place the 

bridge in order to render the ground fault relay 

inop•.:-rative. 

This occurs often at this mine due to the fact that the 

maintenance foremen find it easier and quicker to bridge 

or block a circuit out than to repair it." 

2560 
I wish to take this occasion to once again emphasize that in my 

view individual·miners of whatever rank who deliberately endanger fellow 

workers by knowing and willful disregard for compliance with the mandatory 

safety standards should be the subject of a civil or criminal investigatio1 

and, where appropriate, prosecution under section llO(c) of the Act. 

See, Secretary v. Southern Ohio Coal Co., 2 FMSHRC ~-(August 4, 1980) 

and cases cited. 

Sooner or later, Congress or the Secretary must face up to the 

present glaring deficiencies in the Secretary's enforcement scheme. 

Unless and until MSHA, management, and the unions join forces to ensure 

that noncompliance by any miner will result in a severe monetary or 

other penalty voluntary compliance will remain an illusion and miners 

and their families will continue to suffer untimely deaths and disabling 

injuries. 

In my opinion, MSHA's policy of nonenforcement against the workforce, and particularly the rank-and-file, undermines effective compliance 

and serves only to (1) engender a cynical disregard for the law, (2) 

discourage voluntary compliance and (3) create an atmosphere in which 

miners are induced to cut corners on safety in the interest of increased 

production. Management's claim that immunizing the workforce is the 

price paid for industrial peace and productivity has a hollow ring when 

in case· after case it appears immunity is purchased at the expense of 

safety. :?:_/ When the flaws in the present enforcement scheme are 

:?:_/ While compliance with· the Mine Safety Law has increased the 

cost of labor and reduced productivity, it has also sharply reduced the 

number of mine disasters. The principal reason for the reduction in 

productivity, however, is the fact t4at increased costs of production 

have not been offset by breakthroughs in mining technology. The last 

major innovation in the underground mines, the continuous miner, was 

introduced twenty years ago. The World Coal Study notes the industry 

has been slow to adopt the longwall, shortwall and other techniques that 

greatly increase the percentage of recovery. 

MSHA and the industry can take pride and comfort in the fact that 

the disaster rate is down. But the sad fact that the miners and 

their families must live with is the tragedy rate. This is the rate 

of individual deaths and seriously disabling injuries, which is sharply 

up. This rate, in my judgment, will only be tolled when every miner of 

whatever rank is held publicly accountable for compliance with the Mine I Safety Law. Much more effective enforcement at less cost can be achieved 

by imposing personal accountability on the miners. Penalties rightly 

criticized as ineffective, if not paltry,, when imposed on the corporate 

entity should be supplemented and reinforced-by: imposition on culpable 

individuals. There the corrective impact in terms of deterrent and 

encouragement to voluntary compliance is much greater. Close scrutiny 

of the present regulatory apparatus reveals that reliance on corporate 

accountability results in ineffective overregulation at a cost greater 

than the benefits conferred. . 

(Footnote 2 continued on next page) 

2561 
frankly confronted, it is a small wonder that MSHA seems to have all the 

clout of a moth hitting a sununer screen. 

Turning to the instant motion, an -independent evaluation and de 

novo review of the circumstances persuades me that given the· prevailing 

enforcement policy the one-third reduction in the penalty proposed for 

the corporate operator, from $3,000 to $2,000, is fully justified. The 

time may come, however, when I may feel compelled to deny such a 

settlement because MSHA and the operator were remiss in their duty 

to produce the culprit or culprits and implead them as third-party 

respondents. See, .Secretary v. Morton Salt v. Frontier-Kemper Contractors, 

CENT 80-59-M, 2 FMSHRC, August 8, 1980. But that is a matter· for another 

day. 

Accordingly, it is ORDERED that the motion to approve settlement 

be, and hereby is, GRANTED. It is FURTHER 0 RED that the operator pay 

the penalty agreed upon, $2,000, on or bef riday, September 19, 1980, 

and that subject to payment the captioned r be DISMISSED. 

(Footnote 2 continued) 

There is no inherent conflict between safety and productivity. As 

the President's Conunission on Coal noted: 

* * * conversations with industry, labor, and Government 

regulatory officials and surveys undertaken by the 

Commission staff suggest that the safest underground 

mines--apart from any advantage owing to favorable 

geological conditions and assuniing full compliance with 

the safety law--are those in which the commitment of top 

management to safety is strong and well known, efforts 

to achieve good labor-management relations and open 

conununication are practiced, regular equipment maintenance 

is performed; and training of miners in safe practices 

is stressed. 

2562 
Distribution: 

James H. Swain, Esq., U.S. Department of Labor, Office of the Solicitor, 

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

Anthony J. Sparacino, Esq., Sparacino, 13yron & Abrams, Raleigh County 

National Bank Bldg., Beckley, WV 25801 (Certified Mail) 

2563 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 . 

{703} 756•6230 

BETHLEHEM MINES CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Respondent 

Petitioner 

BETHLEHEM MINES CORPORATION, 

Respondent 

1 0 SEP 1980 

Contest of Citation 

Docket No. PENN 80-52-R 

Mine No. 33 

Civil Penalty Proceeding 

Docket No. PENN 80-144 

A.C. No. 36-00840-03040 

Mine No. 33 

DECISION 

Appearances: John M. Gallick, Administrative Assistant, Bethlehem Mines 

Corporation, Bethlehem, Pennsylvania, for Bethlehem Mines 

Corporation; 

James H. Swain, Esq., Office of the Solicitor, U.S. Department 

of Labor, Philadelphia, Pennsylvania, for Secretary of Labor. 

Before: Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This proceeding arises out of the consolidation of a contest of citation 

and a civil penalty proceeding arising out of that citation. On November 6, 

1979, Bethlehem Mines Corporation (hereinafter Bethlehem) filed a notice of 

contest of a citation issued under section 104(d)(l) of the Federal Mine 

Safety and Health Act of 1977, 30 u.s.c. § 814(d)(l) (hereinafter the Act). 

On February 13, 1980, the Secretary of Labor, Mine Safety and Health Administration (hereinafter MSHA) filed a proposal for assessment of a civil penalty 

against Bethlehem for violation of 30 C.F.R. § 75.1726(a). On April 30, 1980, 

I ordered these cases consolidated under Procedural Rule 12 of the Federal Mine 

Safety and Health Review Commission, 29 C.F.R. § 2700.12. 

2564 
A hearing was held in Ebensburg, Pennsylvania, on August 12, 1980. Joseph 

Karpinski testified on behalf of MSHA. Paul Rainey, Robert Moore, and Ronald 

Riley testified on behalf of Bethlehem. 

ISSUES 

The first issue is whether the citation under section 104(d)(l) was 

properly issued. The second issue is whether Bethlehem violated the Act 

or regulations as charged by MSHA and, if so, the amount of the civil penalty 

which should be assessed. 

APPLICABLE LAW 

Section 104(d)(l) of the Act, 30 u.s.c. § 814(d)(l), provides in 

pertinent part as follows: 

If, upon any inspection of a coal or other mine, an authorized representative of the'· Secretary finds that there has been 

a violation of any mandatory health or safety standard, and if 

he also finds that, while the conditions created by such violation do not cause 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. 

30 C.F.R. § 75.1726(a) provides in pertinent part as follows: "Men shall 

not work on or from a piece of mobile equipment in a raised position until it 

has been blocked in place securely." 

Section 110.(i) of the Act, 30 u.s.c. § 820(i), provides in pertinent 

part as follows: 

In assessing civil monetary penalties, the Commission 

shall consider the operatpr'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 person charged in attempting to achieve 

rapid compliance after notification of a violation. 

STIPULATIONS 

The parties stipulated the following: 

1. Bethlehem owns and operates the No. 33 Mine. 

2565 
2. Bethlehem and the No. 33 Mine are subject to the jurisdiction of the 

Federal Mine Safety and Health Act of 1977. 

3. The Administrative Law Judge has jurisdiction over the parties and 

subject matter of this case. 

4. Bethlehem is a large operator within the meaning of the Act and 

employs 1,316 employees; the coal production for the No. 33 Mine in 1979 

was 1,546,544 and the total corporate production for Bethlehem at that time 

was 10,424,003. 

5. Bethlehem demonstrated good faith in abatement with normal compliance after the citation was issued. 

6. The assessment of a civil penalty in this case will not adversely 

affect Bethlehem's ability to continue in business. 

7. The conditions or practices listed iri the citation constituted a 

violation of 30 C.F.R. § 75.1726(a). 

8. Bethlehem Mine No. 33 was assessed for 366 violations in the 

24-month period prior to October 5, 1979. This comes out to a rate of 

.25 violations per inspection day or one violation every four inspection 

days. 

FINDINGS OF FACT 

I find that the evidence of record establishes the following facts: 

1. On October 5, 1979, Joseph Karpinsky, a duly authorized representative of the Secretary was conducting a regular quarterly inspection of 

Bethlehem's Mine No. 33 in Cambria County, Pennsylvania. 

2. During the course of his inspection, he observed a miner working on 

the boom ~fa roof-bolting machine which was-raised 3 feet above ground level 

and which was not blocked in place. 

3. The miner was a':te: .ting to straighten a post which supported the 

line cu tain. 

4. At the time the miner was working on the raised part of the roofbolting machine, the section foreman was in the immediate vicinity of that 

miner and was assisting the miner in attempting to straighten the post. 

5. The section foreman was unfamiliar with 30 C.F.R. § 75.1726(a) 

which prohibits men from working on or from mobile equipment in a raised 

position until it has been blocked in place securely. 

6. After the inspector informed the section foreman of the above provisions of law, the section foreman directed the miner to get down from 

the raised portion of the roof-bolting machine and the miner did so. 

2566 
7. The miner who was working on the raised portion of the roof-bolting 

machine was exposed to physical injuries in the event of a fall. 

8. Bethlehem demonstrated good faith in abatement of this citation with 

normal compliance after the citation was issued. 

9. Bethlehem is a large operator a~d the assessment of a civil penalty 

will not affect the operator's ability to continue in business. 

10. This mine was assessed for 366 violations in the 24 months preceding this citation .• 

DISCUSSION 

In the instant case, Bethlehem concedes that it violated 30 C.F.R. 

§ 75.1726(a) but contends that its violation did not amount to an unwarrantable failure and that the proposed penalty in the amount of $255 is 

excessive. In my Findings of Fact, supra, I found that the violation in 

controversy occurred in the presence of Bethlehem's management, to wit, its 

section foreman. Bethlehem's defense is based upon the following assertions: 

(1) the section foreman was unaware of the provisions of the regulation at 

issue; (2) the section foreman told the miner to get off the raised portion 

of the roof bolter before being cited by the MSHA inspector; and (3) it was 

unlikely that the raised portion of the roof bolter would move. 

The term "unwarrantable failure" was defined by the Interior Board of 

Mine Operations Appeals as follows: 

[A]n inspector should find that a violation of any mandatory 

standard was caused by an unwarrantable failure. to comply with 

such standard if he determines that the operator involved has 

failed to abate the conditions or practices constituting such 

violation, conditions or practices.the operator knew or should 

have known existed or which it failed to abate because of a 

lack of due diligence, or because of indifference or a lack of 

reasonable care. Zeigler Coal Company, 7 IBMA 280 (1977). 

This definition was approved in the legislative history of the Act. 

s. Rpt. No. 95-181, 95th Cong., 1st Sess. 32 (1977). 

The facts of the instant case establish that the violation occurred in 

the presence of the section foreman and that he took no action to abate this 

violation until he was made aware of the law by the inspector. The contrary 

testimony of Bethlehem's witnesses that the foreman told the miner to get off 

the raised part of the roof-bolting machine before talking to the inspector 

is rejected because it is less credible than the testimony of the inspector. 

This conclusion is further supported by the fact that the foreman admitted 

that he was unaware of the fact that this condition constituted a violation 

of the regulations. Moreover, the foreman admitted that he never claimed to 

have told the inspector that he directed the miner to get down before he was 

advised of the violation. Therefore, under the above principle of law, it 

is apparent that the violation in question was one of unwarrantable failure 

2567 
because the foreman failed to exercise reasonable care and due diligence to 

abate this condition. It should also be noted that an operator cannot 

escape a finding of unwarrantable failure by establishing that its foreman 

did not know that a condition constituted a violation of law. Operators 

are chargeable with knowledge of the law-and the test for unwarrantability 

announced in Zeigler Coal Company, supra, includes the following: "condi-

. tions or practices the operator knew or should have known existed***·" 

(Emphasis supplied.) This finding of unwarrantable failure implicitly 

includes a determination that Bethlehem was negligent. 

The remaining defenses of Bethlehem go to the gravity of the violation. 

The only violation charged here is a failure to securely block in place mobile 

equipment in a raised position. Thus, the only probability of occurrence that 

is relevant here is the likelihood of injury resulting from some movement of 

the mobile equipment. I find that only one miner was exposed to injury and the 

probability of an occurrence was slight~ 

Based upon the evidence of record and the criteria set forth in section 

llO(i) of the Act, I conclude that a civil penalty of $200 should be imposed 

for the violation found to have occurred. 

CONCLVSIONS OF LAW 

1. Bethlehem and its No. 33 Mine are subject to the jurisdiction of the 

Federal Mine Safety and Health Act of 1977. 

2. The Administrative Law Judge has jurisdiction over the parties and 

subject matter of this case. 

3. Bethlehem violated 30 C.F.R. § 75.1726(a) as alleged by MSHA and 

that violation was caused by the unwarrantable failure of Bethlehem to 

comply with the above regulation because of the following: (A) Bethlehem's 

section foreman should have known that working on the raised portion of 

mobile equipment which was not blocked in place securely was a violation 

of the above regulation; (B) the section foreman was present when the violation occurred and failed to exercise reasonable care and due diligence to 

abate this violation; and (C) the violation could significantly and substantially contribute·to the cause and effect of a mine safety and health hazard. 

4. Citation No. 0815883 was properly issued and Bethlehem's contest of 

that citation is denied. 

5. Bethlehem is assessed a civil penalty in the amount of $200 for the 

violation. 

ORDER 

THEREFORE, IT IS ORDERED that the contest of citation is DENIED and the 

citation is AFFIRMED. 

2568 
IT IS FURTHER ORDERED that Bethlehem pay the sum of $200 within 30 days 

of the date of this decision for violation of 30 C.F.R. § 75.1726(a). 

Distribution by Certified Mail: 

John M. Gallick, Administrative Assistant, Bethlehem Mines Corporation, 

1875 Martin Tower, Bethlehem, PA 18016 

James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor, 

3535 Market Street, Room 14480, Philadelphia, PA 19104 

2569 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR. 

52Q3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

1 1 SEP 1980 

SECRETARY OF LABOR; Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

MICHAEL JILES AND 

RICKEY C. BENNETT, 

v. 

Petitioner 

Respondents 

Docket Nos. WEVA 80-59 

WEVA 80-60 

WEVA 80-199 

WEVA 80-200 

DECISION 

Appearances: J. Philip· Smith, Esq., Office of the Solicitor, U.S. Department 

of Labor, for Petitioner; 

Michael Jiles and Rickey C. Mennett, pro ~ ,- for Respondents. 

Before: Judge Lasher 

This matter arises under section llO(c) of the Federal Mine Safety 

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

West Virginia, on July 22, 1980. After considering evidence submitted by 

both parties, I entered an opinion on the record. 1/ My oral decision containing findings, conclusions, and rationale appears below as it appears in 

the record, other than for minor corrections in grammar, punctuation, and 

the excision of obiter dicta: 

This proceeding arises on the filing of a petition for 

assessment of civil penalty by the Secretary of Labor pursuant to section llO(c) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 820(c). The two Respondents, 

Michael Jiles and Ricky C. Bennett, are charged with and have 

admitted being an agent of the corporate mine operator, 

Kerstan Corporation, and knowingly authorizing or ordering or 

carrying out said operator's violations of two mandatory 

health and safety standards, i.e., 30 C.F.R. §§ 75.200 and 

75.316, which are reflected, respectively, in a section 

107(a) withdrawal order dated October 13, 1978, No. 054239 

and a section 104(d)(l) citation dated October 13, 1978, 

No. 054603 for which Petitioner seeks against each of the 

Respondents penalties of $300 and $200 respective~y. 

1./ Tr. 80-89. 

2570 
There are no constitutional issues raised in this case under 

the equal protection or due process clauses nor are there 

any issues with respect to the construction of the section 

of the Act involved, section llO(c). 

Both Respondents have forthrightly admitted the violations charged and the only material focus of this proceeding 

today was to take evidence with respect to penalty assessment factors. Since these are individual Respondents and 

not mine operators the section llO(i) factors of size of 

business and effect on an operator's ability to continue in 

business are not directly relevant. In their place I have 

substituted the economic ability of the individual Respondents to pay penalties. 

Turning now to the first factor, that is the history of 

previous violations~ I find, based upon the stipulation of 

MSHA, that neither Respondent has a history of any previous 

violations. Preliminarily, it also should be noted that 

based upon the testimony of MSHA inspector Carlin Lucky, that 

both Respondents, Jiles and Bennett, exercised good faith in 

achieving rapid compliance with the violated standards upon 

being notified of the two violations involved. Thus, the 

remaining factors upon which evidence was taken and remain to 

be discussed are the gravity or seriousness of the two violations; the negligence or other culpability of the two 

Respondents in failing to correct the two violations; and the 

economic condition of the two Respondents. 

MSHA's evidence indicates that at approximately 

11:30 p.m. on October 12, 1978, and after MSHA's supervisory 

inspector, Clyde Perry, had received a telephone call from a 

complaining anonymous miner at the Kerstan No. 1 Mine, MSHA 

inspectors Carlin Lucky and George Moore arrived at the mine 

to conduct an inspection. Upon their arrival they noted that 

no preshift examination had been made and after Lucky spoke 

to Jiles with respect thereto a preshift examination was made 

which 1was studied by Lucky and after which Lucky and Moore 

went underground to make their visual inspection. 

I 

It should be noted at this point that the No. 1 Mine had 

a daily production of approximately 100 tons; that it had 

approximately 19 employees, 2 surface and 17 underground; and 

that it operated in two shifts, a production shift from 

8:00 a.m. to 4:00 p.m. and a maintenance shift from midnight 

to 8:00 a.m. Resondent Jiles was section foreman on the 

day-production shift and supervised between 10 and 13 men, 

and Bennett was maintenance foreman on the night shift and 

supervised between four and six employees. Other than the 

2571 
president of the Kerstan Corporation, Mr. C. K. Scott, Jiles 

and Bennett were the only supervisory personnel at the mine. 

According to Inspector Lucky, they_ran the entire operation. 

The evidence, based on Inspector Lucky's testimony, 

indicates that the roof control violation, 30 C.F.R. § 75.200, 

was extremely serious. Inspector Lucky indicated in explanation of his description of the violation contained on the 

withdrawal order itself, Petitioner's Exhibit 4, that six 

posts had been installed some 6 or 7 feet from the face 

whereas the roof control plan at page 17 thereof required 

such posts to be on 5-foot centers. He also specified on the 

mine map introduced by MSHA, Exhibit P-8, that four crosscuts 

outby the face had been mined some 43 feet from the bolting 

and that this violation, i.e .• , mining in by permanent roof 

support, was likewise an infraction of the requirements of 

the roof control plan as is reflected in drawing No. 1 at 

page 17 of the plan •. !nspector Lucky described five in~tances 

where there were infractions of the 20-foot width requirement 

contained in the plan and that in these places mining widths 

of 21 to 26 feet had been carried on. He also described dangerous roof conditions where roof bolts were discovered with 

the heads sheered. In other areas the mine roof was loose 

and heavy and was falling out around the roof bolts. Finally, 

Inspector Lucky described areas where roof falls had occurred. 

The sum of his testimony indicated extremely serious violations which arise out of, caused and occurred in dangerous 

and hazardous areas of the mine. Since roof falls are the 

singlemost cause of coal mine fatalities and since most of 

the violations which were discovered by Inspectors Lucky and 

Moore were in areas where miners conducted their work, the 

violation described in Withdrawal Order 054239, with which 

both Respondents are charged, is found to have a gravity 

which would call for a substantial penalty. 

With respect to the seriousness of the ventilation violation, the infr~ction is described in the subject citation 

as follows: "The approved ventilation plan was not being 

complied with in that seven open crosscuts were present 

between the main intake and return air courses on the main 

section." Inspector Lucky pointed out that section 6, 

page 2 of the ventilation plan was violated since there were 

not seven stoppings as required by the plan. I find this 

violation to be only moderately serious, since there was no 

urgent or proximate danger of any hazard coming to immediate 

fruition at the time. The hazards are distinct but not 

remote, there being (1) the presence of respirable dust which 

constitutes a health hazard in view of its potential for the 

acquisition of pneumoconiosis by the miners working in the 

area and (2) the potential for inadequate ventilation to 

2572 
sweep away any concentration of methane gas liberated by the 

mining process which might constitute a factor in an explosion. There was no showing that there was methane gas present 

at the time-or any concentration of respirable dust. Therefore, the court concludes that this violation is only moderately serious. 

It appears that the roof control violation had been in 

existence approximately 2 weeks and the ventilation violation 

for more than 1 week. No real justification for permitting 

such violations to occur and continue was advanced by Respondents. I find on the basis of the admissions in the record, 

as well as the evidence in the record generally, that both 

Respondents were aware of the two violations with which they 

are charged and failed to correct them. There appears to be, 

therefore, the failure to discharge their responsibilities as 

supervisory personnel, indeed sole supervisory personnel on 

duty during the two shifts in which the mine was operated, to 

comply with the mandatory health and safety standards. Such 

failure is somewhat attributable to the pressure for production which came down from the president. of the corporation, 

Mr. c. K. Scott. However, there is no indication that this 

pressure which is described in Mr. Jiles' letter to Judge 

Broderick dated February 15, 1980, was sufficiently overwhelming to excuse the failure of either Respondent from discharging his responsibility to comply with the mandatory 

health and safety standards. 

I therefore find that with respect to the so-called 

negligence factor that the degree of culpability of Mr. Jiles 

and Mr. Bennett exceeds ordinary negligence and as agents of 

the corporate Respondent they did with full knowledge of the 

fact proceed to allow the two violations to oc~ur and continue. 

Both Respondents were given the opportunity to present an 

economic defense with respect to their ability to pay penalties. Neither Respondent, in my judgment, ma.de out a sufficient case of economic inability to pay reasonable penalties 

in this case. Such evidence, in the context of the situation 

of the two Respondents, requires a showing of heavy indebtedness, repossessions, foreclosures, out of work due to health, 

or the like. Both Respondents have been employed in the past. 

Respondent Jiles earned in excess of $23,000 in 1979; 

Mr. Bennett earned considerably less, for which I do plan to 

make an adjustment, his having earned in a 1979 only $11,000. 

Generally speaking, it does appear that Mr. Bennett's financial situation is a little more severe than that of Mr. Jiles 

and perhaps his earning capacity is less than Mr. Jiles, which 

militates for a different penalty between the two. 

2573 
Sununing up then the factors which militate for a very 

substantial penalty are the seriousness of the two violations 

and the culpability of the two Respondents, supervisory 

employees, in allowing a rather serious hazard to exist which 

jeopardized the life and health of .·their fellow miners. Age 

is sometimes a hidden criterion in evaluating the intent of 

one --in·'conunitting certain acts as well as the moral turpitude 

of those committing certain actions• I realize that when one 

is younger and lacks experience in life the possibility that 

accidents and hazards can occur is not nearly as well recognized or in the forefront of the conscious mind as it becomes 

as one gets older and sees more tragedies, accidents and the 

like. This is why young people think they're.invulnerable 

when they drive a car and why people, when they get older, 

slow down. To an extent it is an intelligence test and the 

understanding can only come with years. So I find (age to be) 

an exculpatory factor-to a limited extent-with both these 

Respondents. * * * Other mitigating factors are that neither 

Respondent has had any history of previous violations and that 

they exhibited good faith in attempting to achieve rapid compliance with the standards after the inspector notified them 

of the violations. With .. respect to Mr. Bennett, I recognize 

that he has been totally straightforward in stating that he 

was wrong and; that he is in a relatively disadvantageous 

economic position. 

Weighing all these factors I conclude that Respondent 

Michael Jiles be assessed a penalty in Docket WEVA 80-59-for 

the violation described in the subject withdrawal order-of 

$250, and for the violation described in the citation of 

30 C.F.R. §.7~.316 (Docket WEVA 80-60) of $175. 

Respondent Rickey Bennett is assessed a penalty in 

Docket WEVA 80-199 for a violation of 30 c.F.R. § 75.200 

described in the subject withdrawal order of $175 and a penalty 

for the violation of 30 C.F.R. § 75.316 described in the subject 

citation in Docket WEVA 80-200 of $125. 2/ 

ORDER 

Respondent Michael Jiles is ordered to pay $425 and Respondent Rickey 

Bennett is ordered to pay $300, if they have not already done so, to the 

Secretary of Labor within 30 days of receipt of this decision. 

Michael A. Lasher, Jr., Judge 

2/ The thorough preparation for, and professional handling of, this matter 

by MSHA's counsel has been noted in the record. 

2574 
Distribution: 

J. Philip Smith, Esq., Office of the Solicitor, U.S. Department of 

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

Michael Jiles, 59 E. Walnut Street~ Richwood, WV 26261 (Certified 

Mail) 

Rickey c. Bennett, 56 East Route 1, Box 120, Fenwick, WV 26202 

(Certified Mail) 

2575 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

1 1 SEP 1980 

NATIONAL MINES CORPORATION, 

Contestant 

Contest of Order 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA); 

Respondent 

Docket No. KENT 80-130-R 

Order No. 997527 

December 10, 1979 

Stinson No. 5 Mine 

DECISION GRANTING MOTION TO VACATE 

When counsel for the Secretary of Labor filed his.answer in the aboveentitled proceeding, he moved that the proceeding be stayed because the 

Commission's decisions in the The Helen Mining Co., 1 FMSHRC 1796 (1979), 

and Kentland-Elkhorn Coal Corp., 1 FMSHRC 1833 (1979), had been appealed 

by the Secretary and UMWA to the United States Court of Appeals for the 

District of Columbia Circuit. My order issued February 4, 1980, in this 

proceeding granted the motion for stay. After I became aware that the Commission in The Helen Mining Co., 2 FMSHRC 778 (1980), had denied a motion 

for stay based on the same argument which had been used by the Secretary's 

counsel in the motion for stay granted by my order issued February 4, 1980, 

I issued a further order on July 8, 1980, dissolving the stay and requiring 

the parties to state whether they wished to have. the case disposed of on the 

basis of a hearing or a stipulation of facts. If the parties were agreeable 

to stipulating the facts, the order required that stipulations be submitted 

and the parties were also given the opportunity of submitting a legal 

memorandum in support of their respective posi.tions if they wished to do · 

so. 

Although there are return receipts in the official file showing that 

counsel for both parties received the order of July 8, 1980, dissolving the 

stay, I received an answer to the order only from the Secretary's counsel. 

His reply stated that he believed the facts could be stipulated and his 

reply also stated that "[t]he sole legal issue raised in this proceeding 

is whether an operator is required by section 103(f) of the Federal Mine 

Safety and Health Act of i977 to pay a miner representative for the time 

involved in accompanying an inspector who is conducting a spot inspection 

as opposed to the so-called complete or regular inspection of the mine." 

The Secretary's counsel still requests that the case be stayed pending 

the outcome of the court proceedings, but I am_ unable to grant that sort of 

2576 
relief as I explained in my order issued July 8, 1980. Since a copy of the 

Secretary's response to my order of July 8, 1980, was sent to counsel for 

National Mines Corporation, I am interpreting his failure to submit any . 

reply as agreement with the position expressed by the Secretary's counsel, 

namely, that if the proceeding cannot be $tayed, it can be disposed of on 

the basis of a stipulation of the facts. 

The facts are stipulated as follows: 

Inspector Lester Banks issued on December 10, 1979, at 

1:55 p.m., Withdrawal Order No. 997527 citing a violation of 

section 103(f) of the Act because National Mines Corporation 

had failed to pay a miners' representative who accompanied an 

inspector during a spot inspection made on November 7, 1979. 

Order No. 997527 was terminated at 2:15 p.m.·on December 10, 

1979, afer National Mines Corporation paid the miners' representative for accompanying the inspector on November 7, 1979. 

I find that the Commission's decisions in the Helen Mining and KentlandElkhorn cases, supra, are dispositive of the issue raised by the Contest of 

Order or Application for Review filed in this proceeding. As stated above, 

the sole issue is whether National Mines Corporation violated section 103(f) 

when it initially refused to compensate the miners' representative who 

accompanied the inspector during a "spot" inspection. Although,National 

Mines did subsequently pay the miners' representative under protest so as to 

bring about a termination of Order No. 997527, it is clear under Commission 

precedent that National Mines did not violate section 103(f) by initially 

refusing to pay the miners' representative on November 7, 1979. Therefore, 

I find that Order No. 997527 should be vacated as requested in the Contest of 

Order or Application for Review filed on January 7, 1980, in this proceeding. 

WHEREFORE, it is ordered: 

The Contest of Order or Application for Review filed on January 7, 1980, 

in this proceeding is granted and Order No. 997527 issued December 10, 1979, 

is vacated. 

Distribution: 

Richard 

~a.,J.~ c. Steffey~ Administrative Law Judge 

(Phone: 703-756-6225) 

Robert t. Elliott, Esq., Attorney for National Mines Corporation, 

Harbison, Kessinger, Lisle & Bush, 400 Bank of Lexington Building, 

Lexington, KY 40507 (Certified Mail) 

Leo J. McGinn, Trial Attorney, Office of the Solicitor, U.S. Department 

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

2577 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

1 1 SEP 1980 

. SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. VA 79-78 

Assessment Control 

No. 44-02253-03007 

Petitioner 

v. 

Seaboard No. 1 Mine 

JEWELL RIDGE COAL CORPORATION, 

Respondent 

. _ . Appearances: 

Before: 

DECISION 

Robert A. Cohen, Esq., Office of the Solicitor, U.S. Department of Labor, for Petitioner; 

Donald R. Johnson, Esq., Lebanon, Virginia, for Respondent. 

Administrative Law Judge Steffey 

When the hearing in the above~entitled proceeding was convened in 

Abingdon, Virginia, on May 2, 1980, pursuant to a notice of hearing issued 

February 29, 1980, the parties asked that I approve a settlement agreement 

which the parties had reached with respect to a violation of 30 C.F.R. 

§ 75.1722. I stated at the hearing that I would approve the parties' settlement agreement when I acted upon the other matters raised by the Petition 

for Assessment of Civil Penalty filed in Docket No. VA 79-78, namely, the 

question of whether respondent had violated section 103(f) of the Federal 

Mine Safety and Health Act of 1977 as alleged by Citation No. 693846 dated 

March 19, 1979. 

The issue raised ·by Citation No. 693846 is whether respondent is 

required to pay a miners' representative if he accompanies an inspector who 

is conducting a regular inspection on the same day that a coal company pays 

another miners' representative who walks around with an inspector who is 

conducting a "spot" inspection. In Magma Copper Co., 1 FMSHRC J948 (1979), 

the Commission held that two or more miners' representatives have to be paid 

if on the same day at the same mine they accompany different inspectors who 

have split into groups to conduct a regular inspection. The Commission's 

decision in the Magma Copper case has been appealed by Magma Copper to the 

·Ninth Circuit Court of Appeals. After the notice of hearing had been served 

on the parties to this proceeding, I received from the Secretary's counsel 

2578 
a motion requesting that the hearing be stayed insofar as it pertains to 

the question of payment of compensation for miners' representatives who 

walk around with inspectors. By order issued April 1, 1980, I stayed 

the hearing with respect to the issue of payment of compensation of the 

miners' representative, but provided that the hearing would be convened 

with respect to the alleged violation of section 75.1722. When the hearing was subsequently convened on May 2, 1980, counsel for the parties 

orally asked that I approve a settlement-agreement which had been reached 

by the parties just prior to the convening of the hearing. 

After I became aware that the Commission in The Helen Mining Co., 

2 FMSHRC 778 (1980), had denied a motion for stay b.ased on the same argument which had been used by the Secretary's counsel in the motion fdr stay 

granted by my order issued April 1, 1980, I issued a further order on 

July 10, 1980, dissolving the stay and requiring the parties to state 

whether the issue with respect to payment of compensation for the miners' 

representative could be disposed of on the basis of stipulations so as to 

avoid a second convening of a hearing in this proceeding. 

In response to my order of July 10, 1980, counsel for the Secretary 

filed on August 14, 1980, a letter in which he set forth some proposed stipulations of facts and requested that respondent's counsel advise me as to 

whether respondent agreed with the proposed stipulations. Counsel for respondent filed on August 20, 1980, some stipulations of facts which do not disagree with the stipulations set forth in the letter filed by the Secretary's 

counsel. Therefore, the issue of whether respondent violated section 103(f), 

as alleged in Citation No. 693846, can be decided on the basis of the 

parties' stipulations of facts. 

The stipulation of facts shows that respondent paid a miners' representative for walking around with an inspector on March 13, 1979, while.that 

inspector was making an electrical, or "spot", inspection at the Seaboard 

No. 1 Mine, but declined to pay a miners' representative who walked around 

on March 13, 1979, with an inspector who was conducting a regular inspection 

at the same mine. The Commission held in The Helen Mining Co., 1 FMSHRC 

1796 (1979), that an operator has to pay a miners' representative only when 

he walks around with an inspector who is engaged in conducting a regular 

inspection. In the Magma Copper case, supra, the Commission held that an 

operator has to pay two or more miners' representatives if they walk around 

at the same mine on the same day with different inspectors who are traveling 

separately while making a regular inspection. Applying the Commission's 

holdings in the Helen Mining and Magma Copper cases to the facts in this 

proceeding requires that respondent compensate the miners' representative 

who walked around with the inspector who was conducting the regular inspection on March 13, 1979. The fact that respondent had also on March 13, .1979, 

paid a miners' representative who accompanied an inspector who was making 

a "spot" inspection is immaterial to res·pondent 's obligation to. pay compensation to the miners' representative who accompanied the inspector who was 

making the regular inspection. Therefore, I find that Citation No. 694653 

dated March 19, 1979, properly alleged a violation of section 103(f). 

2579 
Having found that a violation of section 103(f) occurred, it is necessary that I now consider the six criteria set forth in section llO(i) of 

the Act for the purpose of assessing a civil penalty for that violation. 

The Proposed Assessment in the official file in this proceeding shows that 

respondent produces 6,355,484 tons of coal on an annual basis. It was also 

stipulated at the hearing that respondent is owned by the Pittston Company. 

On the basis of the aforementioned facts, I find that respondent is a large 

operator. Respondent introduced no evidence at the hearing to show that 

payment of penalties would affect its ability to continue in business. 

Therefore, I find that payment of penalties will not have an adverse effect 

on respondent's ability to continue in business (Buffalo Mining Co., 2 IBMA 

226 (1973), and Associated Drilling, Inc., 3 IBMA 164 (1974)). 

I find that respondent was not negligent in declining to pay compensation to more than one miners' representative at the same mine on the same 

day because section 103(f) was reasonably subject to the interpretation given 

to it by respondent prior to the issuance of the Commission's decisions discussed above. I find th~t the violation was nonserious because respondent 

did not interfere with the right of a miners' representative to accompany 

more than one inspector at the same mine on the same day. Respondent declined 

to compensate the second miners' representative untii a withdrawal order was 

issued, but, since respondent's refusal ~o pay prior to the issuance of the 

order was b~sed on a reasonable legal interpretation of section 103(f), I 

believe that no increase in a civil penalty would be warranted under the 

criterion of whether respondent demonstrated a good faith effort to achieve 

rapid compliance. The Secretary's counsel submitted some data prior to the 

hearing which show that respondent has not previously violated section 103(f). 

On the basis of the aforesaid findings with respect to the six criteria, I 

conclude that respondent should be assessed a civil penalty of $25 for the 

violation of section 103(f) alleged in Citation No. 693846. As the court 

stated in Bituminous Coal Operators' Assn. v. Ray Marshall, 82 FRD 350 

(D.D.C. 1979), at page 354, "* * * it would seem improbable that stiff supplemental civil penalties would be imposed where a genuine interpretative 

question was raised as to section 103(f), a provision which normally is not 

absolutely vital to human health and safety." 

Settlement Agreements 

Despite the fact that I stated in footnote 1 of my order issued July 10, 

1980, dissolving the stay in this proceeding, that the parties had moved at 

the hearing convened on May 2, 1980, that I approve a settlement agreement 

reached by the parties with respect to the violation of section 75.1722 

alleged in this proceeding, I received on August 26, 1980, a written motion 

for approval of settlement pertaining to that same alleged violation of 

section 75.1722. I have chosen to approve the first settlement agreement 

because it was entered into on May 2, 1980, whereas the written motion for 

approval of settlement was not filed until August 26, 1980. };/ 

l/ The parties twice settled the issues with respect to the alleged violation of section 75.1722 because the attorneys representing the parties at 

the hearing convened on May 2, 1980, were different from those who represented 

the parties in connection with the filing of the motion for stay. 

2580 
Citation No. 694653 was issued on Feburary 13, 1979, under section 104(a) 

of the Act alleging a violation of section 75.1722. That section requires 

the guarding of fan inlets and other moving machine parts. Citation No. 694653 

alleged that respondent had violated section 75.1722 because the guard at the 

main fan inlet had fallen and had not been replaced. The Assessment Office 

found that the violation was the result of ordinary negligence, that it was 

serious, that a good faith effort to achieve compliance had been made, and 

that a penalty of $122 should be imposed. Respondent has agreed to pay a 

reduced penalty of $100. The Assessment.Office based its proposed penalty 

of $122 on findings justifying a total of 34 penalty points under 30 C.F.R. I 

§ 100.3. 

Under section 100.3, .an operator is entitled to a reduction of up to 

10 penalty points for demonstrating a rapid good faith effort to achieve 

compliance. The inspector's statement evaluating negligence and gravity 

shows that respondent corrected the alleged violation within one-third of 

the time allowed by the inspector. In such circumstances, respondent 

would be entitled to a reduction of 3 penalty points instead of having been 

given 0 penalty points as found by the Assessment Office. A reduction in 

penalty points to 31 would result in a penalty of $98 under section 100.3. 

Additionally, at the hearing convened on May 2, 1980, counsel for the Secretary stated that there was reason to believe that the guard had fallen down 

only a short time before it was observed to be inadequate by the inspector. 

Counsel for the Secretary indicated that he believed there was a low degree 

of negligence which would warrant some reduction in the proposed penalty. 

On the basis of the discussion above, I find that the parties' settlement agreement presented to me on May 2, 1980, should be approved. .Since the 

first motion for approval of settlement rendered moot the second motion for 

approval of settlement of the same alleged violation, I shall deny the motion 

for approval of settlement filed on August 26, 1980. 

WHEREFORE, it is ordered: 

(A) The .motion for approval of settlement made at the hearing convened 

on May 2, 1980, is granted and the settlement agreement is approved. 

(B) Within 30 days from· the date of this decision, respondent shall pay 

civil penalties totaling $125.00 which are allocated to the respective violations as follows: 

Citation No. 694653 2/13/79 § 75.1722 •• (Settled) ••••• $100.00 

Citation No. 693846 3/19/79 § 103(f) ••• (Contested) ••• 25.00 

Total Contested and Settled Penalties in 

This Proceeding -~·••••••••••••••••••••••••••••••••••• $125.00 

(C) The motion for approval of settlement filed August 26, 1980, is 

denied as moot because a previous motion for approval of settlement had 

already been made at a hearing convened in this proceeding on May 2, 1980. 

Administrative 

~t~f~~ Law Judge 

(Phone: 703-756-6225) 

2581 
Distribution: 

Robert A. Cohen and John H. O'Donnell, Trial Attorneys, Office of the 

Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, 

VA 22203 (Certified Mail) 

Donald R. Johnson, Esq., and Fletcher A. Cooke, Esq., Attorneys for 

Jewell Ridge Coal Corporation, Lebanon, VA 24266 (Certified Mail) 

2582 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52o3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

1 l SC:P 1980 

ISLAND CREEK COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

and 

Respondent 

UNITED MINE WORKERS OF AMERICA, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

ISLAND CREEK COAL COMPANY, 

Respondent 

Contest of Citation 

Docket No. VA 79-74-R 

Citation No. 694946 

June 4, 1979 

Virginia Pocahontas No. 4 Mine 

Civil Penalty Proceeding 

Docket No. VA 80-9 

Assessment Control 

No. 44-02134-03011 

Virginia Pocahontas No. 4 Mine 

DECISION GRANTING MOTION TO DISMISS 

The issues involved in the above-entitled cases were consolidated and 

scheduled for hearing in an order issued on February 29, 1980. The issue 

raised by the Notice of Contest in Docket No. VA 79-74-R and by the Petition 

for Assessment of Civil Penalty in Docket No. VA 80-9 is whether Island Creek 

Coal Company violated section 103(f) of the Federal Mine Safety and Health 

Act of 1977 by refusing to pay a miners' representative for accompanying an 

inspector who was conducting other than a regular inspection pursuant to section 103(a) of the Act. 

The Commission held in The Helen Mining Co., 1 FMSHRC 1796 (1979), and in 

Kentland-Elkhorn Coal Corp., 1 FMSHRC 1833 (1979), that an operator does not 

have to pay a miner who accompanies an inspector who is making a "spot" inspection, Those decisions have been appealed by the Secretary and UMWA to the 

United States Court of Appeals for the District of Columbia Circuit. In subsequent orders issued March ll,, 1980, and April 1, 1980, I granted motions 

for stay filed by counsel for the Secretary. After I became aware that the 

2583 
Commission in The Helen Mining Co., 2 FMSHRC 778 (1980), had denied a motion 

for stay based on the same argument which had been used by the Secretary's 

counsel in the motions for stay granted by my orders issued in this proceeding, 

I issued a further order on July 8, 1980, dissolving the stay and requiring 

the parties to state whether these cases could be disposed of-on the basis 

of stipulations in lieu of holding hearings. 

In response to my orde;: of July 8, 1980, counsel for the Secretary filed 

on August 12~ 1980, the following stipulation: 

Island Creek Coal Company, Virginia Pocahontas No. 4 Mine, VA 

80-9 (A/O No. 44-02134-03011) and Island Creek Coal Company, 

same mine, VA 79-74-R. Both of these proceedings concern 

§104(a) Citation No. 0694946, issued on June 4, 1979, when the 

Mine Operator failed to compensate a representative of the 

miners who accompanied an inspector on May 14, 1979, during a 

§103(i) five day spot inspection. [Emphasis part of quoted 

material.] 

Counsel for Island Creek filed on August 18, 1980, a letter in which he concurred in the description of the facts set forth above and moved that I dismiss the proceedings in Docket Nos. VA 79-74:..R and VA 80-9 on the grounds 

that both proceedings pertained to a spot inspection for which Island Creek 

does not have to compensate the representative of miners who accompanied the 

inspector who was making a "spot" inspection. 

Counsel for the Secretary filed a letter on August 19, 1980, in which he 

recognized that the Commission's decisions in the Helen Mining and KentlandElkhorn cases, supra, would require the granting of the motion filed by 

counsel for Island Creek, but stated that he opposes the grant of the motions 

in order to preserve the Secretary's position in the court proceedings challenging the Commission's decisions in the aforesaid cases. 

I find that the Commission's decisions in the Helen Mining and KentlandElkhorn cases, supra, are dispositive of the issue raised by the Notice of 

Contest and Petition for Assessment of Civil Penalty filed in this consolidated proceeding. The sole issue is whether Island Creek violated section 

103(f) when it refused to compensate the miners' representative who accompanied the inspector during a "spot" inspection. Although Island Creek did 

subsequently pay the miner under protest so as to keep the inspector from 

issuing a withdrawal order, it is clear under Commission precedent that 

Island Creek did not violate section 103(f) by initially refusing to pay the 

miners' representative on May 14, 1979. Therefore, I find that Citation No. 

694946 dated June 4, 1979, should be vacated and the Notice of Contest should 

be granted. Likewise, I find that the Petition for Assessment of Civil Penalty, seeking to have a penalty assessed for Island Creek's violation of 

section 103(f) ~lleged in Citation No. 694946, should be dismissed because 

no violation of section 103(f) occurred~ 

2584 
WHEREFORE, it is ordered: 

(A) The Notice of Contest filed in Docket No. VA 79~74-R is granted 

and Citation No. 694946 dated June 4, 1979, is vacated. 

(B) The Petition for Assessment of Civil Penalty filed in Docket No. 

VA 80-9 is dismissed because no violation of section 103(f) exists for which 

a penalty may be assessed. 

Distribution: 

~ <J. ~ftRl2. .. Richard C. Steffey ,~ Administrative Law Judge 

(~hone: 703-756-6225) 

Marshall S. Peace, Esq., Attorney for Island Creek Coal Company, 

2355 Harrodsburg Road, P.O. Box 11430, Lexington, KY 40575 

(Certified Mail) 

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

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

" 

2585 
FEDERAL MINE SAFE1'Y AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR · 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

t · 1 SEP 1980 

VIRGINIA POCAHONTAS COMPANY, 

Contestant 

Contest of Citations 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

Docket Nos. 

Citation 

Nos. 

VA 79-131-R 696067 

VA 79-137-R 696089 

Date 

8/17 /79 

8/17 /79 

Virginia Pocahontas No. 2 Mine 

DECISION GRANTING MOTION TO DISMISS 

The issues involved. in the above-entitled cases were consolidated and 

scheduled for hearing in an order issued February 29, 1980. The issues 

raised by the Notices of Contest are whether Virginia Pocahontas Company 

violated section 103(f) of the Federal Mine Safety and Health Act of 1977 

by refusing to pay miners' representatives for accompanying inspectors who 

were conducting other than regular inspections pursuant to section 103(a) 

of the Acto 

The Commission held in The Helen Mining Co., 1 FMSHRC 1796 (1979), and 

in Kentland-Elkhorn Cod Corp., 1 FMSHRC 1833 (1979), that an operator does 

not have to pay a miner who accompanies an inspector who is making a "spot" 

inspection. Those decisions have been appealed by the Secretary and UMWA 

to the United States Court of Appeals for the District of Columbia Circuit. 

In a subsequent order issued March 11, 1980, I granted a motion for stay 

filed by counsel for the Secretary. After I became aware that the 

Commission in The Helen Mining Co., 2 FMSHRC 778 (1980), had denied a motion 

for stay based on the same argument which had been used by the Secretary's 

counsel in the motion for stay granted by my order issued March 11, 1980, 

I issued a further order on July 8, 1980, dissolving the stay and requiring 

the parties to state whether these cases could be disposed of on the basis 

of stipulations in lieu of holding hearingso 

In response to my order of July 8, 1980, counsel for the Secretary 

filed on August 12, 1980, the following stipulations: 

Virginia Pocahontas Company, Virginia Pocahontas No. 2 Mine, 

IoDo No. 44-01009~ VA 79-131-R. This proceeding concerns 

§104(a) Citation No. 0696067~ issued on August·17: 1979, when 

2586 
the Mine Operator refused to compensate Mary Griffith, miners' 

representative, who accompanied a Federal mine inspector on 

May 3, 1979, on a ventilation technical inspection. 

Virginia Pocahontas Company, Virginia Pocahontas No. 2 Mine, 

VA 79-137-R. This proceeding concerns §104(a) Citation No. 

0696089, issued on August 17, 1979, when the Mine Operator 

failed to compensate three different representatives of the 

miners for accompanying three different inspectors on July 17, 

1979, on a ventilation survey. 

The Off ice of the Solicitor and MSHA stipulate that none of 

the above inspections was a regular inspection. [Emphasis is 

part of all material quoted above.] 

Counsel for Virginia Pocahontas filed on August 18~ 1980, a letter iri which 

he concurred in the descriptions of the facts set forth in the stipulations 

above and moved that I vacate Citation Nos. 696067 and 696089 on the grounds 

that both citations alleged violations of section 103(f) pertaining to other 

than regular inspections for which Virginia Pocahontas does not have to compensate the representatives of miners who accompanied the inspectors who 

were making "spot" inspections. 

Counsel for the Secretary filed a letter on August 19, 1980, in which 

he recognized that the Commission's decision in the Helen Mining and 

Kentland Elkhorn ·cases, supra, would require the granting of the motion to 

vacate filed by counsel for Virginia Pocahontas, but stated that he opposes 

the grant of the motion in order to preserve the Secretary's position in 

the court proceedings challenging the Commission's decisions in the aforesaid cases. 

I find that the Commission's decisions in the Helen Mining and KentlandElkhorri cases, supra, are dispositive of the issues raised by the Notices of 

Contest filed in this consolidated proceeding. The sole issue is whether 

Virginia Pocahontas violated section 103(f) when it refused to compensate 

the miners' representatives who accompanied the inspectors during their 

"spot" inspections. Although Virginia Pocahontas did subsequently pay the 

miners under protest so as to keep the inspector from issuing withdrawal 

orders, it is clear under Commission precedent that Virginia Pocahontas did 

not vioate section 103(f) by initially refusing to pay the miners' representatives on May 3, 1979, and July 17, 1979. Therefore, I find that Citation 

Nos. 696067 and 696089 dated August 17, 1979, should be vacated and the 

Notices of Contest should be granted. 

My order setting the cases in this proceeding for hearing consolidated 

for purposes of hearing and decision all civil penalty issues which might 

be raised when and if Petitions for Assessment of Civil Penalty were subsequently filed with respect to Citation Nos. ·696067 and 696089. If counsel 

for Virginia Pocahontas will ask in any answer to such prospective Petitions 

that the cases be assigned to me, I shall dismiss those Petitions on the 

2587 
basis of my ruling in this decision if there is no change in the outstanding 

law at that time. 

It should be noted that my order of February 29, 1980, had consolidated 

with the issues raised in Docket Nos. VA 79-131-R and VA 79-137-R all issues 

raised by Virginia Pocahontas in its Notice of Contest in Docket No. VA 

79-136-R. The Counnission's Helen Mining and Kentland-Elkhorn decisions did 

not dispose of one of the issues raised by the Notice of Contest in Docket 

No. VA 79-136-R. Therefore, the parties have requested that a hearing be 

held concerning one of the issues raised in Docket No. VA 79-136-R. The 

issues raised in Docket No. VA 79-136-R will be set for hearing by separate 

order. The order in this case will sever the issues raised in Docket Noo 

VA 79-136-R from the issues raised by the other two Notices of Contest 

involved in this proceeding. 

WHEREFORE, it is ordered: 

(A) The issues raised by the Notice of Contest filed in Docket No. 

VA 79-136-R are severed from this consolidated proceeding and the Notice of 

Contest filed in Docket No. VA 79-136-R will be scheduled for hearing by a 

separate order as requested by the parties. 

(B) The Notices of Contest filed in Docket Nos. VA 79-131-R and VA 

79-137-R are granted and Citation Nos. 696067 and 696089 dated August 17 9 

1979, are vacated. 

Distribution: 

~e ~71/1 Richard c. Steffe;~ Administrative Law Judge 

(Phone: 703-756-6225) 

Marshall s. Peace, Esq., Attorney for Island Creek Coal Company, 

2355 Harrodsburg Road, P.O. Box 11430, Lexington, KY 40575 

(Certified Mail) 

John H. O'Donnell; Attorney, Office of the Solicitor, U.S. Department 

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

2588 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH Fl-OOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

1 2. SEP 1980 

SECRETARY OF LABOR, Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

MIDDLE KENTUCKY CONSTRUCTION, INC., 

Respondent 

Docket No. KENT 80-92 

A/O No. 15-11423-03002 

Docket No. KENT 80-158 

A/O No. 15-11423-03003 

Crapshooter No. 3 Strip Mine 

DECISION 

Appearances: 

Before: 

George Drumming, Jr., Esq., Office of the Solicitor, U.S. 

Department of Labor, Nashville, Tennessee, for Petitioner; 

Byron W. Terry, Safety Director, Middle Kentucky 

Construction, Inc., Owensboro, Kentucky, for Respondent. 

Judge Cook 

I. Procedural Background 

The Mine Safety and Health Administration (Petitioner) filed proposals 

for penalties in Docket Nos. KENT 80-92 and KENT 80-158 on January 7, 1980, 

and February 11, 1980, respectively. The proposals were filed pursuant to 

section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. 

§ 801 ~~· (1978) (1977 Mine Act), and allege a total of five violations 

of various provisions of the Code of Federal Regulations as set forth in 

citations issued pursuant to section 104(a) of.the 1977 Mine Act. Answers 

were filed by Middle Kentucky Construction, Inc. (Respondent), a prehearing 

order was issued and the cases were scheduled for hearing. 

The hearing was held on June 24, 1980, in Owensboro, Kentucky with 

representatives of both parties present and participating. The cases were 

consolidated for purposes of hearing and decision. Petitioner made an oral 

motion for approval of settlement as relates to Citation No. 799605, and an 

order approving the settlement is included in this decision. 

The parties waived the right to file posthearing briefs and proposed 

findings of fact and conclusions of law. 

2589 
II. Violations Charged 

(A) Docket No. KENT 80-92 

Citation No. 

799603 

799604 

799605 

(B) Docket No. KENT 80-158 

Citation No. 

799602 

799618 

III. Witnesses and Exhibits 

(A) Witnesses 

Date 

09/07/79 

09/07/79 

09/10/79 

Date 

09/07 /79 

10/15/79 

30 C.F.R. Standard 

77.1605(d) 

77.1605(b) 

71.500(a) 

30 C.F.R. Standard 

77.1605(b) 

77.1605(b) 

Petitioner called Federal mine inspector Earl T. Liesure as a witness. 

Respondent called Byron W. Terry, the company's safety director, as a 

witness. 

(B) Exhibits 

(1) Petitioner introduced the following exhibits in evidence: 

M-1 is a copy of a computer printout compiled by the Directorate of 

Assessments listing the history of previous violations at the Crapshooter 

No. 2 Strip Mine for which Respondent had paid assessments beginning 

November 1, 1976, and ending October 31, 1978. 

M-2 is a copy of Citation No. 799603, September 7, 1979, 30 C.F.R. 

§ 77.1605(d) and a copy of the termination thereof. 

M-3 is a copy of Citation No. 799604, September 7, 1979, 30 C.F.R. 

§ 77.1605(b) and a copy of the termination thereof. 

M-4 is a copy of Citation No. 799605, September 10, 1979, 30 C.F.R. 

§ 71.500(a) and a copy of the termination thereof. 

M-5, page 1, is a copy of Citation No. 799602, September 7, 1979, 

30 C.F.R. § 77.1605(b) and a copy of a subsequent action form extending 

the time period for abatement. 

M-5, page 2, is a copy of the termination of Citation No. 799602, 

September 7, 1979, 30 C.F.R. § 77.1605(b). 

2590 
M-6 is a copy of Citation No. 799618, October 15, 1979, 30 C.F.R. 

§ 77.1605(b) and a copy of the termination thereof. 

(2) Respondent introduced the following exhibits in evidence: 

0-1 contains photocopies of two photographs. 

0-2 contains photocopies of four photographs. 

IV. Issues 

Two basic issues are involved in the assessment of a civil penalty: 

(1) did a violation of the 1977 Mine Act occur, and (2) what amount should 

be assessed as a penalty if a violation is found to have occurred? In 

determining the amount of civil penalty that should be assessed for a violation, the law requires that six factors be considered: (1) history of 

previous violations; (2) appropriateness of the penalty to the size of the 

operator's business; (3) whether the operator was negligent; (4) effect of 

the penalty on the operator's ability to continue in business; (5) gravity 

of the violation; and (6) the operator's good faith in attempting rapid 

abatement of the violation. 

v. Opinion and Findings of Fact 

(A) Stipulations 

(1) Respondent is subject to the 1977 Mine Act (Tr. 2-3). 

(2) The Administrative Law Judge has jurisdiction in the abovecaptioned cases (Tr. 2-3). 

(3) Respondent operates the mine designated as Crapshooter No. 3 

(Tr. 2-3). 

(4) Respondent is a mine operator with only one mine and currently 

employs 21 employees or miners (Tr. 2-3). 

(5) Respondent's previous history of violations is not excessive and 

there appear to be no repeated violations within the preceding 24 months 

(Tr. 2-3). 

(6) Respondent's Crapshooter No. 3 Mine was inspected· by Inspector 

Earl T. Liesure on the dates in question (Tr. 3). 

(7) The citations were properly issued to Respondent (Tr. 3). 

(8) Any penalty assessed will not adversely affect Respondent's ability 

to continue in business (Tr. 3). 

2591 
(B) Citation No. 799603, September 7, 1979, 30 C.F.R. § 77.1605(d) 

Occurrence of Violation 

This citation was issued by Federal mine inspector Earl T. Liesure at 

approximately 9:45 a.m. on September 7, 1979, alleging a violation of mandatory safety standard 30 C.F.R. § 77.1605(d), in that "[t]he red Chevrolet 

Model 10 explosives truck is not provided with an adequate audible warning 

device (horn) in that the horn will not operate when control button is pushed. 

This truck is often loaded with explosives and MUST be capable of sounding a 

warning to other vehicles when necessary to avertcollision" (Exh. M-2). 

The cited mandatory safety standard provides, in pertinent part, as follows: 

"Mobile equipment shall be provided with audible warning devices." 

Inspector Liesure described the vehicle in question as a red Chevrolet, 

Model 10, half ton pickup truck, and testified that it was parked at the drill 

site. The drill site was described as an area atop the highwall where a 

drill rig had been set up for the purpose of boring holes into the earth 

for the insertion of explosive charges to blast away the overburden covering 

the coal seam. The inspector asked an employee to test the horn, and thereupon 

discovered that it would not operate when the horn button was pushed. 

Respondent concedes that the truck was not provided with an adequate 

audible warning device, but .claims by way of an affirmative defense 

that the truck had been removed from service on or around September 5, 1979, 

because of poor brake pressure on the service brake and was therefore not in 

use on September 7, 1979. 

The testimony of Mr. Byron Terry, Respondent's safety director, reveals 

that the procedure allegedly used at the Crapshooter No. 3 Strip Mine to remove 

the vehicle from service was insufficient as a matter of law to constitute 

removal from service within the meaning of the 1977 Mine Act. In Eastern 

Associated Coal Corporation, 1 FMSHRC 1473, 1979.0SHD par. 23,980 (1979), 

a roof fall on the underground track haulage made it impossible to remove 

a jitney to the maintenance shop to repair an inoperable parking brake. 

Accordingly, the mine operator placed a danger tag on the machine and permitted the machine to remain in the mine's active workings. The Federal Mine 

Safety and Health Review Commission (Commission) set forth the following test 

for determining what constitutes removal from service within the meaning of 

the 1977 Mine Act: 

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 que~tion 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 

2592 
the use of the defective piece of equipment. The jitney was 

still operable and the danger tag could have been ignored. 

To abate under these circumstances, the jitney should have 

been made inoperable. 

1 FMSHRC at 1474. (footnote omitted) 

'lb.e alleged removal from service at the Crapshooter No. 3 Strip Mine 

did not entail rendering the equipment inoperable and, in fact, did not even 

entail the use of danger tags. Respondent relied upon oral instructions to 

miners directing them.not to use those pieces of equipment classified as unsafe. 

Nothing prevented actual use of the equipment. A breakdown in those channels 

of communication upon which Respondent relied could result in a miner remaining 

unapprised of Respondent's decision ta remove a given piece of equipment from 

service. Additionally, miners actually apprised of the decision could knowingly 

or inadvertently fail to heed the instructions. In order to affect removal 

from service within the meaning of Eastern Associated Coal Corporation, the 

truck should have been rendered inoperable because the truck remained in the 

mine's active workings. The term "active workings" is defined as "any place 

in a coal mine where miners are normally required to work.or travel." 30 C.F.R. 

§ 77.2(a). 

Furthermore, Mr. Terry saw the truck on or around August 30, 1979, but 

did not see it again until on or around September 10, 1979. Therefore, he 

had no actual, firsthand knowledge as to either its status or location when 

the citation was issued, and testified on the basis of information provided 

to him by hearsay declarants. The record does not disclose the requisite 

information necessary to determine whether the hearsay statements are reliable. 

For example, it does not disclose the number of hearsay declarants, their 

identities, or whether they had actual, firsthand knowledge as to the status 

and location of the truck when the. citation was issued. It is particularly 

significant to note that the testimony adduced by Respondent as to the truck's 

location is contradictory. At one point, Mr. Terry testified that it was 

in the pit area (Tr. 68) and at another point appeared to imply that it had 

been left at the drill site because employees simply had not yet removed it 

to a suitable location for an out of use vehicle. I am unable to classify 

the assertion that the truck was in the pit area as accurate because it 

contradicts the actual observations of the inspector. Furthermore, I am 

unable to accept the testimony of Mr. Terry insofar as it implies that an 

out of service vehicle would be kept at the drill site because such placement 

would impede the drilling operation and also subject the truck to damage when 

explosive charges were detonated. 

In view of the foregoing, it is.found that the cited vehicle was in 

actual use at the drill site on September 7, 1979, and that it was not provided with an adequate audible warning device. A violation fo 30 C.F.R. 

§ 77.1605(d) has been established by a preponderance of the evidence. 

Negligence of the Operator 

'lb.e condition should have been detected during the inspection required 

by 30 C.F.R. § 77.1606(a). Therefore, Respondent should have known that the 

cited condition existed. 

2593 
Accordingly, it is found that Respondent demonstrated ordinary 

negligence. 

Gravity of the Violation 

The truck bore markings designating it as an explosives carrier and was 

located in an area of the mine where explosives carriers are customarily found 

(Tr. 20-21). Such vehicles are used to transport explosives from the magazine 

to the job site, but the best available evidence indicates that no explosives 

were actually on the truck. 

Respondent contends that another truck had been assigned to serve as 

explosives transport after September 5, 1979, and that such truck was in 

use on the day in question but that it did not bear the warning signs 

required by 30 C.F.R. § 77.1302(c). Accordingly, Mr. Terry speculated that 

the employees attempted to conceal the truck from the inspector by delaying 

its departure from the magazine so as to avoid the· issuance of another, citation. However, no reliable evidence was presented to support this claim. 

The fact that a vehicle bearing markings designating it as an explosives carrier was in actual use, in an area of the mine where such vehicles 

are customarily found when in use, is sufficient circumstantial evidence to 

establish that the vehicle was in actual use as an explosives carrier. Since 

Respondent has failed to adduce reliable evidence to the contrary, it is found 

that the truck in.question was in actual use as an explosives carrier. 

The lack of a horn would prevent the sounding of an audible warning in 

the event of an emergency. The two or three individuals normally involved 

in the operation of the explosives truck, occupants of other vehicles and 

pedestrians were thus exposed to the possibility of injury (See, Tr. 10-12). 

Accordingly, it is found that moderate gravity was present. 

Good Faith in Attempting Rapid Abatement 

Abatement was due by 12 noon on September 10, 1979 (Exh. M-2). The 

citation was terminated at 7:30 p.m., on September 10, 1979, when the 

inspector returned to the mine and determined that the horn had been 

repaired (Exh. M-2). 

Accordingly, it is found that Respondent demonstrated good faith in 

attempting rapid abatement. 

(C) Citation No. 799604, September 7, 1979, 30 C.F.R. § 77.1605(b) 

Occurrence of Violation 

This citation was issued by Inspector Liesure at approximately 11:15 a.m., 

on September 7, 1979, citing Respondent for a violation of mandatory safety 

standard 30 C.F.R. § 77.1605(b), in that "[t]he Michigan 275 front-end loader 

2594 
(SN425C284) is not equipped with an adequate park brake in that they will 

not hold the equipment on grade when the control is applied." (Exh. M-3). 

The cited mandatory safety standard provides as follows: "Mobile equipment 

shall be equipped with adequate brakes, and all trucks and front-end loaders 

shall also be equipped with parking brakes." 

The inspector's testimony is in accord with the statements contained 

in the citation, and is sufficient to establish a prima facie showing that 

the parking brake on the front-end loader was inoperable. 

It is clear that.the term "parking brakes," as used in the regulation, 

refers to a braking system separate and independent from the service and 

emergency brakes on the front-end loader. Respondent presented evidence as 

to how the emergency brake system functioned. Respondent's arguments are 

rejected to the extent they imply that the emergency brake system meets the 

requirement for "parking brakes" as set forth in the regulation. 

Accordingly, it is found that a violation of 30 C.F.R. § 77.1605(b) 

has been established by a preponderance of the evidence in that the cited 

front-end loader was not equipped with an adequate parking brake. 

Negligence of the Operator 

The condition should have been detected during the. inspection required 

by 30 C.F.R. § 77.1606(a) (Tr. 31). Therefore, Respondent should have known 

of the condition. 

Accordingly, it is found that Respondent demonstrated.ordinary 

negligence. 

Gravity of the Violation 

The front-end loader was parked on a slight grade in the general parking area. Employees and other pieces of equipment were in the area. The 

additional equipment was within a few feet of the front-end loader. The 

inspector's testimony indicates that the absence of the required parking 

brake could permit the machine to roll down an incline resulting in injuries 

to miners. 

The front-end loader was equipped with emergency and service brakes, 

both of which resulted in brake application when air pressure was reduced 

below 60 pounds per square inch. According to Byron Terry, who possessed 

actual experience in the operation of front-end loaders, using the emergency brake system to release the air pressure when the machine was parked 

resulted in an automatic brake application. 

In view of the foregoing, it is found that the violation was accompanied 

by moderate gravity. 

2595 
Good Faith in Attempting Rapid Abatement 

Abatement was due by 8 a.m. on September 14, 1979 (Exh. M-3). The 

citation was terminated on September 10, 1979, when the inspector returned 

to the mine and determined that the parking brake had been repaired 

(Exh. M-3). 

Accordingly, it is found that Respondent demonstrated good faith in 

attempting rapid abatement. 

(D) Citation No. 799602, September 7, 1979, 30.C.F.R. § 77.1605(b) 

Occurrence of Violation 

Inspector Liesure issued this citation at approximately 9:45 a.m. on 

September 7, 1979, citing Respondent for a violation of 30 C~F.R. 

§ 77.1605(b), in that "[t]he red chevrolet Model 10 explosives truck is 

not equipped with adequate parking brakes in that when control is applied 

the brakes will not hold truck on grade." (Exh. M-5, p.l). 

The truck in question was the same truck cited by Inspector Liesure 

in Citation No. 799603 and was located at the drill site when the subject 

citation was issued. The inspector's testimony as to the condition of the 

parking brakes is in accord with the statements contained in the citation. 

Respondent concedes that the truck was not equipped with an adequate 

parking brake, but raises the same defense raised in connection with Citation 

No. 799603. For the reasons set forth previously in this decision, the defense 

is specifically rejected. 

Accordingly, it is found that a violation of 30 C.F.R. § 77.1605(b) 

has been established by a preponderance of the evidence in that the truck 

in question was not equipped with an adequate parking brake. 

Negligence of the Operator 

The condition should have been detected during the inspection required 

by 30 C.F.R. § 77.1606(a). Therefore, Respondent should have known of the 

condition. 

Accordingly, it is found that Respondent demonstrated ordinary 

negligence. 

Gravity of the Violation 

The truck was parked in gear and on a grade at the drill site. It was 

within 15 to 20 feet of other equipment and approximately four to six people 

were exposed to physical injury. As noted previously, the best available 

evidence indicates that no explosives were actually on the truck. 

Accordingly, it is found that the violation was accompanied by moderate 

gravity. 

2596 
Good Faith in Attempting Rapid Abatement 

The citation set forth 12 noon on September 10, 1979, as the termination 

due date. The time period for abatement was ultimately extended to 8 a.m. 

on September 27, 1979, because repair parts were on order, but had not arrived 

(Exh. M-5, p. 1). When the inspector returned to the mine on October 31, 

1979, he examined the truck and determined that the parking brake had been 

repaired. Accordingly, the citation was terminated (Exh. M-5, p. 2). 

In view of the foregoing, it is found that Respondent demonstrated good 

faith in attempting rapid abatement. 

(E) Citation No. 799618, October 15, 1979, 30 C.F.R. § 77.1605(b) 

Occurrence of Violation 

Inspector Liesure issued this citation at approximately 11:15 a.m. on 

October 15, 1979, citing Respondent for a violation of mandatory safety 

standard 30 C.F.R. § 77.1605(b), in that "[t]he red Chevrolet Model 10 

explosives truck is not equipped with adequate service brakes in that when 

control pedal is activated there is no braking action to wheels." (Exh. 

M-6). The truck in question is the same truck cited in Citation Nos. 799602 

and 799603. 

The inspector's testimony as to the condition of the service brakes is 

in accord with the statements contained in the citation, and reveals that 

the brake failure was caused by hydraulic fluid leaking from the brake system. The inspector's testimony further reveals that the truck was not in 

actual use when the citation was issued, but that it was parked in a parking 

area near the pit. 

Respondent concedes that the truck was not provided with adequate service brakes, but raises the same defense asserted with respect to Citation 

No. 799603, claiming that the vehicle had been removed from service on or 

around September 5, 1979. It is significant to note that the machine had 

not been rendered inoperable and, in accordance with the Commission's decision 

in Eastern Associated Coal Corporation, it is found that the truck in question 

remained in service as a matter of law on October 15, 1979. Accordingly, 

Respondent's proffered defense is rejected. 

In view of the foregoing, it is found that a violation of 30 C.F.R. 

§ 77.1605(b) has been established by a preponderance of the evidence in that 

the truck in question was not provided with adequate service brakes. 

Negligence of the Operator 

Respondent reached the conclusion on or around September 5, 1979, that 

the vehicle was not safe to be operated due to service brake defects. Yet 

the truck was in actual use on September 7, 1979, and had not been effectively 

removed from service as of October 15, 1979. 

Accordingly, it is found that Respondent demonstrated more than ordinary 

negligence. 

2597 
Gravity of the Violation 

The absence of operable service brakes exposed the occupants of the 

vehicle, the occupants of other vehicles, and pedestrians to serious 

injury. Accordingly, it is found that the violation was serious. 

Good Faith in Attempting Rapid Abatement 

The inspector was of the opinion that the operator demonstrated good 

faith based upon the fact that the vehicle was removed from service. The 

citation was terminated when the inspector returned to the mine on October 31, 

1979, and determined that the brakes had been repaired (Exh. M-6). 

Accordingly, it is found that Respondent demonstrated good faith in 

attempting rapid abatement. 

(F) Size of the Operator's Business 

The parties stipulated that Respondent operates only one mine and 

employees 21 miners. Therefore, it can be inferred that Respondent is a small 

operator. 

(G) History of Previous Violations 

The parties stipulated that Respondent's history of previous violations 

is not. excessive. Additionally, Exhibit M-1 reveals that Respondent had eight 

violations at its Crapshooter No. 2 Strip Mine for which assessments had been 

paid between November 1, 1976, and October 31, 1978. The most recent violations 

listed thereon occurred on July 14, 1977. 

Accordingly, it is found that Respondent has a good history of previous 

violations. 

(H) Effect of a Penalty on the Operator's Ability to Remain in Business 

The p~rties stipulated that any penalty assessed will not affect 

Respondent's ;o'-'.lity to rema~n in business. 

VI. Mot_'_on to ;.pprove Settl :nent 

Petitioner made an oral motion on the record to approve settlement which 

is identified as follows: 

Citation No. Date 

799605 09/10/79 

30 C.F.R. 

Standard 

71.SOO(a) 

Assessment Settlement 

$48 $48 

Information as to the six statutory criteria contained in section 110 

of the Act has been submitted. This informat~on has provided a full disclosure of the nature of the settlement and the basis for the original determination. Thus, the parties have complied with the intent of the law that 

settlement be a matter of public record. 

2598 
The foregoing reasons were advanced in support of the proposed 

settlement: 

[MR. DRUMMING:} With respect to Citation No. 799605, violation of standard 71500A, for lack of toilet, a sanitary 

toilet and toilet tissue. Mr. Terry has advised that they do 

not wish to contest this citation and at this point shall I 

offer it as a motion to settle for this one or --

JUDGE COOK: (COURT INTERPOSES) If you desire to, yes. 

MR. DRUMMING: Okay. 

JUDGE COOK: It is not necessary to go into any other 

details other than question of gravity and negligence and 

good faith and if Mr. Terry wants to propose or agree to some 

settlement, you can proceed with that now. 

MR. DRUMMING: Okay. Standard 71500A and it was assessed 

by assessment officer at $48. The degree of negligence such 

as ordinary negligence. The seriousness listed as not serious. 

The lack of toilet paper and sanitary toilet will not lead to 

any immediate injury or harm to the employees, but over the 

long run or long term effects of inadequate health facilities 

for the elimination of waste materials, that would adversely 

effect [sic} the health and welfare of the mine employees.· 

The good faith abatement of this citation was assessed as 

being normal good faith and that it was assessed in the time 

stipulated. 

JUDGE COOK: Alright. Now, Mr. Terry, what's your 

position? 

MR. TERRY: Sir, on that one as I indicated to 

Mr. Drumming, we did state that we would like to go ahead and 

settle this. It was a case of oversight on the company's 

part. We had the facilities at a previous mine that had 

neglected to be moved over and due to the high frequency of 

use, actually these portable toilets when they moved it, 

rather than bring the old one over they acquired two new ones 

and had them placed on the mine site. This inspection was on 

the tenth of September an4 as of this date they have been 

cleaned periodically, but they have not been used from the 

time that they were installed. So, this is the reason of the 

negligence .on our part. They are not a heavy demand use. 

And we goofed, I mean, that's, but, we don't feel that it was 

an extremely serious situation, but we didn't stay in compliance with what we should have. 

JUDGE COOK: Alright. Then, are you agreeing with the1 

settlement? 

2599 
MR. TERRY: Yes, sir. 

JUDGE COOK: Alright. Mr. Drumming and I take it that 

you are moving at this time for approval of that? 

·MR.. DRUMMING: Yes, Your Honor. We are moving for 

approval of the settlement of 100 percent payinent of the $48 

penalty. 

(Tr. 46-48). 

The reasons given above in support of the proposed settlement have been 

reviewed in conjunction with the information submitted as to the six statutory criteria contained in section 110 of the Act. After according this 

information due consideration, it has been found to support the proposed 

settlement. It therefore appears that a disposition approving the settlement will adequately protect the public interest. Accordingly, an order will 

be entered approving the settlement. 

VII. Conclusions of Law 

(1) Middle Kentucky Construction, Inc., and its Crapshooter No. 3 Strip 

Mine have been subject to the provisions of the 1977 Mine Act at all times 

relevant to these proceedings. 

(2) Under the 1977 Mine Act, the Administrative Law Judge has jurisdiction over the subject matter of, and the parties to, these proceedings. 

(3) Federal mine inspector Earl T. Liesure was a duly authorized representative of the Secretary of Labor at all times relevant to the issuance of 

the citations involved in these proceedings. 

(4) The violations charged in Citation Nos. 799602, 799603, 799604, and 

799618 are found to have occurred as alleged. 

(5) All of the conclusions of law set forth in Part V, supra, are 

reaffirmed and incorporated herein. 

VIII. Penalties Assessed 

Upon consideration of the entire record in these cases and the foregoing 

findings of fact and conclusions of law, I find that the assessment of penalties is warranted as follows: 

(A) Docket No. KENT 80-92 

Citation No. 

799603 

799604 

799605 

Date 

09/07/79 

09/07/79 

09/10/79 

2600 

30 C.F.R. 

Standard 

77.1605(d) 

77.i605(b) 

71.500(a) 

Penalty 

$ 75 

100 

48 (settlement) 
(B) Docket No. KENT 80-158 

Citation No. 

799602 

799618 

Date 

09/07/79 

10/15/79 

ORDER 

30 C.F.R. 

Standard 

77.1605(b) 

77 .1605(b) 

Penalty 

$100 

100 

IT IS ORDERED that the proposed settlement outlined in Part VI, supra, 

be, and hereby is, APPROVED. 

IT IS FURTHER ORDERED that Respondent pay civil penalties in the 

amount of $423 within 30 days of the date of this decision. 

Distribution: 

George Drumming, Jr., Esq., Office of the Solicitor, U.S. Department 

of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 

(Certified Mail) 

Byron W. Terry, Safety Director, Middle Kentucky Construction, Inc., 

2237 Lovell Drive, Owensboro, KY 42301 (Certified Mail) 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Administrator for Metal and Nonmetal Mine Safety and Health, U.S. 

Department of Labor 

Standard Distribution 

2601 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRA,TION (MSHA), 

v. 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

1 2 SEP 1980 

Petitioner 

Civil Penalty Proceedings 

Docket No. BARB 79-222-PM 

A/O No. 54-00120-05002 F 

SAN JUAN CEMENT COMPANY, INC~, 

Respondent 

Docket No. BARB 79-Z83-PM 

A/O No. 54-00120-05003 

Cantera Espinosa Mine 

DECISION 

Appearances: James J. Manzanares, Esq., Office of the Solicitor, U.S. 

Department of Labor, Hato Rey, Puerto Rico, for Petitioner; 

Alex Gonzalez, Esq., and Mario Arroyo Davila, Esq., Dubon, 

Gonzalez and Vazquez, San Juan, Puerto Rico, for Respondent. 

Before: Judge Cook 

I. Procedural Background 

The Mine Safety and Health Administration (Petitioner) filed petitions 

for assessment of civil penalty in Docket Nos. BARB 79-222-PM and BARB 

79-283-PM on January 18, and February 15, 1979, respectively. The petitions 

were filed pursuant to section llO(a) of the Federal Mine Safety and Health 

Act of 1977, 30 u.s.c. § 820(a) (1978) (1977 Mine Act), and collectively 

allege three violations of various provisions of the Code of Federal Regulations. On March 19, 1979, San Juan Cement Company, Inc. (Respondent) filed 

both answers to the petitions and a motion requesting consolidation of the 

cases. On March 26, 1979, Petitioner filed a motion to authorize discovery. 

The parties respective motions were granted by orders dated June 13, 1979. 

On August 24, 1979, a notice of hearing was issued scheduling the hearing to commence on December 11, 1979, in Hato Rey, Puerto Rico. On 

December 3, 1979, the parties filed joint motions to approve settlement and 

Petitioner filed supplementary motions pertaining thereto. The joint motions 

were denied by an order dated December 7, 1979. Additionally, the December 7, 

1979, order recounted the results of a December 5, 1979, telephone conference 

during which the representatives of the parties agreed to continue the hearing 

to December 20, 1979. -

2602 
The hearing was held as scheduled with representatives of both parties 

present and participating. Following the presentation of the evidence, a 

schedule was agreed upon for the posthearing filing of Exhibits 0-8 and 0-9 

and for the filing of posthearing briefs. The exhibits were received in evidence by an order dated April 3, 1980. On April 22, 1980, Petitioner filed 

its posthearing brief and proposed findings of fact and conclusions of law. 

No posthearing brief was filed by Respondent. 

II. Violations Charged 

A. Docket No. BARB 79-222-PM 

Citation No. 94602, March 20, 1978, 30 C.F.R. § 56.12-71. 

B. Docket No. BARB 79-283-PM 

Citation No. 94601, March 20, 1978, 30 C.F.R. § 50.10. 

Citation No. 93262, April 20, 1978, 30 C.F.R. § 56.20-11. 

III. Witnesses and Exhibits 

A. Witnesses 

Petitioner called as its witnesses Pedro Sarkis, a Federal mine inspector; Salvador Lugo Cortes, area engineer for the electric power company; 

Luis Figueroa Arroyo, a maintenance employee of the San Juan Cement Company; 

and Francisco Martinez Ortiz, safety officer of San Juan Cement Company. 

Respondent called as its witnesses William.Miranda Marin, senior vice 

president of San Juan Cement Company; Salvador Torros, vice president of 

marketing and sales for San Juan Cement Company; and David Cintron, chief 

engineer of Arnold Green Testing Laboratories in Puerto Rico. 

B. Exhibits 

1. Petitioner introduced the following exhibits in evidence: 

M-2 is a drawing prepared by Salvador Lugo during the course of his 

testimony. 

M-3 is a drawing prepared by Salvador Lugo during the course of his 

testimony. 

M-4 is a copy of Pedro Sarkis' curriculum vitae (resume). 

M-5 is a copy of Citation No. 94602, March 20, 197.8, 30 CoF.R. § 56.12-71. 

M-6 is a copy of a subsequent action form pertaining to M-5 extending 

the time period for abatement to 2 p.mo, April 28, 19780 

2603 
M-7 is a copy of a subsequent action form pertaining to M-5 extending 

the time period for abatement to 9 a.m., May 11, 1978. 

M-8 is a copy of the termination of M-5. 

M-9 is a photograph. 

M-10 is a memorandum to James J. Manzanares from Debbie L. Hines, 

supervisory assessment clerk, addressing Respondent's history of previous· 

violations. 

M-11 is a copy of Citation No. 93262, April 20, 1978, 30 C.F.R. 

§ 56.20-11. 

M-12 is a copy of a subsequent action form pertaining to M-11 extending 

the time period for abatement to 3 p.m., April 24, 1978. 

M-13 is a copy of the termination of M-11. 

M-14 is a photograph. 

M-15 is a drawing prepared by Pedro Sarkis during the course of his 

testimony. 

M-16 is a copy of Citation No. 94601, March 20, 1978, 30 C.F.R. § 50.10. 

M-17 is a copy of a modification of M-16. 

M-18 is a copy of a document styled "Mine Accident, Injury, and Illness 

Report." 

M-19 is a copy of a memorandum from Francisco Martinez Ortiz, safety 

officer of San Juan Cement Company, to Federal mine inspector Pedro Sarkis 

wherein the· author reports the results of his investigation of the fatal 

accident. 

M-19-A is an initial report pertaining to the subject matter of M-19. 

M-20 is a photograph. 

M-21 is a photograph. 

M-23-A is a request for admission of facts filed by Petitioner in Docket 

No. BARB 79-222-PM. 

M-23-B is Respondent's response to .M-23-A. 

M-23-C is a request for admission of facts filed by Petitioner in Docket 

No. BARB 79-283-PM. 

M-23-D is Respondent's response to M-23-C. 

2604 
2. Respondent introduced the following exhibits in evidence: 

0-1 is a copy of a letter dated April 11, 1978, from the electric 

power company to William Miranda Marin. 

0-2 is a letter dated March 27, 1978, from San Juan Cement Company to 

the electric power ~ompany. 

0-3 is a copy of a letter dated April 20, 1978, from San Juan Cement 

Company to the electric power company. 

0-4 is a copy of a check in the amount of $3,461 drawn on the account 

of San Juan Cement Company and made payable to the electric power company. 

0-5 i~ a topographic survey plan of the subject plant. 

0-6 is a copy of a memorandum dated December 18, 1979, from Luis M. 

Gonzalez to William Miranda Marin addressing the number and distribution of 

persons employed at the subject plant. 

0-7-A is a set of interrogatories from Respondent to Petitioner. 

0-7-B contains Petitioner's answers to 0-7-A. 

0-8 is a certified copy of Respondent's 1977 Commonwealth of Puerto Rico 

tax return. 

0-9 is a certified copy of Respondent's 1978 Commonwealth of Puerto Rico 

tax return. 

3. X-1 is a drawing prepared by Salvador ~ugo during the course of his 

testimony. 

IV. Issues 

Two basic issues are involved in the assessment of a civil penalty: (1) 

did a violation of the 1977 Mine Act occur, and (2) what amount should be 

assessed as a penalty if a violation is found to have occurred? In determining the amount of civil penalty that should be assessed for a violation, the 

law requires that six factors be considered: (1) history of previous violations; (2) appropriateness.of the penalty to the size of the operator's business; (3) whether the operator was negligent; (4) effect of the penalty on the . 

operator's ability to continue in business; (5) gravity of the violation; and 

(6) the operator's good faith in attempting rapid abatement of the violation. 

v. Opinion and Findings of Fact 

A. Stipulations 

1. The legal name of the Respondent is San Juan Cement Company, Inc. 

2. The identification of the mine where the inspection was conducted 

is "Cantera Espinosa." 

2605 
3. The location of said mine is Dorado, Puerto Rico. 

4. San Juan Cement Company, Inc., is the operator of said mine. 

5. San Juan Cement Company, Inc., operates an open pit limestone 

quarry where it extracts limestone for use in the production of cement. 

This establishment is a mine within the meaning of section 3(h) of the 

1977 Mine Act. 

6. The products of the Cantera Espinosa Mine enter and affect commerce. 

7. Petitioner's requests for admissions and the answers thereto which 

are not denials, and Respondent's interrogatories and the answers thereto 

are part of the record and in evidence. 

8. Assessment of the original penalty that was assessed by the Office 

of Assessments will not affect Respondent's ability to remain in business 

(Tr. 20-21). 

9. Benjamin Alicea Diaz was the person who was electrocuted on 

March 16, 1978. He was 5 feet 6 inches tall (Tr. 232). 

10. Exhibit 0-5 is drawn to scale such that one inch equals approximately 50 feet (Tr. 413). 

11. The terms "Water Resources Authority," "Power Company" and 

"Authority of Electrical Energy" have been used interchangeably to refer to 

the electric power company (Tr. 343). 

B. Jurisdiction 

Respondent entered into two stipulations of"particular significance to 

the issue of jurisdiction. First, Respondent stipulated that it operates 

an open-pit limestone quarry where it extracts limestone for use in the production of cement and that such establishment is a mine within the meaning 

of section 3(h) of the 1977 Mine Act. This stipulation is further refined 

by Respondent's answers to Petitioner's request for admissions which reveal 

that the Cantera Espinosa Mine is the facility referred to in the stipulation and that Respondent· actually operates a cement production plant at the 

mine site (Admissions 2, 3 and 4 as set forth in Exhs. M-23-A through 

M-23-D). Second, Respondent stipulated that the products of the Cantera 

Espinosa Mine enter and affect commerce. 

The parties evidenced considerable disagreement as to the legal effect 

of these stipulations, with Petitioner c.ontending that they have the legal 

effect of admitting jurisdiction and Respondent contending that no such 

effect was intended. However, counsel for Respondent unequivocably admitted 

that the Federal Mine Safety and Health Review Commission (Commission) has 

jurisdiction over Respondent in this proceeding (Tr. 12-18)0 

2606 
A careful review of Respondent's position has revealed essentially two 

arguments outlining the issues that Respondent wishes the Judge to resolve. 

First, Respondent appears to contend that it was improperly cited for 

violations of mandatory safety standards· set forth in Part 56 of Title 30 of 

the Code of Federal Regulations because the Cantera Espinosa Mine is not a 

sand and gravel operation. Respondent characterizes its operation as an 

open pit mine and, by implication, appears to argue that its activities are 

subject exclusively to the provisions of Part 55 of Title 30 of the Code 

of Federal Regulations (Tr. 12). I disagree. Part 56 sets forth particularized requirements applicable to sand, gravel and crushed stone operations. 

The activities conducted by Respondent at the Cantera Espinosa Mine fall 

within the definition of a "crushed stone operation" and, accordingly, the 

requirements of Part 56 apply. 

For purposes of the instant case, the key consideration is that the subject mine is an open pit limestone quarry from which Respondent extracts limestone for use in the production of cement and that cement production occurs 

at the mine. "Cement" is defined, amongst several definitions, as "a finely 

ground powder which, in the presence of an appropriate quantity of water, 

hardens and adheres to suitable aggregate, thus binding it into a hard agglomeration that is known as concrete or mortar." Paul w. Thrush (ed.), A. 

Dictionary of Mining, Mineral, and Relate Terms (Washington, D.C.: U.S. 

Department of the Interior, Bureau of Mi~es) (1968) at p. 186. [Emphasis 

added.] "Crushed stone" is defined as the "product resulting from the artificial crushing of rocks, boulders, or large cobblestones, substantially all 

faces of which have resulted from the crushing operation," and is a "[t]erm 

applied to irregular fragments of rock crushed or ground to smaller sizes 

after quarrying." Paul w. Thrush (ed.), op cit., p. 284. These definitions 

establish that cement production at the Cantera Espinosa Mine requires, at 

a minimum, the crushing of limestone to produce a finely ground powder used 

in the finished product. Accordingly, the Cantera Espinosa Mine is a 

"crushed stone operation" subject to the requirements of Part 56 of Title 30 

of the Code of Federal Regulations. 

Respondent's second argument appears to imply that compliance with the 

safety regulations imposed by the Commonweatlh of Puerto Rico somehow absolves 

Respondent from a duty to comply with Federal mandatory safety standards 

(Tr. 15-17). Respondent never clearly articulated the principles underlying 

its argument, and the record contains only one specific reference to the 

requirements imposed by the Commonwealth, i.e., that the Electric Safety Code 

of Puerto Rico requires 38,000-volt powerlines to be maintained at least 

20 feet above the ground (Tr. 88). As set forth later in this decision, the 

powerlines involved in the instant case met the Commonwealth's height 

requirements. However, assuming for purposes of argument that Respondent 

maintained compliance with all safety regulations mandated by the Commonwealth, such compliance in no way absolved Respondent from its obligation to 

comply with the more stringent requirements imposed by the 1977 Mine Act. 

Accordingly, Respondent's argument has no foundation. -

2607 
In view of the foregoing considerations, I conclude that Respondent and 

its Cantera Espinosa Mine have been subject to the provisions of the 1977 Mine 

Act at all times relevant to these proceedings and that Respondent was properly charged under Part 56 of Title 30 of the Code of Federal Regulations. 

C. Respondent's Motion to Dismiss 

Respondent moved to dismiss the above-captioned cases at the close of 

Petitioner's case-in-chief (Tr. 346-354). The motion was preliminarily 

denied by the undersigned Administrative Law Judge, but made subject to 

reconsideration at the time of the writing of the decision (Tr. 355-356). 

Respondent set forth essentially two grounds in arguing for dismissal: 

(1) that Petitioner had failed to establish a prima facie case as to the 

three violations charged; and (2) that, assuming for purpos~s of argument 

that the violations existed, the evidence presented established the 

existence of circumstances mitigating against the imposition of any civil 

penalties. 

The evidence contained in the record at the time the motion was made 

has been reviewed carefully, and I conclude that the evidence in the record 

at that stage of the proceedings was more than sufficient to establish a 

prima facie case as to the occurrence of the three violations charged. The 

arguments advanced by Respondent are more appropriately addressed to civil 

penalty assessment determinations that must be made under the six statutory 

assessment criteria set forth in section 110 of the 1977 Mine Act and, 

accordingly, have been considered fully as relates to the penalty assessment 

stage of the proceedings. 

Two arguments raised by Respondent are worthy of individual discussion 

at this time. First, Respondent appeared to argue that proof of operator 

negligence is essential to proving violations of the mandatory safety standards. This argument is specifically rejected as a ground for dismissal. 

It is well settled that mine operators are liable for violations of mandatory health and safety standards without regard to fault. United States 

Steel Corporation, 1 FMSHRC 1306, 1979 OSHD par. 23,863 (1979). Second, 

Respondent's argument that mitigating factors can warrant the assessment of 

no civil penalty for a proven violation is contrary to law. The 1977 Mine 

Act mandates the assessment of a civil penalty for any violation of a mandatory safety standard. Island Creek Coal Company, 2 FMSHRC 279, 1980 OSHD 

par. 24,248 (1980). 

In view of the foregoing considerations, the oral determination made at 

the hearing denying Respondent's motion to dismiss is AFFIRMEDo 

Do Occurrence of Violations, Negligence, Gravity and Good Faith 

At approximately 2 p.m •. on March 16, 1978, Benjamin Alicea Diaz, a 

truck driver working for a customer of Responqent identified as Rio Grande 

Ready Mix, sustained a fatal injury at Respondent's Cantera Espinosa Mine 

2608 
when he accidentally either achieved physical contact with a high-voltage 

powerline which crossed the main access road to the plant, or came sufficiently close to such powerline to be electrocuted. 1/ All vehicular 

traffic entering or leaving the plant passed beneat~tlh~owerlines in 

question. The circumstances surrounding.his death ~i~ clear and relatively 

uncontroverted. ' 

Mr. Alicea drove a cement bulk carrier onto the premises at approximately 2 p.m. to pick up a load of cement for Rio Grande Ready Mix. He 

parked his truck on the access road while waiting in line to reach the weighing station known as the scale house. The scale house was located approximately 90 feet from the site of the accident. Parked in this location, the 

truck was positioned directly beneath the high-voltage powerlines. The voltage passing through the lines was described as 38,000 volts, phase-to-phase, 

and 27,500 volts, phase-to-ground. ' 

Mr. Alicea got out of the truck cab and proceeded to climb atop the 

bulk carrier in order to open the hatches. In his hand, he had a 14- to 

16-1/2-inch long hammer composed entirely of metal. Mr. Alicea achieved 

physical contact with, or came within close proximity of, one of the highvoltage power lines while atop the bulk carrier. Witnesses to the accident 

reported hearing .an explosion as the powerline broke, observed the victim 

fall to the pavement in flames and observed tires on the bulk carrier catch 

fire. 

The three citations at issue in the above-captioned cases were issued 

as a result of an investigation into the circumstances surrounding the fatal 

accident. 

lo Citation No. 94602, March 20, 1978, 30 C.F.R. 56.12-71 

Occurrence of Violation 

This citation alleges a violation of mandatory safety standard 30 C.F.R. 

§ 56.12-71 in that "[t]he high tension cables that are located in the access 

road to the scale house do not have the minimum 10 feet of separation between 

the vehicles that drive under this electric line. (Measure must be taken 

from the highest vehicle that will move under the above-mentioned electric 

lines)" (Exh. M-5). The cited mandatory safety standard provides as follows: 

"When equipment must be moved or operated near energized high-voltage powerlines (other than trolley lines) and the clearance is less than 10 feet, the 

lines shall be deenergized or other precautionary measures shall be taken." 

1/ The testimony of Mr. David Cintron reveals that electrocution could have 

occurred absent physical contact with the powerline. According to 

Mr. Cinton, high voltage electr~city will jump, or arc, on air. Arcing on 

air depends upon such atmospheric conditions as humidity, rain or temperature. 

Experiments have established that under normal conditions, 38,000-volt, 

phase~to-phase, electricity can arc 12 to 18 inches on air. The National 

Electric Code specifies that it is safe for a man to work 36 inches or more 

from a 38,000-volt line under standard atmospheric conditions. The 36-inch 

figure contains a built in safety factor (Tr. 433-434). 

2609 
· .. ;' 

The evidence in the r.ecord reveals that Mr. Salvador Lugo Cortes area 

engineer for the electric power company, visted the Cantera Espinosa Mine on 

March 16, 1978, to investigate the accident and that he measured the height 

of the powerline involved in the accident after it had been repaired and 

raised. The measurement was made by using a telescopic rod usually utilized 

to disconnect energy circu.its which was ln turn measured with a tape measure. 

This revealed that the.powerline was 21 feet 3 inches above the ground. 

Mr. Lugo provided expert testimony revealing that the powerline was at 

approximately the same height before the accident as after it was repaired 

and raised based upon the type of repair and raising operation performed. 

His testimony reveals that the·height of the lines after the completion of 

the repairs could have varied by approximately 2 or 3 inches from the height 

at the time of the accident (Tr. 42-43, 50-52, 87). Mr. Lugo's testimony 

. on this point is confirined by the testimony of Mr. Salvador Torros, Respondent's vice president of marketing and sales. Mr. Torros testified that he 

.. observed the powerline before the accident and after it was repaired and 

raised, and that there could not have been much difference in the height. 

It was his belief that any difference in the height would not have been 

noticeable (Tr. 424-425). 

In addition to taking the above measurement, Mr. Lugo also measured the 

height of the lowest powerline that had not fallen and testified that it measured 21 feet 6 inches above the ground when measured from the side of the 

truck away from the victim's body. 

In view of the foregoing, it is found that the powerline involved in 

the accident was within 2 or 3 inches of 21 feet 3 inches above the ground 

at the time of the accident, and that the lowest of the remaining powerlines 

was 21 feet 6 inches above. the ground when measured from the side of the 

truck away from the body. 

The evidence in the record further reveals that Mr. Lugo measured the 

height of the truck while it ·was still under the powerlines at the site of 

the accident. Mr. Torres Tome, an engineer employed by Respondent, and 

Mr. Francisco Martinez Ortiz, Respondent's safety officer, were present when 

the measurement was made. The measurement was taken from the ground to the 

highest point on the truck, and the testimony reveals that the measurement 

was taken with reference to the point located directly beneath the powerline 

where it was believed that Mr. Alicea was standing at the time of the elec-

· trocution. It can.be concluded that this point could have been deduced with 

reasonable accuracy since Federal mine inspectors observed blood on the truck 

during the course of their March 17, 1978, investigation. The measurement 

revealed a height of 13 feet. 

The accuracy of Mr. Lugovs height measurement was disputed by the testimony of Mro David Cintron, chief engineer of Arnold Greene Testing Laboratories. Mr. Cintron examined the truck involved in the fatality. The 

examination was performed on the premises of Rio Grande Ready Mix. The truck 

was resting on wooden blocks with the tires removed when Mr. Cintron 's he:f.ght 

measurement was made. In this position, Mr. Cintron obtained a height measurement of 12 feet 3 inches and thereafter calculated a correction factor to 

to .. determine that the truck, with tires installed, would have measured 

approximately 12 feet in height. 

2610 
Mr. Lugo's height measurement is deemed the more probative of the two 

for the following reasons: First, Mr. Cintron admitted that he could not 

establish a specific height for the truck. Second, Mr •. Lugo's height measurement was obtained at the site of the accident with the truck in the same 

position it occupied at the time of the accident. Company employees, one of 

whom was an engineer, observed the measurements being made. There is no 

indication that any company employee int~rposed an·ob]ection to the accuracy 

of the measurement obtained or that they even expressed concern as to any 

perceived irregularities in the measurement procedure used. In fact, the 

evidence clearly reveals that Respondent's safety officer accepted the 

measurement as correct and included it in his report •. · 

Accordingly, it is found that the truck measured 13 feet in height. 

In view of the foregoing findings of fact, it is found that a violation of 30 C.F.R. § 56.12-71 has been established by a preponderance of the 

evidence. 

Negligence of the Operator 

On February 27 and 28, 1978, and March 1, 1978, Federal mine inspectors 

conducted an inspection at the Cantera Espinosa;Mine ·pursuant to the provisions of the Federal Metal and Nonmetallic Min~ Safety Act of 1966, 30 u.s.c. 

§ 721 et seq. (1971) (Metal-Nonmetal Act). J:f ··No· dtations were issued at 

that time as relates to the subject powerliii:es· because the inspectors made 

no observations specifically attracting their attention to those lines. 

Additionally, the testimony of Mr. Lugo establishes that the powerlines complied with the 20-foot height requirement establislied'by'the Commonwealth of 

Puerto Rico. · 

Respondent places great reliance on these considerations in its arguments germane to the issue of operator negligence. Respondent's reliance 

thereon is misplaced. The failure of Federal mine inspectors to detect a 

given violation of a mandatory health or safety standard during the course 

of an inspection does not conclusively establish that the mine operator, 

through the exercise of due diligence, could not have detected the viotative 

condition. The fact that Mr. Martinez, Respondent's safety officer, had no 

knowledge on the date of the accident as to the height of the lines 

(Tr. 320) indicates that Respondent had made no effort to ascertain whether 

they complied with the Federal height requirement in spite of actual knowledge that all vehicular traffic entering or leaving the plant passed under 

2/ The Federal Mine Safety and Health .Amendments Act of 1977 (.Amendments 

Act) was signed into law by President Carter on November 9, 1977. Pursuant 

to section 307 of the .Amendments Act, all provisions of the 1977 Mine Act 

relevant to these proceedings became effective on March 8, 1978. The Amendments Act repealed the Metal-Nonmental Act, but all mandatory standards 

relating to mines issued under the Metal-Nonmetal Act, in effect on the date 

of enactment of the .Amendments Act, remain in. effect as mandatory standards 

under the 1977 Mine Act until such time as new or revised standards are 

issued by the Secretary of Labor. See sections 30l(b)(l) and 306(a) of the 

.Amendments Act. 

2611 
the lines and in spite of the fact that the area where the accident occurred 

was clearly visible from the plant office building located approximately 90 

feet away. Respondent is lawfully charged with a duty to comply with the 

Federal mandatory safety standards notwithstanding its adherence .to the less 

exacting standards imposed by the Commonwealth of Puerto Rico. 

The fact that the lines inay have been the property of the electric 

power company is of no assistance to Respondent. The evidence presented as 

to abatement of the violation reveals that the power company would raise the 

lines on request from the customer upon payment of the requisite costso 

Respondent attempts to characterize Mr. Alicea's conduct in climbing 

atop the bulk carrier as a voluntary act on his part beyond Respondent's 

control. However, Mr. David Cintron, who visited the plant to familiarize 

himself with the location of the accident, testified that during his visits 

to the site he discovered that the hatches on bulk carriers are always 

opened at the weighing station so as to make certain that the cargo compartment is empty or free of water. Respondent presented no evidence establishing that the procedure ordinarily employed around the time of the accident 

differed from those observed by Mr. Cintron and, in fact, the testimony of 

Mr. Martinez implies that it was the same. The evidence further rev'eals 

that most union employees staged a walkout at the Cantera Espinosa Mine on 

March 16, 1978, and that the plant was being operated by supervisory personnel and the remaining workers. The walkout resulted in slow service·to the 

trucks arriving at the plant which, in turn, resulted in a backup of trucks 

waiting to reach the weighing station. According to Mr. Torros, the trucks 

usually remain on the scale for a short period of time and,:accordingly, 

there is no delay. 

It can be inferred from this testimony that the slow service resulting 

in the backlog of trucks was at least partially attributable to a shortage of 

personnel at the weighing station. Under these ~ircumstances, it is highly 

foreseeable that a truck driver would undertake to open the hatches on his 

bulk carrier while waiting in line so as to save time upon reaching the 

scales, and it is equally foreseeable that the line of trucks would extend 

under the powerlines since only three trucks had to be in line for the last 

one to be positioned under those powerlines. Accordingly, the occurrence 

of the accident was foreseeable notwithstanding the fact that the actions of 

Mr. Alicea can legitimately be characterized as voluntary. It was therefore 

incumbent upon Respondent, since it chose to operate the plant that day, to 

make doubly certain that the high-voltage powerlines met Federal height 

requirements or that adequate precautionary measures were taken. Respondent's failure to so undertake these actions indicates that the occurrence 

of the accident was not completely beyond Respondent's control. 

Of greater significance to the issue of opera-tor negligence~ is the 

testimony of Mr. Martinez and Inspector Pedro Sarkis. Inspector Sarkis 

testified that he observed vehicles parked under the powerlines during his 

March 20, 1978, and April 20, 1978, visits to·the Canteral Espinosa Mineo 

The walkout referred to by Mr. Torros lasted only "a couple of days," thus 

2612 
implying that the facility was operating at normal capacity at least as of 

April 20, 1978. Accordingly, it can be inferred that vehicles had parked 

under the powerlines prior to the date of the accident when the plant was 

operating normally. Additionally, the emphasized portion of the following 

passage from Mr. Martinez' testimony indicates that it was customary to perform work under the powerlines prior to the date of the accident: 

Q. Following the date of the accident, did you see 

trucks, bulk carriers of the type that was involved in the 

accident, go to the San Juan Cement Company, Inc., to pick 

up cement? 

' A. There were trucks which went in of the bulk carrier 

type, but I cannot say whether they were the same type as the 

truck involved in the accident. 

Q. Did they drive under the electric lines under which 

the truck that was involved in the accident was parked at the 

moment of the accident? 

A. Would you repeat the question? 

Q. Did those trucks that we're talking about now, did 

they pass while being driven under the electric lines? 

A. All types of trucks have to go undero 

Q• Under the electric lines? · 

Ao Yes, because they are aerial lines and they pass 

under. 

Q. Under the electric lines that were involved in the 

accident? 

A • Exactly. What was not done was the usual work undero 

(Tr. 318-319). [Emphasis added.] 

In view of the foregoing considerations, it is found that Respondent 

demonstrated far more than ordinary negligenceo 

Gravity of the Violation 

The testimony of Mr. Cintron, an individual with impressive credentials 

in the fields of electrical engineering, occupational safetyP and accident 

reconstruction, implies that mandatory safety standard 3·0 .CeFoRo § 56ol2=71 

is not -specifica·lly directed against· the occurrence of ·an injury of the type 

involved in this case. However, Mr. Cintron's Qpinion notwithstanding, the 

evidence reveals that Respondent's failure to comply with the mandatory 

safety standard significantly contributed to ·the occurrence of the accidento 

2613 
Accordingly, it is found that the violation was extremely serious. 

Good Faith in Attempting Rapid Abatement 

Inspector Sarkis testified that increasing the height of the powerlines was necessary to abate the violation. The citation set .forth 1 p.m., 

April 3, 1978, as the termination due date (Exh. M-5). Extensions were 

issued on April 20, 1978, and May 1, 197&, which ultimately extended the 

time period for abatement to 9 a.m., May 11, 1978 (Exhs. M-6, M-7). The 

extensions were issued based upon arrangements with the Electric Authority 

to increase the height of the lines and based upon the existence. of a prolonged strike at the power company (Exhs. 0-1, 0-2). The violation was 

abated by replacing the 45-foot telephone poles with 55-foot telephone 

poles, thus raising the height of the lines by approximately an additional 

10 feet (Exhs. 0-1, M-8). The Electric Authority charged Respondent $3,461 

to raise the lines (Exh. 0-4). 

Inspector Sarkis did not know the exact date of abatement, but testified that it was safe to assume that Respondent raised the liRes by 9 a.m. 

on May 11, 1978. The citation was terminated at 4 p.m. on May 16, 1978 

(Exh. M-8). 

Accordingly, it is found that Respondent demonstrated good faith in 

attempting rapid abatement. 

2. Citation No. 93262, April 20, 1978, 30 C.F.R. § 56.20-11 

Occurrence of Violation 

This citation was issued at 1:45 p.m. on April 20, 1978, alleging a violation of mandatory standard 30 C.F.R. § 56.20-11 in that "[t]here is no warning or sign to alert the operators of the ·equipment to the electric lines of 

high-voltage in the area which cross the entrance of the plant" (Exh. M-11). 

30 C.F.R. § 56.20-11 provides as follows:· "Areas where health or safety 

hazards exist that are not immediately obvious to employees shall be barricaded, or warning signs shall be posted at all approaches. Warning signs 

shall be readily visible, legible, display the nature of the hazard, and any 

protective action required." 

The findings of fact set forth previously in this decision reveal that 

the area in which the high-voltage powerlines crossed the main access road 

was an area where a safety hazard existed and that the hazard was not immediately obvious to employees. The testimony of Inspector Sarkis reveals 

that neither barricades nor warning signs were present when the citation was 

issued. 

Accordingly, it is found that a violation has been established by a 

preponderance of the evidence. 

Negligence of the Operator 

On March 17, 1978, Federal mine inspectors requested Mr. Marcos Corrada, 

the plant manager, to post a warning sign to protect the lives of otHer 

individuals using the subject portion of the access road (Tr. 167-168, 189). 

2614 
Yet, the sign had not been posted as of April 20, 1978, nor had barricades 

been installed. Vehicles similar to the one involved in the fatality continued to use the access road and, in fact, vehicles were observed parked 

under the powerlines during Inspector Sarkis' March 20, 1978, and April 20, 

1978, visits to the plant. The area involved was clearly visible from the 

plant office. 

The electrocution of Mr. Alicea should have apprised Respondent of the 

actual dangers, given the proper circumstances, posed to individuals using 

the area beneath the powerlines. It was entirely foreseeable that another 

electrocution could oc~ur. The thought that first springs into the mind of 

a reasonable man upon the occurrence of a fatality of the type involved in 

this case, under the type of circumstances present in this case, is the 

need to post effective warnings or to take other steps so as to prevent the 

occurrence of a similar tragedy. Yet, Respondent did absolutely nothing. 

The issuance of a citation was required in order to force Respondent to discharge the basic and self evident duty that could, and should, have been 

undertaken with minimal effort immediately following Mr. Alicea's death. 

Accordingly, it is found that the violation was accompanied by a wanton 

disregard for the safety of others. 

Gravity of the Violation 

One fatality had occurred in the area and the occurrence of another 

fatality was foreseeable. Accordingly, it is found that the violation was 

extremely serious. 

Good Faith in Attempting Rapid Abatement 

The citation set forth 3 p.m., April 22, 1978, as the termination due 

date (Exh. M-11). When Inspector Sarkis returned to the Cantera Espinosa 

Mine on April 24, 1978, Respondent had posted a warning sign 30 inches long 

by 14 inches wide on one of the telephone poles (Exh. M-14). The sign was 

so small that a truck driver would have been unable to read it. Accordingly, 

at 9 a.m., Inspector Sarkis extended the time period for abatement to 3 p.m., 

April 24, 1978 (Exh. M-12). The citation was terminated at 8:40 a.m. on 

April 25, 1978, following the posting of an adequate warning sign 

(Exh. M-13). 

Respondent's conduct between April 20, 1978, and April 24, 1978, indicates that Respondent viewed the requirement to post a warning sign as a 

nuisance, and therefore undertook half-hearted action which was clearly not 

designed to provide adequate warning to others •. Accordingly, it is found 

that Respondent demonstrated extreme bad faith in attempting rapid abatement of the violation. 

3. Citation No. 9Z.601, March 20, 1978, 30 .C.FoRo § 50ol0 

Occurrence of Violation 

This citation alleges a violation of 30 C.F.R. § 50.10 in that "[t]he 

fatal accident that occurred on March 16, 1978, was not immediately notified 

to MSHA by officials of the company. The fatal accident was discovered by 

2615 
inspectors from MSHA who arrived on the property for other reasons one day 

after the accident" (Exhs. M-16, M-17). At all times relevant to this proceeding, 30 C.F.Rlllli.. ~>0.10 reported at 42 Fed. Reg. 65536 (1977) (effective 

date: January 1, i~~ provided as follows: . ) 

If an accident occurs, an operator shall immediately 

contact the MESA District or Subdistrict Office having 

jurisdiction over its mine. If an operator cannot contact 

the appropriate MESA District or Subdistrict Office, it 

shall i~ediately contact the MESA Headquarters Office in 

Washington, D.C. by telephone, toll free, at 800-737-2000. 

The evidence presented reveals that Federal .mine inspectors visited the 

Cantera Espinosa Mine a~ approximately 3:30 p.m. on March 17, 1978, to provide Respondent with a print on safety load operations. Mr. Luis Gonzalez 

Rivo, Respondent's personnel manager, thereupon apprised the inspectors of 

the March 16, 1978, fatality. Notification was not provided immediately 

following the accident as required by the regulation. 

Accordfngly, it is found that a violation of 30 C.F.R. § 50.10, reported 

at 42 Fed. Reg. 65536 (1977), has been established by_ a preponderance of the 

evidence. 

Negligence of the Operator 

Immediately following the accident, Respondent contacted the police and 

the insurance company and smnmoned an ambulance (Tr. 152). There is no indication that the failure to immediately notify the appropriate Federal mine 

safety authorities was the result of anything other than inadvertence. 

Accordingly, it is found that Respondent demonstrated ordinary 

negligence. 

Gravity of the Violation 

Failure to notify the appropriate Federal mine safety authorities is 

potentially serious in that one of the purposes of the notification provision is to enable Federal mine inspectors to ascertain the cause of an accident and order the mine operator to institute corrective action designed to 

prevent the future occurrence of another accident. Additionally, the mine 

operator's failure to comply with the notification requirement can prevent 

the collection of evidence needed for a variety of legitimate Governmental 

purposeso 

The evidence presented reveals that Federal authorities were able to 

gather the information necessary to determine the cause of the accident and 

order the implementation of ··.corrective action, notwithstanding Respondent's 

failure to comply with.the rsgulation •. Accordingly, it is found that the 

violation was nonserious~ 

2616 
Good Faith in Attempting Rapid Abatement 

The citation was terminated when the operator gave his assurance of 

future compliance (Exh. M-16). Accordingly, it is found that .Respondent 

demonstrated good faith in attempting rapid abatement. 

E. History of Previous Violations 

Respondent had no previous violations for which assessments had been 

paid as of the dates of the violations involved in these proceedings (Exh. 

M-10). Accordingly, Respondent has no history of previous violations 

cognizable in these proceedings. Peggs Run Coal Company, 5 IBMA 144, 

82 I.D. 445, 1975-1976 OSHD par. 20,001 (1975). 

F. Size of the Operator's Business 

Respondent is rated as a medium-size operator based upon the number of 

annual man-hours worked. 

G. Effect of a Civil Penalty on Respondent's Ability to Remain in 

Business 

In Hall Coal Company, 1 IBMA 175, 79 I.D. 668, 1971-1973 OSHD par. 

15,380 (1972), the Commission's predecessor, the Interior Board of Mine 

Operations Appeals, held that evidence relating to the issue as to whether 

a civil penalty will affect the operator's ability to remain in business is 

within the operator's control, resulting in a rebuttable presumption that 

the operator's ability to continue in business will not be affected by the 

assessment of a civil penalty. The parties stipulated ~n these proceedings 

. that assessment of the civil penalties proposed by the Office of Assessments 

will not affect Respondent's ability to remain in business (Tr. 20-21). The 

proposed a.ssessments are identified as follows: 

30 C.F.R. 

Citation No. Date Standard ProEosed Assessment 

94602 3/20/78 56.12-71 $1,150 

94601 3/20/78 50.10 122 

93262 4/20/78 56.20-11 255 

Accordingly, the question presented is whether Respondent has sustained its 

burden of.proof by establishing that assessment of an otherwise appropriate 

civil penalty in an amount greater than that proposed by the Office of 

Assessments will adversely affect its ability to remain in business. 

The sole evidence presented on this point was the· testimony of 

Mro Wtlliam Miranda Marin, vice president and treasurer of Respondent~ and 

the posthearing receipt in evidence of certified copies of Respondent's 1977 

and 1978 Commonwealth of Puerto Rico tax returns, denominated Exhibits 0-8 

and 0-9, respectively. 

2617 
A careful review of this evidence does not indicate that the civil 

penalty ultimately assessed, in these proceedings would have an effect upon 

the Respondent's ability to remain in business. 

VI. Conclusions of Law 

1. San Juan Cement Company, Inc., and its Cantera Espinosa Mine have 

been subject to the provisions of the 1977 Mine Act at all times relevant 

to these proceedings. . 

2. Under the 1977 Mine Act, the Administrative Law Judge has jurisdiction over the subject matte,r of, ~nd the parties to, these proceedings. 

3. Federal mine inspectors Pedro Sarkis and Juan Pere~ were duly authorized representatives the Secre~ary of Labor at all times relevant to these 

proceedings. 

4. The oral detet\11.ination made at the hearing denying Respondent's 

motion to dismiss is AFFIRMED. 

5. The violations charged in the three subject citations are found to 

. have occurred as allege~ •. 

6. All of the cc:>Jil~ll,lsipns of law_ set forth in Part V of this decision 

are reaffirmed and incorporated herein. 

VII. Proposed Findings of :::Fact and Conclusions of Law 

Petitioner submitted a po~thearing brief and proposed findings of fact 

and conclusions of law. ·Additionally, both parties set forth arguments on 

the record during the hearing. Such brief and arguments, insofar as they 

can be considered to have. co~tained proposed £innings and.conclusions, have 

been consid.ered fully, and except to the extent that such findings and conclusiQns have been expressely 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 these 

cases. 

VIII. Penalty Assessed 

Upon consideration of the entire record in these cases and the foregoing findings of fact and conclusions of law, I find that the assessment 

of penalties is warranted as follows: 

Ao Docket No. BARB 79-222-PM 

Citation Noe Date 

94602 3/20/78 

2618 

30 C.F.R. 

Standard 

56.12-71 

Penalty 

$2,000 
B. Docket No. BARB 79-283-PM 

Citation No. 

94601 

93262 

Date 

3/20/78 

4/20/78 

·.. . .'. 

30 C~R.R~ 

Standard 

ORDER 

50.10 

56.20-ll 

Penalty 

$ 85 

$3,000 

1. The oral determination made at the hearing denying Respondent's 

motion to dismiss is AFFIRMED. 

2. Respondent is ORDERED to pay civii penalties in the amount of 

$5,085 within 30 days of the date of this decision. 

Law Judge 

Distribution: 

James J. Manzanares, Esq., Office of the Solicitor, U.S. Department of 

Labor, Federico Degetau Federal Office Building, Suite 212-214,. 

Carlos Chardon Street, Hato Rey, PR 00918 (Certified Ma~l) 

Alex Gonzalez, Esq., and Mario Arroyo Davila, Esq.,· Dubon, Gonzalez and ': 

Vazquez, G.P.O. Box 6123, San Juan., PR 00936 (Certified Mail) 

Administrator for Metal and Nonmetal Mine Safety and Health, U.S. 

Department of Labor 

Administrator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 

2619 

. ~ .. 

·.:. '. 

. . ~: 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KARBER GRAVEL COMPANY, INC., 

Respondent 

September 12, 1980 

Civil Penalty Proceeding 

Docket No. LAKE 80-110-M 

A.C. No. 20-952-5003 

Karber Pit and Mill 

DECISION 

Appearances: Gerald A. Hudson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Detroit, Michigan, for 

Petitioner; 

Larry Karber, President, Karber Gravel Company, 

Inc., for Respondent. 

Before: Chief Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

Petitioner seeks civil penalties for two alleged violations of 

30 C.F.R. § 56.12-8 occurring on August 29, 1978. Pursuant to 

notice, a hearing was held in Lansing, Michigan, on August 8, 1980. 

Charles Millikan testified for Petitioner; Larry Karber testified 

for Respondent. Both parties waived their rights to file written 

proposed findings and briefs. Based upon the evidence presented at 

the hearing, I make the following 

FINDINGS OF FACT 

1. Respondent is the operator of a gravel pit and mill in 

Clinton County, Michigan, known as the Karber Pit and Mill. 

2. Respondent produces sand and gravel for use and for sale. 

Its operation is in or affects interstate commerce. It is a small 

operator, having three employees. 

3.. Respondent does not have a history of prior violations. 

2620 
4. On August 29, 1979, Charles Millikan, a Federal mine 

inspector and a duly authorized representative of the Secretary of 

Labor, issued two citations each alleging that a bushing was not 

provided for electrical wires going into a junction box at the 

power house. One box was located on the north wall of the power 

house, the other on the west wall. 

5. The plant was not in operation at the time the citations 

were issued and the power lines were not energized. 

6. The electrical wires entering the junction boxes described 

in the citations did not have bushings at the time of the inspection on August 29, 1979. 

7. Approximately 2 or 3 days prior to the issuance of the 

citations, Respondent began experiencing intermittent shorts in 

the underground lines leading from the junction boxes to the main 

plant. 

8. Respondent was unable to uncover the source of the shorts 

and had called an outside electrician to inve.stigate. 

9. The power had been turned off, the.covers were removed 

from the junction boxes and the bushings had been removed in the 

course of testing the wires to find the short. 

10. The situation described in Finding of Fact No. 9 was not 

explained to the inspector by Respondent's foreman who accompanied 

him during the inspection. 

11. The source of the shorts was never found. The wires were 

rerouted overhead. The junction boxes were covered and the bushings were reinserted. The citation was terminated on September 7, 

1979. 

DISCUSSION 

I accept as factual the testimony of Mr. Larry Karber explaining the absence of bushings. Had the situation been explained to 

Inspector Millikan at the time of the inspection, it is likely 

that the citations would not have been issued. Under the circumstances, I find that the violations charged did not occur. 

CONCLUSIONS OF LAW 

1. The Respondent is subject to the provisions of the Federal Mine Safety and Health Act of 1977 in its operation of the 

Karber Pit and Mill. 

2. The undersigned Administrative Law Judge has jurisdiction over the parties and subject matter of this proceeding. 

2621 
JAB2 

3. The violations charged in Citation Nos. 294267 and 294268 

issued on August 29, 1979, by Federal mine inspector Charles 

Millikan did not occur. 

ORDER 

Citation Nos. 294267 and 294268 issued August 29, 1979, are 

VACATED and no civil penalty is assessed. 

J~ Chief 

Distribution: By certified mail. 

A. Broderick 

Administrative Law Judge 

Mr. Larry Karber, President, Karber Gravel Company, Inc., 917 South Church 

Street, St. Johns, MI 48879 

Gerald A. Hudson, Attorney, Office of the Solicitor, U.S. Department of 

Labor, 231 West Lafayette, 657 Federal Building, Detroit, MI 48226 

Assessment Office, MSHA, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

2622 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-6230 

1 2 SEP 1980 

JOHN WILSON AND RONALD RUMMEL, 

Applicants 

Complaint of Discrimination 

Vo Docket No. PITT 72-23 

LAUREL SHAFT CONSTRUCTION COMPANY, 

INC., 

Respondent 

DECISION AND ORDER 

On April 19, 1972, a decision was issued in the subject proceeding, 

finding that Respondent had illegally discharged Applicants in violation 

of section llO(a) of the Federal Coal Mine Health and Safety Act of 1969, 

30 u.s.c. § 801 et ~· Respondent was ordered: (1) to offer each Applicant reinstatement with the seniority, status, classification, pay and work 

shift that he would have held and enjoyed had Respondent not discharged 

him; (2) to pay each Applicant full back wages, with interest at 6 percent 

per annum for lost wages he would have received in the Respondent's employment from the discharge until the date he (a) was reinstated pursuant to an 

offer of reinstatement or (b) refused to accept such offer of reinstatement; 

(3) to deduct from such award of back pay "any wages which such Applicant 

received from other employment in the period for which back wages are due 

from the Respondent under this Order"; and (4) to pay to Applicants an 

aggregate amount for all costs and expenses, including attorney's fees, 

which have been reasonably incurred by Applicants for, or in connection 

with, the institution and prosecution of this proceeding. 

It affirmatively appears from the record that, on February 9, 1973, 

Respondent offered each Applicant an opportunity to be reinstated and to 

report for work on February 15, 1973. Neither Applicant appeared for work 

on the specified date or notified Respondent of his refusal to accept the 

offer of reinstatement. 

On March 27, 1973, the parties stipulated that Applicant John Wilson 

was entitled to $3,873.17 in back wages and other damages, including interest 

at 6 percent per annum, that Ronald Rummel was entitled to $6,239.14 in back 

wages and other damages, including interest at 6 percent per annum, and 

that both Applicants incurred costs and expenses in the amount of $824.85 

and attorney's fees in the amount of $2,750.00. 

2623 
The parties also stipulated that, in the period in which damages 

accrued Applicant John Wilson received $352.00 for 16 weeks as unemployment compensation benefits from the Commonwealth of Pennsylvania, Bureau 

of Employment.Security, and that Applicant Ronald Rummel received $2,674.00 

for 42 weeks as unemployment compensation benefits from the Commonwealth 

of Pennsylvania, Bureau of Employment Security. 

Respondent contends that the unemployment compensation benefits received 

by Applicants should be deducted from the total amount of back pay 

and other benefits that Applicants would have received had they not been 

discharged. Respondent argues that unemployment compensation benefits are 

••wages which each Applicant received from other employment" and, therefore, 

should be deducted from the final award of back pay as required by the 

Decision and Order of April 19, 1972. 

In N.L.R.B. v. Gullet Gin Company, Inc., 340 U.S. 361, 364 (1951), the 

Supreme Court upheld the Board's decision in refusing to deduct unemployment 

compensation benefits from an award of back pay. The Court followed an 

earlier decision in which the Court held that state unemployment compensation 

benefits were not "earnings" to be deducted from back pay. See N.L.R.B. v. 

Marshall Field & Co., 318 U.S. 253, 255 (1943). ~ 

I conclude that unemployment compensation benefits are not "earnings" to 

be deducted from a final award of back pay within the meaning of the Federal 

Coal Mine Safety and Health Act and my Decision and Order of April 19, 1972. 

WHEREFORE IT IS ORDERED that: 

(1) Within 30 days of this Decision, Laurel Shaft Construction Company 

shall pay John Wilson as back wages and other damages, including interest 

in the amount of 6 percent per annum until March 27, 1973, the total amount 

of $3,873.17. Interest on such amount shall not accrue after the date of 

the parties' stipulation of damages, viz., March 27, 1973. 

(2) Within 30 days of this Decision, Laurel Shaft Construction Company 

shall pay Ronald Rummel as back wages and other damages, including interest 

in the amount of 6 percent per annum until March 27, 1973, the total amount 

of $6,239.14. Interest on such amount shall not accrue after the date of the 

parties' stipulation of damages, viz., March 27, 1973. 

(3) Respondent shall pay both Applicants costs and expenses in the 

amount of $824.85 and attorney's fees in the amount of $2,750.00, within 

30 days of.this decision. Interest shall shall not be due on this amount. 

WILLIAM FAUVER, JUDGE 

2624 
Distribution: 

Lawrence L. Davis, Esq., Counsel for Laurel Shaft Construction Company, 

103 South Center Street, Ebensburg, PA 15931 (Certified Mail) 

Mary Lu Jordan, Esq., Counsel for John Wilson and Ronald Rummel, 

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

Rosanna D. Polen, Esq., Counsel for John Wilson, Sayers, King, Keever & 

Nalitz, 77 South Washington Street, Waynesburg, PA 15370 (Certified 

Mail) 

John H. O'Donnell, Esq., Trial Attorney, Office of the Solicitor 

U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

(Certified Mail) 

2625 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520, LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(.703) 756-6230 

1 6 SEP 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. WEVA 80-284 

Petitioner A.c. No. 46-06003-030G2R 

v. 

Baker Strip Mine 

BAKER COAL COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. 

Department of Labor, Arlington, Virginia, for Secretary 

of Labor, Mine Safety and Health Administration; 

Clark B. Frame, Esq., Wilson & Frame, Morgantown, 

West Virginia, for Baker Coal Company. 

Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This is a proceeding filed by the Secretary of Labor, Mine Safety and 

Health Administration (hereinafter MSHA) under section llO(a) of the Federal 

Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a), to assess a civil 

penalty against Baker Coal Company for a violation of section 103(a) of the 

Act. A hearing was held in Morgantown, West Virginia on August 13, 1980. 

MSHA inspectors Ronald Marrara and Carl R. Buckner testified on behalf of 

MSHA. Wayne Baker testified on behalf of Baker Coal Company. 

ISSUES 

Whether Baker Coal Company violated the Act as charged by MSHA and, if 

so, the amount of the civil penalty which should be assessed. 

APPLICABLE LAW 

Section 103(a) of the Act, 30 u.s.c. § 813(a), provides in pertinent 

part as follows: "For the purpose of making any inspection or investigation 

under this Act, * * * any authorized representative of the Secretary * * * 

shall have the right of entry to, upon, or through any coal or other mine." 

2626 
Section llO(i) of the Act, 30 U.S.C. § 820(i), provides in pertinent 

part as follows: 

In assessing civil monetary penalties, the Commission 

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 person charged in attempting to 

achieve rapid compliance after notification of a violation. 

STIPULATIONS 

The parties stipulated the following: 

1. The operator, Baker Coal Company, is small in size. 

. 2. The operator's prior history of assessed violations 

constitutes a negligible history of prior violations and there 

was no prior violation of section 103(a) of the Act. 

FINDINGS OF FACT 

I find that the evidence of record establishes the following facts: 

1. On June 7, 1979, Ronald Marrara and Carl Buckner were 

duly authorized representatives of the Secretary of Labor, 

Mine Safety and Health Administration, and were assigned to 

conduct a spot inspection at Baker Coal Company, Baker Strip 

Mine, in northern West Virginia. 

2. Upon arriving at the mine site, Inspector Marrara 

identified himself to Wayne Baker, sole proprietor of Baker 

Coal Company, and informed him that the inspectors were aware 

that another MSHA inspector had been at the site on the prior 

day but that they were going to make another inspection. 

3. At that point, Wayne Baker complained profanely that 

this was his tenth inspection in two weeks. Without provocation or warning, he struck Inspector Marrara, knocking him 

to the ground. Thereupon, he straddled Inspector Marrara, 

grabbed him by the shirt, lifted him off the ground, and 

slammed him back to the ground several times. During this 

assault on Inspector Marrara, Wayne Baker also threatened 

to throw the inspector in the sedimentation pond on the site. 

4. After assaulting Inspector Marrara, Wayne Baker 

then shoved Inspector Buckner and his hard hat fell off. 

Baker then picked up the hard hat and threw it at Inspector 

Buckner. 

2627 
5. At no time did either inspector strike Wayne Baker. 

6. Wayne Baker then ordered both inspectors off the 

mine site and instructed them not to return. 

7. As a result of this attack, Inspector Marrara 

received treatment in the emergency room of West Virginia 

University Hospital, sustained a left rotator cuff tear, 

and was off work for six weeks. 

8. Inspector Marrara pressed criminal charges against 

Wayne Baker and Baker entered a plea of nolo contendre and 

was fined $250. 

9. On March 12, 1980, Wayne Baker struck an investigator 

employed by the West Virginia Department of Natural Resources. 

He also entered a plea of nolo contendre to the criminal 

charge arising out of that incident and was fined $250. 

10. Baker Coal Company is a small operator but Wayne 

Baker has not established that any civil penalty assessed 

under the Act will affect his ability to continue in busines' 

because Baker Coal Company offered no documentary evidence 

of its financial condition and the testimony of Wayne Baker 

in this regard was vague and unconvincing. 

11. Since this incident on June 7, 1979, Baker Coal 

Company has not denied entry to any inspector employed by 

MSHA. 

12. Baker Coal Company has a negligible history of 

assessed violations and there was no prior violation of 

section 103(a) of the Act. 

DISCUSSION 

Wayne Baker, sole proprietor of Baker Coal Company, admitted that he 

refused to allow two MSHA inspectors to conduct an inspection at his mine 

on June 7, 1979, and that he ordered them off of his property. The above 

admission establishes a violation of section 103(a) of the Act which 

provides in pertinent part as follows: "For the purpose of making any 

inspection or investigation under this Act * * * any authorized representative of the Secretary * * * shall have the right of entry to, upon, or 

through any coal or other mine." Since a vio,lation of the Act has been 

admitted by the operator, the remaining issues concern the amount of the 

civil penalty which should be assessed. 

The two MSHA inspectors allege that without warning or provocation 

Wayne Baker physically assaulted them after they announced their intention 

to make an inspection of his mine. Baker alleges the following: (1) he 

had only been on this job for eight working days but had been subjected to 

2628 
ten inspections by agencies of the state and federal governments consuming 

35 hours of his time and that MSHA had an inspector at this mine on the 

preceding day; (2) Inspector Marrara approached to a distance of 12 inches 

from him and said to him, "We are going to straighten- you out"; (3) rather 

than slamming Inspector Marrara to the ground as alleged, Baker was attempting to lift the inspector to get him off the property but could not do so; 

and (4) Baker Coal Company is unable to pay any civil penalty assessed 

herein. 

The claim of Wayne Baker that he had been subjected to an excessive 

number of inspections by federal and state agencies is without merit and 

constitutes neither a defense to the violation nor probative evidence 

concerning the criteria for assessment of a civil penalty. Suffice it to 

say that the mining of coal is a pervasively regulated industry and any 

operator who objects to this fact should seek employment elsewhere in the 

economy. 

Wayne Baker's allegations that Inspector Marrara approached to within 

12 inches of him is admitted by the inspector. This fact is of no consequence and Baker admitted that he was not .afraid of the inspector. Baker's 

claim that the inspector told him, "We are going to straighten you out," is 

rejected. The.testimony of the two inspectors that no such statement was 

made was more credible than the testimony of Wayne Baker. 

Baker's claim that he was merely attempting to get Inspector Marrara 

off his property when he lifted him off the ground is also rejected. 

Credible testimony of the two inspectors establish~d that Baker slammed 

Inspector Marrara to the ground several times. 

Finally, Baker's assertion that he would be unable to pay any civil 

penalty assessed here is rejected because he failed to present any documentation of his financial condition and his testimony in this regard 

was vague and unpersuasive. Baker presented no evidence of his net worth 

and he was unsure of the value of his equipment and the extent of the liens 

thereon. 

Section llO(i) mandates the consideration of six criteria in the assessment of a civil penalty. I have considered the operator's history of previous violations, the size of the business, the ability of the operator to 

stay in busines_s, and the good faith of the operator to achieve rapid compliance after notification of the violation in my Findings of Fact Nos. 10-

12. The remaining issues are whether the operator was negligent and the 

gravity of the violation. 

The evidence of record in this matter fails to establish any justification for Wayne Baker's conduct. Baker's initial assault and battery upon 

Inspector Marrara, which knocked him to·the ground, constituted gross negligence. However, this offense was further aggravated and compounded by 

Baker's subsequent actions of picking the inspector up and slamming him to 

the ground several times and threatening to throw him in the sedimentation 

pond. At no time did the inspector strike Baker. It is noted that all of 

2629 
these actions took place in the presence of Baker's employees at the mine. 

The willful and unlawful use of force by Wayne Baker upon Inspector Marrara 

constitutes gross negligence under the Act. 

The evidence establishes that Baker's assault upon the inspector 

caused him serious physical injuries which required medical attention and 

resulted in him being off the job for six weeks. In addition to the physical 

injuries suffered by the inspector, the gravity of this offense is compounded by the fact that Baker's conduct at the time of this violation 

threatens to undermine the integrity of mine safety enforcement. If MSHA 

inspectors are intimidated by the threat of a physical assault they will 

not issue the citations and orders required under the Act. While a civil 

penalty cannot be assessed as a means of punishment, it must be sufficient 

to deter subsequent violations and gain the operator's compliance with the 

Act. The violation prevented any inspection at the time it was committed. 

The manner in which the violation was committed could intimidate inspectors 

in the future so that future inspections would be less thorough. Therefore, 

the violation and the manner in which it was committed could result in dangerous conditions being undetected. I find that the violation was of 

extremely serious gravity. 

Based upon all of the evidence of record and the criteria set forth 

in section llO(i) of the Act, I conclude that a civil penalty in the amount 

of $8,000.00 should be imposed for the violation of section 103(a) of the Act. 

CONCLUSIONS OF LAW 

1. The administrative law judge has jurisdiction of this proceeding 

pursuant to section llO(i) of the Act. · 

2. Baker Coal Company and Baker Strip Mine are subject to the Act. 

3. On June 7, 1979, Baker Coal Company violated section 103(a) of the 

Act by refusing to allow duly authorized representatives of the Secretary 

of Labor ·· itry to the Baker Strip Mine. 

4. The conduct of Way ·~ Baker, sole proprietor of Baker Coal Company, 

in comrrltting m assault an•I battery on MSHA inspector Ronald Marrara 

constit •ted gioss negligence. 

5. The violation in question was of extremely serious gravity in that 

it resulted in physical injuries to Inspector Marrara and was intended to 

intimidate MSHA inspectors from performing their job. 

6. Under the criteria set forth in section llO(i) of the Act, a 

civil penalty in the amount of $8,000.00 shall be imposed for violation of 

section 103(a) of the Act. 

2630 
ORDER 

WHEREFORE IT IS ORDERED that Baker Coal Company pay the sum of $8,dOO.OO 

within 30 days of the date of this decision as a civil penalty for the 

violation of section 103(a) of the Act. 

Judge 

Distribution by Certified Mail: 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Clark B. Frame, Esq., Wilson & Frame, 318 Chestnut Street, Morgantown, 

WV 26505 

2631 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE 

DENVER, COLORADO 80204 1 6 SEP 1980 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

Petitioner, ) 

) 

v. ) 

) 

UNITED NUCLEAR-HOMESTAKE PARTNERS, ) 

) 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~~~ 

CIVIL PENALTY PROCEEDING 

DOCKET NO. CENT 80-45-M 

ASSESSMENT CONTROL NO. 

29-00591-05006 

MINE: SECTION 25 

DECISION AND ORDER APPROVING SETTLEMENT AND DIRECTING PAYMENT 

On July 15., 1980, ·pursuant to Commission Rule 30, 29 CFR § 2700. 30, as 

amended ~ 45 Fed. Reg. 44301, a motion to approve settlement was filed with 

the Commission. All parties to the above-captioned proceeding agree to the 

settlement .. 

By stipulation and motion, the parties propose to settle this 

proceeding without a formal hearing. In support of the proposed settlement, 

the parties have taken into account, and submitted information con£erning, 

the six statutory criteria set forth in section llO(i) of the Act. Of 

significant interest were two letters submitted by Respondent, previously 

reviewed by counsel for Petitioner, which I have included as Appendix I and 

Appendix II to my Decision. 

Due consideration of all factors contained in the record convinces me 

that the proposal is consistent with the purposes of the Act and should be 

approved. 

Accordingly, it is ORDERED: that the settlement agreement is hereby 

APPROVED, that the joint motion is hereby GRANTED, and that Respondent shall 

pay the agreed amount within 40 days of the date of tnis Order. 

*section llO(i) of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 820(i), reads in pertinent part: 

II In assessing civil monetary penalties, the Commission 

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, 

2632 
the effect on the operator's ability to continue in 

business, the gravity of the violation, and the demonstrated 

good faith of the person charged in attempting to achieve 

rapid compliance after notification of a violation ...• " 

Distribution: 

Robert A. Cohen, Esq., Office of the Solicitor, United States 

Department of Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203 

Wayne E. Bingham, Esq., PICKERING & BINGHAM, 920 Ortiz, NE, 

Albuquerque, New Mexico 87108 

2633 
APPENDIX I 

UNITED NUCLEAR-HOMESTAKE PARTNERS 

Jon D. Boltz 

Administrative Law Judge 

Dear Judge Boltz: 

P.O. BOX 88 

GRANTS, NEW MEXICO 

87020 

August 4, 1980 

Docket NO. CENT. 80-45-M 

A/O No. 29-00591-05006 

Section 25 Mine 

SEP 

This letter is written pursuant to your request of July 17, 1980, for 

clarification on those radiation citiations written against United NuclearHomestake Partners' (UN-HP) Section 25 mine during June and July, 1979 

(citation members 151645, 152412, 152413, and 152415). These citations 

were written to indicate a violoation of 30 CFR 57.5-39, the 1 working 

level standard. 

An exceedance of this standard indicates a failure in the mine's 

ventilation and radon daughter control system. Many things can contribute 

to a failure in the control systems, the most common of which include 

1) bar~ometric pressure, 2) ventilation bag not installed properly at working area, and 3) ventilation bag restricting air flow by sagging, kinking 

or getting ripped. Some other less frequent causes for ventilation and 

radon daughter control system failures include primary and secondary ventilation fan failures, air control doors inadvertantly left open or closed, 

bulkhead failures, and drilling into old, abandonded stopes, all of which 

could very easily allow the working levels (WL) in the working area gradually, or very quickly, exceed 1 W.L. Because this is the case, UN-HP 

enforces a self-imposed restriction of closing down work areas at 0.7 WL 

until the ventilation is reduced to below that level. 

It is part of UN-HP's standard practice procedures for the miner to 

pull his ventilation bag away from the work area when a face is to be dynamited, 

to prevent damaging the bag. When the miner than returns to the area to 

muck out the material, his first task is to return the ventilation bag to 

the area and purge it with fresh air. UN-HP's most common closure as a 

result of exceeding the 1 WL standard is the miner forgetting to bring his 

ventilation bag into his work area (this is the case in 50% of the closures). 

UN-HP monitors radon daughters with an instrument called the MDA "instant 

working level meter". A sample of air can be collected and analyzed for its 

radon daughter content within a 5-minute period. If the elevated radon daughter content is attributed to the miner not bringing his ventilation bag 

forward, the area can usually be re-opened again within. 20-minutes of being 

closed. While adjusting the ventilation system in the closed area, the miner 

is required to wear an approved respirator. 

2634 
Jon D. Boltz. 

August 4, 1980 

Page 2 

UN-HP's Ventilation Department 1s very thoroughly trained in evaluating 

conditions underground which may be contributing to elevated radon daughter 

concentrations. As the Ventilation Technician makes his rounds obtaining 

the working level concentrations in the individual work areas and employe.e 

accumulation points and travel.ways, he is continuously noting the condition 

of the ventilation and radon daughter control systems. Should he find an 

area exceeding UN-HP's 0.7 WL limit, he immediately closes the area and has 

any employees· in the area withdrawn. The Ventilation Technician, fitted 

with an approved respirator, evaluates the situation and makes a determination as to what can be done to alleviate the problem. After seeing that the 

miner and backup personnel are fitted with respirators an attempt is made to 

correct the ventilation problem. After the area concentration is reduced 

to below 0. 7 WL the miner and backup personnel are allow.ed to continue on 

with production work. The time of closure, work required to alleviate the 

problem, and time of re-opening are recorded and filed away for further 

evaluation. As previously indicated most areas are re-opened after about 

20 minutes of being closed. 

UN-HP currently monitors every work area at least once each shift, if 

the area is active that shift. The concentration observed that shift is 

averaged with the last radon <laughter concentration observed in the area 

for determining each employee's personal exposure. The amount of time each 

employee spends in individual work areas, including lunchrooms, travel.ways 

and on ventilation work, is recorded on a daily basis and is accurate to 

the nearest one-half hour. The time an individual spends in a particular 

area is combined with the average WL concentration observed in that area for 

the same time period. Therefore, a true time weighted exposure is determined 

for each employee working for UN-HP. UN-HP utilizes a computer for determining their employee exposures to radon daughters. The daily concentrations 

observed in each work area are fed into the computer the day following sample 

collection. UN-HP's payroll is based on a twice per month basis. Therefore, 

when each employee's time is fed into the computer to determine the amount 

that person is to be paid for the two week period just worked, his time in 

each individual work area is also combined with the WL concentrations observed 

during the same period. Accumulated exposures are, therefore, updated twice 

each month. 

i "" I t., ~ ,,. ' .. • ·._,.: ~ 

The radiation citations issued/against Sec~ion 25 during June and July, 1q?1, 

'"'le. ~j. ,eJ;,i;ud., h;'Jk le.,.:.I> <1-•e , ... ~""1'Lc>••> fo "G''·""' <>p<"->:-+:nq j'l""'t··•t<" UN..'.:HP .. h';d"'j1~·t" .. begun to 

experience ventilat·ion difficultl.es· of an unusual nature which took several 

days to remedy. Bulkheads, airdoors, larger ventilation fans, and a more 

diverse ventilation bag system had to be instal.led. An additional large fan 

had to be installed on an adjoining property belonging to Kerr-McGee Nuclear 

Corporation, and some time delays were experienced there due to Kerr-McGee 

having to bui.ld addit"ional bu.lkheads in some haulage ways. Al1 of this was 

experienced due to apparent leakage from longholes inadvertantly penetrating 

some old workings. AU production in this area was stopped for several days. 

Only ventilation work was performed until WL concentrations in that area 

were reduced to below 0.7 WL. No employees were overexposed to the 4 working 

months standard as a result of these exceedances to the l WL standard. 

2635 
Jon D.• Boltz . 

August 4, 1980 

Page 3 

If you have any questions, or would like further clasification on how 

UN-HP handles th~ir radon daughter monitoring program, please don't hesitate 

to contact me. 

EEK/jel 

Very truly yours, 

UNITED NUCLEAR-HOMESTAKE PARTNERS 

,t?/ .f ,/ / ,;·d;.-?a-tc/.._., /'j_:?A"-.<?z.P~' 

Edward E. Kennedy CDirector of Environmental Affairs 

{1 I .. ? .. ,' {Cl 'i"' -t. f . £_ ?t-·,(--e·v--. 

Wayne E. Bingham ti 

PICKERING & BING HAM 

A ttys. for UN-HP 

2636 
APPENDIX II 

UNITED NUCLEAR-HOMESTAKE PARTNERS P.O. POX 98 

GRANTIJ. NEW MEXICO 

87020 

SEP ;~: weo 

FEDERAL MINE smrr MT :.~t:i.rn 

August 11, 1980 REVIEW CGMHIS$:~:l 

Jon D. Boltz 

Adndnistrative I.aw Judge 

Dear Judge Boltz: 

Docket No. CENT. 80-45-M 

A/O No. 29-00591-05006 

Section 25 Mine 

This letter is written to clarify what radon and radon daughters are 

and where they are found in nature, as well as describing what working 

levels and working level months are and how they are·arrived at. 

Small amounts of uranium and its radioact~ve daughter products including .radium and radon are found everywhere in nature. We know of no 

substance which is free from them. Radon is present in the outdoor and 

indoor air everywhere on earth. Radon is not a mysterious substance, but 

is a well-studied, well-understood chemical element. Radon is a chemically 

inert gaseous element in the ~ame family of chemical elements as helium, 

argon, and neon. Being chemically inert radon can have no biological 

effects on organisms. 

Radon is produced as a gas when radium 226 (a radioactive decay product of uranium 238) decays naturally over long periods of time. Radon 

has a half-life of 3.8 days; in 3.8 days, 50 percent of the decay activity 

remains. When radon. gas decays to its daughter products, a positively 

charged alpha particle is formed. These charged particles are called 

radon daughters. · 

Uranium ores are found in regions in which a geochemical concentration 

of the normal universal uranium· distribution has taken place during an 

earlier geological period. Naturally there is also a proportionally increased 

concentration of radium and its gaseous daughter product, radon. In uranium 

mining, the underground environmental concentration of radon is kept low by 

intensive power ventilation which forces large quantities of fresh, outside 

air through the underground workings. This action dilutes and expels the 

radon gas which diffuses into the mine air from the ore bodies, as well as 

from the waste rock. 

When the radon gas decays to its daughter products and forms positively 

charged particles, those.particles actively seek out negatively charged 

particles such as can be .found in dust particles, water droplets, smoke, etc. 

When these materials with attached radionuclides are inhaled by the miner, 

the radiation from them is delivered to those sites in the nose, pharynx, and 

trachio-oronchial tree where the particles are deposited. Extensive studies 

/ 

2637 
Jon D .. Boltz 

August 11, 1980 

Page 2 

have been conducted in this area and exposure regulations have been altered 

to better protect those employees working under these conditions. 

Current Mine Safety and Health Administration standards require that 

1) no person shall be permitted to receive an exposure in excess of 4 

working level months in any calendar year (30 CFR 57. 5-39), and 2) except 

as provided by standard 30 CFR 57.5-5, persons shall not be exposed to air 

containing concentrations of radon daughters exceeding 1 working level in 

active workings (30 CFR 57.5-39). 

At the highest level of radon concentration which is now permitted in 

any active working area by a uranium mine operator the radon concentration 

corresponds to a negligible partial pressure. Thus 100 picocuries of radon 

per liter of air which can support. at most on~working level (lWX~ of radon 

daughter products, contains less than one atom of radon per 10 atoms --

that is per thousand million million atoms -- of oxygen and nitrogen. The 

radon daughter products have a maximium concentration in 1 WL air which is 

more than 100-fold smaller; that is one atom per 100,00 million million 

atoms of oxygen and nitrogen. 

The "Working Level" (WL) is a special unit of radon daughter concentration 

in air. One WL is any combination of radon daughters in l liter of air that 

will ultimately release 1.3 x 105 MeV (million etedrc" volts) of alpha energy 

during radioactive decay to lead-210. When an atom of radon or its daughter 

product decays, an expenditure of energy is realized. By collecting a known 

volume of air through a very fine filter, and observing the radioactive 

decay of the particles collected on the filter by the energy that is released, 

the radon daughter concentration can be calculated in working levels. A 

working level is a concentration of radon daughter products in the area, and 

does not indicate a person's exposure. 

The "Working Level Month" (WLM) is the special unit used for indicating 

a person's cumulative exposure in which the hours worked is 173 hours (40 

hours per week times 4-1/3 weeks per month). Four WLM has been determined 

to be the maximum allowable annual exposure. The method in which this annual 

limit was arrived at is· discussed below: 

In 1967, the Federal Radiation Council unanimously recommended 

one WL as a safe continuous level, which meant that 12 WLM was 

the maximum annual exposure. Report No. 8 Revised titled 

"Guidance for the Control of Radiation Hazards i.n Uranium 

Mining, September, 1967, a Staff Report of the Federal Radiation Council" gives the full explanation and justification for 

supporting the 12 WLM standard. In 1971, the. ff'A u..hic.1.- c.s·,,.,.,,.a tloe "t'P°"'~'l1fy 

of t-1-\c (",,d~ .. ,.1 ..-;;.,l;;\~'"" <"<">'-'"'~·I , had the standard rC'clucecl by a factor of 

3, to 4 WLM per year. The reason given for the reduction was 

to throw in an additional factor of safety l>ec""'s"" ri.e o. i.iv'-1'1 ..., 3~ ~ .. if /-..;. b~ •118cf,.,. 

i-t'-'-'as .,f .. de-..:.,PA that'/~"he';lth effects could be seen above a lifetime occupational exposure of 120 WLM, and that an extremely small portion 

of uranium miners work in underground uranium mines for more 

than 30 years. Therefore, with a maximum allowable annual 

exposure of 4 WLM for 30 years, no miner would be allowed to 

receive in excess of 120 WLM in his lifetime. 

2638 
.Jon D•. Boltz 

August 11, 1980 

Page 3 

An employee's annual exposure is determined by knowing the time he 

spends in each working area, lunch area, and travelway and the average 

radon daughter concentrations observed in those areas occupied. If an 

employee was to work in an underground environment exhibiting 1 WL radon 

daughter concentration, eight hours a day for 4 months he would be expo.sed 

to 4 WLM over that time period. An average concentrcition of O. 3 WL, 8-

hours a day, over a 12-month period would also result in 4 WLM annual 

exposure. It can, therefore, easily be seen that short duration exposures 

to concentrations exceeding 1 WL does not pose an imminent threat to overexposing an individual to 4 WLM per year. If, near the end of the year, 

an employee is approaching the 4 WLM limit, he can be moved to areas within 

the mine exhibiting lower radon daughter concentrations, or he can be taken 

out of the mine and allowed to.work on the surface collecting his regular 

underground pay. 

I hope.these comments help to clarify what some of the terms and 

standards of the MSHA regulations mean. If I can be of any further assistance on these matter~please don't hesitate to contact me. 

EEK/jel 

2639 

Very truly yours, 

UNITED NUCLEAR-HOMESTAKE PARTNERS 

<.S'f!tn ; rl7 

. <!; ~J4,,, ,. /r e-·~~J ,,-,/' 

Edward E. Kennedy · 

Director of Environmental Affairs 

'/ ; c I I C{:{L"~' ,_......_..._. ( .- //J. ~ / Y·v-- ·- . 1 

Wayne . Bingham '-

PICKERING & BINGHAM 

Attys. for UN-HP 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

{703) 756-6230 

1 8 SEP 1980 

Complaint of Discrimination 

Docket No. VA 79-81-D 

On behalf of Larry D. Long, 

Applicant 

v. 

ISLAND CREEK COAL COMPANY 

and 

LANGLEY & MORGAN CORPORATION, 

Respondents 

DECISION AND ORDER 

On June 19, 1980$ a decision was issued in the subject proceeding, 

fihding that Respondents violated section 105(c) of the Federal Mine 

Safety and Health Act of 1977 (1) by reassigning Applicant to outfit an 

explosives truck on November 1, 1978, and (2) by reassigning Applicant to 

miscellaneous work outside his work classification on November 14, 1978. 

On July 10, 1980, the Secretary filed a proposed order for relief, 

requesting that Island Creek Coal Company be assessed a penalty of 

$3,500 for each of the two violations, for a tot9l of $7,000, and that 

Langley & Morgan Corporation be assessed a penalty of $2,000 for each 

of the two violations, for a total of $4,000. 

The Secretary proposed that Larry D. Long be awarded costs and expenses 

reasonably incurred for, or in connection with, the institution and prosecution of the subject proceeding in the following amounts: $1,709.85 for 

154 hours of lost time from work; $137.70 for mileage; and $61.44 in telephone calls. 

The Secretary also requests that Respondents be ordered to cease and 

desist from discriminating against or interfering with Larry D. Long because 

of activities protected under section 105(c) of the Act; and that Respondents 

be ordered to post the Decision and Order in this proceeding at the Virginia 

Pocahontas No. 5 and No. 6 Mines. 

2640 
On July 17, 1980, Respondents filed an objection to the proposed 

penalties as excessive and requested a hearing to determine the reasonableness of the costs and expenses in Applicant's proposed order for relief. 

A hearing was held on August 7, 1980. 

At the hearing, Applicant modified his claim for costs and expenses 

to $543.75 by reducing the claim for lost wages to $287.04 for time lost 

to attend the hearings on December 4, 1979, on August 7, 1980, and to confer with his attorney on August 6, 1980; by increasing the mileage expense 

to $199.24; and by reducing the telephone expenses to $57.47. Counsel for 

Applicant explained that the amounts originally claimed differed from those 

claimed at the hearing on August 7, 1980, because Applicant did not have the 

documentary evidence to verify the claims before August 6, 1980. Counsel 

for Applicant determined that most of the 154 hours originally claimed as 

lost time "could not be characterized as expenses which were incurred in 

the pursuit of this case." 

Respondents contend that Applicant may not recover "costs and expenses" 

under section 105(c)(3) for voluntary loss of time from work while attending 

the hearings on December 4, 1979, on August 7, 1980, and for consulting his 

attorney on August 6, 1980. Respondents contend that, even if Applicant can 

recover for time lost from work while attending the hearing on December 4, 

1980, he is not entitled to recover for time lost on August 6-7, 1980. 

Respondents argue that had Applicant's original demand for costs and expenses 

been reasonable and had Respondents known that Applicant was going to reduce 

his claim for 154 hours of lost time from work, Respondents would not have 

raised an objection in the first place and no hearing would have been 

required on August 7, 1980. In no case, Respondents argue, is Applicant 

entitled to costs and expenses for the time he spent conferring with his 

attorney on August 6,. 1980. Respondents also argue that had there been 

no hearing on August 7, 1980, Applicant's mileage expense would have 

remained at $137.70. 

Section 105(c) of the Act provides in part: 

Whenever an order is issued sustaining the complainant's 

charges under this subsection, a sum equal to the aggregate 

amount of all costs and expenses (including attorney's fees) 

as determined by the Commission to have been reasonably 

incurred by the miner, applicant for employment or representative of miners for, or in connection with, the institution 

and prosecution of such proceedings shall be assessed against 

the person committing such violation. 

The drafters of the Act intended that the complaining miner receive "all 

relief that is necessary to make [him] whole and to remove the deleterious 

effects of the discriminatory conduct including, but not limited to reinstatement with full seniority rights, back pay with interest, and recompense for 

any special damages sustained as a result of the discrimination. The specific 

relief is only illustrative." s. Rep. No. 95-181, 95th Cong., 1st Sess. 37 

2641 
)' 

(1977), reprinted in LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY AND HEALTH 

ACT OF 1977 at 625 (1978). 

I find that Applicant is entitled to compensation for (1) lost wages 

i.n the amount of $247.04; (2) mileage expenses in the amount of $199.24; 

and (3) telephone expenses in the amount of $57.47. I find that these 

costs and expenses were reasonably incurred by Applicant for, or in connection with, the institution and prosecution of the subject proceeding. 

Based upon the statutory criteria for asses·sing a civil penalty under 

the Federal Mine Safety and Health Act of 1977, Island Creek Coal Company 

is asses~ed a penalty of $3,500 for each of its violations found herein and 

Langley & Morgan Corporation is assessed a penalty of $2,000 for each of 

its violations found herein. 

I find that Respondents should be ordered to cease and.desist from 

discriminating against or interfering with Applicant because of activities 

protected under section 105(c) of the Act. 

I also find that each Respondent should be ordered to post the prior 

Decision and this Decision and Order on the mine bulletin board, or in such 

other conspicuous place, where notices for the miners are posted at the 

Virginia Pocahontas No. 5 and No. 6 Mines. 

WHEREFORE IT IS ORDERED that: 

(1) Island Creek Coal Company shall pay the Secretary of Labor the 

above-assessed civil penalties, in the total amount of $7,000, within 30 days 

from the date of this Decision. 

(2) Langley & Morgan Corporation shall pay the Secretary of Labor 

the above-assessed civil penalties, in the total amount of $4,000, within 

30 days from the date of this Decision. 

(3) Respondents are jointly and severally liable to Larry D. Long 

for the costs and expenses found above, in the total amount of $543.75, 

together with interest at the rate of 10 percent per annum accDuing from 

August 7, 1980, until paid, and shall pay such sum and interest to Larry D. 

Long within 30 days of this Decision. 

(4) Respondents shall cease and desist from discriminating against 

or interfering with Applicant because of activities protected under section 

105(c) of the Act. 

(5) Respondents shall post a copy of the Decision of June 19, 1980, 

and a copy of this Decision and Order on the mine bulletin board, or at such 

other conspicuous place where notices are normally posted for the employees, 

at the Virginia Pocahontas No. 5 and No. 6 Mines, and keep such copies so 

2642 
posted unobstructed and protected from the weather for a consecutive period 

of at least 60 days. 

WILLIAM FAUVER, JUDGE 

Distribution: 

James H. Swain, Esq., Trial Attorney, Office of the Solicitor, 

U.S. Department of Labor, Room 14480-Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Marshall S. Peace, Esq., Counsel for Island Creek Coal Company, 

P.O. Box 11430, Lexington, KY 40575 (Certified Mail) 

James Green, Esq., Counsel for Langley & Morgan Corporation, P.O. Box 

995, Harlan, KY 40831 (Certified Mail) 

2643 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

1 9 SEP 1980 

Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION· (MSHA), Docket No. WEVA 80-466 

Petitioner Assessment Control 

v. 

UNITED STATES STEEL CORPORATION, 

Respondent 

No. 46-01419-03031V 

Gary District No. 2 Mine 

DECISION 

Counsel for the Secretary of Labor filed on July 31, 1980, in Docket 

No. WEVA 80-466 a Petition for Assessment of Civil Penalty seeking to have 

a civil penalty assessed for a violation of 30 C.F.R. § 75.202 alleged in 

Withdrawal Order No. 655316 dated October 2, 1979. The civil penalty 

isaues raised by the violation cited in Order No. 655316 were consolidated 

for hearing and decision with the proceedings in Docket Nos. WEVA 79-343-R, 

et al. My decision in United States Steel Corp. v. Secretary of Labor, 

Docket Nos. WEVA 79-343-R, et al., was issued on June 25, 1980. Paragraph 

(D) of the order accompanying my decision stated: 

(D) The civil penalty issues consolidated in this proceeding with respect to Order No. 655316 are severed from 

this decision and will be decided in a separate decision when 

I receive the file in which the Secretary seeks assessment of 

a penalty for the violation of section 75.202 alleged in Order 

No. 655316. 

The case in which United States Steel sought review of Order No. 655316 

was assigned Docket No. WEVA 80-81-R. In my decision issued June 25, 1980, 

I found that Order No. 655316 was improperly written under the unwarrantable 

failure provisions of section 104(d)(l) of the Federal Mine Safety and Health 

Act of 1977 and the order was vacated by paragraph (C) of the order accompanying the decision. 

Finding No. 8 on page 9 of my decision in Docket No. WEVA 80-81-R 

stated: 

8. Section 75.202, to the extent here pertinent, provides 

"[l]oose roof and overhanging or loose faces and ribs shall be 

taken down or supported." A violation of section 75.202 was 

2644 
proven by both the contestant's evidence and MSHA's evidence 

because some of the coal was loose on the right side and was 

taken down, even though the quantity only amounted to from 

one-half to three-quarters of a ton. 

Since a violation of section 75.202 has been found to have occurred, 

it is necessary to consider the six criteria set forth in section llO(i) 

of the Act for the purpose of assessing a civil penal~y (Eastern Associated 

Coal Corp., 1 IBMA 233 (1972); .Zeigler Coal Co., 2 IBMA 216 (1973); 

Zeigler Coal Co., 3 IBMA 64 (1974); Island Creek Coal Co., 2 FMSHRC 279 

(1980); and Van Mulvehill Coal Co., Inc., 2 FMSHRC 283 (1980)). 

On page 9 of my decision in Docket No. WEVA 80-81-R, I found that 

United States Steel is a large operator, that it is subject to the jurisdiction of the Commission and to the provisions of the Act, and that 

payment of penalties will not affect U.S. Steel's ability to continue in 

business. 

On page 8 of my decision in Docket No. WEVA 80-81-R, I found that 

U.S. Steel demonstrated very good faith in achieving rapid compliance 

by having abated the violation within a period of only 30 to 45 minutes 

after the violation was cited. 

On page 10 of my decision in Docket No. WEVA 80-81-R, I stated that 

the following finding was made for the purpose of evaluating the criterion 

of gravity in a civil penalty proceeding: 

* * * There was very little rib surface which was loose 

enough to require it to be taken down and there was little 

likelihood that any of these.ribs would have fallen with 

sufficient force to cause any serious injury. So I would 

find that the violation was moderately serious. 

At page 11 of my decision -in Docket No. WEVA 80-81-R, I stated: 

After listening to the testimony of the company's 

witnesses and that of Inspector Robbins, I am of the 

opinion that these particular loose ribs were simply 

not· so obvious and dangerous that a preshift examiner 

would have picked them out as something requiring special 

attention, or that a section foreman would have done so 

either. 

On the basis of the foregoing fOnclusion and other findings given in my 

decision in Docket No. WEVA 80-81-R, I conclude that respondent was nonnegligent with respect to the occurrence of the violation. 

In my decision in Docket No. WEVA 80-290, which was a part of the. 

decision issued in the consolidated proceedings in Docket Nos. WEVA 79~343-R, 

et al., supra, I stated that "[t]here is nothing i·-1 the record to show that 

2645 / 
respondent has such a significant history of previous violations as to 

warrant an increase in the penalty under the criterion of history of 

previous violations." That statement is correct with respect to the 

instant violation. 

Considering that the violation was only moderately serious, that 

respondent was not negligent, and that immediate action to abate the violation was taken, I find that a nominal penalty of $75.00 is warranted. 

WHEREFORE, it is ordered: 

United States Steel Corporation, within 30 days from the date of this 

decision, shall pay a civil penal~y of $75.00 for the violation of section 

75.202 cited in Order No. 655316 dated October 2, 1979. 

Distribution: 

Richard ~C.~o/f~ C. Steffey 

Administrative Law Judge 

(Phone: 703-756-6225) 

Sidney Salkin and David Street, Attorneys, Office of the Solicitor, 

U.S. Department of Labor, Room 14480, Gateway Building, 3535 Market 

Street, Philadelphia, PA 19104 (Certified Mail) 

Louise Q. Symons, Attorney for United States Steel Corporation, Legal 

Department, Room 6044, 600 Grant Street, Pittsburgh, PA 15230 

(Certified Mail) 

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

NW., Washington, DC 20005 (Certified Mail) 

2646 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUl?GES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

~56-6230 

t · 9 SEP i>:C 

CONSOLIDATION COAL COMPANY, 

Contestant 

Contest of Citation 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Docket No. WEVA 80-224-R 

McElroy Mine 

Respondent 

DECISION 

Appearances: Michel Nardi, Esq., Pittsburgh, Pennsylvania, for Contestant, 

Consolidation Coal Company; 

David Street, Esq., Philadelphia, Pennsylvania, for Respondent 

Secretary of Labor. 

Before: Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

This action was commenced on February 4, 1980, when Consolidation Coal 

Company (hereinafter Consol) filed a notice of contest of a citation issued 

on January 8, 1980, under section 104(d){l) of the Federal Mine Safety and 

Health Act of 1977, 30 u.s.c. § 814(d)(l) (hereinafter the Act). Upon completion of prehearing requirements, this matter was heard in Pittsburgh, 

Pennsylvania, on June 18, 1980. Charles Coffield, Terry Kirk, David McCray, 

and Ronald Anderson testified on behalf of the Secretary of Labor, Mine 

Safety and Health Administration (hereinafter MSHA). William M. McCluskey 

and Grayson Heard testified on behalf of Consol. Both parties submitted 

posthearing briefs. 

ISSUE 

The issue in this case is whether the citation for violation of 30 C.F.R. 

§ 75.400 was properly issued. 

APPLICABLE LAW 

Section 104(d){l) of the Act, 30 u.s.c. § 814(d)(l), provides in pertinent part as follows: 

2647 
If, upon inspection of a coal or other mine, an authorized representative of the Secretary finds that there has 

been a violation of any mandatory health or safety standard, 

and if he also finds that, while the conditions created by 

such violation do not cause 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. 

30 C.F.R. § 75.400 provides as follows: "Coal dust, including float coal 

dust deposited on rock-dusted surfaces, loose coal, and other combustible 

materials, shall be cleaned up and not be permitted to accumulate in active 

workings, or on electric equipment therein." 

STIPULATIONS 

The parties stipulated the following: 

1. McElroy Mine is owned and operated by Consol. 

2. Consol and the McElroy Mihe are subject to the jurisdiction of the 

Federal Mine Safety and Health Act of 1977. 

3. The Administrative Law.Judge has jurisdiction over this proceeding 

pursuant to section 105 of the 1977 Act. 

4. The inspector who issued the subject citation was a duly authorized 

representative of the Secretary of Labor. 

5. A true and correct copy of the subject citation was properly served 

upon the operator in accordance with section 104(a) of the 1977 Act. 

6. Copies of the subject citation and termination are authentic and 

may be admitted into evidence for the purpose of establishing their issuance 

and not for the truthfulness or relevancy of any statements asserted therein. 

FINDINGS OF FACT 

I find that the evidence of record establishes the following facts: 

1. McElroy Mine is owned and operated by Consol. 

2. Inspector Charles Coffield, who issued the subject citation, was a 

duly authorized representative of the Secretary· of Labor. 

2648 
3. On January 8, 1980, Inspector Coffield performed a spot inspection 

of the McElroy Mine which included an examination of the f ollow.ing conveyor 

belts which were in operation: Mother belt, No. 1, and No. 2 belts. · 

4. During the course of his inspection, Inspector Coffield observed 

and measured the following_piles of coal and coal dust along No. 1 and No. 2 

conveyor belts: 

(a) A pile of coal and coal dust 3 to 4 feet wide, 

22 feet long, and 4 to 7 inches deep; 

(b) A pile of coal and coal dust 3 to 5 feet wide, 

18 feet long, and 4 to 5 inches deep; 

(c) A pile of coal and coal dust 3 feet wide, 15 feet 

long, and 4 inches deep; 

(d) A pile of coal and coal dust 3 to 5 feet wide, 

18 feet long, and 5 to 12 inches deep; and 

(e) A pile of coal and coal dust 3 to 5 feet wide, 

18 feet long, and 3 to 14 inches deep. 

5. In addition to the foregoing piles of coal and coal dust, Inspector 

Coffield observed a distance of approximately 2,000 feet along No. 1, No. 2, 

and the Mother conveyor belts which was covered with float coal and coal .dust 

and was black in color and a distance of approximately 1,000 feet along the 

same belts which was covered with float coal and coal dust and was gray in 

color. The total length of the three belts in issue was approximately 

8,000 feet. 

6. For approximately 3 weeks prior to the day before this inspection, 

the conveyor belts had been idle and no coal was mined in this area. Prior 

to the inspection, the conveyor belts operated during two working shifts 

during which coal was mined in this area. 

7. MSHA established that coal dust, float coal dust, and loose coal 

accumulated along the conveyor belts as set forth above. 

8. The accumulation of coal dust, float coal dust, and loose coal in the 

active workings of the McElroy Mine did not constitute an imminent danger 

because there was no immediate source of ignition. 

9. The accumulations of coal dust, float coal dust, and loose coal in 

the active workings of the McElroy Mine could significantly and substantially 

contribute to a coal mine safety hazard because, in the event of a fire or 

explosion, they would propagate such fire or explosion. 

10. The accumulations of coal dust, float coal dust, and loose coal in 

the active workings of the McElroy Mine had been present for more than 

one working shift at the time the citation was issued. 

2649 
DISCUSSION 

Violation of 30 C.F.R. § 75.400 

At the outset, it should be noted that on December 12, 1979, the Federal 

Mine Safety and Health Review Commission (hereinafter Commission) adopted a 

new standard for determining when a violation of 30 C.F • .R. § 75.400 occurs. 

In Old Ben Coal Company, 1 BNA MSHR 2241, Docket No. VINC 74-111 (December 12, 

1979), the Commission disagreed with the former standard announced by the 

Interior Board of Mine Operations Appeals that a violation of the mandatory 

standard did not occur even though an accumulation of combustible materials 

was present where the operator commenced abatement within a reasonable time 

after it had notice of the existence of the accumulation. The Commission 

held that the existence of an accumulation was a violation of the mandatory 

standard and the action of the operator thereafter to abate this condition 

was irrelevant to the issue of whether a violation occurred. 

The issue of whether the standard was violated in this case was vigorously 

contested at the hearing. Consol's witnesses, William M. McCluskey and Grayson 

Heard, contended that the only coal dust or loose coal present along approximately 8,000 feet of conveyor belt consisted of & 14-inch high cone-shaped 

pile of fine coal by the tail roller of the No. 1 belt drive and an area 

4 inches deep, 3 to 4 feet wide, and 20 feet long by the No. 2 belt which was 

covered with 2 inches of rock dust. Consol's witnesses testified that, at 

worst, the color of the material next to the belt was light gray. They also 

contended that some of the material identified by Inspector Coffield as coal 

dust was actually dried rock, dirt, and other noncombustible material. Consol 

put in evidence its preshift and onshift reports which showed that the No. 1 

conveyor belt tailpiece had been dirty but that condition was corrected prior 

to the inspection. The Consol employees who conducted those examinations did 

not testify. 

In support of Inspector Coffield, MSHA called the miner's representative 

on the inspection, Terry Kirk, as a witness. He testified that the area 

around No. 1 and No. 2 conveyor belts varied from black to light gray in 

color. He observed several piles of loose coal or coal dust along both of 

those conveyor belts. He observed Inspector Coffield make measurements and 

notes. He observed coal dust lying on the bottom and ribs along No. 1 and 

No. 2 conveyor belts. He testified that the float coal dust extended for a 

distance of approximately 2,000 feet along the above belts. While he saw one 

or two places along the Mother conveyor belt that required rock dusting, that 

belt was otherwise in good condition. 

Consol, in its brief, complains about the absence of any objective criteria. to distinguish between a "spillage" and an "accumulation" as follows: 

Certainly some coal spillage is inevitable, which the 

Mine Safety and Health Review Commission has wisely 

acknowledged. Old Ben Coal, 1 MSHRC 2244, Vine 74-1, 1 IBMA 

75-52 (December 12, 1979). The question then becomes what 

2650 
distinguishes a coal "spillage" from an "accumulation" which 

is a violation under the Coal Mine Safety and Health Act of 

1977. The Commission and courts have thus far failed to 

define an accumulation as a measurable entity. As the Commission stated in its recent decision, "Whether a spillage 

constitutes an.accumulation under the standard is a question, 

at least in part, of size and amount." Old Ben Coal, supra. 

However; the Commission has not attempted to narrow the 

definition beyond suggesting what merits should be considered 

when making this evaluation. Consequently, the ambiguity 

persists, and what may be an illegal "accumulation" in the 

mind of one inspector may be a legal "spillage" in the mind 

of another. Thus, the operators are victimized by the lack 

of definitive law in this area resulting in total reliance on 

the individual inspector's discretion. For this reason, the 

operators continue to receive notices for something they cannot even identify. 

In the instant case, I find that the testimony of MSHA's witnesses concerning the amount and extent of coal dust, float coal dust, and loose coal 

was more credible than the testimony of Consol's witnesses. The testimony-of 

Inspector Coffield was generally corroborated by the miner's representative, 

Terry Kirk. Inspector Coffield made and recorded measurements of the various 

piles of coal dust and loose coal that he encountered. For these reasons, I 

find that the amount and extent of coal dust and loose coal existed as alleged 

in the citation. 

Therefore, the issue is: whether the coal dust and loose coal constituted a spillage or an accumulation. In Old Ben Coal Company, supra, the 

Commission stated, "whether a spillage constitutes an accumulation under the 

standard is a question, at least in part, of size and amount." Id. at 1958. 

In the instant case, the preponderance of the evidence establishes the follow-_-' 

ing: five separate piles of coal dust and loose coal as set forth in Finding.· 

of Fact No. 4; a distance of approximately 2,000 feet along the conveyor belts 

which were covered with coal dust and float coal dust which was black in 

color; and another distance of approximately 1,000 feet along the conveyor 

belt which was covered with coal dust and float coal dust which was gray in 

color as set forth in Finding of Fact No. 5. The above facts establish .a 

great amount of spillage which amounts to an accumulation under 30 C.F.R. 

§ 75.400. Therefore, I find that Consol violated 30 C.F.R. § 75.400 as 

alleged by MSHA. 

Unwarrantable Failure to Comply 

The next issue is whether the violation was due to the "unwarrantable 

failure" of Consol to comply with mandatory health or safety standards. The 

term "unwarrantable failure" was defined by the Interior Board of Mine 

Operation Appeals as follows: 

[A]n inspector should find that a violation of any mandatory 

standard was caused by an unwarrantable failure to comply with 

2651 

·.,. 
such standard if he determines that the operator involved has 

failed to abate the conditions or practices constituting such 

violation, conditions or practices which the operator knew or 

should have known existed or which it failed to abate because 

of a lack of due diligence, or because of indifference or a 

lack of reasonable care. Zeigler Coal Company, 1 IBMA 280 

(1977). 

This definition was approved in the legislative history of the 1977 Act. 

s. Rpt. No. 95-181, 95th Cong., 1st Sess. 32 (1977). 

In Old Ben Coal Company, supra, the Commission upheld an order of withdrawal based upon the operator's unwarrantable failure to comply with 

30 C.F.R. § 75.400. The Commission found that the violation was an unwarrantable failure even though the evidence established that the spillage 

occurred during the previous shift. In the instant case, Inspector Coffield 

testified that it would take a minimum of six shifts to accumulate the amount 

of coal dust that he observed. Miner's representative Terry Kirk testified 

that it would take several shifts to accumulate the amount of coal dust he 

observed. Consol's witnesses stated that the small amount of loose coal and 

coal dust that they observed must have been spilled shortly before the inspection because no spillage was reported on the preshift examiner's report. The 

preshift examiners did not testify. 

Considering the size and amount of spillage involved, the preponderance 

of the credible evidence establishes that the accumulation had been present 

for more than one working shift before the citation was issued. Hence, Consol 

knew or should have known of the accumulations and failed to exercise reasonable care to abate the condition·. Therefore, the violation was caused by 

Consol's unwarrantable failure to comply with the mandatory standard. 

Significant and Substantial 

In Alabama By-Products Corporation, 7 IBMA 85 (1976), the Interior Board 

of Mine Operations Appeals held that under the identical section of the 

Federal Coal Mine Health and Safety Act of 1969, all violations are significant and substantial except "violations posing no risk of injury at all, 

that is to say, purely technical violations, and violations posing a source 

of any injury which has only a remote or speculative chance of coming to 

fruition." Id. at 94 (emphasis in original). Since the violation in issue 

is not a technical one, the remaining question is whether the chance of 

injury is remote or speculative. In this regard, I accept the testimony of 

Inspector Coffield that the accumulations of coal dust and float coal dust 

create potential hazards of fire and explosion and these hazards are neither 

remote nor speculative~ The violation was significant and substantial. 

Assessment of a Civil Penalty 

MSHA has requested that a civil penalty be assessed in this proceeding 

even though it has not filed any such proposal. Since Consol has not consented to this expedited procedure, I will not assess a civil penalty at 

2652 
this time. Consol may avail itself of the administrative remedies prior to 

the filing of a proposal for the assessment of a civil penalty with the 

Commission. However, as I stated at the outset of the hearing of this case, 

I am directing the attorneys herein to notify me promptly of the filing of 

a civil penalty proceeding. 

CONCLUSIONS OF LAW 

1. The Administrative Law Judge has jurisdiction of this proceeding 

pursuant to section 105 of the Act. 

2. Consol permitted coal dust, float coal dust, and loose coal to accumulate in the McElroy Mine on January 8, 1980, in violation of 30 C.F.R. 

§ 75.400. 

3. The violation of the above mandatory standard was caused by the 

unwarrantable failure of Consol to comply with the mandatory standard. 

4. The violation of the above mandatory standard could significantly 

and substantially contribute to the cause and effect of a coal mine safety 

hazard. 

5. Citation No. 0633622 was properly issued. 

6. Consol's contest of Citation No. 0633622 is denied. 

ORDER 

WHEREFORE IT IS ORDERED that the contest of citation is DENIED and the 

subject citation is AFFIRMED. 

Distribution by Certified Mail: 

~es A. Laurenson, Judge 

Michel Nardi, Esq., Consolidation Coal Company, 1800 Washington Road, 

Pittsburgh, PA 15241 

David Street, Esq., Office of the Solicitor, U.S. Department of Labor, 

Room 14480, Gateway Building, 3535 Market Street, Philadelphia, PA 

19104 

2653 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOYH FLOOR 

5203 LEESBURG PIK't: 

FALLS CHURCH \lH(GINl.A 22041 

1 · 9 SEP 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Vo 

Petitioner 

LESLIE COAL MINING COMPANY, 

Respondent 

Docket Nos. 

KENT 79-51 

KENT 79-88 

KENT 79-148 

KENT 79-297 

Leslie Mine 

DECISION 

Assessment Control 

15-07082-03007 

15-07082-03008 

15-07082-03009 

15.:.07082-03012 

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

Department of Labor, for Petitioner; 

Before: 

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

Kentucky, for Respondent. 

Administrative Law Judge Steffey 

Nos. 

Pursuant to a notice of hearing issued April 29, 1980, a hearing in the 

above-entitled proceeding was held on June 26, 1980, in Pikeville, Kentucky, 

under section 105(d) of the Federal Mine Safety and Health Act of 1977. 

After the parties had completed their presentations of evidence with 

respect to the contested issues, I rendered the bench decisions which are 

set forth below (Tr. 105-111): 

Contested Issues 

This consolidated proceeding involves four cases for 

assessment of civil penalty filed by the Mine Safety and 

Health Administration. The petitions in Docket Nos. 

KENT 79-51 and KENT 79-88 were both filed on June 2L~ 1979, 

and seek assessment of civil penalties for five and two 

alleged violations, respectively, of the mandatory health 

and safety standards by Leslie Coal Mining Company. 

The proposals in Docket Nos. KENT 79-148 and KENT 79-297 

were filed Qn August 21, 1979, and October 11, 1979, respec .. 

tively, and seek assessment of·civil penalties for two alleged 

violations in each separate docket. 

2654 

• 
The is.sues in a civil penalty proceeding are whether a 

violation of the mandatory safety standards occurred and, if 

so, what civil penalty should be assessed, based on the six 

criteria set forth in section llO(i) of the Federal Mine 

Safety and Health Act of 1977. 

Docket No. KENT 79-297 

In this proceeding, evidence was first presented in 

Docket No. KENT.79-297. The first alleged violation in that 

docket was set forth in Citation No. 67917 dated May 5, 1978, 

alleging a violation of section 750403. 

The former Board of Mine Operations Appeals held in 

Valley Camp Coal Company, 3 IBMA 176 (1974), that before a 

violation of section 75.403 may be found to exist, the judge 

must first find that the conditions in section 75.402 do not 

exist. I have not asked specific questions about the conditions noted in section 75.402 in this proceeding, but we have 

had a diagram for reference and have had extensive discussions of the section so that I can conclude that the areas in 

which the inspector alleged a violation of section 75.403 

were not so wet or so high in incombustible content as to be 

unsusceptible to an explosion. I also find that the areas are 

not inaccessible or unsafe to enter; and that the Secretary 

of Labor has not found that the Leslie Mine is a mine which 

requires no rock dusting. 

Section 750403 requires that rock dust be applied so as 

to render the areas which are in intake air to be at least 

65 percent incombustible, and areas which are in return air 

to be at least 80 percent.incombustible. The inspector, in 

this instance, took three rock-dust samples on the No. 4 

section on May 5, 1978. According to those samples and the 

analyses made by the Mount Hope Laboratory, the inspector 

found that his sample taken in the alleged No. 3 return entry 

was 61.6 percent; incombustible; and that the other two samples taken in the intake entries were 73 and 67 percent 

incombustible. Since the incombustibility was above 65 percent, according to the analyses, the inspector did not prove 

or claim that a violation occurred as to the two samples 

which he designated as intake samples, or samples taken in 

intake air. 

The main thrust of the evidence has been a claim by 

respondent that the inspector's sample taken -·- allegedly 

taken -- in return air, was not actually obtained in a return 

entry; and therefore, that the incombustibility did not have 

to be 80 percent, as required by section 7504030 The inspector was cross-examined at great length about how he knew for 

2655 
certain that the No. 3 entry was a return. He primarily based 

his conclusion that it was a return entry upon the fact that 

the company's safety inspector, who accompanied him on the 

inspection, had indicated to him that the No. 3 entry was the 

return entry. The inspector, in addition, drew, as Exhibit 

2(g), a diagram of his recollection of the No. 4 section. 

According to that diagram, the inspector indicated that 

the company had just recently begun to produce coal from the 

fourth entry, in the No. 4 section. The inspector showed, on 

Exhibit 2(g), that until the No. 4 section was developed to 

the extent that intake air was passing across all three 

entries, air would not pass down the No. 4 entry. Therefore, 

the No. 3 entry would at times, before the full development 

of the fourth entry, be a return entry. However, the inspector conceded, upon cross-examination, that he could not be 

sure at what point the No. 3 entry might be a return. 

Consequently, I find that his lack of certainty as to 

whether the No. 3 entry was a return entry prevents me from 

finding that the sample which he allegedly took in the return 

entry was in fact taken in return air. 

Mr. Stewart has pointed out, in both cross-examination 

and oral statements, that regardless of whether that third 

sample was taken in intake air or return air, since it showed 

only 61.6 percent incombustibility, the sample would still 

indicate that there was a violation of section 75.403 as to 

the third sample because rock dusting would not have rendered 

it at least 65 percent incombustible. 

Mr. Stephens does not disagree with that argument, but 

he has pointed out that that is certainly not a very serious 

infraction of the rules, since only a difference between 

61.6 percent incombustible and 65 percent incombustible is 

involved. Therefore, I find that there was a violation of 

section 75.403. 

Having found that a violation of section 75.403 occurred, 

I am required to assess a penalty based on the six criteria. 

As to the size of Respondent's business, which is the first 

criterion, it was stipulated that Leslie Coal Mining Company 

is a medium-sized company, producing 177,818 tons of coal 

per year. It was also stipulated that the payment of penalties would not cause the operator to discontinue .in businessa 

There was introduced as Exhibit 1 a computer printout 

for the purpose of showing information about respondent's 

history of previous violations. That exhibit shows that 

2656 
respondent has violated section 75.403 only once on a prior 

occasion. It has been my practice to assess some portion 

of the penalty under the criterion of history of previous 

violations, when the section allegedly violated in the case 

before me, has been previously violated. Therefore, under 

the criterion of history of previous violations, a penalty 

of $15 will be assessed. 

It was stipulated that there was a good faith effort 

to achieve rapid compliance. That criterion will be given 

full credit in the assessment of the penalty. 

Inspector Smith introduced, as Exhibit 2(e), a page on 

which he felt, or indicated his views as to the neglig~nce 

involved, and he stated that the area had been checked by a 

certified fire boss prior to his inspection and that the 

company should have known that the area had not been adequately rock dusted. 

Of course, the evidence in this proceeding shows that 

after Mr. Smith received the analyses showing the incombustibili ty of his samples, two of them indicated no violation, 

and the other one barely showed a violation. Consequently, 

I find that a certified fire boss would .not necessarily have 

been able to determine, with his visual inspection, that 

this area had not been adequately.rock dustedo Consequently, 

I find that the company was not negligento 

As to the gravity of the violation, the inspector indicated on Exhibit 2(e), that he thought that an explosion was 

probable because the mine does emit methane, that he did 

detect some methane when he was in the mine on May 5, and 

that he thought that some work days would be lost from such 

an explosion if it occurred. But he also indicated that an 

ignition of methane would be necessary before an explosion 

would be likely. 

The evidence, of course, shows that the area was almost 

completely within the requirements of rock dusting. Consequently, I think that the preponderance of the evidence shows 

that there was a very low degree of danger in this instanceo 

Considering that a bare violation of section 75.403 was 

shown, a penalty of $5 will be assessed for the violation; 

and to that will be added a sum of $15 under the criterion of 

history of previous violations so as to make a total penalty 

of $20 for the violation of section 750403 set forth in 

Citation No. 67917. 

2657 
Docket No. KENT 79-148 (Tr. 183-186) 

The next contested alleged violation in this proceeding 

dealt with Docket No. KENT 79-148. The first alleged violation in that docket relates to Citation No. 67918 dated May 8, 

1978, alleging a violation of section 75.507. Section 75.507 

provides, "[e]xcept where permissible power connection units 

are used, all power-connection points outby the last open 

crosscut shall be in intake air." I find that no violation 

of section 75.507 existed in this instanceo 

First of all, respondent implies that the power center 

here involved may be permissible, but Inspector Smith stated 

that it did not have a tag on it showing that it had been 

approved as a permissible piece of equipment. Therefore, I 

must find, on the basis of the evidence in this case, that 

it was a nonpermissible power center. However, the section 

required that a nonpermissible power connection, outby the 

last open crosscut, shall be in intake air. 

In order for Inspector Smith to have shown that this 

particular power center is in intake air, he must use a 

definition of return air which is untenable in many respects. 

As shown in the inspector's Exhibit 3(c), the air which would 

pass over the power center would be air which had to pass 

over two entries, namely, the No. 4 and the No. -3 entries --

and thereby might pick up some methane. And if it did so, 

the methane could then pass over the power center. But it is 

also true that, after the air has traveled to the position 

where it might come into contact with the power center, it 

then has to pass across two other working faces before it 

would be exhausted into the No. 1 entry, which is the designated return entry. 

We do not have, in this case, a definition for return 

air that is applicable to a situation like this, because we 

are still ventilating at these two working places with air 

which is technically intake air, until it has finally ·been 

exhausted into the No. 1 entry. 

There is considerable merit to Inspector Smith's contention that it would be possible for some methane to get 

into the No. 2 entry, where it might pass across the power 

center and cause an explosion, if the methane content should 

become high enough to be in the explosive range of from 5 

to 15 percent. 

But the ~roblem here, as I see it, is that respondent's 

ventilation plan has been amended, according to the company's 

evidence, to permit the company to put a check curtain in 

2658 
front of the power center, where Mr. Smith had it moved in 

this instance, in order to abate the violation alleged in 

Citation No. 67918. But the company has also had its ventilation plan approved to permit the curtain to be outby the 

power center, in the same position it was situated when it 

was cited by Inspector Smith, on May 8, 1978, as being in 

violation of section 750507. 

A situation such as we have here, where the company.can 

be cited for a violation of section 75.507, depending upon 

the inspector's view of what constitutes return air as 

opposed to what constitutes intake air, I find that it is 

not possible for me to find equitably that there was a violation of section 750507. I believe that the company is 

entitled to rely upon its ·ventilation plan at any given time. 

According to respondent's witness Evans, the ventilation 

plan on May 8, 1978, when Citation No. 67918 was written, 

provided that the curtain could be placed outby the power 

center. In such circumstances, I believe that the appropriate 

way for Inspector Smith to deal with this would have been to 

propose an amendment to the ventilation plan so as to require 

the curtain to be placed inby the power centero Apparently, 

that was done in this instance. But then, when a different 

inspector came by, he required that the ventilation curtain 

be moved back to a position outby the power centero 

I do not believe that the company should be cited for a 

violation regardless of which of two ways it ventilates the 

power center. Therefore, I find that the Petition for Assessment of Civil Penalty in Docket No. KENT 79-148 should be 

dismissed to the extent that it alleged a violation of section 

75.507 in Citation No. 67918. 

Docket No. KENT 79-148 (Tr. 208-211) 

The second alleged violation in Docket No. KENT 79-148 is 

contained in Citation No. 67886 dated May 12, 1978, which 

alleged a violation of section 75.3260 That section provides 

that entries used as intake and return air courses shall be 

separated from belt haulage entries, and each operator of such 

mine shall limit the velocity of the air coursed through the 

belt haulage entries to the amount necessary to provide an 

adequate supply of oxygen in such entries, and to insure that 

the air therein shall contain less than 1 percent of methane, 

and such air shall not be used to ventilate active working 

placeso 

I find that a violation of section 750326 occurred 

because the intake and return air courses were not separated 

adequately, that one stopping was missing between the No. 5 

2659 
entry and the No. 6 entry which would have permitted a 

possible amount of return air carrying methane to get upon 

the track or belt entry, where electrical components existed, 

so that an explosion might occur. 

I interpret section 75.326 to require that the return 

and intake air courses be separated. The other provisions 

in that section simply provide that some oxygen be in the 

belt and track entries and that the air in those entries 

not be used to ventilate an active working place. 

Having found a violation, it is necessary that I assess 

a penalty. I have already made findings in connection with 

the size of the respondent's business and with respect to 

the fact that the payment of penalties would not cause it to 

discontinue in business. 

The inspector's Exhibit 4(b) indicates that respondent 

shut down the section and immediately corrected the problem. 

That action should be given considerable weight so that the 

penalty that I might have assessed will be less than if 

respondent had not made that rapid effort to achieve 

compliance. 

Exhibit 1 shows that respondent has only one previous 

violation of section 75.326, so under the criterion of 

history of previous violations, a penalty of $15 will be 

assessed. 

With respect to negligence, the inspector's testimony 

indicated that the section foreman had moved up the belt 

and had failed to install one curtain before they began 

operationso So, I find that there was a normal degree of 

negligence. 

As to the gravity of the violation, the inspector has, 

on Exhibit 4(b), given a rating which I would classify as a 

moderately serious violation. Considering that there was an 

unusually rapid effort to achieve compliance, that there 

was only a moderate seriousness to the violation, and that 

there was ordinary negligence, a penalty of $30 will be 

assessed, to which there will be added $15 under the criterion 

of history of previous violations, for a total penalty of $45. 

Settled Issues 

Docket No. KENT 79-51 

All five of the violations alleged by the Petition for Assessment of 

Civil Penalty in Docket No. KENT 79-51 were the subject of settlement 

agreementso 

2660 
The first violation was alleged in Citation No. 69599 dated June 2, 

1978, claiming that respondent had violated section 75.516 because insulated 

low-voltage control cables had been allowed to come in contact with suspended 

conveyor belt structures. Counsel for the Secretary stated that the Petition 

for Assessment of Civil Penalty should be dismissed to the extent it alleged 

a violation of section 75.516 because he had concluded, after discussing the 

alleged violation with the inspector who wrote the citation, that the 

Secretary's evidence would be insufficient to establish that a violation of 

section 75.516 had occurred (Tr. 210). 

The second violation was alleged in Citation No. 68385 dated October 4, 

1978, claiming that respondent had violated section 70.250 because a 

respirable dust sample had not been timely submitted. The Secretary's 

counsel asked that the Petition for Assessment of Civil Penalty be dismissed 

as to Citation No. 68385 because MSHA's records show that respondent had 

submitted a miner's status change notice showing that the miner in question 

had terminated his employment on July 10, 1978, and that a respirable dust 

sample could not have been obtained for that employee on August 9, 1978, 

by which time it would have had to have been taken and submitted by respondent in order for respondent to have avoided being cited for a violation 

of section 70.250 (Tr. 113). 

The third violation was alleged in Citation No. 72655 dated October 27, 

1978, claiming that respondent had violated section 7501704 by failing to 

maintain one of the designated escapeways in such a manner as to facilitate 

the transportation of a disabled person through the escapeway. The Assessment Off ice had recommended a penalty of $106 for that alleged violation, but 

the Secretary's counsel stated that, aft~r discussing the facts pertaining 

to the violation, he did not believe the evidence would show that the violation was seriou.s enough to warrant a penalty greater than $50 (Tr. 211). 

The fourth and fifth violations alleged by-the Petition for Assessment 

of Civil Penalty were of section 70.lOO(b) as claimed by Citation No. 72740 

dated October 27, 1978, and Citation No. 9926469 dated November 15, 1978. 

Both citations stated that samples taken of the high-risk occupation had 

shown that the amount of respirable dust was greater than the applicable 

li~it of 2.0 milligrams per cubic meter of air. The Assessment Office had 

proposed a penalty of $56 for the violation alleged in Citation No. 72740 

and a penalty of $44 for the violation alleged in Citation No. 9926469. The 

Secretary's counsel felt that the respondent's agreement to pay $75 for each 

alleged violation was consistent with the intended purposes of the Act 

(Tr. 114-115). 

I find that adequate reasons were given to justify granting the 

motions to dismiss as to two of the alleged violations and for acceptance 

of the settlement penalties for the remaining three alleged violations. 

Docket No. KENT 79-88 

The Secretary's Petition for Assessment of Civil Penalty filed in 

Docket No. KENT 79-88 asks that civil penalties be assessed for two 

2661 
violations of section 70.lOO(b) as alleged by Citation No. 71719 dated 

September 28., 1978, and Citation No. 9926520 dated January 15, 1979. Both 

violations alleged that the respirable dust concentration in the atmosphere 

of the high-risk occupation was greater than the amount allowed. The 

Assessment Office proposed a penalty of $98 for the violation alleged by 

Citation No. 71719 and a penalty of $66 for the violation alleged by 

Citation No. 9926520. The proposed penalty of $98 involves a greater concentration of respirable dust, by two-tenths of 1 milligram, than was cited 

in connection with the proposed penalty of $66. The Secretary's counsel 

stated that respondent had agreed to pay a penalty of $75 for each alleged 

violation and that he believed the inten~ and purpose of the Act would be 

served by accepting respondent's settlement offer (Tr. 115). 

I find that respondent's offer should be accepted, especially since 

respondent agreed to pay greater penalties than were proposed by the 

Assessment Office with respect to two other alleged violations of section 

70.lOO(b) cited by the Secretary's Petition filed in Docket No. KENT 79-51, 

supra. 

Docket No. KENT 79-297 

The Secretary's Petition for Assessment of Civil Penalty filed in Docket 

No. KENT 79-297 requested that civil penalties be assessed for alleged violations of sections 75.403 and 70.250. The alleged violation of section 

75.403 has been disposed of in a bench decision, supra. 

The Secretary's counsel asked that the Petition be dismissed with 

respect to the violation of section 70.250 alleged by Citation No. 9926825 

dated April 3, 1979. The violation alleged in the citation was that respondent had failed to submit a respirable dust sample with respect to one 

employee. The Secretary's counsel stated that the facts surrounding the 

alleged violation show that the required sample had actually been submitted 

but that ·cspondent had made an error in listing the employee's Social 

Security nuP' ·r so that respondent was not given credit in MSHA' s records 

for ha 1dng su:1mitted th2 s ple. In such circumstances, the Secretary's 

counse belie. ed that the · .!tition should be dismissed insofar as it seeks 

assesf :~nt oi: a penalty for an alleged violation of section 70.250 (Tr. 112). 

I find that sufficient reasons were given to warrant approval of the 

motion to dismiss with respect to the alleged violation of section 70.2500 

It should be noted that Exhicit 2(h) and Exhibit B were marked for 

identification (Tr. 103; 170), but were not received in evidence. It was the 

responsibility of respondent's counsel to mail a copy of each of those exhibits to me for inclusion in the record. He has had from June to September 

within which to do so. He was reminded of the fact that Exhibit 2(h) had not 

been submitted in a letter written to him by the Regional Solicitor on 

July 14, 1980. Since the testimony and other exhibits are entirely ade~uate 

to support the findings and conclusions made in my bench decisions, I find 

that it is unnecessary for Exhibit 2(h) or Exhibit B to be submitted to me at 

2662 
this late date. This paragraph is being written solely to explain why the 

record does not physically contain, and does not need to contain, either 

Exhibit 2(h) or Exhibit B. 

Summary of Assessments and Conclusions 

(1) Based on all the evidence of record and the foregoing findings of 

fact, the following penalties should be assessed pursuant to bench decisions 

or paid pursuant to settlement agreementso 

Docket No. KENT 79-51 

Citation No. 72655 10/27/78 § 75.1704 ••• (Settled) 

Citation No. 72740 10/27/78 § 70olOO(b) •• (Settled) 

Citation No. 9926429 11/15/78 § 70.lOO(b) (Settled) 

Total Settlement Penalties in Docket 

••• $ 

... 

•• 0 

50.00 

75.00 

75.00 

No. KENT 79-51 •••••••••••••••••••••••••••••••••••••• $ 200.00 

The motions for dismissal ma.de by the Secretary's counsel with respect 

to the violation of section 75.516 alleged in Citation No. 69599 dated June 2, 

1978, and the violation of section 70.250 alleg~d in Citation No. 68385 

dated October 4, 1978, should be granted and the Petition for Assessment of 

Civil Penalty in Docket No. KENT 79-51 should be dismissed insofar as it seeks 

assessment of penalties for those two alleged violations. 

Docket No. KENT 79-88 

Citation No. 71719 9/28/78 § 70.lOO(b) o•o (Settled) oo $ 

Citation No. 9926520 1/15/79 § 70.lOO(b) •• (Settled) •• 

Total Settlement Penalties in Docket 

75.00 

75.00 

No. KENT 79-88 •• .. o-••O••••••••••o•••o•e .. o-eoo•••oo-oe••• $ 150000 

Docket No. KENT 79-148 

Citation No. 67886 5/12/78 § 75.326 •••• (Contested) •• $ 45.00 

Total Penalties Assessed in Docket No. KENT 79-148 •••• $ 45.00 

The Petition for Assessment of Civil Penalty filed in Docket No. 

KENT 79-148 should be dismissed insofar as it seeks assessment of a civil 

penalty for a violation of section 75.507 alleged in Citation No. 67918 

for failure of proof as found in my bench decision, supra. 

Docket No. KENT 79-297 

Citation No. 67917 5/5/78 § .75.403 o ,, •• o (Cont.ested) "~. $ ?.OeOO 

Total Penalties Assessed in Docket 

Noo KENT .79-297 •••oorO'o•ooooo•"'"'""",.."'"'"'o·oooooocO'oeoeo $ 20000 

Total Contested and Settled Penalties in 

This Proceeding••••••••••••••••••••••••••••~•••••••• $ 415.00 

2663 
The motion for dismissal made by the Secretary's counsel with respect 

to the violation of section 70.250 alleged in Citation No. 9926825 dated 

April 3, 1979, should be granted and the Petition for Assessment of Civil 

Penalty in Docket No. KENT 79-297 should be dismissed insofar as it seeks 

assessment of a penalty for that alleged violation. 

(2) Respondent, as the operator of the Leslie Mine, is subject to the 

Act and the regulations promulgated thereunder. 

WHEREFORE, it is ordered: 

(A) Pursuant to the settlement agreements described above and the 

bench decisions hereinbefore reduced to writing, respondent shall, within 

30 days from the date of this decision, pay civil penalties totaling $415.00, 

as summarized in paragraph (1) above. 

(B) The motions for dismissal made by the Secretary's counsel are 

granted and the Petitions for Assessment of Civil Penalty filed in Docket 

Nos. KENT 79-51 and KENT 79-297 are dismissed to the extent described in 

paragraph (1) above. 

(C) The Petition for Assessment of Civil Penalty filed in Docket No~ 

KENT 79-148 is dismissed to the extent and for the reason given in 

paragraph.(!) above. 

Distribution: 

~ <!. -x3ft'M .. Richard c. Steffey---;-~ Administrative Law Judge 

(Phone: 703-756-6225) 

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

of Labor, Room 280, u.s. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

John M. Stephens, Esqo, Attorney for Leslie Coal Mining Company, 

Stephens, Combs & Page, P.O. Drawer 31, Pikeville, KY 41501 

(Certified Mail) 

2664 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52()!. LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 2 SEP 1980 

CONSOLIDATION COAL COMPANY, 

Applicant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

and 

Respondent 

UNITED MINE WORKERS OF AMERICA 

(UMWA), 

Representatives of Miners 

Contest of Citation and Order 

Docket No. PENN 80-254-R 

Citation No. 840658 

May 8, 1980 

Docket No. PENN 80-255-R 

Order No. 840659 

May 9, 1980 

Renton Mine 

DECISION 

Appearances: William H. Dickey, Jr., Esq., Pittsburgh, Pennsylvania, for 

Applicant; 

James H. Swain, Esq., Office of the Solicitor, U.S. Department 

of Labor, Philadelphia, Pennsylvania, for Respondent. 

Before: Administrative Law Judge Melick 

These cases are before me upon the application by Consolidation Coal 

Company (Consolidation) under section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (30 u.s.c. § 801 et~·' hereinafter the "Act) to contest a citation and subsequent-order of withdrawal issued by the Mine Safety 

and Health Administration (MSHA). At hearing held in Pittsburgh, Pennsylvania, 

on August 19, 1980, MSHA amended its pleadings in Docket No. PENN 80-254-R 

changing the citation therein from one issued under section 104(d)(l) of the 

Act to a citation under section 104(a) of the Act. 1/ Consolidation thereupon 

moved to withdraw its notice of contest of the amended citation which I 

approved at hearing and now affirm. The contest in Docket No. PENN 80-254-R 

is therefore dismissed with prejudice. The violation of 30 C.F.R. § 75.400 

(relating to accumulations of combustible materials) is thus proven as charged 

in Citation No. 840658. Consolidation also concedes in this case that the 

violation was not totally abated before the section 104(b) withdrawal order 

1/ The effect of this amendment was to delete the sped.al "unwarrantable 

failure" finding that is made in conjuction with a section 104(d)(l) citation. 

For the ramification of this amendment, see section 104(d) of the Act. 

2665 
based on that citation was issued on May 9, 1980, but contends that under 

the circums.tances of this case the time allowed for abatement should have 

been extended. 

Section 104 of the Act provides in relevant part as follows: 

(a) If, upon inspection or investigation, the Secretary 

* * * believes that 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 or 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. * * *· 

Consolidation acknowledges that when the citation was issued, at 10 a.m. 

on May 8, 1980, accumulations of loose coal and float coal dust did in fact 

exist in the active workings of the No. 16 south section of the Renton Mine 

over approximately 750 feet of haulageways, and around and beneath the feeder 

and tailpiece of the conveyor belt. MSHA inspector Anthony Russo in consultation with a mine foreman set abatement to be completed by 8 a.m. on May 9, 

1980. At 11 a.m. on May 8, all production on the affected section ceased 

and the abatement process commenced. The process continued utilizing 14 

man-shifts, a continuous miner and a shuttle car over two shifts. Consolidation cleaned up not only the 750 feet of tram road cited, but also other 

tram roads totaling 1,150 feet. 

When Inspector Russo returned to the section on May 9, 1980, around 

8:20 or 8:25 in the morning he was satisfied with the results of the cleanup 

except for what he described as an accumulation about 20 inches high, 4 feet 

wide and 18 feet long remaining beneath the feeder. According to Russo, 

there was 3 inches of water at the bottom leaving about 16 inches of loose, 

dry coal exposed. Russo concluded that it was a hazard in light of its close 

proximity to electrical equipment. He estimated it would have taken at most 

an hour to clean this up. 

Russo said that the Renton Mine safety supervisor, John Mlakar, could not 

explain why the remaining accumulation had not been cleaned up but Mlakar conceded that it should have been. According to Russo, Mlakar refused to clean 

up the pile before the other company safety people arrived. Concluding that 

he had no choice in light of Mlakar's conditional refusal, Russo thereupon 

said he would issue an order. The company safety people arrived at the scene 

10 to 15 minutes later. They agreed to clean up the supject pile and actually 

2666 
began the cleanup process but Russo nevertheless wrote up a withdrawal order. 

He terminated the order an hour and 15 minutes later. 

Mlakar said that he was told by mine foreman John Dickens at 6:50 on 

the morning of May 9 that the accumulations were all cleaned up. According 

to Mlakar, Russo was satisfied with the cleanup except for the area beneath 

the crusher-feeder. Mlakar claims that he immediately sent orders for a work 

crew with shovels to clean it up. He was not sure that Russo heard him make 

this request but was confident that he made the request before Russo said 

he was going to issue the order. 

Representative of miners, Louis Hilt_on, accompanied Inspector Russo that 

morning. According to Hilton, Mlakar was arguing with Russo that the area 

beneath the feeder had in fact been cleaned up and needed no further work. 

Hilton thought the remaining accumulation was not significant and when asked 

his opinion told Russo that the company should be allowed an extension. Even 

after Russo said he was going to issue an order, he continued to confer with 

the company safety people, including Allen Lander, and asked Hilton whether 

he thought an order should be issued. By the time Russo had decided to write 

up the order, the work crew had begun the cleanup process disposing of the 

2 or 3 bushels of coal in only 10 or 15 minutes. 

When Allen Lander, in charge of safety at the Renton Mine, arrived at 

the feeder, an order had not yet been prepared. He tried to convince Russo 

not to issue an order~ According to Lander, the cleanup had already begun 

when the order was issued. The actual cleanup consisted of removing 1 or 

2 bushels of "wet slop." 

When an inspector finds that an operator has failed to abate a violation 

within the time originally fixed, he abuses his enforcement discretion by 

issuing a withdrawal order if, under the circumstances, the time for abatement 

should be further extended. Old Ben Coal Company, 6 IBMA 294 (1976). The 

overriding factor in reviewing the reasonableness of an inspector's refusal 

to extend the time for abatement is the degree o_f danger that any such extension would cause to miners. Consolidation Coal Company, BARB 76-143 (1976). 

In this case the evidence shows that, at worst, according to Inspector Russo, 

it would have taken no longer than 1 hour to clean up the remaining accumulation. Since production in the affected section had not resumed and since 

only the cleanup crew would in any event have been closely exposed to the 

hazard presented, no increase in the hazard would have resulted from the .~ 

requested extension. In addition, the potential hazard was limited by the 

fact that much of the accumulation consisted of wet coal lying in 3 to 

5 inches of water. Under these circumstances, the danger in permitting, at 

most, a 1-hour extension of the order would have been minimal. Moreover, the 

evidence indicating that the cleanup actually took only 10 to 15 minutes and 

that the "accumulation" consisted of only 2 or 3 bushels of "wet slop" suggests that indeed there may have been virtually no hazard at all. 

A second factor to consider in reviewing the reasonableness of the 

inspector's refusal to extend the time for abatement is the disruptive effect 

it would have upon operating shifts. Consolidation Coal Company, supra. 

2667 
There is little evidence in this case of what disruptive effect the issuance 

of the order had on the operating shifts other than the fact that the order 

was terminated 1-1/4 hours after it had been issued. 

A final factor to be considered is the diligence of the operator in 

meeting the time fixed for abatement. Consolidation Coal Company, supra. 

In this case, Consolidation clearly made extraordinary good faith efforts 

to accomplish the cleanup process within the time initially set for abatement. 

Men were immediately assigned to the cleanup task which continued through 

two workshifts. Fourteen man-shifts, a continuous miner and shuttle car 

were used to accomplish the task. Indeed, Inspector Russo even complimented 

Consolidation in this regard. Moreover, not only did Consolidation clean 

up the 750 feet of haul road initially cited but it also cleaned up an 

additional 400 feet of road not cited. The "accumulation" that remained 

was minute by comparison with the areas cleaned up and was obscured by its 

location between the tracks of the feeder. Moreover, once the condition 

was brought to the attention of Consolidation officials they made good faith 

diligent efforts to clean it up. Under all the circumstances, I conclude 

that the inspector here acted unreasonably in not extending the time for 

abatement. 2/ I therefore find that Order of With awal No. 840659 was 

not properly issued and the order is therefore VACA ED. 

' 

Distribution: 

William H. Dickey, Jr., Esq., Consolidat 

Pittsburgh, PA 15241 (Certified Mail) 

James H. Swain, Esq., Office of the Solicitor, U.S. Department of Labor, 

Room 14480, Gateway Building, 3535 Market Street, Philadelphia, PA 

19104 (Certified Mail) 

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

NW., Washington, DC 20005 (Certified Mail) 

2/ In reaching this conclusion, I have necessarily found on the facts of this 

case that Inspector Russo did not actually issue the withdrawal order until 

he committed it to writing. Although he apparently stated at an earlier time 

that he was going to issue the order, it is apparent from.the testimony of 

Allen Lander and of Miners' Representative Hilton that no final decision had 

been reached until after all the evidence that I have considered in my 

decision herein was available to Inspector Russo. Since the reasonableness 

of the inspector's actions in issuing such an order under section 104(b) of the 

Act must be determined on the basis of the facts confronting him at the time 

he issues the order, United States Steel Corp., 7 IBMA 109 (1976); Old Ben 

Coal Company, supra, the result in this case. may have been different had I 

found that Russo actually issued the order when he first contemplated doing 

so. 

2668 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 2 SEP 1980 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

QUARTO MINING COMPANY, 

NACCO MINING COMPANY, 

Petitioner 

THE NORTH AMERICAN COAL CORPORATION, 

Respondents 

Civil Penalty Proceedings 

Docket No. LAKE 79-119 

A.O. No. 33-01157-03054 

Docket No. LAKE 80-190 

A.O. No. 33-01157-03110 

Docket No. LAKE 80-209 

A.O. No. 33-01157-03116 

Docket No. LAKE 80-212 

A.O. No. 33-00157-03118 

Powhatan No. 4 Mine 

Docket No. LAKE 80-246 

A.O. No. 33-02624-03083 

Powhatan No. 7 Mine 

Docket No. LAKE 80-251 

A.O. No. 33-01159-03079 

Docket No. LAKE 80-252 

A.O. No. 33-01159-03080 

Powhatan No. 6 Mine 

Docket No. LAKE 80-182 

A.O. No. 33-00939-03075 

Powhatan No. 3 Mine 

DECISION 

Appearances: Linda Leasure, Esq., Office of the Solicitor, U.S. Department 

of Labor, Cleveland, Ohio, for Petitioner, MSHA; 

Timothy Biddle, Esq., and John Scott, Esq., Crowell and Moring, 

Washington, D.C., for Respondents, Quarto Mining Company, 

Nacco Mining Company, and The North American Coal Corporation. 

Before: Judge Merlin 

2669 
These cases are petitions for the assessment of civil penalties filed by 

the Government against Quarto Mining Company, Nacco Mining Company, and The 

North American Coal Corporation. A hearing was held on September 8, 1980. 

Prior to the hearing, the parties had agreed to have Docket No. 80-251 heard 

first. At the outset of the hearing, I reserved a ruling on the operator's 

motion to consolidate these eight proceedings (Tr. 8). As appears, infra, in 

the bench decision, I granted the motion to consolidate so that the decision 

applies to all the cases (Tr. 129-130). 

The parties agreed to the following stipulations when the hearing began 

(Tr. 5-6): 

(1) The Nacco Mining Company is the owner and operator 

of the Powhatan No. 6 Mine. 

(2) The operator and the Powhatan No. 6 Mine are subject to the jurisdiction of the Federal Mine Safety and 

Health Act of 1977. 

(3) The presiding Administrative Law Judge has jurisdiction over this proceeding. 

(4) The inspector who issued the subject citation was 

a duly authorized representative of the Secretary. 

(5) A true and correct copy of the subject citation 

was properly served upon the operator. 

(6) The annual coal tonnage produced by the Powhatan 

No. 6 Mine is between 1.1 and 2 million. !he operator is 

large in size. 

(7) The average number of violations assessed per year 

during the 2 years prior to the issuance of the citation 

was over SO. The average number of violations assessed per 

inspection day during the 2 years prior to the issuance of 

the citation was between 0.7 and 0.8. The operator's previous history is average. 

(8) Imposition of any penalty in this proceeding will 

not affect the operator's abililty to continue in business. 

(9) The operator demonstrated good faith by correcting 

the condition within the time specified for abatement and 

took extraordinary steps to comply by using two men to correct the condition. 

(10) All witnesses who will testify are accepted 

generally as experts in coal mine health and safety. 

2670 
At the hearing, documentary exhibits were received and witnesses testified on behalf of MSHA and the operator (Tr. 10-124). At the conclusion of 

the taking of evidence, the parties waived the filing of written briefs, 

oral argument, proposed findings of fact and conclusions of law. Instead, 

they agreed to have a decision rendered from the bench (Tr. 125). A decision 

was rendered from the bench setting forth findings of fact and conclusions of 

law (Tr. 125-130). 

BENCH DECISION 

The bench decision is as follows: 

This case is a petition for the assessment of a civil 

penalty for an alleged violation of the operator's dustcontrol plan adopted under 30 C.F.R. 75.316. 

The provision of the dust-control plan at issue pro- -

vides as follows: "All roadways will be kept cleaned and 

unless roadways are naturally damp or wet, water or calcium 

chloride will be applied to allay excessive dust that may 

be raised into suspension." 

In extensive prehearing filings, the operator contended 

that this provision is too vague to be enforced since it 

does not give the operator notice of what conduct is required 

of it. In particular, the operator has argued that the word 

"excessive" has not been defined, and that its meaning is 

unknown. 

The testimony of the witnesses at the hearing has borne 

out the operator's position. No-one has been able to explain 

satisfactorily what "excessive" means in terms of compliance 

with this plan. As a general matter, an excessive amount of 

anything connotes that some lower amount or lower level would 

be permissible. However, what has emerged from the testimony 

of the two MSHA inspectors and from most of the operator's 

evidence is that this is an individual judgment to be made in 

each instance by either the section foreman or the inspector 

as to whether there is "excessive" dust. A standard that 

leaves the entire matter wholly within the unbridled discretion of each and every individual who must deal with it is 

no standard at all. 

At one point, the operator's environmental control 

director expressed the view that "excessive" dust would be 

dust which exceeded 2 milligrams per cubic meter of air in an 

8-hour period. This may or may not be a feasible approach 

but in any event, it is not in the plan as presently written 

and, as indicated hereafter, it most certainly is not the 

approach followed by the two MSHA inspectors who testified. 

2671 
The testimony most damaging to the validity of the 

challenged provision came from the inspector who issued the 

citation. There is no question as to the inspector's conscienciousness and credibility. However, as already noted he 

did not know what "excessive" meant. But that did not hamper 

his issuance of the subject citation under this provision of 

the plan because he paid no attention to the word "excessive" 

when he cited the operator. Indeed, the inspector stated 

that as far as he was concerned, unless a roadway was 

naturally damp or wet, water or calcium chlpride should be 

applied without regard for the rest of the plan's provision 

which has the stated purpose of allaying excessive dust that 

may be raised into suspension. Accordingly, the inspector 

issues citations whenever a roadway which is not naturally 

damp or wet is dry. By his own admission, the inspector 

requires the roadways to be wet. 

A standard which is so incomprehensible to those charged 

with enforcing it that its relevant provisions are disregarded 

is not entitled to be upheld. If MSHA wishes to require that 

all active roadways be wet, it would be a simple matter for 

the plan to so provide. Whether requiring wet roadways all 

the time makes sense, or whether the operator would agree to 

it, is another matter which is not presented here. 

The operator's environmental control director testified 

that when the language in issue was adopted as a joint undertaking between two of the operator's management people and 

an MSHA inspector, the operator specifically refused to apply 

water to the roadways on every shift. It appears to me that 

problems of interpretation and application were glossed over 

at the time the plan was adopted by the use of words such as 

"excessive" when, in fact, there was no agreement or understanding as to what was actually meant. 

I have previously stated in other cases that the operator 

and MSHA cannot avoid difficult interpretative and operational 

problems by adopting plans containing terms which do not mean 

anything in and of themselves and which are wholly open-ended. 

When the parties fail to confront and resolve such issues at 

the appropriate time, the· problems are merely postponed to a 

later day. That later day always seems to occur in a trial 

context which in my view is least suitable for an adequate 

solution. For example, as I have stated, "[t]he parties cannot expect the Administrative Law Judge to rewrite the plan 

for them or accept interpretations which either are not in the 

plan or are contrary to what it does contain~" Consolidation 

Coal Company v. Secretary of Labor, MORG 78-331 (October 20, 

1978). 

2672 
In the instant case I will not undertake to rewrite 

this plan or to read into it something which is not there. 

The promulgation of a plan is a matter for negotiation 

between the parties. It is not a matter for judicial fiat. 

I will not, therefore, take upon myself the responsibility 

which the law places upon the operator and MSHA to formulate 

a plan mutually acceptable to them. 

In light of the foregoing, I hold the subject provision 

of the plan is invalid, and that therefore the subject citation based upon it must be vacated. 

In light of the foregoing, I hereby grant the operator's 

motion to consolidate Docket Nos. LAKE 80-209, 80-252, 80-182, 

79-119, 80-212, 80-246, and 80-190. All these docket numbers 

involve the validity of this provision of the plan. I 

believe, therefore, that the determination set forth above is 

dispositive of all these docket numbers, although I recognize 

that there may be some inconsequential factual variations 

between them. However, in light of the invalidity of the provision of the plan, none of the citations can stand. Accordingly I vacate all the citations based upon section 75.316 

contained in these additional seven docket numbers and to that 

extent I dismiss the Solicitor's petitions in those cases. 

Addition to Bench Decision 

Docket No. LAKE 80-190 contains two unrelated citations. The operator 

has advised with written reasons that it is agreeable to settling Citation 

No. 779973 for $255 and Citation No. 779975 for the original assessed amount 

of $445. I have been unable to contact the Solicitor and do not wish to 

delay issuance of this decision because of the press of other matters pending on my docket. However, the Solicitor had previously orally agreed to 

lower settlements so I assume she will not disagree with these higher 

amounts. The operator's recommended settlements are approved. 

ORDER 

--- The foregoing bench decision is hereby AFFIRMED. 

The citations in the above-captioned docket numbers which are bas.ed upon 

the provision of the plan discussed above are VACATED. 

The petitions to assess civil penalties based upon the provision of the 

plan discussed above are DISMISSED. 

The operator is 

decision for two citations in LAKE r---.... 

-

days from the date of this 

Assistant Chief Administrative Law Judge 

2673 
Distribution: 

Linda Leasure, Esq., Office of the Solicitor, U.S. Department of Labor, 

881 Federal Office Building, 1240 East Ninth Street, Cleveland, OH 

44199 (Certified Mail) 

Timothy Biddle, Esq., and John Scott Esq., Crowell and Moring, 

1100 Connecticut Avenue, NW., Washington, DC 20036 (Certified Mail) 

2674 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

RANGER FUEL CORPORATION, 

Contestant 

v. 

SECRETARY OF LABOR, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

(703) 756-623Q SEP 2 3 1980 

Contest of Order 

Docket No. WEVA 79-217-R 

Beckley No. 2 Mine 

DECISION AND ORDER VACATING ORDER 

OF WITHDRAWAL 

On August 6, 1980, I issued a show cause order in this case. In that 

order, I stated: 

"The uncontroverted facts as presented in those statements are that the 

operator was issued the order because it did not pay a miner, Raymond J. Woods, 

for the time spent by him in accompanying an inspector on a C.F.C. spot inspection. The sole issue in the case is whether an operator is required by 

§ 103{f) of the Act to pay a miner who accompanies an inspector during a 

"spot" inspection of a mine. This issue has been decided by the Commission in 

Helen Mining Co. PITT 79-11-P, November 21, 1979, and Kentland-Elkhorn Coal Co., 

PIKE 78-399, November 30, 1979." 

The parties were given thirty days to show cause why the case should not 

be decided upon the uncontroverted facts of record and to present any other 

evidence or authority which they wanted considered. 

Neither contestant nor respondent has filed anything further, therefore 

the case will be decided upon the uncontroverted facts in record. In ~ 

Mining Co., supra, the Commission held that miners are entitled to walkaround 

pay only for regular inspections. In this case a citation was issued because 

a miner was not paid for his participation in a CFC spot inspection. The 

order in question here was issued because the operator did not abate the 

citation within the time permitted. 

"A mine operator contesting the validity of a 104(b) order 

of withdrawal is entitled to challenge the existence of the 

violation set forth in the underlying 104(a) citation. United 

Mine Workers of America v. Andrus, 581 F.2d 888, 894 (D.C. Cir. 

1978); Old Ben Coal Company, 6 IBMA 294, 301 n. 3, 83 I.D. 

335. 1976-1977 OSHD par. 21,094 (1987). The language of sections 

104{a) and 104{b) of the 1977 Mine Act indicate that the withdrawal 

order must be pronounced invalid where the underlying citation 

fails to describe a violation of either 1977 Mine Act or a 

mandatory safety standard." 

2675 
Consolidation Coal Co., Docket No. WEVA 79-129-R, July 31, 1980. 

Because the underlying citation does not desc·ribe a violation of the 

Act or regulations under the reasoning of Helen Mining Co., ·supra and 

Kentland-Elkhorn Coal Co., supra, the section 104(b) order in question here 

is invalid. Therefore, the order is vacated. 

WHEREFORE IT IS ORDERED the contest of order is GRANTED and the order of 

withdrawal is VACATED. 

Judge 

Distribution Certified Mail: 

Gary W. Callahan, Esq., Ranger Fuel Corporation, Lebanon, VA 24266 

Leo J. McGinn, Esq., US Department of Labor, Office of the Solicitor, 

4015 Wilson Boulevard, Arlington, VA 22203 

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

Street, NW, Washington, DC 20005 

2676 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PEABODY COAL COMPANY, 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

{703\ 756-6210/ll /12 

2 5 SEP 1980 

Civil Penalty Proceeding 

Docket No. KENT 80-103 

A.O. No. 15-03161-03041 

Star UG Mine 

DECISION AND ORDER 

The parties move for approval of a settlement of a violation of 

the Federal Mine Safety Code requirement that "ample warning shall be 

given before shots are fired." This requirement is incorporated by 

reference in section 313(c) of ·the Act, 30 C.F.R. 75.1303, by the 

permissibility standards relating to the use of explosives in underground mines found in 30 C.F.R. 15.19(e). The specific provision 

of the Mine Safety Code applicable is section Sb. 16. !/ 

A penalty of $7,000 was initially proposed for a violation that involved a failure to post warning flares that resulted in serious injuries to a scoop operator and endangered his helper. The violation was 

committed by a certified shot firer who admitted the flares should have 

been posted. He also admitted that if the flares had been properly set the 

accident would not have occurred~ Despite the reckless nature of the firer's 

misconduct and its almost fatal consequences for his fellow workers, 

!/ This is published as an appendix to Part 15 of Title 30 of 

the C.F.R. The record and the parties disclosures established that 

"ample warning" embraces and is understood by the industry to include 

both visual and verbal warnings. Counsel for the operator is to be 

commended for his diligence and candor in discovering MSHA's instructions 

to the industry with respect to the interpretation and coverage of 

the term "ample warning". 

The circuity of the reference to the requirement is unfortunate. 

It is suggested that MSHA undertake to cross reference the various 

provisions in its next publication of the C.F.R. and to include in 

the inspection manual a copy of the relevant MSHA instructions. 

2677 
MSHA, in accord with its policy of nonenforcement against the workforce, 

and especially rank-and-file miners such as the shot firer, declined 

prosecution under section llO(c). In view of this, and the culprit's 

obvious remorse and contrition, Peabody states no disciplinary action 

will be taken. So once again the enforcement proceeding has focused 

solely on the collection of a substantial fine from the corporate 

treasury, $6,250, while the real culprit goes free on the plea that 

"he has suffered enough." 

Let me make my position clear. I firmly believe that Peabody 

should pay a substantial fine and I would disapprove this settlement 

if I thought a larger fine or even the maximum provided by law, 

$10,000, would persuade Peabody to institute a disciplinary policy, 

including suspensions without pay or discharges, for knowing violations 

of the mandatory safety standards that gravely endanger the lives of 

fellow miners. Fairness, however, dictates that I recognize the reality 

of the constraints imposed by the collective bargaining agreement on 

management's freedom to discipline the workforce for violations of the 

Mine Safety Law. Despite its slogan of "Safety or Else" the Union, 

I am reliably informed, is.unalterably opposed to acceptance of 

responsibility for enforcement or compliance with the Mine Safety 

Law either as an organization or by its members. Compare, Bryant v. 

United Mine Workers, 467 F.2d 1 (6th Cir. 1972), cert. denied, 410 U.S. 

930 (1973) with Dunbar v. United Steelworker-a, 602"P":"°2d 21 (S. Ct. 

Idaho 1979), cert. denied · U.S. (1980). Consequently, until 

MSHA, the Union and management reach"""°"8C"onsensus on enforcement of the 

law against the rank-and-file workforce I cannot conscientiously deny 

a settlement such as that proposed in this case. See, New River Company, 

2 FMSHRC (September 9, 1980). This does not mean that I will 

not continue to take into account the encouragement to disciplinary action 

that results from the imposition of substantial fines on corporate operators 

who fail to insure abatement by appropriate disciplinary action. 

The premises considered, and based on an independent evaluation 

and de~ review of the circumstances, including the parties' prehearing submissions and the representations and disclosure made during 

the course of the lengthy telecon settlement conference of September 5, 1980, 

I find the settlement proposed, $6,250, is, insofar as the corporate 

operator is concerned, 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 settlement agreed upon, $6,250 nor before Friday, October 17, 1980, 

and that subject to payment the capti matter be DISMISSED. 

2678 
Distribution: 

William F. Taylor, Esq., U.S. Department of Labor, Office of the 

Solicitor, Rm. 280 U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Thomas R. Gallagher, Esq., P.O. Box 235, St. Louis, MO 63166 (Certified 

Mail) 

2679 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

LOCAL 9800, UNITED MINE WORKERS 

OF AMERICA, 

Complainant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) , 

or 

THOMAS DUPREE, 

Respondents 

. •. 

September 25, 1980 

Complaint of Discharge, 

Discrimination or Interference 

Docket No. KENT 80-216-D 

Riverview Mine 

ORDER DENYING RESPONDENT'S MOTIONS TO DISMISS 

AND FOR SUMMARY DECISION; 

ORDER GRANTING LEAVE TO AMEND SERVICE 

Appearances: J. Davitt McAteer, Esq., Center for Law and Social 

Policy; Washington, D.C., for Complainant; 

Thomas P. Piliero, Esq., Office of the Solicitor, 

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

Respondent, Secretary of Labor. 

Before: Chief Administrative Law Judge Broderick 

STATEMENT OF THE CASE 

This case presents the novel issue whether the Mine Safety and 

Health Administration (MSHA) is subject to section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c). That 

portion of the Act protects miners and their representatives from 

reprisals for engaging in certain safety-related activities. Complainant alleges that an employee of MSHA threatened it with a lawsuit in retaliation for notifiying MSHA of irregularities in certain 

mine inspections. Respondent, MSHA, has moved to dismiss the complaint and has moved for summary decision. Both motions will be 

denied. 

The action is styled Local 9800, UMWA v. MSHA or Thomas Dupree. 

Although Dupree is a named respondent, he has not, as far as Commission reco.rds show, been served with a copy of the complaint or any 

2680 
of the pleadings filed herein. On June 16, 1980, Complainant filed 

a motion to perfect service on Dupree. Respondent did not reply to 

the motion. The motion will be granted. 

STATUTORY PROVISION 

Section 105(c)(l) of the Act provides as follows: 

(c)(l) No person shall discharge or in any manner discriminate against or cause to be discharged 

or cause discrimination against or otherwise interfere with the exercise of the statutory rights of 

any miner, repres.entative of miners or applicant for 

employment in any coal or other mine subject to this 

Act because such miner, representative of miners or 

applicant for employment has filed or made a complaint under or related to this Act, including a 

complaint notifying the operator or the operator's 

agent, or the representative of the miners at the 

coal or other mine of an alleged danger or safety or 

health violation in a coal or other mine, or because 

such miner, representative of miners or applicant 

for employment is the subject of medical evaluations 

and potential transfer under a standard published 

pursuant to section 101 or because such miner, representative of miners or applicant for employment 

has instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding, 

or because of the exercise by such miner, representative of miners or applicant for employment on 

behalf of himself or others of any statutory right 

afforded by this Act. 

THE MOTION TO DISMISS 

Respondent challenges the complaint on three grounds. First, 

Respondent asserts that MSHA is not a "person" subject to the provi ... 

sions of section 105(c). It also states that the conduct alleged 

is under the jurisdiction of the Labor Department Inspector General 

rather than the Commission. Finally, it contends that Dupree's conduct cannot be imputed to MSHA since Dupree was not acting in his 

capacity as an MSHA employee when he made the alleged phone call. 

Respondent reformulated this last contention as a motion for summary decision on June 27, 1980, and supported it with an affidavit 

from Dupree. Accordingly, it will be discussed separately. 

Respondent's first two contentions will be taken as components 

of Rule 12(b)(6) motion to dismiss under the Federal Rules of Civil 

Procedure. 29 C.F.R. § 2700.l(b). Thus, the question is whether 

2681 
Complainant has stated a cause of action. For the purposes of the 

motion, the.well-pleaded material allegations o~ the complaint are 

taken as admitted. 2A Mo.ore, Federal Practice, 4'12.08. A complaint 

should not be dismissed unless it appears to a certainty that the 

complainant is not entitled to relief under any state of facts 

which could be proved in support of the claim. Id. I assume, 

therefore, that the following pleaded facts are true: 

1. In August 1979, Complainant discovered reports of mine 

inspections by MSHA inspectors that were falsified: The reports 

recited a general inspection of the Riverview Mine on July 24, 25, 

and 26, 1979. In fact, the inspectors had not been at the mine on 

July 25 and 26 and were there only 30 to 40 minutes on July 24. 

2. Members of Complainant's safety committee discussed the 

irregularities with William Craft, Director of MSHA District 10, in 

late 1979. Craft admitted the discrepancies, stated that steps 

would be taken to correct the situation and Complainant would be 

kept informed. 

3. On December 2, 1979, not having been informed of steps 

taken by Craft, Complainant's President, Houston Elmore, wrote to 

the MSHA Administrator of Coal Mine Health and Safety, requesting 

an investigation. 

4. On or about January 31, 1980, Thomas Gaston, President of 

UMWA District 23, received a telephone call from Thomas Dupree, an 

official of the MSHA District 10 Office. 

5. The telephone call concerned Elmore's letter of December 2, 

1979. Dupree accused Elmore of derisive comments with regard to 

MSHA inspectors and with libel. He told Gaston that legal counsel 

had advised him that Elmore or Local 9800 could be held liable for 

the contents of the letter. 

A. IS MSHA A "PERSON"? 

Were MSHA not the respondent in this case, the facts pleaded 

would clearly state a cause of action under section 105(c). A 

threat to sue a representa~ive of miners because that representative has made a complaint related to the Act, such as a complaint 

that the provisions of section 103 are not being observed, constitutes, in the circumstances of this case, unlawful interference 

with the representative's right to make that complaint. 

In deciding whether MSHA is subject to liability under the 

general wording of the statute, the key factor is legislative intent • 

.f!.· Monell v. Department of Social Services, 436 U.S. 658 (1978). 

Section 105(c)(l) declares that."no person shall discharge or in any 

2682 
other manner discriminate * * * or otherwise interfere with the exercise of the statutory rights of any miner * * *·" The word "person" 

is defined in section 3(f) as "any individual, partnership, association, corporation, firm, subsidiary of a corporation, or other 

organization." There is nothing in the Act or in the legislative 

history to indicate that Congress considered the question whether 

MSHA or any other public agency could be a "person" involved in discriminatory conduct under section 105(c). The task, then, is "not 

to determine what the legislature did mean on a point which was 

present to its mind, but to guess what it would have intended on 

a point not present to its mind, if the point had been present." 

Cardozo, The Nature of the Judicial Process, 15 (1921). 

The Senate Committee Report on the wording of section 105(c) 

states that ."[i] t should be emphasized that the prohibition against 

discrimination applies not only to the operator but to any other 

person directly or indirectly involved." S. Rep. No. 95-181, 

95th Cong., 2d Sess., P• 36 (1977), reprinted in LEGISLATIVE HISTORY 

OF THE FEDERAL MINE SAFETY AND HEALTH ACT, P• 624. The same report 

directs that section 105(c) is "to be construed expansively" in 

order'~o assure that miners will not be inhibited in any way in 

exercising any rights afforded by the legislation." Id 

A survey of the law in other fields provides some guidance. It. 

was long the general rule that "the United States, when not expressly 

named in or made subject of a legislative enactment, and not included 

therein by necessary implication, is not bound by the terms thereof 

* * *·" 77 Am. Jur. 2d, United States, § 6. See also, United States 

v. Wittek, 337 U.S. 346 (1949); F.P.C. v. Tuscarora-Indian Nation, 

362 U.S. 99, 120 (1960). But this rule may be ascribed, in large 

part, to the doctrine of sovereign immunity, which has recently been 

sharply curtailed by Congress. See 5 U.S.C. § 702. Despite the 

general rule, an exception was held to obtain where the statute was 

"intended to prevent injury and wrong." Nardone v. United States, 

302 U.S. 379, 384 (1937). That case involved section 605 of the 

Communications Act of 1934, which declared that no "person," not 

being authorized, shall intercept communications and divulge them to 

another. The directive was applied against Federal agents to suppress the introduction of illegally obtained evidence at a criminal 

trial. See also United States v. Brown, 555 F.2d 407 (5th Cir. 

1977); Letter-cirriers v. U.S. Postal Service, 333 F. Supp. 566 

(D.D.C. 1971); Wycoff's Estate v. C.I.R., 506 F.2d 1144 (10th Cir. 

1974), cert. den. sub nom. Zion's First National Bank v. C.I.R., 

421 U.S. 1000-.- ----

In cases such as this, courts also examine the entire scheme of 

regulation to see if an effective alternate remedy is available. 

Pfizer, Inc. v. India, 434 U.S. 308 (1978); United States v. Cooper, 

312 U.S. 600, 604-605 (1941); Georgia v. Evans, 316 U.S. 388 (1971); 

cf., Bivens v. Six Narcotics Agents, 403 U.S. 388 (1971); Davis v. 

2683 
Passman, 442 U.S. 228 (1979). Here, Complainant may pursue other 

avenues of relief for the failure to inspect properly and for injuries 

traceable to this neglect. ~., Raymer v. United States, 482 F. Supp. 

432 (W.D. Ky. 1979). But-the act of discrimination alleged is, by its 

inchoate nature, uniquely within the domain of this Commission. Dupree's 

remarks were probably not sufficiently pronounced or defined to trigger 

general tort or criminal liability. They are precisely the sort of 

threats, from one in a position to carry them out (or so it may have 

seemed to the union's district president) that section 105(c) is 

designed to discourage. Complainant may logically claim that the 

remarks had a chilling effect on its willingness to report dangers to 

miners' safety and health. 

The conduct of elections under the National Labor Relations Act 

supplies a fitting analogy. The NLRB's goal is to assure that elections 

for collective bargaining representatives are' held under "laboratory 

conditions." General Shoe Corp., 77 N.L.R.B. 127 (1948). Although only 

employers and unions may be charged with unfair labor practices, it has 

long been the Board's position that conduct which can result in setting 

aside an election need not constitute an unfair labor practice. Id. A 

coercive atmosphere created by townspeople is enough to set aside an 

election. Utica-Herbrand Tool Division of Kelsey-Hayes Co., 145 N.L.R.B. 

1717 (1964). More to the point, if an agent of the Board gives the 

appearance of partiality, the election will be set aside. NLRB v. 

Fresh'nd Aire Co., 226 F.2d 737 (7th Cir. 1955). 

The Federal Mine Safety and Health Act seeks to ensure that all 

persons involved in operating a mine are safety-conscious and safetyoriented in every task they perform. Just as the NLRB aims to promote 

an atmosphere conducive to free choice, so the Commission and MSHA aim 

to promote an atmosphere conducive to safety and good health. Such an 

atmosphere must be receptive to complaints concerning dangerous conditions. Complainant has alleged facts which, if true, could be shown to 

pose a risk that such conditions might go unreported. 

Because the purpose of the statutory provision is to protect miners 

from discrimination from any source, and, following an "expansive construction," I hold that MSHA is a person under section 105(c) prohibited 

from discriminating against any miner. 

B. THE INSPECTOR GENERAL ACT 

Respondent also contends that the Inspector General has jurisdiction over the discriminatory conduct alleged. I have above concluded that the Commission has jurisdiction to entertain this 

complaint. If respondent can be taken to have requested deferral 

2684 
of Commission jurisdiction until internal procedures in the Department of Labor have been exhausted, the request is rejected. While 

resolution of an entire controversy in one proceeding promotes 

judi.cial economy and conserves the resources of litigants, this is 

an inappropriate case in which to inaugurate a deferral policy. 

Internal procedures at MSHA are directed primarily at vindication 

of the Government's managerial interest in honesty and efficiency. 

The Commission exists specifically to safeguard mine safety and 

health. Moreover, even assuming that the Inspector General entertains Complainant's charges, Complainant would not be a party to 

any proceedings with a right to participate in the course of litigation, as it is here. It is worthwhile to note, finally, that in 

cases dealing with discriminatory interference which employee 

rights, the policy of administrative deferral is in decided retreat. 

_!._a., Newport News Shipbuilding v. Marshall, 8 OSHC (BNA) 1393 (E.D, 

Va. 1980); Suburban Motor Freight, 103 L.R.R.M. 113 (1980); Banyard 

v. NLRB, 505 F.2d 342 (D.C. Cir. 1974). 

THE MOTION FOR SUMMARY DECISION 

Subsequent to its motion to dismiss, Respondent filed a motion 

for summary decision pursuant to 29 C.F.R. § 2700.64 suported by an 

affidavit from George Thomas Dupree. In the affidavit, Dupree 

states as follows: He is a Federal coal mine inspector in MSHA's 

-District 10 Office and is President of Local 3340, AFGE. In the 

latter capacity, he represents MSHA inspectors in the District 10 

Office. In January 1980, he became aware of Mr. Elmore's letter of 

December 2, 1979, to MSHA's Administrator. The letter contained 

unfounded serious charges of criminal acts on the par~ of members 

of the AFGE local. Because of this, Dupree telephoned Thomas Gaston 

of District 23, UMWA, to determine whether Elmore's charges were 

supported by the UMWA membership. Dupree stated that he intended 

to seek legal coun_sel as President of AFGE Local 3340 to determine 

whether Elmore could be liable for the def amatory statements in the 

letter. The telephone call was made from MSHA District 10 headquarters, but was made in Dupree's capacity as President of 

Local 3340, AFGE. 

Complainant filed a statement in opposition to the motion for 

summary decision and attached an affidavit-from Tommy Gaston. 

Gaston's affidavit states. that on or about January 31, 1980, he 

received a call from Mr. Tom Dupree, an MSHA employee, who asked 

Gaston if he was aware of the letter written by Elmore seeking an 

investigation of the District 10 Office. Dupree stated that he 

felt that Elmore was accusing all the inspectors of District 10 of 

falsifying reports. Dupree further stated that the contents of the 

letter were libelous and that he was advised by an attorney that 

~upree could be held liable for them. 

fltl\ol" e.. G:'r<q.\-itm q/~lso) 

2685 
Under Commission Rules, a motion for summary decision shall be 

granted only if the entire record shows that there is no genuine 

issue as to any material fact. 29 C.F.R. § 2700.64(b). 

I conclude that, despite the affidavits, issues of fact concerning the scope of Dupree's authority, actual or apparent, remain 

unresolyed~ These issues can best be decided after considering the 

testimony of the people involved. 

CONCLUSION 

In sum, I find that Complainant has stated a claim upon which 

relief may be granted under section 105(c). Therefore, the motion 

to dismiss must be denied. Since the record herein does not show 

that there is no genuine issue as to any material fact, the motion 

for summary decision must be denied. Complainant's motion for 

leave to amend service will be granted. 

ORDER 

Respondent's motion to dismiss is DENIED; Respondent's motion 

for summary decision is DENIED; Complainant's motion for leave to 

amend service so as to serve Thomas Dupree is GRANTED. 

~ A8vo~eA_ James A. Broderick 

· Chief Administrative Law Judge 

Distribution: 

J. Davitt McAteer, Esq., Counsel for Local Union 9800, UMWA, 

Center for Law and Social Policy, 1751 N Street, NW., 

Washington, DC 20036 (Certified Mail) 

Thomas P. Piliero, Esq., Attorney, Mine Safety and Health 

Administration, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 (Certified Mail) 

Assessment Office, Mine Safety and Health Administration, 

U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, 

VA 22203 (Certified Mail) 

2686 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

September 26, 1980 

LOCAL 9800, UNITED MINE WORKERS OF 

AMERICA (UMWA) , , 

Complaint of Discharge, Discrimination or Interference 

Complainant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

or 

THOMAS DUPREE, 

Docket No. KENT 80-216-D 

Riverview Mine 

Respondents 

ERRATUM 

The last line on page 6 of the Order issued on September 25, 1980, should 

read "Elmore could be held liable for them." rather than "Dupree could be 

held liable for them." 

·1c).;vi-~-S .A13YO~~/L,,, \../! James A. Broderick 

Chief Administrative Law Judge 

Distribution: 

J. Davitt McAteer, Esq., Counsel for Local Union 9800, UMWA, Center for Law and 

Social Policy, 1751 N Street, N.W., Washington, DC 20036 

Thomas P. Piliero, Esq., Attorney, Mine Safety and Health Administration, U.S. 

Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

Assessment Office, Mine Safety and Health Administration, U.S. Department of 

Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

2687 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND -HEALTH 

ADMINISTRATION (MSHA), 

v. 

GENERAL PORTLAND INC., 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE' 

FALLS CHURCH, VIRGINIA 22041 

Petitioner 

Respondent 

2 6 SEP 1980 

Civil Penalty Proceedings 

Docket No. DENV 79-277-PM 

A/O No. 41-00023-05001 

Docket No. CENT 79-15-M 

A/O No. 41-00023-05002 

Fort Worth Quarry & Mill 

DECISION 

Appearances: Edward H. Fitch, Esq., Office of the Solicitor, 

U.S. Department of Labor, for Petitioner; 

Michael T. Heenan, Esq., Smith, Heenan, Althen & Zanolli, 

Washington, D.C. for Respondent. 

Before: Judge Charles c. Moore, Jr. 

These cases were heard March 25, 1980, in Fort Worth, Texas, pursuant 

to the Federal Mine Safety and Health Act of 1977 ("the Act"). Respondent 

General Portland, Inc. engages principally in the production of cement (Tr. 

99) and employs 180 hourly and 10 supervisory employees at its Fort Worth 

Quarry and Mill (Tr. 110) which is the subject of these citations. Respondent's size is such that no penalty assessed herein will affect its ability 

to continue in business. 

At the hearing, the Secretary characterized General Portland's prior 

history of violation as light (Tr. 147) and submitted in support thereof 

Petitioner's Exhibit No. M-8, a computer printout purporting to show Respondent's violations since the effective date of the 1977 Act. As the printout 

is not self-explanatory I can only conclude Respondent had a prior history; 

I am unable to say whether it was mild or extensive. I find, per stipulation 

of the parties, that all violations were abated promptly and in good faith 

(Tr. 147). 

Three of the alleged violations in CENT 79-15-M: Nos. 154360, 154363 and 

154633 respectively, were settled at the hearing pursuant to joint motion of 

the parties. They concerned an inoperable reverse signal on a front-end 

loader from which the operator had a virtually unobstructed view, a standard 

2688 
pickup truck cited under visibility standards pertaining to heavy-duty 

mobile equipment, and a coupling guard which had been temporarily removed 

from a drive shaft located in an isolated part of the plant. The original 

proposed assessment was $600. I accept the settlement and assess a total 

penalty of $330 for the three violations. 

Seven of the alleged violations concern independent contractors and the 

remaining citation, issued to General Portland, was submitted on stipulation. 

The issue of the liability of independent contractors for violations of the 

Act is discussed post. 

Docket No. CENT 75-15-M 

Citation No. 154631 alleges a violation of 30 C.F.R. §56.15•7, the 

standard requiring miners to wear goggles when welding, cutting or otherwise working with molten metal. Inspector Morris observed a contractor's 

employee wearing only safety glasses while using a cutting torch to install 

metal steps in a mill building (Tr. 63). Safety glasses lack side shields 

and permit molten sparks to enter and cause serious injury to the eyes 

(Tr. 66), whereas goggles cover the entire eye area and provide superior 

protection (Tr. 65). An employee of Respondent accompanying the inspector 

immediately instructed the contractor's employee to stop cutting and put 

on his cutting goggles before resuming work, which the employee did 

(Tr. 66-67). Respondent maintains that this violation demonstrates its 

lack of control over and knowledge of the activities of independent contractor employees •. This violation would have been readily apparent to 

Respondent, however, had it made even a cursory inspection of the work 

place. The record shows the violation to be significant and substantial. 

MSHA assessed a proposed penalty of $114. 

Respondent made an extensive record at the hearing and in its proposed 

findings of fact and conclusions of law concerning the impropriety of citing 

operators for violations, as here, committed by independent contractors and 

their employees (see Tr. 77-91 and Respondent's Exhibit 3). Responden,t's 

arguments are good and were it solely up to me, I would adopt them. But as 

I read the Commission's decision in Secretary of Labor v. Old Ben Coal Company, 1 FMSHRC 1480 (October 29, 1979), MSHA could have properly cited an 

owner-operator in the interim before rules for citing independent con~ractors were promulgated. The Secretary of Labor has promulgated final ~ules 

which allow independent contractors to register with MSHA in order to 

receive an identification number (45 Fed. Reg. 44,494 (July 1, 1980)] which 

MSHA will then use to identify and issue citations to independent contractors. 1/ These procedures became effective July 31, 1980. Nothing in 

the rules indicates they are to be applied retroactively although it is 

clear from the Act [30 u.s.c. §802(d) or §3(d), and Old Ben, supra, at 

1483] that MSHA had the power to cite independent contractors before these 

rules were promulgated. Appendix A to the rules states that MSHA's policy 

1/ The rules do not state that every independent contractor working in a 

mine must obtain an MSHA identification number. But independent contractors 

can now be cited, remedying the problems addressed in Respondent's brief. 

2689 
of .citing independent contractors took effect July 1, 1980 [45 Fed. Reg. 

44,497] and the rules' Sμmmary [Id. at 44,494] speaks simply in terms 

of "MSHA's enforcement policy" without specifying an effective date. U 

Since t.he citations before me were issued before the rules became effective, 

I will· hold Respondent liable for.violations of the Act committed by its 

independent contractors. However, I will consider Respondent's position when 

assessing negligence under §110 of the Act. 

In this instance, the Secretary has upheld its burden and I assess a 

penalty of $100. 

Gitation No. 154634 alleges a violation of 30 C.F.R. §56.15-5. This 

standard requires safety belts and lines to be worn when there is a danger of 

falling. An employee of an independent contractor was observed standing on 

the flange of an elevator shaft 125 feet above ground without the protection 

of a safety bel~ or line, 'bolting a cover onto the shaft (Tr. 68-69). There 

were no handrails to prevent him from falling in the event he lost his footing (see·Respondent's Exhibit No. 8). A safety belt could have been attached 

to the work. platform 12 feet below (Tr. 69) which, while possibly not protecting him from minor injuries if he fell, would have prevented him from 

plunging to the ground (Tr. 70). MSHA assessed a proposed penalty of $920 

for this violation. I find that a violation was established, that negligence was high on the part of the independent contractor but low as to 

Respqndent and I assess a penalty of $200. 

Citation No. 154361 alleges a violation of section 56.9-11, which 

requires vehicle cab windows to be kept clean and in good condition. The 

citation alleges that the windshield of a front-end loader vehicle was 

2/ After the parties had submitted briefs in this matter but before a decision had been enter~d, the Commission, on August 4, 1980, decided Secretary 

of Labor v. Pittsburg and Midway Coal Mining Company, Docket Nos. 

BARB 79-307-P.et ~·, 1 MSHC 2465. In that decision, the Commission, at the 

suggestion of MSHA, remanded the case to Administrative Law Judge Koutras 

"for the purpose of affording the Secretary an opportunity to determine 

whether to continue to prosecute these citations against P&M, or any.independent contractors which are claimed to have violated the standards cited, or 

both." (Id.) . 

I sent a copy of the Commission's decision in the above case to the 

parties for their comments. The Solicitor did not respond~ but Respondent's 

letter states tJ:tat it had been authorized to represent that the Solicitor 

wished ta pursue the ma_tter against General Portland and not the independent 

contractors since the hearing had already been conducted. 

The policy. reflected in the trial attorney's statement is not universally adhered to by the Solicitor when representing MSHA before our Commission and its judges. I know of at least three cases, and I strongly suspect 

there are more, ~here the administrative law judge ruled in the Government's 

favor at the hea.ring only to have the Solicitor's appellate staff argue to 

the Commission that the judge had erred. Secretary of La,bor v. Pittsburg 

and Midway Coal Mining Company, supra, was one such case. 

2690 
cracked. The parties stipulated that the windshield was cracked and that a 

replacement had been ordered (Tr. 96). This is the only litigated citation 

in the case which did not involve employees of an independent contractor• 

Respondent's Exhibit No. 1 is two photographs and a photocopy of each 

showing the view from the middle of the cab looking out the windshield. 

These photographs were taken after the windshield had been replaced so the 

crack is simulated as a smudge in the first photograph and in the second as 

a dotted line. The parties stipulated that the crack extended one-fourth of 

the way down the windshield and the photographs indicate that the crack was 

on the passenger side of the cab. Respondent's Exhibit No. 2 is a purchase 

order for a replaceme~t windshield dated August 2, 1978. The citation was 

issued August 3, 1978. There was no testimony offered. 

Respondent argues no violation occurred as it made every effort to 

replace the windshield. The Secretary maintains that the eltj.stence of a 

crack violates the standard. I find that a crack in the windshield does not 

constitute keeping the windshield in good condition if it interferes with 

the driver's vision or creates some other hazard. I cannot make a finding 

to that effect by looking at the photograph that was offered. MSHA has 

failed to satisfy its burden and the citation is vacated. 

Docket No. DENV 79~277-M 

Citation Nos. 154436 and 154435 concern violations of 30 C.F.R. 

§56.15-3 and 30 C.F.R. §56~15-2 respectively, on the part of ind~pendent 

contractor employees. Nine employees were preparing siding which was being 

hung on a building wall 30 feet above them (Tr. 17). None of the employees 

was wearing protective footwear, a violation of section 56.15-3, or hardhats, 

a violation of section 56.15-2. In addition, tools were being used to 

measure and cut the siding (Tr. 18). Serious injury could result if a piece 

of siding fell onto the men below or if a tool slipped and cut a miner's 

feet. On the other hand, serious injury could occur if a man fell as a result 

of wearing protective footwear when climbing on these structures, as was suggested at the hearing (Tr. 34). No comparable disadvantage was shown with 

respect to hardhats. MSHA assessed proposed penalties of $40 in both cases. 

I find that violations did occur and that there was negligence. I assess 

a penalty of $40 in Citation No. 154436 and $40 in Citation No. 154435. 

Citation No. 154434 alleges a violation of section 56.16-6, a regulation requiring covers over the valves of compressed gas cylinders. Four 

compressed gas cylinders without valve covers were stored outside a contractor's trailer next to a roadway (Tr. 24). Without valve covers, there was a 

danger that the pressurized contents would escape, possibly causing a fire 

(Tr. 24). MSHA assessed a proposed penalty of $40. I find that a violation 

did occur and that negligence was present. I therefore assess a penalty of 

$40. . 

Citation No. 154359 involves a similar violation in that a compressed 

gas cylinder owned by an independent contractor was standing unsecured 

(Tr. 53). Section 56.16-5 requires compressed gas cylinders to be stored in a 

2691 
safe manner. The inspector observed this cylinder standing unsecured next 

to a contractor's trailer alongside a travelway (Tr. 53). Vehicles and 

employees passed by the cylinder, and seven employees worked within 10 feet 

of it (Tr. 53). The cylinder weighed between 115 and 135 pounds (Tr. 54) 

and could cause an injury if it fell on an employee's leg or foot. There 

was evidently no danger of the cylinder exploding. MSHA assessed a proposed 

penalty of $32. I find that a violation did occur, that the operator is 

liable and that negligence was present. I assess a penalty of $40. 

Citation No. 154366 alleges a violation of section 56.14-30 which 

requires mobile equipment in a raised position to be securely bloclted in 

place before repair work is commenced. Three employees of an independent 

contractor were performing maintenance work on a pit haulage truck, the bed 

of which had been raised and was supported by jacks. The truck bed is manufactured with two 2-inch holes through which two corresponding safety pins 

are inserted to support the bed in case the hydraulic system or the jacks, 

which also support the truck bed when maintenance work is being performed, 

break or collapse. In this case, one 1/2-inch rod supported the truck bed 

(Tr. 60). One man leaning over the bed of the truck would have been fatally 

injured had the truck bed fallen, while the two men working underneath would 

have been frightened but probably not injured. MSHA assessed a proposed penalty of $66. I find that the violation occurred, negligence was present, 

and a penalty of $100 is assessed. 

ORDER 

It is hereby ORDERED that Respondent, within 30 days, pay to MSHA penalties in the amount of $890. 

Distribution: 

Charles 

~~~C*~~ c. Moore, Jr. 

Administrative Law Judge 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of 

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

Michael T. Heenan, Esq., Smith, Heenan, Althen & Zanolli, 

1800 M Street, NW., Washington, D.C. 20036 (Certified Mail) 

2692 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 6 SEP 1980 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

Petitioner 

Docket Nos. 

. KENT 79-37 

KENT 79-121 

KENT 79-122 

KENT 79-123 

Assessment Control Nos. 

15-11017-03007 

15-11017-03004 v 

15-11017-03005 

15-11017-03006 

GARRCO COAL COMPANY, INC., 

Respondent Garrco No. 2 Mine 

Appearances: 

Before: 

DECISION 

William F. Taylor, Esq., Office of the Solicitor, U.S. 

Department of Labor, for Petitioner; 

John L. Garrett, Maryville, Tennessee, for Respondent. 

Admi~istrative Law Judge Steffey 

Pursuant to a written notice of hearing dated July 21, 1980, a hearing 

was held in the above-entitled proceeding on September 4, 1980, in Knoxville, 

Tennessee, under section 105(d) of the Federal Mine Safety and Health Act 

of 1977. 

The consolidated proceeding involves four Petitions for Assessment of 

Civil Penalty filed by the Secretary of Labor alleging a total of eight 

violations of the mandatory health and safety standards by Garrco Coal 

Company. The Petition in Docket No. KENT 79-37 was filed on June 18, 1979, 

and seeks assessment of civil penalties for five alleged violations. The 

Petitions in Docket Nos. KENT 79-121, KENT 79-122, and KENT 79-123 were 

all filed on May 30, 1979, and each Petition seeks assessment of a civil 

penalty for one alleged violation. 

The issues raised by the four Petitions are whether the violations 

occurred and, if so, what civil penalties should be assessed, based on the 

six criteria set forth in section llO(i) of the Act. 

The parties entered into stipulations with respect to the six criteria. 

It was stipulated that respondent operated a very small coal business which 

produced about 50 tons of coal per day and employed five or six employees. 

Respondent, as the operator of the No. 2 Mine, is subject to the Act and 

all regulations promulgated thereunder. 

2693 
Respondent agreed that all of the alleged violations had occurred 

and the parties stipulated as to the criteria of negligence and gravity. 

It was stipulated that all of the violations were the result of ordinary 

negligence and that all of the violations were nonserious except for the 

one violation of section 75.202 in Docket No. KENT 79-123 which was considered to be moderately serious (Tr. 8-18). Respondent demonstrate.d at 

least a normal good faith effort to achieve rapid compliance and in some 

instances, such as for the violation alleged in Citation No. 123661, there 

was an outstanding effort to achieve rapid compliance (Tr. 19). It was 

also stipulated that respondent had less than an average history of previous violations (Tr. 9). 

The stipulations discussed above support the assessment of small 

penalties, but testimony and documents regarding respondent's financial 

condition support a finding that only nominal civil penalties should be 

assessed in this proceeding. The foregoing conclusion is based on the 

discussion set forth below. 

Respondent was incorporated on August 15, 1977. Respondent was owned 

by John L. Garrett, H. Pat Wood, and F. Rodney Lawler. Mr. Garrett owned 

50 percent of the stock and the other two men owned 25 percent each. 

Respondent's efforts to produce coal at a profit failed so completely that 

it was forced to discontinue in business after about 2 years of operation 

and the corporate charter was dissolved in 1978 (Tr. 25). 

Respondent's income tax returns for the period of i.ts operation were 

introduced in evidence as Exhibits A and B. The 1977 return covers the 

period from August 15, 1977, to February 28, 1978, and shows that respondent lost $31,561 during that period even though respondent's stockholders 

and officers received no dividends, salary, or· other compensation. The 

1978 return covers the period from March l,-·i978, to February 28, 1979, 

and shows that re~pondent lost $16,738 during its second year of operation. 

Again respondent's stockholders received neither dividends nor any other 

compensation, despite the fact that Mr. Garrett worked full time at trying 

to produce coal at a profit. 

In add~ ion to being nable to operate economically, respondent suffered 

the misfortune of having i a only scoop stolen. The insurance company paid 

all bci~ $5,000 of the amount which respondent still owed on the scoop. It 

was necessary for respondent to pay the remaining $5,000 due on the scoop. 

Respondent was unable to purchase another scoop. Respondent tried to continue producing coal by renting a scoop at the rate of 75 cents for each 

ton of coal which was mined. Respondent also paid a fee of $500 per month 

to rent a roof-bolting machine on which respondent had to pay all expenses 

associated with maintaining the roof-bolting machine in operable condition 

(Tr. 22-23). 

Mr. Garrett had never had any experience in the coal business prior to 

undertaking the venture described above. Mr. Garrett emphasized at the 

hearing that no personal injuries of any kind occurred while he was in the 

2694 
coal business (Tr. 22). Respondent had no funds in the bank when it discontinued in business and any penalties which may be assessed in this proceeding will have to be paid from Mr. Garrett's personal income which he 

now receives as a pilot for an airplane which is used in making chartered 

flights (Tr. 6; 25). 

I find that the facts discussed above warrant assessment of only nominal 

penalties of $1 for each of the eight violations involved in this proceeding. 

Respondent's e·Eforts to produce coal° ended in a financial loss to himself and 

the other two men who advanced capital for the venture. No miner received 

any personal injuries while employed by respondent. Mr. Garrett was not cited 

~or any serious violations while he was in business and large penalties would 

be unwarranted in any event. Additionally, large penalties, even if justified, 

would have no deterrent effect for a person who is out of business and who has 

no intention of resuming any mining activities. 

WHEREFORE, it is ordered: 

Within 30 days· from. the date of this decision, Garrco Coal Company, Inc., 

shall pay civil penalties totaling $8.00 for the violations which are listed 

below: 

Docket No. KENT 79-37 

C1-tation No. 123711 11/17/78 § 75.1725(a) ........... $ 1.00 

Citation No. 123712 11/17/78 § 77 .1301(a) ........... 1.00 

Citation No. 123756 12/18/78 § 77.1301(a) ............ 1.00 

Citation No. 123757 12/18/78 § 77.904 •.••••••••••••• 1.00 

Ci ta ti on No • 123758 12/18/78 § 75.1711-3 •••••••••••• 1.00 

Total· Civil Penalties Assessed 

in Docket No. KENT 79'-37 .......................... $ 5.00 

Docket No. KENT 79-121 

Citation No. 124269 5/16/78 § 75.200 •••••••••••••••• $ 1.00 

Docket No. KENT 79-122 

Citation No. 123660 10/11/78 § 75.200 ••••••••••••••• $ 1.00 

Docket No. KENT 79-123 

Citation No. 123661 10/11/78 § 75.202 ••••••••••••••• $ 1.00 

Total Civil Penalties Assessed in This Proceeding ••• $ 8.00 

~tSfefZPff~ Administrative Law Judge 

(Phone: 703-756-6225) 

2695 
Distribution: 

William F. Taylor, Attorney, Office of the Solicitor, U.S. Department 

of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN 

37203 (Certified Mail) 

Garrco Coa.l Company, Inc., Attention: John L. Garrett, President, 

508 Belneade Drive, Maryv~lle, TN 37801 (Certified Mail) 

2696 
FEDERAL MINE SAFEn AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52a.J LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 6 SEP 1980 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Review of Application for Temporary 

Reinstatement 

On Behalf of: 

BURL JOHNSON, 

v. 

HARLAN FUEL COMPANY, 

Applicant 

Docket Nos. KENT 80-328-D 

BARB CD 80-24 

Smith No. 12 Mine 

Respondent 

DECISION 

Appearances: Thomas Piliero, Esq., Office of the Solicitor, U.S. Department 

of Labor, Arlington, Virginia, for Applicant; 

Eugene F. Fidell, Esq., and F. Frank Lyman, Esq., LeBoeuf, Lamb, 

Leiby & MacRae, Washington, D.C., for Respondent. 

Before: Judge Melick 

This case is before me pursuant to Commission Rule 44, 29 C.F.R. 

§ 2700.44, 1/ upon a request for hearing effectively filed by the Harlan 

Fuel Company (Harlan) on August 26, 1980, on the Order of Temporary Reinstatement issued by Chief Administrative Law Judge James A. Broderick. 2/ 

A timely hearing was held in Abingdon, -

J./ 29 C.F.R. § 2700.44(a) provides in substance as follows: 

"An application for reinstatement shall state the Secretary's finding· 

that the complaint of discrimination, discharge ,or interference was not 

frivolously brought and the basis for his finding. The application shall 

be immediately examined, and, unless it is determined from the face of the 

application that the Secretary's finding was arbitrarily or capriciously made, 

an order of temporary reinstatement shall be immediately issued. The order 

shall be effective upon issuance. If the person against whom relief is sought 

requests a hearing on the order, a Judge shall, within 5 days after the 

request is filed, hold a hearing to determine whether the Secretary's finding 

was arbitrarily or capriciously made. The Judge may then dissolve, modify 

or continue the order." 

2/ Since Judge Broderick's Order of Temporary Reinstatement was not issued 

'Until August 26, 1980, I find that the premature request for hearing, received 

by the Commission on August 25, 1980, was effectively filed on August 26, 1980. 

2697 
Virginia, on September 2, 1980, at which the parties appeared and presented 

evidence. The sole issue before me is whether the Secretary's finding in 

this case (that the complaint of discrimination, discharge or interference 

filed by Burl Johnson was not frivolously brought) was arbitarily or capriciously made. Footnote 1/, supra. Whether or not there was in fact a violation of the anti-discriiilination provisions of section 105(c)(l) of the Federal 

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

the "Act") is clearly not an issue at this time. Preliminary hearings under 

Rule 44(a) are thus similar in nature to preliminary hearings in criminal 

matters wherein a possible abuse of government power may be prevented through 

the early intervention of a judicial officer who makes only an interim determination of whether the government has a prima facie case. Rule 5, Federal 

Rules of Criminal Procedure, 8 Moore's Federal Practice, Ch. 5.1. Under 

Rule 44(a) the function of the administrative law judge is similarly _to prevent an abuse of government power by making an interim determination at an 

early date as to whether the Secretary's finding (that the complaint of 

discrimination was not frivolously brought) was arbitrarily or capriciously 

made. 

Since the evidence necessary for reaching a decision on this issue is 

by its very nature peculiarly within the possession of the Secretary I ordered 

th~ production of, over the Secretary's objection, the information and data 

used by the Secretary in making his decision .. to apply for the temporary reinstatement of Mr. Johnson. In light of the Secretary's objection that the 

entire file was privileged under Commission Rule 59 (29 C.F.R. § 2700.59), 3/ 

I first examined that file in camera. I thereafter ordered photocopies of -

those portions of the file that I found not to ·violate Commission Rule 59 

to be released to the operator and admitted into evidence. I ordered photocopies- of the remainder of the file to be sealed and not to be opened except 

by order of the Commission or-court having jurisdiction for its examination 

on any appeal that might.be taken. 

The disclosed evidence consisted primarily of statements made by the 

two miners alleging unlawful discharge, and by their foreman. The statements 

of the miners are consistent and suggest that the complainant's discharge was 

the direct result of his refusal to work under unsafe roof conditions. Sufficient facts are alleged that, if true, could constitute a violation of 

section 105(c)(l) of the Act. While the statement of the mine foreman 

indicates, not surprisingly, a differing view of the events it only points 

out that issues of fact and credibility may have to. be resolved at a later 

hearing, on the merits of the complaint. These are not however issues that 

can be finally resolved at this preliminary hearing and so long as there is 

some evidence which reasonably tends to show that the Secretary's finding 

was not arbitrarily or capriciously made then that finding will be upheld. 

3/ 29 C.F.R. § 2700.59 provides as here relevant that "[a] Judge shall not, 

except in extraordinary circumstances, disclose or order a person to disclose 

to an operator or his agent the name of an informant who is a miner." 

2698 
In pres~nting its case Harlan submitted copies of reports completed by 

an MSHA inspector based on his apparent inspection of the safety violations 

cited by Mr. Johnson as a basis for his discrimination complaint. 4/ According to the MSHA inspector no "imminent danger" existed at the time-of his 

inspection. This evidence was not included in the report given to those 

MSHA officials who made the decision on behalf of the Secretary to file 

the application foF temporary reinstatement. The evidence was admitted as 

possibly reflecting upon the issue of whether the Secretary's finding was 

arbitrarily or capriciously made. I gave little weight to that evid~nce, 

however; since it was never clarified that the area examined by the MSHA 

inspector was precisely.the same area that was complained of by Johnsop. 

and since the operat~r conceded that additional roof support had been added 

and other action taken after Johnson's complaint and oefore the MSHA inspection. 

• "Arbitrary and capricious" is a characterization of a decision or action 

taken by an administrative agency that is willful and unr~asonable and taken 

without consideration of, or in disregard of, facts o·r without determining 

principle. Black's Law Dictionary, 5th edition. "Frivolous" means of little 

weight or importance. A pleading is frivolous when it is clearly insufficient 

on its face * * * and is presumably interposed for mere purposes of delay or 

to embarrass the opponent. Black's Law Dictionary, supra. I find that these 

definitions appropriately reflect the meaning of the terms as used in Commission 

Rule 44. Within this framework, it is clear that the Secretary's finding 

(that the complaint of discrimination brought by Burl Johnson was not f~ivolously 

brought) was not arbitrary or capricious. That finding was not unreasonable 

nor can it be said that it was taken wi~hout consideration of, or in disregard 

of, the factual evidence or without determining principle. There is ample 

!!,./ At hearing, Harlan also requested that counsel for MSHA, Mr. ·Piliero, 

be subpoened to testify inasmuch as Mr. Piliero was admittedly one of the 

authorized representatives of the Secretary who took part in 'the final decision to apply for-temporary reinstatement. It also requested at hearing that 

subpoenas be issued to other persons in MSHA who took part in that final 

decision. Upon the Secretary's motion to quash and based on the in~bility 

of Harlan to proffer any relevant area of inquiry to present to these .witnesses, 

I granted the motion to quash. 29 C.F.R. § 2700.SB(c). I alsci found t"'hat .. · 

the request for subpoenas was untimely and that Mr. Piliero would be unable 

at that stage of the case to withdraw as trial counsel and obtain alternate 

counsel to represent MSHA. -I observe, however, that under the ABA, Code of_ 

Professional Responsibility, DR 5-101 and DR 5-102, a lawyer who is a potential 

witness to a proceeding should withdraw from the case. MSHA should be on 

notice that the _testimony of persons making the decision to apply for reinstatement might in an appropriate case become relevant in a temporary reinstatement 

hearing and it should act accordingly in selecting trial counsel in s.uch 

cases. 

2699 
evidence in the record, excluding the privileged evidence not disclosed, to 

support this conclusion. Therefore, the Order of Temporary Reinstatement issued 

by Judge Broderick on August 26; 1980, is continued in effect. My bench decision to that effect rendered September 2, 1980, is th refore affirmed. 

Distribution: 

Thomas Piliero, Esq., Office of the 

4015 Wilson Boulevard, Arlington, 

Department of Labor, 

fied Mail) 

Eugene Fidell, Esq., LeBoeuf, Lamb, Leiby and MacRae, 1333 New Hampshir~ 

Avenue, NW., Suite 1100, Washington, DC 20036 (Certified Mail) 

2700 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 6 SEP 1980 

EASTERN ASSOCIATED COAL CORP., 

Applicant 

Application for Review 

v. Docket No. HOPE 76-289 

IBMA 77-20 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Order of Withdrawal No. 1 RDL 

February 18, 1976 

Appearances: 

Before: 

Respondent 

Keystone No. 1 Mine 

DECISION 

Nancy Sproul Bifulco, Legal Assistant, Eastern Associated 

Coal Corp., Pittsburgh, Pennsylvania, for Applicant; 

Edward H. Fitch IV, Esq., Office of the Solicitor, U.S. 

Department qf Labor, for Respondent. 

Judge Charles C. Moore, Jr. 

On September 2, 1980, the Federal Mine Safety and Health Review Commission vacated the decision I had issued in the above case on January 27, 1977, 

(hereinafter "Eastern II") and remanded it to me for "reconsideration in light 

of, and entry of a new 'decision consistent with, Eastern Associated Coal Company, 

Docket No. HOPE 75-699, IBMA 76-98" (hereinafter "Eastern I") also issued 

September 2, 1980. That case, concerned two questions: (1) the reviewability 

of a section 103(f) order issued under the Federal Coal Mine Health and Safety 

Act of 1969, 1/ and; (2) the validity of that order and its modification. 

The Commission"found that by virtue of the transfer provisions of the 1977 Act 

it had the authority to review section 103(f) orders and, in so doing, upheld 

the administrative law judge's decision affirming the order and its modification. 

An accident occurred in Eastern I in which a shuttle car operator was 

injured as a result of being trapped between his shuttle car and the rib. During a faulty unloading procedure the cable hook, which holds the shuttle car in 

1/ Section 103(f) of the 1969 Act [30 u.s.c. § 801 et seq. (1976) (amended 

T977)] provides: 

"In the event of arty accident occurring in a coal 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.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 the mine or to recover the mine or to 

return affected areas.of the mine to normal." 30 u.s.c. § 813(f). 

2701 
place, came lo.ose allowing the car to move down the tracks and come in contact 

with the shuttle boom which pushed it off the tracks into the rib. 

The Commission held that a section 103(f) order could not be issued for 

the sole purpose of preserving evidence. Section 103(e) 2/ specifically 

provided for the preservation of evidence whereas section-103(f) was designed 

to ensure miners' safety in the aftermath of an accident. 

The Commission found sufficient safety reasons to justify issuance of a 

section 103(f) order in Eastern I. The inspector was unable to determine why 

the cable hook came loose and caused the accident, so that until such a determination was made the miners' safety remained in jeopardy. An undisturbed 

accident scene was thus requisite. The Commission agreed with the judge's 

conclusions that where there is a strong possibility that the accident might 

be repeated if operations were allowed to resume and if an accident investigation is necessary to determine the cause of the accident and the means by 

which to prevent a rec~rrence, a section 103(f) order is appropriate. 

Based on these findings, the Commission remanded Eastern II to me 

for reconsideration. After thoroughly reviewing both cases, I find no 

reason to disturb my prior decision. 

In Eastern II, an inspector issued a section 103(f) order after a minor 

methane explosion occurred while he was making a regularly scheduled 

inspection of the mine. It was established at the hearing that the events 

which caused a cutting machine operator and his helper to report an explosion 

were a profusion of sparks accompanied by a "poofing" noise. The cutting 

machine operator immediately returned to the face and performed a spot-check 

for methane which proved negative. The section foreman shut off power to the 

section and withdrew all personnel. The inspector was informed of the incident and issued a verbal 103(f) order to the operator which was later reduced 

to writing. The inspector tested for methane at _the face and for ventilation. 

The methane reading 2 inches inside the cut was 3.1 percent. The ignition 

level for methane is 5 percent to 15 percent. 

After interviewing the cutting machine operator and his helper, the 

inspector returned to the surface about 1 p.m. and contacted his sub-district 

office which informed him to return to the mine to collect a dust sample. 

Instead of returning directly to the mine, he waited for a state inspector 

to arrive and, as a result, did not collect that dust sample until sometime 

between 6 and 8:15 p.m. The federal inspector's decision to await the state 

2/ "In the event of any accident occurring in a coal mine, the operator shall 

notify the Secretary thereof and shall take appropriate measures to prevent 

the destruction of any evidence which would assist in investigating the cause 

or causes thereof. In the event of any accident occurring in a coal mine 

where rescue and recovery work is necessary, the Secretary or an authorized 

representative of the Secretary shall take whatever action he deems appropriate to protect the life of any person, and he may, if he deems it appropriate, 

supervise and direct the rescue and recovery activity in such mine." 30 U.S.C. 

§ 813(e). 

2702 
inspector stemmed from professional courtesy in conducting accident investigations rather than a concern for safety. Additional support for this conclusion was provided by the fact that the inspector terminated the order 

immediately upon taking the dust samples so that he must have been convinced 

that the area in question was safe. I accordingly modified the termination 

time on the withdrawal order to read 1 p.m. 

The inspector's air bottle test for methane later showed full compliance 

with the Act, however, the dust samples showed traces of coke. 

If an ignition did occur and I found that it most probably had, it was 

caused by a pocket of methane, the presence of which can only be established 

by the tests which were conducted. Thus, preserving the scene of the accident was not crucial to a determination of the accident's cause, as it was 

in Eastern I. Similarly, and as the inspector's conduct bears out, the 

miners' safety was no more in jeopardy at 1 p.m. than it was at 8:15 p.m., 

contrary to Eastern I. There the inspector did not know the cause of the 

accident and feared a recurrence. In Eastern II, there were no injuries, 

the cause was rather apparent and the tests performed showed, so far as they 

are able, little chance of a recurrence. 

In light of these factors and after reconsidering my decision I find that 

the modification of the withdrawal order was appropriate and I incorporate 

that decision in toto herein. 

Attachment 

Distribution: 

Charles C. Moore, Jr. 

Administrative Law Judge 

Nancy Sproul Bifulco, Legal Assistant, Eastern Associated Coal Corp., 

1728 Koppers Building, Pittsburgh, PA 15219 (Certified Mail) 

Edward H. Fitch, Esq., Office of the Solicitor, U.S. Department of 

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

Mary Lu Jordan, Esq., United Mine Workers of America, 900-15th St., 

NW., Washington, DC 20005 (Certified Mail) 

2703 
ATTACHMENT 

United States Department of the Interior 

OFFICE OF HEARINGS AND APPEALS 

HEARINGS DIVISION 

4015 WILSON BOULEVARD 

ARLINGTON, VIRGINIA 22203 

January 27, 1977 

MINING ENFORCEMENT AND SAFETY 

ADMINISTRATION (MESA), 

Respondent 

Review Proceeding 

Docket No. HOPE 76-289 

v. 

Order of Withdrawal 

EASTERN ASSOCIATED COAL CO., 

Petitioner IRDL 2-18-76 

DECISION 

Appearances: Edward H. Fitch, IV, Esq., Office of the Solicitor, 

Department of the Interior, for Respondent; 

Charles Q. Gage, Esq., Eastern Associated Coal 

Company, and Thomas E. Boettger, Esq., Eastern 

Associated Coal Company, for Petitioner. 

Before: Administrative Law Judge Moore 

The above-captioned review proceeding came on for hearing in 

Charleston, West Virginia, in September of 1976. The United Mine 

Workers of America had previously filed ~n answer to the petition 

for review, but did not appear at the hearing and has not filed 

any post hearing brief. There has been no motion, request, or even 

suggestion, however, that the union be dismissed from the proceedings and I accordingly decline to do so. Nor has there been 

any challenge to the right of this office to review an Order 

issued under section 103(f) of the Act, and inasmuch as the Board 

of Mine Operations Appeals has ruled that under certain circumstances Orders issued under that section of the Act are reviewable, I deem any challenge as to whether or not those circumstances have been satisfied, as waived. 

The order of withdrawal that is the subject of this proceeding 

was issued on February 18, 1976, at Eastern's Keystone No. 1 Mine 

located in McDowell County, West Virginia. Ronald D. Lilly, an 

inspector for the Mining Enforcement and Safety Administration 

(MESA), a duly authorized representative of the Secretary, issued 

the withdrawal order under section 103(f) of the Coal Mine Health 

and Safety Act of 1969 (the Act). The inspector had arrived at 

the mine between 7:30 and 8:30 a.m. to conduct a regular scheduled 

2704. 
inspection. His scheduled activities were centered on the main 

line track haulageway. 

At approximately 9:15 a.m., on February 18, 1976, the incident 

that instigated the subject order occurred. A cutting machine operator and his helper working in the 7 left one panel heard a "woof" or 

a "poof" as they made a lateral cut along the bottom of the face as 

part of the conventional mining process. The operator, Mr. Belcher, 

and his helper, Mr. Graham, reported that they saw a ball of fire 

or at least a profusion of sparks. The helper immediately fled 

returning only when Mr. Belcher's spot check for methane proved 

negative. 

The section foreman, Mr. Rotenberry, was informed of the incident. He shut off the power in the section, withdrew the personnel 

and contacted the assistant and General Mine Foreman, Mr. Pickett. 

The assistant mine foreman, Mr. Norris, notified Inspector Lilly, 

of the possible ignition at approximately 10:45 a.m. and arranged 

for his transportation to the scene. After retrieving his bag 

from outside the mine, the MESA inspector proceeded to the 7 left 

one panel and verbally issued the 103(f) order to Mr. Norris and 

the ventilation foreman accompanying him, Mr. Phelps. The inspector 

reached the scene at about 11:05 a.m. 

Shortly after the incident occurred, and prior to Inspector 

Lilly's arrival, Mr. Pickett, the general mine foreman, arrived 

at the panel. He made three safety checks which showed an absence 

of methane, and a velocity of 5,000 cubic feet of air across the 

face. The machine operator and his helper were interviewed by 

Pickett. He examined the cutting bar and found no evidence of 

charring. General compliance with the Act was noted by Mr. Pickett. 

Work was resumed and the power returned after his inspection. 

Upon arrival at 11:05 a.m., Inspector Lilly began to investigate the incident. The MESA inspector proceeded to test for methane 

at the face and for ventilation. An air bottle was "broken" to 

provide for laboratory tests, the results of which showed full 

compliance with the Act. 

The cutting machine operator and his helper were interviewed. 

The methane detector on the machine was found operable. A methane 

reading was taken 2 inches inside the cut made by the machine. 

The reading was 3.1 percent meth·ane. The ignition level for methane 

is 5 percent to 15 percent. 

This initial investigation was completed shortly after 12 noon, 

the order was reduced to writting, the panel was deenergized and 

the men withdrawn. 

2705 
•. 

. . . 

Inspector Lilly contac:t~d the subdistrict office after he reached 

the surface about l p.~. }{ls instructions were to return to th_e mine 

to collect a dust sample. He. was notified that an accident investigator, Inspector Fa·rl~y: : w,ii$ 9n, h{~ :~ay. In conjunct ion with a state 

inspector's decision:.t:o~·av.ait Inspector Farley's arrival and to attend 

the interrogation .of faie:witnds~s; I11spec:tor Lilly chose to delay his 

reentry into the mfne u.iiti.(~iitley arrived. As a crowd gathered 

around the mine offk~·~t the'shift change, approximately 4 p.m., the 

federal inspectdr .. proc.ei!t~e.d .·~·o the mouth of the panel accompanied by 

several company, unic)n:, and ME~ . .A·personnd to await Farley's arrival. . . . : ..... ·~; 

This group arrh:E!,_d .iit th.~~ulo~~ll of the panel at approximately 

4:15 p.m. Farley had ;9,t.i;'ived<i.n,.ttie.'meantime, and he instructed 

Lilly to conduct the uridergroul)d:investigation while he, Farley, 

conducted the interrog'adons~ . ·The ·state inspector again refused 

to enter the mine until :th~· J1lt;errogations by Farley were con-

'cluded. Lilly honored this position and declined to enter the 

panel until the s.tate inspector ari;ived~ 

This delay ended at·6 p•m• The group reentered the panel, 

Lilly collected two d·us.t'. .samples., one from the cutting bar and 

one along the cut. La.ter andy.s is determined that these samples 

contaiiled a "trace" of C:i>ke. The ~ir and ventilation were again 

checked' the investigation eridecf a11d. the order was terminated at 

8:15 p.m. •. 

Sect ion 103( f) of the ·Act st0ates: 

In the event of ~ny accident occurring in a coal 

mine, an authori;zed·representative of the Secretary, 

when present' may {'ssue such orders. as he deems appropriate to insure t:\l~~ s.afety of any .person in the coal 

mine 1 and the< operatoi'.·Of such mine. shall obtain the 

approval of ·SUCtl rept-e:~en'tati.~e, in COllSUltat ion with 

appropriate state ?:e.prese.ntatives, when feasible, of 

any plan to recqver,·#rl::Y ;persoll in the mirie or to 

recover the mine; ()~'qto·.: ret.urti, the affected areas of 

the mine to .Iioma,l~ 

...... 

Under section 3(kf bf the 'Act:, an ignition is an accident anp 

there is no question that.the.Inspector was in the mine at the 

.. ·time of the incident which gave rise to the issuance of the order. 

If. therefore, ari ignitfon occurred, the Inspector clearly had the 

dght to. issue "such orders a1rhe deems appropriate to insure the 

safety of any person in the 'Coal mine * * *" 

The evidence a:s .to ~~the~ a.n ignition actually occurred is not 

conclusive. Eastern .speculates -that the cutter bar hit a sulfur ball, 

actually iron pyrites, :··~a'nctdiat :what ih~ two coal miners saw was a 

shower of sparks created bi the cutter Which is similar to a chain 

2'706 .· 

... ' ... ·· 
saw, cutting through the sulfur ball. There was no testimony 

however that at a later time after further mining, a sulfur ball 

conta1n1ng a cut had been discovered. On the other hand, the 

"poof" or "woof" described by the two coal miners is consistent 

with a low energy methane explosion. I take judicial notice* of 

the fact that when methane concentrations are near the extreme 

ends of the explosion range i.e., near 5 percent or near 15 percent a low energy explosion results from an ignition. Also, traces 

of coke found in the dust samples are consistent with a methane 

ignition. The fact that the "poof" was followed by smoke (Tr. 

32) also indicates an ignition. I therefore find that it is more 

probable than not that a methane ignition did occur, but even if 

it did not, the report of a possible methane ignition and the 

fact that whatever did happen caused the two coal miners to be 

afraid, and think an ignition had occurred justified the issuance 

of the order. 

Having found that the Inspector was justified in issuing the 

order in question however, it does not follow that it was proper 

to continue the effect of the order until 8:15 p.m. In so continuing the effect of the order the Inspector was following and 

relying on instructions issued by MESA which state that one of 

the purposes of an order issued under . section 103(f) of the 

Act is to preserve the evidence of tne "accident" (Tr. 99). 

The purpose of the order which the Inspector is to issue under 

the section in question, however, by its clear languag.e, is to 

insure the safety of any person in the mine~ not to preserve the 

evidence of the event that gave rise to the order. The section 

speaks in terms of safety and recovery of the person from a mine 

and returning the affected area of the mine to normal, but it 

does not, in my opinion, contemplate an order or the continuation 

.of an order in such a manner as to make the investigation by MESA 

convenient. The instructions which the inspector relied on are 

set forth in joint exhibit 1 which consists of a memorandum dated 

August 7, 1974, from the assistant administrator, Coal Mine Health 

and Safety to the various district managers and the attached guidelines for issuance of orders under section 103 of the Act. I 

would like to call attention to the following provision of those 

guidelines: 

The issuance of a Section 103(f) order is to be 

distinguished from an order issued under Section 104 

of the Act. These two orders have different statutory 

*As in the case of official notice, the parties may be heard as to 

the propriety of taking judicial notice. See Rule 26l(e) of Federal Rules of Evidence. Any party may therefore submit, within 

10 days of the date of this decision, any material in opposition 

to the noticed fact. · 

2707 
bases and criteria for issuance, and should be considered independently. It should be noted that much 

greater control can be exercised through a Section 

103(e) or (f) order than can be obtained through a 

Section 104(a) "imminent danger" order. Section 104(a) 

contains an exception of the withdrawal of persons described in Section 104(d). There are no exceptions contained in Section 103(e) or (f) and the authorized 

representative may take whatever action he deems 

appropriate to "protect the life of any person", to 

"insure the safety of any persons" in the coal mine, 

and to "prevent the destruction of any evidence 

which would assist in determining the cause or causes 

of the accident." 

In my opinion the quoted portion of the guidelines is 

designed to delude the inspector into believing that the statute 

provides for the issuance of an order for three purposes: 

1. To protect the life of any person. 

2. To insure the safety o.f any persons; and 

3. To prevent the destruction of any evidence which would 

assist in determining the cause or causes of the accident. 

The last quoted words, however, do not come from section 103 of 

the Act but are similar to words contained in section 103(e). 

When quoted in context they state: 

The operator shall notify the Secretary thereof 

[of an accident] and shall take appropriate measures 

to prevent the destruction of any evidence which would 

assist in investigating the cause or causes thereof. 

In my opinion the guidelines clearly represent that statutory language exists when in fact it does not. I think that the instructions that the inspector relied on were erroneous. 

He should have been instructed to lift the order when he was 

satisfied that the order was no longer necessary "to insure the 

safety of any person in the coal mine". It is of course difficult 

to determine long after an event what the Inspector's state of 

mine was at at any particular time during the occurrence, but 

it is obvious that after he re-entered the mine and took the two 

dust samples and terminated the order at .8:15 p.m., he was satisfied that there was no continued danger to the miners. The 

fact that the dust samples later were tested and showed traces 

of coke could not have entered into his decision to terminate 

the order. Therefore his second entry into the panel for the 

purpose of taking dust samples could not reasonably be associated 

with his fear for the safety of the miners. 

2708 
If the Inspector feared for the safety of the miners at 

11 a.m. when he verbally closed the section, and.did not fear 

for their lives at 8:15 p.m. when he terminated the order, some 

event must have occurred during that span of time to alter his 

op1n1on. If his thinking was changed by listening to interviews 

on the surface, the record contains no evidence of it. I think 

it is reasonable to conclude that after the Inspector, on his 

first visit to the section, had examined the equipment including 

methane monitors, made methane tests and taken air samples and 

discussed these matters with his superiors, that he knew at that 

time as much, insofar as the safety of the miners is concerned, 

as he knew at 8:15 p.m. when he terminated the order. Waiting 

for federal Inspector Farley and the state Inspector was insufficient reason to continue the order in the absence of some fear 

for the safety of the miners. The fact that he had no such fear 

is demonstrated by the fact that after a delay' of some 6-8 hours, 

and without obtaining any additional knowledge, he terminated 

the order after taking two dust samples which were not analyzed 

until the following day. He thus learned nothing new on his second 

trip to the section where the incident occurred. 

I therefore conclude that the order in question was properly 

issued, but that it should have been terminated when the Inspector 

reached the surface and informed his superiors of the results of 

his investigation. I think it reasonable for him to consult with 

his superiors prior to terminating the order because after hearing 

his report they might know of some possible danger that he was 

unaware of that should be. checked. That did not occur however 

and he should have been instructed to terminate the order. If 

he had proceeded immediately to the section to take dust samples 

before terminating the order, I would have considered that reasonable. It was not reasonable, however, to delay the matter 

as was done here. I want to emphasize that I am critizing the 

instructions (guidelines), not the inspector. 

2709 
ORDER 

IT IS THEREFORE ORDERED, that the Order of Withdrawal be 

modified to show termination at 1 ~ f. '/J?~I ~ ' 

Distribution: 

Charles C. Moore, Jr. 

Administrative Law Judge 

Edward H. Fitch, Jr., Esq., Mining Enforcement and Safety 

Administration, Office of the Solicitor, U.S. Department 

of the Interior, 4015 Wilson Blvd., Arlington, VA 22203 

Thomas E. Boettger, Esq., Eastern Associated Coal Corporation, 

1728 Koppers :ijuilding, Pittsburg, PA 15219 

Charles Q. Gage, Esq., Jackson, Kelly, Holt & O'Farrell, 

1601 Kanawha Valley Building, P.O. Box 553, Charleston, 

WV 25322 

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

St., N.W., Washington, DC 20005 

Assistant Administrator, Mine Health and Safety, MESA, U.S. 

Department of the Interior 

2710 
FEDERAL MINE SAFETY· AND .HEALTH REVIEW. COMMISSION 

OFFICE·. OF· A~~INISTAAT~VE ~w JUDGES.· 

· sKYuNE. fo-NERs No. 2/1'.o'TH · nooR · · 

. FALLS ~~R~~.s~~:~~lK~~{ ... . . :~.. . .:•. , .. ;· 

:·: .. · ... ·· . ; .. 

SECRETARY OF LABOR, . : Civil P~nalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), ·•: I>Ocic.et NC>~ KENT ao-34 · . 

Petitioner . ·: A.c .• '.No. 15•11526-03002-R 

v. 

; ·. No. 1 Preparation Plant 

PATCO, INCORPORATED, .-·:. :; ·.:. 

Appearances: 

Before: 

RespQnd~nt :, ~·:. ·· . ..... .. :_; ·-: ... :· .. ··.··:-.... 

'.DECISIO~···· '•·. '• .~ . , 

George Drumming, Jr.~ E$q. >'of:f:l.ce of the Solicitor, . 

u.s. Department of l.abor~ 'Nashville, Tenl)essee, for 

Petitioner; · · ·. · ···' · ·.·· ·· ·· · ·· 

James Patrick, President, .Patco,Ji:nC:~rporated, Hindman, 

Kentucky, for Resp~ndent• · 

Judge Melick 

This case is before me upon a petition fc>°rassessment of civil penalty 

under section llO(a) of the Federal. Mine•<Saf~.ty •nd Health Act of 1977, 

30 u.s.c. § 801 et~·· the i•Ac~.·~ .'the ge~~r4liss.ii(! in thls case is 

whether Patco, Incorporated (Patel>)> deriied<entry te) an MSHA inspector in 

violation of section 103(a) of the 0:1\C:t, and, tf: s~, the aJ>propriate civil . 

penalty to be assessed for the· violation~ .·Patee> does not deny that a 

former employee, Grover Patrick, swung at MSJiA inspector Eugene Lewis while 

Lewis was on Patco property but·claims. that•lt'was theresuit of a personal· 

dispute having nothing to do with·Patco. it contends in the al.ternative 

that in any event Grover Patrick h&.d no authorj;.ty to act for Patco; that he 

was not then even an employee of Patco.,. having been laid off the month 

before, that he was at the Patco plant· ori·.~tdctly persQnal business and 

indeed that he acted contrary to the·c9~sis~~~tpoliC:Les and practices of 

Patco not to interfere with MSHA.in~peciors·~·<· : .·. - -

Section 103(a) provides in ess~#e ~ha:t .'arty authorized representative 

of the Secretary has the right of. entry; t9~ 'μpon/or through any coal mine 

in order to conduct an inspectfori pres~dbed by. the Act. MSHA claims that 

the authorized representative of·the sec~etary, in.this case MSHA inspector 

Lewis, was denied entry to inspect Pa.tco,'s No. t' Preparation Plant on 

March 30, 1979, and has accordiriglY· J>etitioned' :f<>r a penalty of $1,500. 

··.:·, 

2711 

· .. · .. · 

·:·:. 
The essential facts are as follows. On the morning of March 30, 1979, 

Inspector Lewis heard that Patco might have been loading coal at its previously closed preparation plant. Lewis therefore decided to inspect Patco. 

He first watched the plant from a distance to determine whether it was 

actually operating. He thought it was. He saw two men inside the scalehouse and a coal truck parked on the scales. He recognized one of the men 

as Grover Patrick who appeared to be doing "paperwork" inside the scalehouse. 

He had known Grover to have been at one time an employee of Patco but from 

his past inspections knew that Grover had never officially represented the 

company. He did not know that Grover was no longer employed by Patco and 

did not inquire to find out. Grover had in fact been laid off the month 

before and was at the plant only for the purpose of using its tools to repair 

his own truck. 

The coal truck and its driver left when Lewis approached Grover. Lewis 

asked to see James Patrick, Patco's owner and officially designated representative for health and safety. See 30 C.F.R. Part 41. Grover stated that 

James had gone to town about 5 miles away. Lewis apparently then asked Grover 

if he had received his papers as a certified mine foreman. !/ Advised that he 

had, Lewis thereupon told Grover that he would conduct an inspection. According 

to Lewis, he then told Grover that the truck that just departed had no backup 

alarm and Grover allegedly responded that that was the truck driver's problem. 

According to Lewis, Grover then said "You Goddamn son-of-a-bitch," took four 

or five steps towards him and swung at him through the window of his jeep. 

Lewis immediately left the premises and prepared the citation at bar charging 

that he was unlawfully denied entry by Patco. Lewis conceded that he had 

inspected Patco on four or five prior occasions, and once subsequently, 

without difficulty or opposition. 

Grover Patrick testified that he had formerly operated a front-end 

loader for Patco but never served in a management capacity and had never 

represented to anyone that he had ever served in such a capacity. He had not 

worked for Patco for more than a month and on the day in question went to the 

plant to use its tools to repair his own truck. When Lewis arrived, he was 

reading the truck maintenance manual. The coal truck parked near the scalehouse had not been loaded at Patco. The driver had only stopped to inquire 

whether Patco intended to reopen. Grover admitted that he swung at Lewis 

but claims that this was precipitated by his continuing false accusations 

that he had torn up some construction equipment where Lewis had a parttime 

job. Lewis had ostensibly harassed him about these allegations on several 

prior occasions. Lewis denies that he harassed Grover but admits that he did 

on one occasion ask Grover about the damaged equipment. 

James Patrick, president of Patco, testified that his brother Grover was 

not employed at the time, and was at the yard for the sole purpose of working 

1/ As explained at hearing, these papers are issued by the State of 

West Virginia Department of Mines and have nothing to do with whether or not 

a person is employed, the capacity in which that person may be employed or 

by whom he may be employed. 

2712 
on his own truck. He had seen him there earlier that morning. The plant was 

not then operating and had not been operating for some time. He had never 

authorized Grover to act on behalf of the company and was shocked when he 

learned on the following day what Grover had done. At the first opportunity 

he went to the MSHA district office to explain things. He had never authorized Grover to act on behalf of the company and certainly never authorized 

him to bar an inspection of Patco property. It had always been company 

policy to allow such inspections and to treat inspectors courteously and 

with respect. James Patrick himself had once been an MSHA inspector. He 

thought that there had been some personal conflict between Grover and 

Inspector Lewis that might have precipitated the incident. 

The issue before me is whether Inspector Lewis was in fact denied entry 

by Patco thereby preventing an inspection. The resolution of this issue 

depends· on whether Grover Patrick had the express or apparent authority to 

act as an agent on behalf of Patco at that time or whether on the facts of 

this case Patco should be estopped from denying that Grover had such authority. If Grover Patrick did not have such authority then Patco was not in 

violation of the law but if he did have such authority or if his acts were 

subsequently ratified then Patco is bound by those acts and is guilt~ as 

charged. 

Although the term "agency" in its usual legal sense imports commercial 

dealings, analogies can nevertheless be drawn to the law of agency in 

resolving the question at bar. Under the law of agency the authority of an 

agent arises from an express or implied agreement. 3 Am Jur. 2d Agency § 18. 

An express agency is an actual agency created as a result of the oral or 

written agreement of the parties. An implied agency is also an actual 

agency, but its existence is proved by deductions or inferences from other 

facts and circumstances of the particular case, including the words and conduct of the parties. The existence of an implied agency, for example, may 

be inferred from prior habits or from a course of dealings of a similar 

nature between the parties, especially where the agent has repeatedly 

been permitted to perform similar acts in the past. 3 Am Jur. 2d, supra. 

While the creation of an agency, as between the principal and agent, is 

a matter of their mutual consent, an agency by estoppel may also be created 

insofar as third persons are concerned--that is, it may arise from .acts and 

appearances which lead third persons to believe that it has been created. 

Agency by estoppel may be apparent only and exist because of the estoppel of 

the principal or agent to deny the same after the third party has relied on 

such appearance, so that such third party would be prejudiced if the fact 

were shown to be otherwise. 3 Am Jur. 2d, supra § 19. 

In the instant case there is no evidence that Grover Patrick had ever 

been expressly autho;ized to act on behalf of Patco in any official 

capacity. Moreover, there is no evidence from acts, appearances or a previous course of dealing that he had by implication been authorized to act 

in such a capacity. Thus, there can be no inference that any agency, 

including an implied agency or any agency by estoppel, existed in this case. 

2713 
He 'had never been more than an ordinary employee and was not even an employee 

on the date at issue. His mere presence on Patco property and the fact that 

he happened to be the owner's brother is not sufficient evidence standing 

alone from which to conclude that he was an agent authorized to act for Patco. 

It is clear, moreover, that Patco, as represented by its president James 

Patrick, did not ratify the unauthorized acts of Grover Patrick. To the 

contrary, James Patrick went to the MSHA district office as soon as he could 

to reaffirm his longstanding position that MSHA inspectors were welcome on 

his premises at any time and to assure those officials that Grover's acts 

were not those of Patco. Inspector Lewis himself conceded that neither he 

nor any other inspector had ever before or since been denied entry by Patco. 

I find that under these circumstances Grover Patrick was not authorized to 

act on behalf of Patco and that therefore his acts cannot be attributed to 

Patco. Thus, Patco is not guilty of the violation charged. 

Citation No. 737413 is accordingly VACATED nd this case is DISMISSED. 

Distriliution: 

George Drumming, Jr., Esq., Office 

of Labor, 801 Broadway, Rm. 280, 

, U.S. Department 

203 (Certified Mail) 

James Patrick, President, Patco, Inc., Route 2, Box 716, Hazard, KY 41701 

(Certified Mail) 

2714 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

RICHARD J. MULLINS, 

v. 

EASTOVER MINING COMPANY, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Complainant 

Respondent 

2 6 SEP 1980 

Complaint of Discharge, 

Discrimination, or Interference 

Docket No. VA 80-60-D 

CD 79-297 

Eastover Mine 

DECISION 

Appearances: Richard J. Mullins, Norton, Virginia, pro~·; 

Karl S. Forester, Esq., Harlan, Kentucky, for Respondent. 

Before: Administrative Law Judge Melick 

This case is before me upon the complaint by Richard J. Mullins under 

section 105(c)(3) of the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 

§ 801 et~·· the "Act"), alleging that he was discharged by the Eastover 

Mining Company (Eastover) in violation of section 105(c)(l) of the Act. An 

evidentiary hearing was held on August 26, 1980, in Abingdon, Virginia. 

Section 105(c)(l) provides in relevant part that: 

No person shall discharge or in any manner discriminate 

against * * * or otherwise interfere with the statutory rights 

of any miner * * * in any coal * * * mine subject to this Act 

because * * * .of the exercise by such miner * * * on behalf of 

himself or others of any statutory right afforded by this Act. 

Although Mullins' complaint in this case has never been precisely articulated as best as can be determined he seems to claim that he was unlawfully 

discharged because he was fired at a time when he was performing his duties 

as a "fire boss" thereby preventing him from completing the health and safety 

functions relating thereto. If this indeed is the nature of his complaint 

then it is of course facially insufficient to raise a justiciable issue under 

section 105(c)(l) of the Act. The violation of a protected right must necessarily precede and be a cause for the alleged unlawful discharge. In any 

event I do not find under the circumstances of this case that the Complainant 

was ever in fact discharged. 

lhe essential facts are not in dispute. Mullins was, at the time in 

question, the designated "fire boss" on the third shift. Larry Baker was 

2715 
then the general mine foreman in charge of the third shift and was therefore 

Mullins' supervisor. In the early morning of August 31, 1979, Baker directed 

Mullins to take two miners to the No. 2 tailpiece to see if it was "gobbed 

off," i.e., jammed by falling debris. If such a condition did exist, it is 

conceded-that it posed a serious safe~y hazard from fire and smoke and would 

have been a violation of Federal safety standards. 

Mullins apparently escorted the two miners to the No. 2 tailpiece then 

left to "fire boss" another section of the mine. When Mullins returned at 

around 2:15 a.m., the belt was still not running. Baker had, in the interim, 

called down to determine whether the belt was working and when advised that 

it was not, entered the mine himself walking abo~t 1 mile to the No. 2 tailpiece. When Baker arrived, he observed Mullins and the two female miners 

standing around doing nothing. Baker thereupon picked up a nearby hose and 

cleaned the belt himself, thereby permitting it to operate. Baker then asked 

~hillins why he had not remained at the tailpiece to see that the belt was 

properly cleared and running. Mullins apparently responded to the effect 

that Baker was not his boss and that he did not have to take orders from him. 

The exchange over who was the boss became heated and Baker finally told 

Mullins that "if you keep running your mouth, I'm going to fire you." The 

argument continued and Baker finally ordered Mullins to go to the surface 

with him to see Charlie McNulty, superintendent in charge of the mine. When 

they reached the surface, McNulty told Mullins that he would not make a decision about his job until he heard both sides of the argument. He would act 

as an arbitrator in the case. Mullins thereupon went to the bathhouse, completed his "fireboss" books, left the preDiises and never returned. McNulty 

never made any decision whether to retain or discharge Mullins since Mullins 

never returned. 

Within this framework of evidence, I am convinced that Mullins was never 

in fact discharged, but rather voluntarily left his job and never returned. 

The most that can be gleaned from the evidence is that Mine Superintendent 

McNulty would hear both sides of the argument before deciding what to do. 

Mullins himself admits that McNulty never fired him and indeed continues to 

assert that Baker did not have the authority to fire him. 

Under the circumstances I conclude that there was, in fact, no discharge 

at all. Since there was no discharge, there could no have been an unlawful 

discharge under the Act. The complaint is therefore ISMISSED. 

Distribution by Certified Mail: 

Richard J. Mullins, P.O. Box 

Karl S. Forester, Esq., Forester & Forester, P.O. Box 9.35, Harlan, KY 

40831 

2716 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52C'3 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 9 SEP 1980 

ERIE MINING COMPANY Contest of Citation 

Contestant 

v. Docket No. DENV 79-23-M 

SECRETARY OF LABOR, Citation No. 290475 

MINE SAFETY AND HEALTH September 20, 1978 

ADMINISTRATION (MSHA), 

Respondent 

Erie Mine 

UNITED STEELWORKERS OF AMERICA, 

Appearances: 

Before: 

· Respondent 

DECISION 

Philip D. Brick, Esq., Erie Mining Company, for Contestant; 

Leo J. McGinn, Office of the Solicitor, U.S. Department of 

Labor, for Respondent. 

Judge Lasher 

This proceeding arose when Contestant filed a notice of contest under 

the Federal Mine Safety and Health Act of 1977. A hearing on the merits 

was held in Hibbing, Minnesota, on June 26, 1980,. at which both parties 

were represented by counsel. Shortly after the hearing commenced, counsel 

for MSHA moved on the record for dismissal on the grounds that Contestant's 

notice of contest was not timely filed. After lengthy discourse and analysis 

of the problem on the record (Tr. 9-35), it was determined that the filing of 

the notice of contest with the MSHA District Office in Duluth, Minnesota, by· 

Contestant's attorney, Philip Brick, on the 30th day after the citation was 

issued was timely. My ruling in this respect, in its entirety, follows 

(Tr. 31-35): 

II 

MSHA has filed a motion to dismiss the application for 

review in this proceeding on the basis that it was not filed 

within 30 days after the mine operator received the [citation involved]. 

The citation in question was issued on September 20, 

1978. The evidence reveals that the mine operator's counsel, 

Philip D. Brick, personally delivered to the District Director of MSHA at the Federal Building in Duluth, Minnesota, a 

2717 
copy of the document entitled "Application for Review" on or 

before 2 p.m. on October 20, 1978, which was the 30th calendar 

day after the citation was issued. One does not count the 

first day, that is,.the day on which the citation was issued, 

as part of the 30-day time period in computing the 30-day 

period. The first day is not to be counted as per the provisions of 29 C.F.R. § 2700.ll(c) of the so-called Interim 

Procedural Rules, which I find were applicable to all the 

events which are pertinent to the motion to dismiss. On the 

other hand, the document entitled "Application for Review" was 

not received in the Office of Administrative Law Judges of 

the Federal Mine Safety and Health Review Commission until 

October 23, 1978, all of which is established by the date 

stamp appearing on the first page of the original document 

which I find would have been placed there in the normal 

course and routine of business. 

Several questions are raised by the motion. One is 

whether or not service on the Secretary of Labor within the 

30-day period is sufficient to toll the 30-day statute of 

limitations. Another question is whether or not this document entitled "Application for Review" is in effect a "notice 

of contest" as that term is used in the 1977 Act. 

I note that under the 1969 Act all such requests for 

review were designated "Applications for Review," but that 

this terminology was changed in the 1977 Act. I find, in 

order to clear up the confusion, that although labeled 

"Application for Review," the document in question was the 

initial pleading which initiated the notice of contest and 

that there is no question but that the provisions of 29 C.F.R~ 

§§ 2700.18 and 19 are both applicable, although in places 

there is reference to such documents as being "Applications 

for Review." The implementing regulations cannot validly 

affect the rights and provisions of the Act itself in the 

sense that.rights of any of the parties are materially 

reduced or eliminated. 

Section 105(d) of the 1977 Act does permit the operator 

to notify the Secretary within 30 days of receipt of a citation of the operator's desire to contest the citations and 

further it provides that upon being notified by the mine 

operator, the Secretary "shall immediately advise the Commission of such notification." 

The proviso to Rule 2700.18(b) appears to be the implementation of the statutory provision contained in 105(d) of 

the Act. Thus, it states: 

Provided, however, ·that these rules shall not 

foreclose the party's right to file the Notice of 

Contest with the Secretary under section 105(d) of 

2718 
the Act and such notice, if timely, shali be deemed 

to satisfy the jurisdictional requirements of section lOS(d) of the Act. In that event, the Secretary shall be required to notify the Commission 

immediately upon receiving a notice from an operator of an intention to contest a citation issued 

under section 104 of the Act. 

I thus conclude that notification to the Secretary within 

30 days after receiving the citation by the operator tolls 

the limitation period. 

The question thus remains whether the District Manager 

of MSHA is an agent for such service or notification. 

I would indicate, before answering this question, that 

I find a conflict between Interim Rule 2700.11 and the proviso to section 2700.18(b) insofar as the circumstances of 

this case are concerned. Section 2700.ll(a) indicates that 

all initial pleadings in a proceeding such as this one shall 

be filed with the Commission and provides an address therefor:. The proviso, however, preserves the right of the party 

to file a notice of contest with the Secretary, even though 

the paragraph previously indicates that the filing of an 

application with the Commission would be deemed to be timely 

service on the Secretary. 

Thus, the right to serve the Secretary or to notify the 

Secretary provided in the Act is preserved in the regulation 

as I understand its meaning. 

I find that in view of the situation which existed in 

the fall of 1978, that it was entirely proper for the mine 

operator in this case to have filed its contest with the 

District Director and that apparently in implementing the 

regulations someone in the MSHA office forwarded the document to the Commission where it was received on October 23, 

1978. 

I am not certain of this latter finding, but as I recall 

Mr. Brick's testimony, he indicated he himself did not mail 

a copy to the Commission and that the only service he 

effected was that shown on the certificate of service, namely 

to the District Director and to one Robert Rojeski of the 

local union. 

I find that the 30-day filing period was met by the 

Contestant in this case and that there is no merit to the 

motion to dismiss. It is accordingly denied." 

A second preliminary matter proved to be dispositive of the case. 

2719 
In its June 19, 1980, response to a prehearing order, Contestant first 

questioned the adequacy of the description of the violation in the subject 

citation, as follows: 

Does Citation No. 290475 allege a violation of 

30 C.F.R. § 55.12-14 in that it does not state that 

the cables in question were energized? 

Upon consideration of this question, the broader issue of the general 

legal sufficiency of the citation became apparent. My ruling thereon, 

delivered from the bench, appears below as it appears in the record (Tr. 55-65) 

aside from grammatical corrections and the deletion of obiter dicta: 

"The question to be decided is one which I view to be preliminary in the sense that it must be dealt with prior to hearing the merits of this proceeding since it may be dispositive, 

(1) of the whole case; or (2) of the issue first raised by the 

Contestant, Erie Mining Company, in its prehearing submissions. 

* * * * * * * 

The Federal Mine Safety and Health Act of 1977, section 

104(a), provides, "Each citation shall be in writing and shall 

describe with particularity the nature of the violation, 

including a reference to the * * * regulation * * * alleged to 

have been violated." This is (comparable to) the statutory provision contained in the 1969 Act, that is, section 104(e) 

thereof, which provided, "Notices and orders, * * * shall 

contain a detailed description of the conditions or practices 

which constitute a violation * * *· 

The citation, No. 290475, is dated September 20, 1978, 

and reflects that ·it was isued at 13:15 hours. It cites as 

the regulation violated, 30 C.F.R. § 55.12-14, and des~ribes the 

condition or practice as follows: "Power cables in excess of 

one hundred fifty volts were being moved manually without the 

use of insulated hooks, tongs, ropes or slings." A termination due date of October 20, 1978, was established by the 

inspector who issue~ the citation. [Because] this is the only 

document which was served on the mine'operator since*** 

there were no attachments.or extensions thereto, the question 

generally is whether the citation does describe with particularity the nature of the violation. The nature of the violation, to paraphrase it, is that hooks and tongs, etc., shall 

be used when energized cables are moved manually unless suitable protection for persons is provided by other means. The 

word "unless" ties the two sections of the regulation together. 

The requirement for the use of hooks and tongs, etc., is conditional on the absence of other suitable protection being 

available. For there to be a violation,. it must appear that 

the cables were being moved manually without the use of hooks, 

tongs, etc., and that other suitable protection was not being 

2720 
employed. We have a congressional mandate, as far as I am 

concerned, that citations shall describe with particularity 

the nature of the violation. There seems to be a liberality 

and a looseness going on in this particular area with respect 

to charging persons, whether they be corporate entities or 

individuals, with violations which can result in the imposition of fines up to the amount of $10,000. The citation in 

question is really nothing more than a repeat of the regulatory 

language. Other than the date and time, it provides no real 

factual details. The fact that it fails to mention that the 

cables were energized is minor to say the least, but also one 

detail, among many others, which is left out of the citation. 

The citation does not indicate how many cables are involved, it 

does not mention where the cables were, what areas they were, 

who was exposed to this condition, (or) how many miners were 

involved manually carrying these cables. There is no description of the cables in terms of length, where they are connected, 

and the like and I could go on for a long time with the lack of 

particulars which are conspicuously lacking in the citation. 

Even so, this lack of particularity is a.minor discrepancy comp~red to what I view as its major defect and that 

is that in dealing with this particular regulation, which 

has two inseparable parts, it only generally and vaguely 

describes the failure of one of the two prerequisites of 

the standard. It not only does not indicate that suitable 

protection was not provided by other means, but it does not 

indicate why. 

The question arises, where is the burden here for establishing a violation? This regulation must not be confused 

with other regulations which are more simplistic. I find that 

the failure to deal with the alternate means of suitable protection is a fatal defect. The prejudice to the operator, in 

turn, is a minor part of the general prejudice which the failure to particularize a citation creates. To begin with, * * * 

one would certainly have ~ general instinct of wanting to know 

precisely what it is (he is) charged with. This is a general 

political right that I find was envisioned by Congress. 

* * * * * * * 

I find that in this case there is a prejudice that first 

starts with that of the problem it created for the mine operator--by not having the particulars, much less an indication, 

that its alternate system of providing protection was insufficient. The burden in this case was shifted to the operator 

to * * * file a petition for modification. I construe 

the mandatory standard allegedly violated as placing the burden on MSHA to first determine whether or not there was suitable protection available and to specify and to state whether 

2721 
or not that it was or was not adequate and to state why, if 

MSHA contended that it was inadequate. I am specifically 

addressing the regulation in question. There may be other 

regulations and the like where that burden is somewhere else, 

but I do not find it in this regulation. [There is] substantial prejudice because the * * * whole burden of proof is 

shifted from MSHA in this case t-0 the mine operator in its 

modification proceeding. That is one respect in which I find 

the operator was prejudiced by the lack of specificity contained in the citation. 

Secondly, the operator has been prejudiced since its 

options in achieving abatement in this case are lessened. If 

it were charged with this regulation properly, that is, allowing cables to be manually moved without the use of hooks and 

tongs, etc., and not providing suitable protection by other 

means, the mine operator would have various means of proceeding to achieve abatement. It could then make an informed 

choice of whether to abate the condition one way or another 

either using tongs or ropes or by correcting the defect that 

it was found to have in its alternate system which it refers 

to as a ground-fault protection system. There is a general 

prejudice to any party when it is charged with a violation and 

not given details. I notice that the Commission in MSHA v. 

Jim Walters Resources, Inc. , and Cowin and Company, Docket 

Nos. BARB 77-26-P and 77-465-P, dated November 21, 1979, indicated that one of the factors which must be considered in 

determining the validity of the citation is whether or not it 

prejudices the party charged with the infraction. I think, 

very generally speaking, [that not being given] details of 

what you are charged with is a prejudice and that a party 

should not be forced to go to court to find out with what it 

is being charged when it can receive a $10,000 penalty. The 

Commission rightfully recognized that** *-the objective of 

healthy and safe mines may be advanced when miners, their 

repr,:·sentatives, and state mine officials are fully informed 

of mine Jnditions by notices and orders utilizing specific 

written ctescriptions 0 · the pertinent conditions or practices. 

That can '.Je expanded u:·jon. If a violation is discovered by an 

in6pecto;·, it is certainly helpful to the miners to know precisely what that violation is--and not only the miners but 

also to the safety representatives, to the union officials, to 

the foremen and the superintendents at the mine to know precisely what is involved. Indeed to all those people and each 

and every one of them who have some responsibility toward 

making the mine safe and who have responsibilities for each 

others' welfare. There is nothing to be praised or praiseworthy in an order or citation which has just the very bottom 

line of details in it. Are we to head downhill as fast as we 

can in some game wherein gold medals are to be handed out by 

law enforcement officials to those who put the very least 

2722 
amount of detail into something that someone is to be charged 

with? I think not. And I think the Commission has recognized 

this to some degree, in any event, in the Jim Walters' decision. It did decline to follow the decision of the Interior 

Department Board of Mine Operations Appeals in Armco Steel 

Corporation, 8 IBMA 88, decided August 17, 1977, wherein the 

Board held that where an imminent danger withdrawal order 

failed to give any description of the conditions or practices, 

such order should be vacated. [Even] in the case of an imminent danger withdrawal order, there is more excuse, more 

justification present, for [not] providing details than there 

is in a citation such as the one before us and indeed the 

typical citation. Where an inspector confronts an imminent 

danger, it is more understandable why he does not stop and 

fill in reasonable details and particulars of the violation 

he is charging the party with. Even so, there is no reason 

why such details should not be supplied subsequently. 

I conclude that there is manifest prejudice to an operator by the failure to provide particulars, generally speaking, 

and that in this case there is specific prejudice which is 

apparent from the face of the record itself and that such 

prejudice to the operator is of a substantial nature. The 

interest of safety is frequently given as an excuse for 

lowering the standard of performance of law enforcement officials in providing particulars of the offense charged. This 

does not stand up under scriltiny. The more details that are 

required to be provided, the better informed are those 

involved in safety. That is particularly true here. Furthermore, the psychology inherent in any work place would mandate 

that if a positive approach is to be taken in correcting and 

dealing with safety the specifics of alleged violations must 

be provided. From the standpoint of the party charged, to 

receive a vague, general, undetailed citation would promote a 

more negat!ve reaction than a positive one. Health and safety 

in the last analysis depends upon open, good faith exchange 

and dealings between law enforcement, mine operators and 

miners. 

[I am unable to] conceive any possible good which comes 

from a weakening of the procedural requirements and a weakening of the administrative due process requirements of advising 

a party charged with an infraction precisely what is involved. 

In the instant case, vacating the citation will cause no great 

shaking of the system of enforcing the safety standards. The 

respondent, with the tacit consent of MSHA, continues to 

implement its alternate ground-fault protecti.on system during 

the interim period while a Labor Department Administrative Law 

Judge, Frysiak, is adjudicating the operator's petition for 

2723 
modification. I believe that this case can provide the Commission ·with an opportunity to expand and clarify its decision in Jim Walters Resources, Inc., and thereby accomplish 

a positive result.".!_/ 

ORDER 

Contestant's position having been found meritorious, Citation No. 

290475 is VACATED. 

~~~ve1 d.-~( ~ Michael A. Lasher ,'ii. , Judge 

Distribution: 

Philip D. Brick, Esq., General Attorney, Pickands Mather & Company, 

200 W. Superior St., Suite 811, Duluth, MN 55802 (Certified Mail) 

Leo J. McGinn and Stephen P. Kramer, Esqs., Office of the Solicitor, 

u.s. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203 

(Certified Mail) 

Mr. Harry Tuggle, Safety and Health Department, United Steelworkers 

of America, Five Gateway Center, Pittsburgh, PA 15222 (Certified 

Mail) 

1/ Adding two or three sentences, sometimes one sentence and sometimes one 

word, to citations and withdrawal orders can make a significant input to a 

positive, constructive safety and health enforcement program. This is the 

foundation of every legal proceeding which follows the issuance of citations 

and orders. In this connection, it should also be noted that there are no 

formalized complaint and answer proceedings or procedures in the mine safety 

and health field. 

2724 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52~ LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

2 9 SEP 1980 .. 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. CENT 79-213-M 

Petitioner A/O No. 03-00464-05003 

v. 

Limedale Lime Plant 

ARKANSAS LIME COMPANY, 

Appearances: 

Before: 

Respondent 

DECISION 

E. Justin Pennington, Esq., Office of the Solicitor, U.S. 

Department of Labor, Dallas, Texas, for Petitioner; 

Russell Gunter, Esq., ~use, Holmes & Jewell, Little Rock, 

Arkansas, for Respondent. 

Judge Cook 

On August 16, 1979, the Mine Safety and Health Administration (Petitioner) filed a proposal for a penalty in the above-captioned case pursuant 

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

Mine Act), alleging eight violations of various provisions of the Code of 

Federal Regulations. An answer was filed by Arkansas Lime Company (Respondent) on September 14, 1979. 

On January 28, 1980, Petitioner filed a motion requesting approval of 

a settlement and for dismissal of the proceeding stating, in part, as 

follows: 

I. 

The contested citations in this case and the settlement 

are identified as follows: 

30 C.F.R. Disposition 

Number Date Standards Assessment Settlement 

163618 1/30/79 56.12-8 $ 255 $ 255 (full amt.) 

163619 1/30/79 56.12-30 255 0 (withdrawn) 

163620 1/30/79 56.14-6 170 0 (withdrawn) 

2725 
164181 1/31/79 56.11-2 $ 195 $ 195 (full amt.) 

165138A 4/05/79 56.12-8 445 52 (reduction) 

165138B 4/05/79 56.12-2 655 52 (reduction) 

165140 4/05/79 56.12-13 150 66 (reduction) 

165141 4/05/79 56.12-13 225 66 (reduction) 

* * * * * * * 

II. 

This case disposition/settlement will effectuate the purposes of the Act for the following reasons: 

1. After a review of all available evidence, the parties 

agreed that the settlement, attached hereto and incorporated 

herein, would be just and proper. 

2. The proposed assessments for Citation numbers 

00165138A, 00165138B, 00165140, [and] 00165141 * * * shown 

above as reduced were reduced for the following reasons: 

a) Citation 00165138A 

Upon reconsideration and review of the citation and mine 

inspector's notes associated therewith, the parties have agreed 

that little or no negligence was involved, the occurrence of the 

event at which the standard is directed was improbable, and the 

gravity of injury if it were to occur would result in no lost 

work days. By agreement the total points assessed are 23 and 

the proposed penalty is thereby reduced to $52.00. 

b) Citation 00165138B 

Upon reconsideration and review of the citation and mine 

inspector's notes associated therewith, the parties have agreed 

that little or no negligence was involved, the pccurrence of the 

event at which the standard is directed was improbable, and the 

gravity of injury if it were to occur would result in no lost 

work days. By agreement the total points assessed are 23 and 

the proposed penalty is thereby reduced to $52.00. 

c) Citation 00165140 

Upon reconsideration and review of the citation and mine 

inspector's notes associated therewith, the parties have agreed 

that the operator was only ordinarily negligent, the occurrence 

of the event at which the standard is directed was improbable, 

and the operator made extraordinary efforts to insure that the 

violation was abated within the time given for abatement. By 

agreement the total points assessed are 26 and the proposed 

penalty is thereby reduced to $66.00. 

2726 
d) Citation 00165141 

Upon reconsideration and review of the citation and mine 

inspector's notes associated therewith, the parties have agreed 

that the gravity of injury if it were to occur would result in 

no lost work days, the operator was only ordinarily negligent, 

and the operator made extraordinary efforts to insure that the 

violation was abated within the time given for abatement. By 

agreement the total points assessed are 26 and the proposed 

penalty is thereby reduced to $66.00. 

* * * * * * * 

3. [Petitioner] has thoroughly reviewed the facts and 

circumstances pertaining to the violations in citations shown 

above as "withdrawn". Upon such review and after careful 

consideration, [Petitioner] has determined that there is 

insufficient evidence to support said citations and the proposed penalties associated therewith. 

4. [Respondent] has agreed to full payment of the proposed assessed penalties as shown above as "paid in full". 

The parties have agreed that said proposed assessments are fair 

and reasonable and reflect full consideration of statutory 

criteria set forth in Section 105(b)(l)(B) of the Act, 30 U.S.C. 

§ 801(b)(l) (B). 

5. [Respondent] has complied with the disposition/settlement agreement and has paid the penalty sought by [Petitioner] 

as heretofore set forth and therefore desires to withdraw its 

notice of contests to all citations except those indicated above 

as being withdrawn or stayed, if any. 

6. [Respondent] has stated it will comply with the 

Federal Mine Safety and Health Act of 1977, 83 Stat. 742, 

30 u.s.c. 801-960. 

On February 5, 1980, an order was issued requiring Petitioner to furnish 

certain additional information necessary to determine whether approval of the 

proposed settlement would protect the public interest. On March 3, 1980, 

Petitioner filed a supplement to its motion to approve settlement stating, 

in par·t, as follows: 

COMES NOW the Secretary of Labor pursuant to the order 

entered on February 5, 1980, by the Honorable John F. Cook, 

Administrative Law Judge and supplements the Motion to 

Approve Disposition/Settlement filed by the Secretary on 

the 25th day of January, 1980. 

2727 
I. 

Copies of all correspondence between the Assessment Office 

and the Respondent as to the violations involved, and Inspector's 

sheets or statements for each of the alleged violations are 

attached hereto as Exhibit A and are incorporated by reference 

herein. 

II. 

Special reasons for the settlement terms of the [three] 

mentioned citations or orders are as follows: 

1. Orders Nos. 165138A and 165138B 

After discussing the above orders with the Supervisory 

Mine Inspector, counsel for Respondent, and the mine inspector involved it was determined that although a technical 

violation existed, the penalty proposed was totally unreasonable. The condition cited involved a 110 volt wire cord 

spliced with non insulating tape. This was plugged into a 

normal wall outlet, requiring one to pull the plug in order 

to turn off the light fixture at the other end of the cord. 

The cord was located in a storage area in an attic where 

temporary work was being conducted. This area would normally be inacessible to employees of Respondent, and the work 

was not directly supervised by Respondents' managerial staff. 

The area was dry, and no other conditions existed which would 

have increased the possibility of electric shock. In addition, 

this same condition was cited twice, once under two different 

standards, thereby duplicating the points assessed for milloe 

size, history, negligence, gravity and probability of 

occurrence. Because of this, points were assessed for each 

of the violations based only on the size of the operation, 

the history of previous violations, and the number of persons 

affected (1), for a total of twenty-three (23) points. 

2. Citation No. 165140 

Again after discussion with all parties involved it was 

determined that a technical violation existed but the penalty 

proposed was unreasonable. In this case, a multiwired cord 

was spliced in a manner exposing the inner wires, which were 

separately insulated. Thus, no bare conductor was exposed. 

In addition, the spliced cord was laying on the floor or 

,ground, making electrical shock more improbable. Because no 

;bare conductor was exposed, the negligence of the operator 

was minimal, and was offset by the operator's immediate steps 

taken to gain compliance. Thus a total of twenty-two (22) 

points were assessed for size and history, three (3) points 

for gravity, and one (1) for number of persons affected, 

with negligence and good faith points offsetting each other, 

for an agreed total of twenty-six (26) points. 

2728 
3. Citation No. [165141] 

In this case, a 110 volt cord was spliced with a non 

insulating tape. No conditions existed which would have 

made electrical shock more probable, nor did conditions exist 

which would have made death by electrocution a probability. 

Rather it was agreed, after consultation with all parties, 

that because the cord was insulated, although inadequately, 

the probability of shock was low, and in any event would not 

have resulted in any lost work days. In addition, any negligence on the part of the operator was offset by its extraordinary steps taken to gain compliance. Therefore, a total 

of twenty-two (22) points were assigned for size and history, 

three (3) points for probability, and one (1) for the number 

of persons affected, with good faith and negligence offsetting each other, for a total of twenty-six (26) points. 

On March 26, 1980, an order was issued denying the motion to approve 

settlement because the information submitted was insufficient for the purpose 

of determining that approval of the proposed settlement would protect the 

public interest. 

On July 18, 1980, a notice of hearing was issued scheduling the case 

for hearing on the merits on August 26, 1980, in Little Rock, Arkansas. 

Subsequent thereto, a telephone conference was held, at Petitioner's request, 

during which the undersigned Administrative Law Judge and representatives 

of the parties participated. The purpose of the telephone conference was 

to discuss the January 28, 1980, motion to approve settlement and the 

March 3, 1980, supplement thereto and the specific reasons why the motion 

was denied. 

When the hearing convened on August 26, 1980, in Little Rock, Arkansas, 

Petitioner made an oral motion on the record for approval of settlement. The 

proposed settlement is identified as follows: 

Citation/Order 30 C.F.R. Settlement/ 

Number Date Standard Assessment Disposition 

163618 1/30/79 56.12-8 $ 255 $ 255 

163619 1/30/79 56.12-30 255 Withdrawn 

163620 1/30/79 56.14-6 170 Withdrawn 

164181 1/31/79 56.11-2 195 195 

165138A 4/5/79 56.12-8 445 195 

165138B 4/5/79 56.12-2 655 195 

165140 4/5/79 56.12-13 150 140 

165141 4/5/79 56.12-13 225 122 

Totals: $2,350 $1,102 
Information as to the six statutory criteria contained in section 110 

of the Act has been submitted. This information has provided a full 

disclosure of the nature of the settlement and the basis for the original 

determination. Thus, the parties have complied with the intent of the 

law that settlement be a matter of public record. 

The August 26, 1980, motion to approve settlement incorporates by 

reference the reasons set forth in the January 28, 1980, and March 3, 1980, 

filings. Additionally, the following discussion took place on the record 

as relates to Order Nos. 165138A, April 5, 1979, 30 C.F.R. § 56.12-8, and 

165138B, April 5, 1979, 30 C.F.R. § 56.12-2: 

[MR. PENNINGTON:] Citation No. 165138(a), which alleges 

a violation of 30 C.F.R. § 56.12-8, the parties again have 

conferred, and have agreed that the penalty of $195 would be 

appropriate in view of the evidence and the criteria set 

forth in the Act, and would move that the Court approve the 

disposition of that Citation, as stated. 

Citation No. 165138(b), which alleges a violation of 

30 C.F.R. § 56.12-2, again the parties have conferred and 

agreed that a penalty of $195 would be appropriate under the 

criteria set forth under the Act, and in view of the evidence 

present, and the Secretary would move that this disposition 

be approved. 

JUDGE COOK: All right. Now, before you proceed further, 

Mr. Pennington, I realize that in the Motions which you have 

filed, you did go into a discussion as to why you felt that 

there should be this kind of a disposition. 

I wonder if you can -- I hate to have you belabor this 

issue, but I wonder if you could give a fairly simple explanation of what it was that was alleged to be a violation, and 

why you feel that it should be that amount of money? 

I hate to catch you off guard if you're really not 

prepared to go into that, but I would appreciate it if you 

would put on the record now what it is, so that we can have 

a final statement on the record as to the circumstances. 

MR. PENNINGTON: Well, Your Honor, really there would 

be no material changes to the supplement to the Motion to 

Approve Disposition of Settlement, which was filed on --

I don't have the date here when that was filed -- but it was 

in response to your Order dated -- I don't have a date on that 

Order either -- February 5, 1980. I can give a --

JUDGE COOK: (Interposing) Can you give us a little 

description of what happened here, and what the problem was? 

2730 
MR. PENNINGTON: I also have the Compliance Officer 

here who can also provide you with that background, if you 

would like to do it that way. 

JUDGE COOK: Well, either way, but it's not necessary 

to put this in the form of a sworn statement, because this 

is purely a settlement discussion, but if you -- whatever 

way you want to proceed, but I am interested in getting a 

better idea of what actually happened. 

MR. PENNINGTON: All right. I think what is involved 

here in Citation No. 165138, that is divided into a SubCitation (a) and a Sub-Citation (b), is Sub-Citation (a) 

relates to a condition where the -~where a cable, an 

electrical conductor cable was rigged in a fashion such that 

it was not in compliance with the provisions set out in the 

Act. 

Specifically, the cable ran between -- let me see if 

I can explain this. We have a metal .junction box which is 

attached to the wall. Attached to the junction box is a 

porcelain light fixture. The cable that is involved, ran 

between the metal junction box, and the porcelain light 

fixture, and was attached or connected to the porcelain 

light fixture in that fashion. 

It was not a permanent .cable. It was one that had been 

placed there to serve a temporary purpose. It was strung 

up along a rafter on the ceiling of the room in which it 

was located, down the wall through a door into another room, 

and was then plugged into a light, or just a regular electrical receptacle or socket on the wall. 

It is alleged that this violated two provisions of the 

Act. First, that the electrical, or that electrical cables 

or conductors pass through metal boxes or junction boxes, 

only through proper fittings, and only through fittings 

that have been properly bushed and are adequately insulated. 

It is our contention that the wire passing between the 

metal box and the porcelain light fixture was in violation 

of this Standard. 

On the other end of the cable, we have just a regular 

plug which is plugged into the receptacle on the wall in 

order to energize the cable and turn on the lighting at 

the other end. 

It is alleged that this condition violated the provision 

of the Act which requires that electrical circuits be provided with the proper switches, on and off switches, to 

energize and de-energize the circuits. 

2731 
It is the Administration's position that where the only 

means of energizing or de-energizing a conductor is by 

pulling on the plug, that it requires one to come into contact with, or possibly to come into contact with a conductor 

while it is under load, or while it is still energizing. 

Not only is this a prima facie hazardous condition, but 

it is also in violation of the National Electric Code. Such 

a switch is not approved by the National Electric Code. 

These are the conditions that are alleged in it. 

JUDGE COOK: I.et me ask you a little more about this so 

I can understand this. 

You are saying that there was really a connection; that 

is a cable, running from a metal box over to a light fixture. 

MR. PENNINGTON: That is correct. 

JUDGE COOK: And then there was a cable and light fixture going around to the plug? 

MR. PENNINGTON: Well, really, we're talking about the 

same cable. 

JUDGE COOK: I would like to understand this cable more 

then. You said the cable came out of a metal box. Was that 

the plug that went into the metal box? 

MR. PENNINGTON: I have a picture here if it would help. 

JUDGE COOK: All right. I would like to see that, if 

there is no obje~tion by the operator's attorney. 

In fact, Mr. Gunter, if you would like to come up here. 

MR. PENNINGTON: I think this is Exhibit M-5. And it 

is a photograph that was taken at the plant on April the 

5th, 1979, in the lime kiln bridge, the lime bridge kiln, or 

in the area that is mentioned on the Citation. 

This particular cable here is a permanent cable (pointing), 

which does have the proper fittings, which does pass through the 

proper fittings and into the box as required by the Electric 

Code and by the Standards. 

However, this cable here (pointing), which as you can see 

it runs between this metal box here and the porcelain light 

fixture here, has been connected to the light, and this is the 

cable that is in issue, the second cable. 

2732 
JUDGE COOK: So, are you really saying that the first 

permanent one really wasn't in operation? 

MR. PENNINGTON: This is correct. 

JUDGE COOK: Had it been in operation, the second one 

wouldn't have been necessary? 

MR. PENNINGTON: If it had been in operation, the 

second cable would have been unnecessary. 

JUDGE COOK: Unnecessary. 

MR. PENNINGTON: Yes. And the condition that is alleged, 

violating the Standard, is where the cable passes between the 

porcelain light fixture and the metal junction box there. 

JUDGE COOK: Now, was there any problem about touching 

any wires in the area just near the porcelain part? 

MR. PENNINGTON: No. My understanding is that these wires 

were adequately insulated. The real problem here is that it 

does not pass through the proper fittings into the metal box, 

as required by the Standard. 

JUDGE COOK: What can go wrong if it doesn't go through 

the proper fitting? 

MR. PENNINGTON: Well, my understanding is t~t if it 

doesn't pass through the proper fitting, that the cable is 

not properly secured, it can be pulled loose for one thing, 

and it can rub against the side of the metal box and the 

porcelain fixture here so that the insulation can be worn 

thin, and possibly create a shock hazard at some time in 

the future. That's the purpose of the bushing on the metal 

box. 

JUDGE COOK: All right. So, the bushing problem was 

right in this area of the location of the porcelain and the 

metal box? 

MR. PENNINGTON: That's correct. There is no bushing 

there. 

JUDGE COOK: Now, that is one part that was alleged in 

the Citation. 

MR. PENNINGTON: Right. 

2733 
· .......... . 

JUDGE COOK: The'other_part, you say, dealt with the 

plugging in of this· second wi·re into some receptacle in 

another room? 

MR. PENNINGTON: Right. The same wire, just continuing along this Wire here (pointing), it goes along this 

rafter here that the light fixture is attached to, and I'm 

not quite sure whether or not that it was attached to the 

rafter in any way, or whether it was just suspended by being 

wrapped around the rafter, but at any rate, it comes along 

the rafter, ·down the wall, and out a screen door, which is 

being opened and closed, and then into the next room where 

it was plugged into a receptacle in the wall, which is 

approximately four and a half feet above the ground. 

JUDGE-COOK: Now, was the problem of the wire being· 

affected by a screen door, et cetera, also a problem that 

they were concerned about? 

MR. PENNINGTON: This was not cited, but it was one of 

the conditions which is alleged to enhance the 'probability or 

a possibility of an accident occurring with the metal bushing, 

·for one thing, and it's alleged that the condition of passing 

through the door increases the probability of anelectri'c 

shock at some point in the future. 

JUDGE COOK: 

the plugging in? 

All right. Then, what about then though, 

Why is that a problem? 

MR. PENNINGTON: Well, again as I stated, in order fo 

energize this pai;ticular light bulb here, what is required 

is that you pull the plug out of the wall,- out.of the receptacle, arid if you pull it out of the wall, ~ou are coming 

into contact with the conductor that is energizing at the 

time. 

JUDGE COOK: But isn't that the case when you are 

plugging in any lamp in a home? 

MR. PENNINGTON: This is true. 

JUDGE COOK: Is it different though? In this situation 

that you're describing in this particular mine, is there 

some difference between that and the plugging in of a normal 

lamp in a home? . · 

MR. PENNINGTON: Well, the difference would be, in this 

particular case here, is that we have nothing to break the 

circuit between the light bulb itself and the receptacle on 

the wall. 

2734 
Usually, in a lamp in a home situation, you have a light 

switch that can be operated to turn the light on and off, so 

there is a break irt the switch. 

JUDGE COOK: I understand that, but, see, what I'm 

really trying to find out though, is as it relates to 

the plugging and unplugging, is there a difference? As to 

the safety problem? 

MR. PENNINGTON: May I consult with him? 

JUDGg COOK: Certainly. 

(Short interruption.) 

MR. PENNINGTON: Your Honor, one of the, well, conditions 

that would be different in this particular instanc~ here, 

relates to the condition of the cable that was involved. 

The cable that was involved was old, it was not in the 

best of condition. Some of the insulation was weathered. 

The Mine Inspectot's concern was that if the only way 

of energizing the circuit was to pull on the cable itself, 

that it created the possibility of cracking the insulation, 

or possibly pulling it loose from the socket ·- not the socket 

on the plug, I mean, but on the wall, and that is what the 

Mine Inspector's concern was with respect to this condition. 

In addition, I would also like to point out that the 

National Electric Code does not approve of this type of 

set-up. Lamps are required to have an off-on switch and 

the Standard requires that the electrical set-up, or the 

cable involved, be operated in the way that it is approved, 

in an approved fashion, and for this, we would look to 

the National Electric Code. 

JUDGE COOK: All right. Now, Mr. Gunter, of course, 

I realize that we have asked a number of questions here of 

Mr. Pennington, and have let him set forth his po$ition here. 

Is there anything that you want to remark about, at this 

point? 

MR GUNTER: At this point, I would -- Obviously, we 

are irt the process of trying to settle this. I dbn't 

think the complaint speaks to the condition of the cable. 

I think the complaint is that there was not an off-on 

switch somewhere. 

Also, this occurs in a hoist house, which is elevated, 

which is dry, and in which there are normally no employees 

around. It was done by an employee, fto~ the evidence I've 

2735 
• 

been able to ascertain about it, and while we recognize that 

violations probably did exist in the manner of the rigging, 

we certainly have very strong differences as to what the 

consequences of that should be, and we would like to enter 

into this particular settlement agreement that we feel is 

a fair settlement. 

MR. PENNINGTON: Your Honor, I would just like to reiterate that Mr. Gunter and I have reviewed the evidence, and 

the Secretary also believes that the settlement that has 

been proposed is fair and reasonable, under the circumstances. 

JUDGE COOK: Apparently in your last filing of information, and supplemental Motion, you did state that you 

felt that the original proposed penalty was unreasonable. 

MR. PENNINGTON: We do believe that the penalty that 

was proposed was unreasonable. 

(Tr. 7-17). 

The reasons given above in support of the proposed settlement have been 

reviewed in conjunction with the information submitted as to the six statutory criteria contained in section 110 of the Act. After according this 

inforJ!lation due consideration, it has been found to support the proposed 

settlement. It therefore appears that a disposition approving the settlement will adequately protect the public interest. 

ORDER 

Accordingly, IT IS ORDERED that the proposed settlement of August 26, 

1980, as outlined above, be, and hereby is, APPROVED. 

IT IS FURTHER ORDERED that Respondent be, and hereby is, ASSESSED 

civil penalties in the amount of $1,102 • 

Since Respondent has already paid $686, IT IS FURTHER ORDERED that 

Respondent pay the remaining $416 within 30 days of the date of this 

decision. 

IT IS FURTHER ORDERED that the proposal for a penalty be, and hereby 

is, DISMISSED as relates to Citation Nos. 163619, January 30, 1979, 30 C.F.R. 

§ 56.12-30, and 163620, January 30, 1979, 3o·c.F.R. § 56.14-6 • 

• Cook ~---:::::>-

2736 
Distribution: 

E. Justin Pennington, Esq., Office of the Solicitor, U.S. Department 

of Labor, 555 Griffin Square Building, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Russell Gunter, Esq., House, Holmes & Jewell, 1550 Tower Building, 

Little Rock, AR 72201 (Certified Mail) 

Administrator for.Metal and Nonmetal Mine Safety and Health, U.S. 

Department of Labor 

Administ~ator for Coal Mine Safety and Health, U.S. Department of Labor 

Standard Distribution 

2737 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

ITMANN COAL COMPANY, 

v. 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

52~ LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

~) 756-6230 

3 O SEP 1980 

Application for Review 

Applicant 

Docket No. WEVA 80-132-R 

Itmann No. 3 Mine 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

DECISION 

Appearances: Karl T. Skrypak, Esq., Consolidation Coal Company, Pittsburgh, 

Pennsylvania, for Itmann Coal Company; 

David E. Street, Esq., Office of the Solicitor, U.S. Department 

of Labor, Philadelphia, Pennsylvania, for Secretary of Labor, 

Mine Safety and Health Administration. 

Before: Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL.HISTORY 

This proceeding arises out of an application for review of an imminent 

danger order of withdrawal issued on November 14, 1979. On December 7, 1979, 

Itmann Coal Company (hereinafter Itmann) filed the application for review. 

A hearing was held in Charleston, West Virginia, on May 20, 1980. James 

Bowman and Arnold Rogers testified on behalf of the Secretary of Labor, Mine 

Safety and Health Administration (hereinafter MSHA). Donny Coleman testified 

on behalf of Itmann. Both sides submitted posthearing briefs. 

ISSUE 

The issue is whether the order of withdrawal due to imminent danger was 

properly issued. 

APPLICABLE LAW 

Section 107(a) of the Act, 30 u.s.c. § 817(a), provides as follows: 

If, upon any inspection or investigation of a coal or 

other mine which is subject to this Act, an authorized representative of the Secretary finds that an imminent danger 

exists, such representative shall determine the extent of 

2738 
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. 

Section 3{j) of the Act, 30 u.s.c. § 802(j), states: "'imminent danger' 

means the existence of any condition or practice in a coal or other mine which 

could reasonably be expected to cause death or serious physical harm before 

such condition or practice can be abated." 

STIPULATIONS 

The parties stipulated the following: 

1. Itmann is the owner and operator of the Itmann No. 3 

Mine, located in Wyoming County, West Virginia. 

2. Itmann and the Itmann No. 3 Mine are subject to the 

jurisdiction of the Federal. Mine Safety and Health Act of 

1977. 

3. The Administrative Law Judge has jurisdiction of 

this case pursuant to section 107 of the 1977 Act. 

4. The inspector who issued the subject order and 

termination was a duly authorized representative of the 

Secretary of Labor. 

5. A true and correct copy of the subject order and 

termination were properly served upon the operator in 

accordance with section 107(d) of the 1977 Act. 

6. Copies of the subject order and termination are 

authentic, and may be admitted into evidence for the purpose 

of establishing their issuance, and not for the truthfulness 

or relevancy of any statements asserted therein. 

FINDINGS OF FACT 

I find that the evidence of record establishes the following facts: 

1. On November 14, 1979, MSHA inspector James Bowman was conducting a 

regular inspection of Itmann's No. 3 Mine in the area of the Pineville Mains. 

He was accompanied by Arnold Rogers, union safety committeeman and walkaround, and Donny Coleman, an Itmann industrial engineer and company escort. 

2739 
2. During the course of his inspection, Inspector Bowman came around a 

corner and saw a miner, Doug Shrewsberry, shoveling coal between the tail 

pulley and the drive pulley with the guard removed and the conveyor belts 

moving. The miner was working in'a precarious position under a moving conveyor belt which was only 37 inches above the floor and between the belt 

drive and a tail pulley which were 54 inches apart and in motion. The 

surf ace on which the miner was standing was damp and slippery and was on a 

steep slope. 

3. After the miner saw the inspector's cap light, he stepped out of the 

area between the conveyor belts. 

4. Upon observing the above condition, Inspector Bowman told Safety 

Supervisor Coleman that he was issuing an order of withdrawal under section 

107(a) of the Act and told Mr. Coleman to turn off the conveyor belts. 

5. Thereafter, Inspector Bowman issued a written order of withdrawal 

due to imminent danger pursuant to section 107(a) of the Act. 

6. The miner was questioned in the presence of all three members of the 

inspection party. He admitted that he had been shoveling coal with the conveyor belts running and unguarded. He further stated that he had been 

trained and he knew better than to commit such an unsafe act. However, he 

also stated that he had shoveled coal in this area before with the conveyor 

belts running and unguarded. He stated that he did not want to stop production and he had not been told to leave the conveyor belts running or to turn 

them off while performing his duties. 

7. It was the practice of the miner, Doug Shrewsberry, to clean the 

affected area with the conveyor belts running and unguarded. 

8. The practice of cleaning the area around the tail pulley and the 

drive pulley with the conveyor belts running and unguarded could be reasonably 

expected to cause death or serious physical harm to the miner. 

9. The order was terminated approximately 2 hours after it was issued 

after the miner had been reinstructed by Itmann management concerning safe 

work habits in turning off the conveyor belts before removing the guard and 

commencing cleanup of the area. 

DISCUSSION 

All of the testimony, exhibits, stipulations, and arguments of the parties have been considered. There is no significant dispute of fact in this 

case. However, Itmann contends that the facts do not support an imminent 

danger order of withdrawal because the miner was out of the affected area and 

he was not exposed to any moving parts at the time the order was issued. 

This defense is similar to the one raised by Itmann in a case I decided 

earlier this year. In Itmann Coal Company v. Secretary of Labor, 2 FMSHRC 

Dees. No. 6 at 1643 (June 26, 1980), Itmann contended that although a miner 

2740 
was seen traveling under unsupported roof, no imminent danger existed because 

the miner was not under unsupported roof at the time the order was issued. I 

rejected Itmann's defense in that case as follows: "Even though the miner. 

was no longer under the unsupported roof at the time the order was issued, 

the practice of miners going under the unsupported roof constituted an · 

imminent danger under the Act." Id. at 1655. Itmann did not appeal that 

decision. 

In the instant case, the inspector saw a miner shoveling coal in a 

precarious position between moving, unguarded conveyor belts. It cannot be 

rationally asserted that such a miner was not exposed to death or serious 

physical injury. The mere fact that such miner sees the cap light of the 

inspector and thereafter steps away from the danger does not eliminate the 

imminent danger. Under these facts, it was reasonable for the inspector to 

believe that the practice of cleaning this area in the manner he observed had 

not ended. This belief was confirmed by the miner's admission that he had 

cleaned this area in the same precarious manner before. Therefore, this was 

not a static condition which would not recur after it was abated. Rather, we 

have here an unsafe practice which would be likely to result in death or 

serious injury to a miner before it can be abated. 

Section 107(a) of the Act specifically provides that the order of withdrawal is to remain in effect "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." (Emphasis 

supplied.) This section of the Act gives the MSHA inspector the authority 

and responsibility to continue the order of withdrawal until the conditions 

or practices that caused the imminent danger no longer exist. Applying the 

law to the facts of the instant case, I find that Inspector Bowman acted 

properly in issuing the order of withdrawal due ~o imminent danger and continuing that order until the miner in question had been reinstructed concerning the need to turn off the conveyor belts before removing the guard or 

performing any cleanup duties. The imminent danger in this case did not 

terminate when the miner stepped out of the affected area. At the time this 

order was issued, there was still an imminent danger under the Act due to the 

practice of performing this work under unsafe conditions. The inspector 

would have been remiss if he failed to issue this order. 

CONCLUSIONS OF LAW 

1. This Administrative Law Judge has jurisdiction of this proceeding 

pursuant to section 107 of the Act. 

2. The inspector properly issued the subject order of withdrawal under 

section 107(a) of the Act because the practice of cleaning the immediate area 

around moving and unguarded conveyor belts in this mine constituted an imminent danger within the meaning of the Act. 

2741 
'ORDER 

WHEREFORE IT IS ORDERED that the application for review is DENIED and 

the subject withdrawal order is AFFIRMED· 

Dist~ibution by Certified Mail: 

Karl T. Skrypak, Esq., Consolidation Coal Company, 1800 W~shington R.oad, 

Pittsburgh, PA 15241 

David E. Street. Esq., Office of the Solicitor, u.s. Department of Labor, 

Room 14480, Gat~way Building, 3535 Market Street, Philadelphia, PA 

:J.9104 

2742 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

SKYLINE TOWERS NO. 2, lOTH FLOOR 

520~ LEESBURG PIKE . 

FALLS CHURCH, VIRGINIA 22041 

3 0 SEP i980 

Civil Penalty Proceedings 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. CENT 80-259-M 

Petitioner. , • A/O No. 41-01094...,.0?003 

v. 

H. S. JACKSON SAND & ~RAVE.L, INC., 

Respondent 

Docket No. CENT 80-261-M 

A/O. f!o.~ 41,-01094:-0~004-I 

DECISION 

Appearances: Allen Reid Tilson, Esq., Office of the Solicitor, 

U.S. Department of Labor, Dallas, Texas, for Petitioner; 

Henry Jackson, H. s. Jackson Sand & Gravel, Inc., Irving, 

Texas, for Respondent. 

Before: Judge Stewart 

The above-captioned cases are civil penalty proceedings brought pursuant 

to section 110 1/ of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et ~· (hereinafter, the Act). The hearing in these matters was held 

in Dallas, Texas, on August 25, 1980. The Petitioner called one witness and 

!/ Sections llO(i) and (k) of the Act provide: 

"(i) The Commission shall have authority to assess all civil penalties 

provided in this Act. In assessing civil monetary penalties, the Commi.ssion 

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 person charged in attempting to achieve rapid compliance after 

notification of a violation. In proposing civil penalties under this Act, 

the Secretary may rely upon a summary review of the information available to · 

him and shall not be required to make findings of fact concerning the above 

factors. 

"(k) No proposed penalty which has been contested before the Commission 

under section 105(a) shall be compromised, mitigated, or settled except with 

the approval of the Commission. No ·penalty assessment which has become a 

final order of the Commission shall be compromised, mitigated, or settled 

except with the approval of the court." 

2743 
introduced three exhibits. The Respondent called one witness and ~ntroduced 

one exhibit. At the outset of the hearing the parties entered into stipulations that Respondent is a small operator having only three employees, 

Respondent's history of previous violations is good with very few previous 

violations, that Respondent has in good faith abated the hazard by purchasing 

safety belts in this case and that the penalty will not affect his ability 

to continue to do business. 

After the evidence had been presented by the parties, they entered into 

further stipulations that it was probable that the failure to use a safety 

belt would result in a serious injury, that the failure of the operator to 

insure the safety belts were used was a violation of a mandatory safety 

standard, and that there was ordinary negligence as a failure to provide the 

use of a safety belt. 

After the presentation of evidence and oral argument by the parties on 

each issue, a decision was announced orally from the bench. The decision is 

reduced to writing in substance as follows pursuant to the Federal Mine Safety 

and Health Review Commission's Rules of Procedure, 29 C.F.R. § 2700.65. 

CITATION NO. 153659 

Citation No. 153659 was issued on 8-8-79 by Inspector 

Allen L. Head. The condition or practice listed by the . 

inspector was as follows: "H. S. Jackson fell approximately 

39 feet from the shaker because he was not wearing a safety 

belt or line. Kip Jackson, foreman, stated that there is 

not a safety belt on the property." 

30 CFR 56.15-5 states as follows: "Mandatory: Safety 

belts and lines shall be worn when men work where there is 

danger of falling. A second person shall tend the lifeline 

where bins, tanks, or other dangerous areas are entered." 

Pursuant to the stiplations by the parties, I find that 

there was a violation; that as to the gravity of the violation it was probable that a serious in~ury would occur, 

affecting one person; that the operator was negligent; and, 

that the operator demonstrated good faith in attempting to 

achieve rapid compliance after notification of the violation. 

Upon consideration of the statutory criteria, an assessment in the amount of $90.00, is entered for this citation. 

CITATION NO. 153660 

In regard to Citation No. 153660, the parties have 

entered into additional stipulations. One of these stipulations is that the telephone number of the local MSHA 

Office had been changed, but there was a toll free number 

that could have been called to report the accident. 

2744 
The parties have also stipulated that Kip Jackson was 

engaged in taking care of his father relative to the injury 

he had received, rather than attempting to immediately report 

the accident that had occurred. 

The parties have further stipulated that there was a 

violation; that it was not probable that the violation would 

result in injury; and, that there was slight negligence on 

the part of the operator. 

The parties have previously stipulated as to the operator's history of previous violations, the appropriateness 

of the penalty to the size of the business charged, it being 

a small business, and the effect on the operator's ability to· 

continue in business. 

Citation No. 153660, was issued by MSHA Inspector 

Allen L. Head on 8-8-79, citing a violation of 30 CFR 50ol0. 

The condition or practice listed on the citation was as 

follows: "MSHA was not notified· of the accident concerning 

H. s. Jackson falling from the shaker screens to the ground, 

8-7-79." 

30 CFR 50.10 provides as follows: "If an accident 

occurrs, an operator shall immediately contact the MSHA 

district or subdistrict office having jurisdiction over its 

mine. If an operator cannot contact the appropriate MSHA. 

district or subdistrict office, it shall immediately contact MSHA headquarters office in Washington, D.C. by telephone, toll free, at (202) 783.,..5582." 

Pursuant to the stipulations of the parties, I find that 

there was a violation of 30 CFR 50.10; that a~ to gravity, it 

was improbable that the violation would cause injury; that 

the negligence of the operator was slight; and that the operator demonstrated good faith in attempting to achieve rapid 

compliance after notification of the violation. 

I have already found that the operator's history of previous violations was good, and that the operator was small in 

size. I have also found that the penalty will not affect the 

operator's ability to continue in business. 

In view of the consideration of these statutory criteria, 

the sum of $10.00 is assessed for this violation •. 

ORDER 

The bench decision announced at the hearing is AFFIRMED. 

2745 
Respondent is ORDERED to pay Petitioner the amount of $100 within 30 days 

of the date of this order if it has not already done so. '!:./ 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Allen Reid Tilson, Esq., Office of the Solicitor, U.S. Department of 

Labor, 555 Griffin Square Building, Suite 501, Dallas, TX 75202 

(Certified Mail) 

Henry Jackson, H. s. Jackson Sand & Gravel, Inc., P.O. Box 4171, 

Irving, TX 75061 (Certified Mail) 

'!:../ Section llO(j) of the Act provides: 

"(j) Civil penalties owed under this Act shall be paid to the Secretary 

for deposit into the Treasury of the United States and shall accrue to the 

United States and may be recovered in a civil action in the name of the United 

States brought in the United States district court for the district where the 

violation occurred or where the operator has its principal office. Interest 

at the rate of 8 percent per annum shall be charged against a person on any 

final order of the Commission, or the court. Interest shall begin to accrue 

30 days after the issuance of such order." 

*U.S. GOVERNMENT PRINTING OFFICE: 1980-341-638:3460 

2746