August 1981 

Commission Decisions 

8-04-81 

8-06-81 

Tazco, Inc. 

Rebel Coal Co. 

VA 80-121 

WEVA 80-532-D 

Administrative Law Judge Decisions 

8-04-81 

8-04-81 

8-06-81 

8-10-81 

8-12-81 

8-13-81 

8-14-81 

8-17-81 

8-18-81 

8-20-81 

8-20-81 

8-21-81 

8-21-81 

8-24-81 

8-24-81 

8-26-81 

8-27-81 

8-28-81 

8-28-81 

8-31-81 

The Anaconda Co. 

Tehama County Excavating 

Consolidation Coal Co. 

Minerals Exploration Co. 

MSHA ex rel Theodore Hazzard v. Cannelton 

Industries, Inc. 

The Anaconda Co. 

WEST 79-20-M 

WEST 80-348-M 

WEVA 81-259-R 

D 81-1 

WEVA 

,WEST 

Chemical Lime, Inc. CENT 

Johnson, Stewart & Johnson Mining Co., Inc. WEST 

81-392-D 

81-94-M 

80-231-M 

79-175-M 

80-89-M 

81-24 

81-17-M 

81-37 

Kaiser Sand & Gravel Co. WEST 

Rushton Mining Co. PENN 

National Cement Co. SE 

Amax Coal Co. LAKE 

Mark Segedi On behalf of: S.J. Ezarik, 

et al., v. Bethlehem Mines Corp. 

C F & I Steel Corp. 

PENN 80-273-D 

WEST 79-239 

Franklin D. Kaestner v. Colorado Westmoreland Inc. 

Mathies Coal Co. 

Beatrice Pocahontas Co. 

UMWA 

V & R Coal Corp. 

United States Steel Corp. 

WEST 81-24-D 

PENN 80-260-R 

VA 80-167-C 

CENT 81-223-R 

WEVA 81-188 

PENN 81-9-R 

Pg. 1895 

Pg. 1900 

Pg. 1904 

Pg. 1909 

Pg. 1914 

Pg. 1919 

Pg. 1923 

Pg. 1926 

Pg. 1928 

Pg, 1937 

Pg. 1941 

Pg. 1948 

Pg. 1951 

Pg. 1975 

Pg. 1987 

Pg. 1989 

Pg. 1994 

Pg. 1998 

Pg. 2004 

Pg. 2016 

Pg. 2019 

Pg. 2027 

Commission Decisions 

AUGUST 

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

Jones & Laughlin Steel Corporation v. Secretary of Labor, MSHA and UMWA, 

PENN 81-96-R; (Judge Laurenson, July 1, 1981). 

Secretary of Labor, MSHA v. Capitol Aggregates, Inc., CENT 79-59-M, etc.; 

(Judge Vail, June 30, 1981). 

Lloyd Brazell v. Island Creek Coal Company, KENT 81-46-D; (Judge Steffey, 

July 13, 1981). 

Secretary of Labor, MSHA v. Monterey Coal Company, LAKE 80-413-R, 81-59; 

(Judge Moore, July 13, 1981). 

Todilto Exploration and Development Corporation v. Secretary of Labor, MSHA, 

C~NT 79-91-RM, 79-310-M; (Judge Boltz, July 21, 1981). 

Review was Dismissed in the following case during the month of August: 

Gerald Boone v. Rebel Coal Company, WEVA 80-532-D; (Judge Melick, July 8, 

1981). 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

TAZCO, INC. 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 4, 1981 

Docket No. VA 80-121 

DECISION 

In this civil penalty case ar1s1ng under the 1977 Mine Act, 30 

U.S.C. §801 et~· (Supp. III 1979), the Secretary contests a judge's 

power to impose, in effect, a $0.00 penalty by suspending payment of the 

actual penalty assessed. The judge assessed and then suspended a $400 

penalty against Tazco, Inc., in a November 17, 1980, decision issued in 

response to the parties' settlement motion. 2 FMSHRC 3299. For the 

reasons set forth below, we hold that the Commission and its judges lack 

the power to suspend penalties in whole or in part. We therefore affirm 

the judge's decision only insofar as it approved the settlement and 

reverse it with regard to the penalty suspension. 

The underlying facts are undisputed. In January 1980, Tazco was 

cited for failing to drill roof bolt test holes at 20-foot intervals. 

Four days after the first citation, Tazco was cited for an unwarrantable 

failure (section 104(d)(l) of the Mine Act) to comply with the same roof 

control provision. The second citation is the subject of this case. 

MSHA initially assessed for the second violation a $500 penalty 

which Tazco contested. However, before the hearing, the parties agreed 

to a settlement of $400. The Secretary moved for approval of this 

settlement in his Motion For Decision And Order Approving Settlement. 

To justify the $100 reduction, the motion stated that: Tazco had 

reinstructed its foremen respecting the 20-foot test hole requirement 

after the initial citation; innnediately after receiving the second 

citation, Tazco discharged the particular foreman who was apparently 

responsible for both violations; and Tazco alleged that the roof was 

sound, and the Secretary had no information to the contrary. 

In his decision, the judge undertook an "independent evaluation and 

de ~ review of the circumstances and the amount of the penalty 

warranted." 2 FMSHRC at 3299. The sole fact he discussed was Tazco's 

discharge of the offending foreman, which, he concluded, warranted 

suspension of the stipulated penalty. Id. Accordingly, he ordered 

1885 81-8-3 
"that for the violation found the operator pay a penalty of $400, with 

payment to·be suspended." Id. at 3300. He then dismissed the case.]) 

A suspended penalty is virtually the same as assessing no penalty 

despite a violation. Both actions are contrary to the Mine Act's 

mandatory penalty structure to which we have alluded in previous cases. 

See, for example, Island Creek Coal Company, 2 FMSHRC 279, 280 (1980); 

Cf. R.H. Coal Company, 7 IBMA 64, 67-68 (1978)(holding that 1969 Coal 

Act mandated assessment of penalties). This case provides an appropriate occasion to elaborate on the Mine Act's mandatory penalty 

assessment scheme. 

Section 110 contains the Mine Act's major penalty provisions. In 

mandatory terms, section llO(a) directs the Secretary, who has enforcement responsibility under the Mine Act, initially to assess a penalty 

for each violation; section llO(i) similarly provides that the Commission, which has adjudicative responsibility, "shall have authority to 

. assess all civil penalties provided in [the] Act."]:_/ The language of the 

1/ We treat the judge's decision as approving the settlement, assessing a $400 penalty, and then suspending its payment. The Secretary cast 

his motion as one for settlement approval. The judge recited only this 

characterization of the motion in his opinion, leading us to believe he· 

accepted that characterization. Because he discussed disapprovingly 

only a single factor, we can conclude only that he tacitly accepted the 

remaining recitations in the motion. Thus, his treatment is in line 

with settlement approval where the judge's duty is to assure that the 

settlement was not reached for an improper reason violative of the Mine 

Act's objectives. Davis Coal Co., 2 FMSHRC 619 (1980). 

]:_/ Section llO(a) provides in relevant part: 

The operator of a coal or other mine in which a violation 

occurs of a mandatory health or safety standard or who violates any 

other provision of this Act, shall be assessed a civil penalty by 

the Secretary which penalty shall not be more than $10,000 for each 

such violation .... 

Section llO(i) provides: 

The Commission shall have authority to assess all civil 

penalties provided in this Act. 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 abiiity 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. 

18U6 
two subsections--indeed the language of all of section 110--is plainly 

based on the premise that a penalty will be assessed for each violation 

at both the Secretarial and Commission levels. 

The Mine Act's legislative history also shows that Congress 

intended a mandatory penalty structure. Congress consistently described 

penalties as mandatory without entertaining any distinction between the 

assessment of a penalty at the Secretarial or Commission level. ]_/ For 

example, Senator Williams, chief architect and a sponsor of the Senate 

bill, described the proposed Act as continuing the concept of "mandatory 

civil penalties [which] have been a feature of the enforcement of the 

Coal Mine Health .and Safety Act since 1970." Leg. Hist. 88. The Senate 

report on the Senate bill states: "The Committee specifically rejects 

the suggestion that the imposition of civil penalties be discretionary 

rather than mandatory .•.. [T]he Committee has adopted the civil 

penalties as they exist in the current Coal Act." S. Rep. 95-181, at 

41, reprinted in Leg. Hist. 629. Further, in both houses, amendments 

which sought to make penalties discretionary were offered and rejected. 

Senate vote, Leg. Hist. 828, 1063; House vote, Leg. Hist. 1183, 1233. 

The debates which preceded the rejections did not draw any distinction 

between assessment at the Secretarial or Commission level. Views were 

again expressed simply that penalties should be mandatory. Leg. Hist. 

1008. 

In sum, both the text and legislative history of section 110 make 

clear that the Secretary must propose a penalty assessment for each 

alleged violation and that the Commission and its judges must assess 

some penalty for each violation found. 

As previously noted, while in a strict legal sense, a $0.00 penalty 

and a $400 penalty with payment suspended are not identical remedies, 

their practical effect is the same. To allow the judge to accomplish de 

facto by penalty suspension what he cannot do directly strikes us as an 

incongruous result. It allows the judge to thwart the congressional 

intent that at least some penalty be assessed for each violation found. 

Thus, consistency with that intent weighs against a judge's power to 

suspend a penalty. 

In addition, nothing else in the Mine Act confers a power to 

suspend penalties. Administrative law judges are subordinate to, and 

draw their powers from, their controlling agency and its organic statute. 

Admininstrative Procedure Act §7(b), 5 U.S.C. §556(c); Attorney General's 

Manual on the Administrative Procedure Act 74 (1947). Thus, it is 

axiomatic that an administrative law judge's power is limited by the 

limits on his agency's powers. The Mine Act does not expressly grant 

the Commission the power to suspend payment of penalties. Consequently, 

if the power is not otherwise inherent or implied by the broad grant of 

power given the Commission to "assess all civil penalties," the Conunission 

and its judges lack the power. As discussed above, since the power to 

suspend is in opposition .to the Mine Act's mandatory penalty structure, 

we cannot conclude that such implied power exists. 

]_/ In general, see Senate Subcommittee on Labor, Comm. on Human Resources, 

95th Cong:, 2nd Sess., Legislative History of the Federal Mine Safety 

and Health Act of 1977, at 85, 88, 375-376, 600-601, 629, 910, 1167, 

1211-12, 1364-65 (1978) ["Leg. Hist."]. 

1897 
Furthermore, by way of analogy, the majority state rule and the 

federal rule are that even trial judges have no inherent authority to 

suspend the.execution of sentences in criminal cases. Ex parte U.S., 

242 U.S. 27, 42 (1916); see generally 73 ALR 3d_474 (1976). They gain 

the right to suspend sentences only by a statutory grant. Again, we 

stress the absence of a similar grant in the Mine Act. 

Therefore, the Commission and its judges do not have the power to 

suspend penalties either in whole or in part. If it is found in a given 

case that a low penalty is warranted, a low penalty may, of course, be 

assessed. !!._/ Similarly, if a judge disagrees with a stipulated penalty 

amount in a settlement, he is free to reject the settlement and direct 

the matter for hearing. 

For the foregoing reasons, we affirm the judge insofar as he 

approved the settlement and assessed a $400 penalty; we reverse insofar 

as he suspended payment of the $400 assessed penalty. Our decision 

therefore reinstates the $400 penalty to which the parties stipulated. 

Marian an Nease, Commissioner 

!!._/ We note, however, that this case does not require us to pass on the 

propriety of nominal penalties. 

1898 
Distribution 

Nancy S. Hyde, Esq. 

Michael McCord, Esq. 

Off ice of the Solicitor 

U.S. Department of Labor 

4015 Wilson Blvd. 

Arlington, Virginia 22203 

Paul Merritt, Esq. 

Tazco, Inc. 

P.O. Box 367 

Doran, Virginia 24612 

Administrative Law Judge Joseph Kennedy 

FMSHRC 

5203 Leesburg Pike, 10th Floor 

Falls Church, Virginia 22041 

18D9 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

GERALD D. BOONE 

v. 

REBEL COAL COMPANY 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

August 6, 1981 

Docket No. WEVA 80-532-D 

ORDER 

This proceeding was initiated by a complaint filed by Gerald D. 

Boone under the provisions of section 105(c)(3) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et~·· the "Act" 

alleging that Mr. Boone was discharged by the Rebel Coal Company in 

violation of section 105(c)(l) of the Act because he refused to comply 

with an order to drive a haulage truck he claimed was in a hazardous 

condition. On July 8, 1981, the judge issued his decision finding that 

Boone was discharged in violation of section 105(c)(l) of the Act. The 

judge neither granted nor denied any relief but ordered the parties "to 

consult and seek to stipulate as to the specific damages resulting from 

the discharge of Gerald D. Boone found unlawful in these proceedings and 

to report to me in writing on or before July 30, 1981, the results of 

such consultations." 

On July 30, 1981, Rebel Coal Company filed its Petition for Review 

raising questions of law and fact relating to the judge's decision. 

The Commission considered an analogous situation in Council of 

Southern Mountains, Inc. v. Martin County Coal Corp.,2 FMSHRC 3216 

(Nov. 12, 1980). There the judge had issued his decision and granted 

some relief, but did not resolve the amount of attorney fees and other 

costs. We looked to section 113(d)(l) of the Act and Commission Rule 

65(a) to conclude that failure to resolve these monetary awards did not 

constitute a final disposition by the judge to initiate the running of 

the statutory review periods under section 113 of the Act. In that case 

we dismissed the petitions for review as premature. In the instant case, 

the judge did not resolve any monetary awards, but ordered the parties 

to consult and to report back to him. Our reasoning and decision in 

Martin County Coal Corp., supra is applicable to this case. 

Accordingly, the petition for review filed by Rebel Coal Company 

is dismissed as premature. The parties may file petitions for review 

81-8-4 

1!100 
J 

in accordance with section 113 of the Act and Commission Rule 70 

(29 C.F.R. 2700.70) once the judge has made his final disposition of 

this proceeding. 

~-<---'-C-~4~~~­

Richard V. Backley, Chairman 

A. E. Lawson, Commissioner 

~Qt{ ~~~Ot1LCLL1 <\UaJ2 

Marian Pearlman Nease, Commissioner 

1901 
Distribution: 

Daniel F. Hedges, 

Appalachian Research and Defense Fund, Inc. 

1116 - B Kanawha Boulevard 

East Charleston, West Virginia-25301 

Car 1 McAfee, Esq. 

Cline McAfee and Adkins 

1022 . Parle Avenue' NW 

Norton, Virginia 24273 

Cynthia Attwood, Esq. 

U.S.Departmant of Labor 

Office of the Solicitor 

4015 Wilson Boulevard 

Arlington, Virginia 22203 

Administrative Law Judge Gary Malick 

Office of .Achni.nistrati ve Law Judges 

Federal Mine Safety and Health Review Conmission 

2 Skyline, 10th Floor 

5203 Leesburg Pike 

Falls Church, Virginia 22041 

1902 
Administrative Law Judge Decisions 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) CIVIL PENALTY PROCEEDING 

) 

Petitioner, ) DOCKET NO. WEST 79-20-M 

) 

v. ) MSHA CASE NO. 24-00338-05003 F 

) 

THE ANACONDA COMPANY, ) MINE: Berkeley Pit 

Respondent. ) 

) ~~~~~~~~~~~~~~~~~~~ 

DECISION 

Appearances: 

Ann M. Noble, Esq., Office of the Solicitor, United States Department of 

Labor, 1961 Stout Street, 1585 Federal Building, Denver, Colorado 80294 

For the Petitioner 

Edward F. Bartlett, Esq., and Karla M. Gray, Esq. 

P.O. Box 689, Butte, Montana 59701 

For the Respondent 

Before: Judge Virgil E. Vail 

I. Procedural Background 

The above captioned civil penalty proceeding was brought pursuant to 

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

U.S.C. § 820(a) [hereinafter referred to as "the Act"]. 

Pursuant to notice, a hearing on the merits was held at Butte, Montana 

on September 16, 1980. Respondent called Walter B. Brown and Robert G. 

Henderson as witnesses. Petitioner did not offer any oral testimony. The 

parties filed post hearing briefs. 

II. Stipulations 

During the course of the hearing, the parties entered into the 

following stipulations: 

1. The Administrative Law Judge has jurisdiction to hear this case. 

2. The respondent is a large company. 

1904 
3. The assessment of a penalty in this case would not affect the 

respondent's a_bility to continue in business. 

4. The autopsy report is admissible (P's Exhibi_t 1). 

Ill. Findings of Fact 

Based on the evidence, I find that the following facts were 

established: 

1. Citation No. 341641 was issued as a result of a fatal accident 

which occurred on July 11, 1978. 

2. Mr, Charles McNair, who was employed by the respondent at its 

Berkeley Pit, was fatally injured when he became entangled in a conveyor 

belt. (P's Exhibit 1). 

3. Mr. Robert Henderson, a foreman at the Berkeley Pit when the 

accident occurred,observed Mr. McNair on the day of the accident when the 

latter turned in his time card. At that time Mr. Henderson did not observe 

anything unusual about Mr. McNair nor did he smell any alcohol. (Tr. 

19-21). 

4. A co-worker of the deceased, Mr. Walter Brown, saw the deceased on 

the bus used to transport the employees to their work areas. Mr. Brown did 

not notice anything unusual about Mr. McNair and testified that there was 

no indication that Mr, McNair had been drinking. (Tr. 14-15). 

5. There were no witnesses to the fatal accident. 

IV, Discussion 

Citation No, 341641~/ charges the respondent with having violated 

mandatory safety standard 55.20-1. The standard provides th.at: 

55.20-1 Mandatory. Intoxicating beverages and narcotics 

shall not be permitted or used in or around mines. Persons 

under the influence of alcohol or narcotics shall not be 

permitted on the job. 

1/ Citation No. 341641 reads as follows: On July 11, 1978, Charles W. 

McNair was fatally injured when he became entangled in the troughing 

rollers of the number 2 conveyor belt. An autopsy of the body of Charles 

McNair was ordered by the Silver Bow County Coroner's Office. The autopsy 

report, dated July 13, 1978, and issued by Silver Bow General Laboratory, 

Continental Drive, Butte, Montana, showed the blood alcohol level on the 

post mortem sample of blood at a level of 0.12%. Charles McNair was· 

allowed on the job while under the influence of alcohol on July 11, 1978. 

1905 
The sole issue is whether the respondent violated 55.20-1 by 

permitting the deceased on the job while he was under the influence of 

alcohol. 

The phras·e "under the influence," as used in 55. 20-1, has not been 

defined any place within the standards or the Act. However, the petitioner 

urges application of the State ofMontana's statutory blood alcohol level 

presumption. 

The State of Montana, the situs of the accident involved herein, has 

adopted a standard which states that anyone with a .10% blood alcohol level 

is presumed to be "under the influence." This statute is contained in 

Tit le 61 of the Montana Code Annotated under "Driving Under Influence of 

Alcohol or Drugs." ·However, this presumption applies only to criminal 

prosecutions. MCA § 61-8-401. 

I find no authority, nor has the petitioner in this case presented 

any, to the effect that a presumption found in a criminal statute can be 

used in an administrative proceeding. To t~e contrary, the cases appear to 

hold otherwise. In the case of City of Sioux Falls v. Christensen, 116 

N.W. 2d 389, (S. Dak. 1962), the Supreme Court of South Dakota held that, 

Our presumption statute is clearly limited to criminal prosecutions thereunder for the offense of driving a motor 

vehicle while under the influence of intoxicating liquor .•. 

Consequently, the presumptions established therein have no 

application to prosecutions for violations of municipal 

ordinances. p. 390. 

The Supreme Court of Arizona in the case of Mattingly v. Eisenberg, 

285 P. 2d 174 (Ariz. 1955) reached a similar result. The court held that 

the statutory presumption of when a driver is under the influence applied 

only in criminal prosecutions of persons charged with driving while under 

the influence and did not apply to civil cases. See also Patton v. Tubbs 

402 P. 2d 355 (Wash. 1965). 

If the Montana presumption were to be applied in this case it would 

place an undue burden on mine operators across the country. Not only would 

they be forced to search the statute books for definitions that might be 

found to apply to them in the course of federal administrative hearings, 

but they would also be subject to the presumptions and definitions 

contained in state criminal codes. 

Furthermore, I cannot believe that Congress intended that we look to 

state law in order to enforce what was intended to be a uniform piece of 

legislation. As the United States Supreme Court has held: 

We must generally assume, in the absence of a plain indication 

to the contrary, that Congress when it enacts a statute is not 

making the application of the federal act dependent on state 

law. That assumption is based on the fact that the application 

of federal legislation is nationwide. Jerome v. U.S., 318 U.S. 

101, 104 (1943). See also NLRB v. Natural Gas Utility District, 

402 U.S. 600 (1971 • 

1906 
There is no indication in this instance that Congress intended that a state 

presumption be applied. 

At the hearing, counsel for respondent stipulated to the admissibility 

of the autopsy report (Tr. 4 & 8). Now, however, respondent contends that 

the results of the chemical blood test are inadmissible~ Respondent argues 

that the admissibility of the autopsy report and that of the chemical 

analysis are two entirely different matters. I conclude that since the 

autopsy report, which contains the chemical analysis, was admitted into 

evidence at the hearing counsel cannot now object to the admission of the 

blood tests contained in the autopsy report even though he reserved all 

legal objections. 

The only evidence that the deceased miner was "under the influence" 

is the autopsy report offered by the petitioner, which showed under the 

heading "Chemical Analysis", that the miner's "Blood alcohol level on the 

post-mortem sample of blood showed a level of 0.12%." Various states have 

accepted the premise that blood alcohol levels of amounts less than the 

above constitute grounds that a driver of a motor vehicle may be presumed 

to be. "under the influence of alcohol or drugs" for criminal prosecution. 

However, in this case, without additional evidence or proof, the finding of 

the autopsy report cannot be found to warrant a decision that the miner 

herein was "under the influence" as provided in the standard. 

Medical testimony might have been of value in a case of this type in 

order to properly interpret the autopsy report. The District of Columbia 

Court of Appeals in the case of Lister v. England 195 A. 2d 260 (D.C. App. 

1963) held that blood analysis results are not even admissible unless 

introduced by expert testimony. Because, as the court stated, "without 

benefit of such testimony or resort to the statutory standards the result 

of the analysis is meaningless." See Also Holt v. England 196 A. 2d 87 

(D.C. App. 1963) and City of Sioux"""Fa°lTSV'. Christensen, supra. 

In that I find that the State of Montana statute relating to the 

presumption of driving while under the influence does not apply here, and 

in the absence of that presumption or other evidence to interpret the 

chemical analysis of the autopsy report, I must conclude that petitioner 

failed to establish a prirna facie case that the miner was "under the 

influence of alcohol or drugs" at the time of the fatal accident. 

Therefore, it is hereby ORDERED that Citation 341641 be vacated and 

the case DISMISSED. 

'--- / /7 <;:'"' > .. - . ff z:?.c_.'.-i.q,t .L 0 , e---/~:,{_. Virgil E . (V' ail 

Administrative Law Judge 

1907 
Distribution: 

Ann M. Noble, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Edward F. Bartlett, Esq. 

Karla M. Gray, Esq. 

P.O. Box 689 

Butte, Montana 59701 

1908 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80204 

SECRETARY OF LABOR, MINE SAFETY 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

TEHAMA COUNTY EXCAVATING, 

Respondent. 

Appearances: 

) 

AND) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

4 l!JBJ 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 80-348-M 

A/O No. 04-04191-05003 H 

DOCKET NO. WEST 80-349-M 

A/O No. 04-04191-05004 W 

MINE: Lattin Pit & Mill 

DECISION 

Marshall P. Salzman, Esq., Office of the Solicitor, United States 

Department of Labor, 450 Golden Gate Avenue, Box 36017, San Francisco, 

California 94102 

For the Petitioner, 

Fred Lindauer, Pro Se 

P.O. Box 615, Red B~ff, California 96080 

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) [hereinafter referred to as "the Act"]. 

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

California on November 25, 1980. Willie Davis, federal mine inspector, 

testified on behalf of the petitioner. Fred Lindauer, President of the 

respondent company, represented the company and appeared as a witness. Roy 

Cone also testified on behalf of the respondent. 

1909 
II. FINDINGS OF FACT 

I find that the evidence establishes the following facts: 

1. Respondent's operation involves removal of aggregate from stream 

beds. The aggregate is then transported to a screening plant. At the 

screening plant the aggregate is separated according to size."(Tr. 9). 

2. The Caterpillar 966 front end loader, which is the subject of both 

the withdrawal order and the citation involved herein, is approximately 22 

feet long, 10 feet high, 8 feet wide and weighs 20 tons. (Tr. 10). 

3. On August 28, 1979, Willie Davis, federal mine inspector, asked 

the operator of the 966 Caterpillar to test the brakes. The brakes would 

not stop the machine. In order to stop the heavy p1ece of equipment, the 

operator had to use the gear lever. For example, if the equipment was 

moving forward he would shift into reverse and vice versa. (Tr. 11). 

4. Davis informed the operator th.at he was going to issue a 107( a) 

withdrawal order and the operator would have to cease working. At that 

time the operator got in a car and left the area. (Tr. 12). 

5. Approximately ten minutes later Mr. Lindauer appeared. Although he had 

been notified that the screening plant had b~en shut down, he proceeded to 

load two trucks using the 966 Caterpillar. (Tr. 13 and 25). 

6. Not until after he had finished loading the trucks did he inquire 

of Mr. Davis as to why a withdrawal order had been issued. (Tr. 13). Mr. 

Lindauer then stated that he had no intention of shutting down his 

operation. (Tr. 15). 

7. Lindauer did tell the operator to check the fluid levels on the 

brakes and radioed for Roy Cone, a heavy eq.uipment mechanic, to work on the 

brakes. (Tr. 16 and 30). 

8. When Cone arrived 

were inoperable. (Tr. 33). 

or cylinder in the brakes. 

at the screening plant, the brakes on the loader 

He repaired an oil leak and also a cracked line 

(Tr. 30). 

9. On August 30, 1980, Davis returned to the site and again asked 

the operator to test the brakes. The brakes were still inadequate and 

would not stop the equipment. (Tr. 18). The operator told Davis that 

mechanics had been out twice to work on the brakes, but had not been able 

to fix them. (Tr. 18). 

10. When Davis returned on September 11, 1980, and the brakes were 

still not fixed he issued a citation for violating the withdrawal order. 

(Tr. 19). A week later he returned to inform Mr. Lindauer that they were 

in the process of seeking a temporary injunction, in the United States 

District Cour:t, to enjoin him from operating the 966 Caterpillar. (Tr. 20). 

1910 
III. DISCUSSION 

Respondent contends that Tehama's operation is not within the coverage 

of the Act. (Tr. 7). Neither side offered any evidence on this point. 

However, the Act defines its coverage as being, 

Each coal or other mine, the products of which enter Cormnerce, 

or the operations or products of which affect commerce, and 

each operator of such mine, and every miner in such mine shall 

be subject to the provisions of this Act. Sec. 4. 

It has long been established that sand and gravel operations are covered by 

the Act. In the case of Marshall v. Wallach Concrete Products, Inc., et 

al., the U.S. District Court held that sand and gravel operations are 

"mines" within the meaning of Sect ion 3(h) ( 1) of the Act, and accordingly 

are within the coverage of the Act. 1 BNA MSHC 2337 (1980). 

It has also been established that even though the products of a mining 

operation are not sold outside of the state where they are mined they are 

competing with interstate products. Therefore, there is what has been 

termed a "ripple effect" and it has been established that the products do 

affect cormnerce. Marshall v. Bosack 1 BNA MSHC 1671 (1978) See Also 

Wickard v. Filburn, 317 U.S. 111 (1942). 

Also, Respondent had been issued citations prior to the ones involved 

in these cases and there is no evidence that jurisdiction was ever 

challenged. 

In light of the above, I conclude that respondent is covered by the 

Act and that I have jurisdiction over these proceedings. 

The 107(a) irmninent danger order was issued on August 28, 1979. 1/ 

There is no evidence in the record to the effect that the brakes were 

working. Mr. Lindauer testified that as soon as he was notified of the 

problem he called for a mechanic. (Tr. 25). Roy Cone, the mechanic, 

testified that the brakes were inoperable when he arrived. (Tr. 33). 

1/ 381640 was modified on the same day, August 28, 1979, because the 

inspector had incorrectly designated the type of action as being taken 

under section 104(a) and the standard being violated as 56.9-2. The type 

of action was modified to read; 107(a)-104(a) and the part and section was 

changed to 56.9-3. 

1911 
The loader was being operated on a pub 1 ic road. There were low banks 

approximately three feet high and there were trucks and people walking in 

the same area. (Tr. 11 and 12). Since the operator did not have complete 

control of the loader, I conclude that the operation of the loader 

presented an imminent danger not only to the operator, but to others in the 

vicinity. Therefore, the withdrawal order is affirmed.-

Citation no. 381641 was issued on September 11, 1979 after Davis 

requested that the operator test the brakes, and again found that they were 

inadequate to stop the loader. The citation alleges that the respondent 

was operating the loader in violation of the withdrawal order. 

Respondent failed to offer any testimony that would point to the 

brakes being in good condition on the day the citation was issued. Mr. 

Lindauer testified that he just assumed the brakes had been repaired after 

the withdrawal order had been issued. (Tr. 26). Roy Cone stated that he 

worked on the brakes subsequent to August 28, 1979, but could not remember 

the exact date or what work had been performed. (Tr. 33). 

Based on the uncontradicted testimony of the inspector, I find that 

the citation should be affirmed. 

Penalty Assessment 

I find that the respondent is a small operator within the meaning of 

the Act. The company operates six months of the year and has only three 

employees. (Tr. 7). Prior to the violations involved herein, respondent 

had been issued only four citations. (Tr. 20). Based on this fact, I 

conclude that respondent had a small history of violations. There being 

nothing contrary in the record, it is assumed that the penalties imposed 

will not affect respondent's ability to continue in business. The 

negligence of the respondent in both instances was great. There was no 

explanation offered, nor is there one that I can think of that would 

justify the operation of a heavy piece of equipment without adequate 

brakes. This is especially so considering that it was being operated on a 

pub lie road. 

Based on the foregoing, I hereby impose a penalty of $500.00 for 

withdrawal order no. 381640. In considering an appropriate fine for 

Citation no. 381641, I would point out that the respondent failed to act in 

good faith. Not only did the company not abate the condition upon which 

the withdrawal order was based, but it continued to operate the machine. 

It was not until action was initiated in the United States District Court 

that respondent corrected the defective brakes. Based on respondent's 

continued neglect of the matter, I find that $1,000.00 is an appropriate 

penalty. 

1912 
ORDER 

Respondent is Ordered to pay the assessed penalties of $1,500.00 

within forty days of this decision. 

v*?~ Administrative Law Judge 

Distribution: 

Marshall P. Salzman, Esq. 

Office of the Solicitor 

United States Department of Labor 

450 Golden Gate Avenue, Box 36017 

Sa~ Francisco, California 94102 

Tehama County Excavating 

Mr. Fred Lindauer, President 

P.O. Box 615 

Red Bluff, California 96080 

1913 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG n 1981 

CONSOLIDATION COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

Nnm SAFETY AND HEALTH 

AO:UNISTRATION (MSHA) , 

Respondent 

SECRETARY OF LABOR, 

NINE SAFETY AND HEALTH 

A0:1INISTRATION (MSHA), 

Petitioner 

v. 

CG;JSOLIDATION COAL COMPANY, 

Respondent 

DECISION 

Notice of Contest 

Docket No. WEVA 81-259-R 

Loveridge Mine 

Civil Penalty Proceeding 

Docket No. WEVA 81-414 

A.O. No. 46-01433-03117V 

Loveridge Mine 

Appearances: James P. Kilcoyne, Jr., Esq., Office of the Solicitor,· 

U.S. Department of Labor, Philadelphia, Pennsylvania, 

for MSHA; 

Before: 

Jerry F. Palmer, Esq., Consolidation Coal Company, 

Pittsburgh, Pennsylvania, for Consolidation Coal Company. 

Judge Merlin 

This consolidated proceeding is a notice of contest by the operator 

challenging a section 104(d)(2) withdrawal order and a petition for the 

assessment of a civil penalty filed by the Solicitor based upon the 

alleged violation set forth in the order. 1/ 

A hearing was held on July 7, 1981 at which the parties represented 

by counsel appeared and presented documentary and testimentary evidence. 

1/ The petition for penalty assessment originally contained two violations. The Solicitor previously filed a motion to sever the second 

violation which did not involve the same condition as was contained in 

the notice of contest proceeding. I have granted the motion to sever in 

? separate order so that the notice of contest and penalty docket numbers 

herein only involve the same situation. 

1914 
At the hearing the parties agreed to consolidate these cases for 

hearing and decision and to the following stipulations: 

(1) The applicant is the owner and operator of the subject mine. 

(2) The mine is subject to the jurisdiction of the Federal Mine 

Safety and Health Act of 1977. 

(3) I have jurisdiction of this case pursuant to the 1977 Act. 

(4) The inspector who issued the subject order was a duly authorized 

representative of the Secretary, and all witnesses who will testify are 

accepted generally as experts in coal mine health and safety. 

(5) True and correct copies of the subject order, and termination 

thereof, were properly served on the operator in accordance with the 

Act. 

(6) There was no intervening clean inspection subsequent to the 

issu.::mce of the underlying (d) (1) withdrawal order, and the subject 

(<l)(2) withdrawal order. 

(7) There exists a.validly issued (d)(l) citation and a validly 

issued (d)(l) order underlying the subject order. 

(8) Imposition of any penalty will not affect the operator's 

ability to continue in business. 

(9) The operator is large in size. 

(10) The alleged violation was abated in good faith. 

(11) The operator's history is average and non-contributory to the 

amount of any penalty that might be assessed herein (Tr. 4-5). 

At the conclusion of the taking of evidence counsel waived the 

filing .of written briefs and agreed instead to make oral argument 

(Tr. 130). Extensive oral argument was given (Tr. 130-171). I advised 

the p:irties that I would issue a decision after the administrative 

tr:inscript was received (Tr. 169). 

Discussion and Analysis of the Evidence 

Findings and Conclusions 

The order sets forth the condition or practice as follows: 

Float coal dust black in color has been allowed to accumulate 

on the rock-dusted surface of the floor and ribs of the No. 8 

im.~ediate return entry for the 7 South mains (055) section and 

1915 
crosscuts between the No. 8 and No. 9 entries for a distance of 

approximately 1,000 feet. The floor in middle of No. 9 entry had 

been dragged, but float coal dust was still on the sides of the 

floor and ribs of the No. 9 entry. 

The key to understanding this case is operator's exhibit No. 2. 

This exhibit consists of ten strips of paper ranging in color from pure 

white (No. 1) to jet black (No. 10). The middle strips of paper are, 

therefore, varying shades of gray which become darker as the numbers go 

higher. The inspector testified that a violation exists when the float 

coal dust appears as either "9" or "10", i.e. black. He further testified 

that in all the areas described in the order which he traversed, the 

float coal dust was black except, as noted in the order, for the middle 

of the No. 9 entry which had been dragged. Accordingly, the inspector 

testified that he cited a violation. 

The inspector's evaluation of the color of the float coal dust is 

contradicted by the operator's witnesses. First, and most persuasively, 

the C'.'11..'A fire boss testified that when he was taking air readings he saw 

the entries shortly before the inspector and that they were only like 

the i\o. 5 or 6 strips, i.e., at most medium gray. The union fire boss 

is a man of many years experience and was a most believable witness. 

His statements alone wou~d compel a finding of no violation and vacation 

of the order. 

Hnwever, the testimony of the fire boss does not stand alone. The 

day shift section foreman testified that immediately after the order was 

issu1...·d he walked the entries and judged them to be about a "6" in color. 

When recalled to the stand he stated he did not see any footprints which 

had disturbed the float coal dust in the entries and diminished the 

degree of blackness of the float coal dust. Accordingly, the evidence 

of tl1is witness also conflicts with the inspector's estimate of the 

co]or of the float coal dust. 

So too, the midnight shift section foreman estimated the color as 

only a "7". Admittedly, he stated that he thought the color of the 

float coal dust at a "7" would be a violation whereas a "6" would not. 

With respect to the color of the float coal dust, this testimony is 

therefore, similar to that of the fire boss and the section foreman. 

Insofar as the degree of blackness which is necessary to constitute a 

vio1'1tion js concerned, it is the inspector and not the operator's 

midnight shift section foreman who is charged with interpreting and 

applying the standard. And it most certainly is not my function to 

for:::1ulate and apply to the operator a more stringent test than the 

inspector did. As I advised counsel during oral argument, this estimate 

is germane because it is a measure of the truthfulness of the midnight 

shift section foreman that he set forth a tougher standard than did the 

inspector himself. But this does not mean that such a circumstance 

would constitute a violation where according to MSHA's own authorized 

representative it would not. 

1916 
Three more witnesses also testified on behalf of the operator. 

They estimated the color of the float coal dust as ranging from "5" to 

"7" on the color scale. There was some suggestion that by the time some 

of these witnesses saw the area the float coal dust may have been 

churned up and thereby lightened by individuals walking on it, but there 

is no definitive evidence on this point and I find that this did not 

occur. 

I recognize that the operator's witnesses did not agree exactly on 

the coloration of the float coal dust, but their estimates of from "5" 

to "7" are well within the range of judgment which could be expected 

since the gradations were so close. Indeed, I find the slight variations 

between the operator's witnesses enhanced rather than detracted from 

their credibility. It is to be remembered that at the hearing upon the 

Solicitor's request the operator's witnesses were sequestered. When 

watching these men select the appropriate color, it appeared to me that 

they were truly trying to remember as best they could the way the float 

coal dust looked on January 12. 

In light of the foregoing, I find the operator's evidence more 

credible and based upon it I conclude that at most the float coal dust 

was medium gray and that therefore under the standard as applied by the 

inspector a violation did not exist. ]:_! 

ORDER 

Accordingly it is hereby ORDERED that the subject order be and is 

hereby VACATED, that the notice of contest be and is hereby GRANTED and 

that the petition for assessment of a civil penalty be and is hereby 

DIS>IISSED~ ~-~~\\oJ_l ' 

c--- \ 

Paul 

c:_,_vJ 

Merlin 

'- '-

~ 

~ 

Assistant Chief Administrative Law Judge 

2/ In may be that the standard for determining how dark or how black 

float coal dust should be in order to constitute an accumulation is too 

i~precise. It may also be that in this case the inspector used too 

restrictive a standard. However, I only can act on the record before me 

and in any event, as I have already stated, the formulation of guidelines 

for judging when an accumulation of float coal dust exists is beyond the 

purview of this case and beyond the authority of an administrative law 

judge. \~1at is clear here is that under the standard used by the 

inspector, the great weight of evidence demonstrates that a violation 

did not exist. 

1917 
Distribution: 

James P. Kilcoyne, Jr., Esq., Office of the Solicitor, U.S. Department 

of Labor, Rm. 14480-Gateway Bldg., 3535 Market St., Philadelphia, 

PA 19104 (Certified Mail) 

Jerry F. Palmer, Esq., Consolidation Coal Company, 1800 Washington 

Road, Pittsburgh, PA 15241 (Certified Mail) 

1918 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Disciplinary Proceeding 

(Minerals Exploration Company) 

Docket No. D 81-1 

Appearances: 

Before: 

DECISION 

John A. Macleod, Esq., Crowell and Moring, 

Washington, D.C.; 

Page H. Jackson, Esq., Office of the Solicitor, 

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

Judge Merlin 

AUG 1 o ·~ 

The above-captioned matter came on for consideration as scheduled 

on August 6, 1981. After hearing from those involved, I rendered the 

following bench decision: 

This case is a referral for possible disciplinary proceedings given 

by the Solicitor to Judge John A. Carlson, a judge of the Commission, 

during a conference in chambers on June 29, 1981, and transmitted by 

Judge Carlson to the Commission by memorandum d~ted July 13, 1981. 

By order dated July 23, 1981, the Commission referred the case to 

the Chief Administrative Law Judge and the Chief Administrative Law 

Judge has, in turn, assigned the case to me. 

This matter arises out of certain remarks made by counsel for the 

operator during a telephone conference call on June 22, 1981, participated 

in by Judge Carlson, his law clerk, an attorney in the Solicitor's 

office, a miners' .representative and, of course, counsel for the operator. 

The facts are set forth in the joint stipulations submitted to me 

by the Solicitor and by the attorney retained by counsel for the operator. 

I have reviewed the stipulations and have accepted them. They have been 

made a part of the record. 

As set forth in the stipulations, the salient facts are briefly as 

follows: Judge Carlson was presiding in a review proceeding challenging 

the validity of a section 107(a) withdrawal order issued against Minerals 

Exploration Company. The conference call was specifically concerned 

with the union's participation in the hearing which was already underway. 

Of the two miners' representatives involved, one was on sick leave and 

one was on disability-maternity leave at the time. According to counsel 

for the operator, the company's personnel policy required that employees' 

1919 
activities while on leave be consistent with their leave status. For 

this reason, therefore, counsel for the operator represents that during 

the telephone conference call he intended to alert the miners' representative to possible adverse personnel action if the miners' representatives 

traveled to Denver for the hearing without first changing their leave 

status. During the course of the conference call, counsel for the 

operator used such words as "discipline" and "discharge." Counsel for 

the operator has stated that he did not intend to interfere with the 

union's right under the Mine Safety Act and the Commission's.regulations 

to participate in the hearing. Regardless of his intent, however, it 

appears that his remarks could have been, and were, in fact, interpreted 

by some of the other participants to the conference call as a deterrent 

to the union's participation in the review proceeding. 

The attorney retained by counsel for the operator has stated at 

length this morning that counsel did not intend to prevent or frustrate 

the union's participation in the review proceeding, and that a misunderstanding of the words used occurred. In addition, this morning 

before me counsel for the operator also has stated that such was not his 

intent, and he has expressed regret for the untoward consequences of his 

remarks and for any inconvenience caused to the Commission and to me. 

It must be stated that in light of what transpired during the 

telephone conference call, Judge Carlson's concern as evidenced in the 

conference in chambers was undoubtedly well-founded. So, too, under the 

circumstances, the Solicitor's referral was appropriate. 

One has only to undertake a cursory reading of the Mine Safety Act 

and the regulations of the Commission to become readily aware that 

throughout the statutory and regulatory scheme, participation by miners 

and miners' representatives is not only allowed but also approved of and 

encouraged in the strongest manner possible. Attorneys who deal with 

this law and who practice before the Commission must be expected to be 

alert and sensitive to these participatory rights which are so integral 

a part of mine safety as envisaged and enacted by Congress. 

Over and above the particular statute involved here is the responsibility of an attorney toward potential witnesses and parties. One of 

counsel's most fundamental responsibilities, if not his most fundamental 

responsibility, is his duty to insure the integrity of the administration of justice. Accordingly, when counsel speaks, he must think not 

only of what he means by his statements, but of how his statements will 

be perceived and interpreted by those to whom he is speaking, especially 

when they are not attorneys. 

The remarks of counsel for the operator this morning demonstrate that 

he now is aware of these important considerations. As already noted, I 

have accepted the stipulations. I further accept the representations of 

1920 
counsel for the operator that he did not intend his remarks to have any 

effect contrary to the Mine Safety Act and to the Commission's regulations 

regarding union participation. Yet it cannot be denied that his words 

may well have had and indeed, did have the proscribed effect, even if he 

did not so intend. Therefore, it is clear that counsel misspoke. 

Counsel must be more careful in the future. It is not only what counsel 

says but what others hear. The care which counsel exercises must be 

particularly intense when critical issues such as we see here today are 

involved. 

As already indicated, I accept counsel's remarks and apology this 

morning. I note that the remarks made during the conference call on 

June 22, 1981, occurred during the first case in which counsel appeared 

under the Mine Safety Act and the Commission's regulations. I also note 

that they occurred during a conference call to which the presiding judge 

and his law clerk themselves were participants. I am confident that 

there will be no repetition of any such unfortunate situation involving 

counsel. 

In light of the fact that counsel did not intend to violate the 

Mine Safety Act or the Commission's regulations, in view of his statements here this morning and because this was his first appearance in a 

Mine Safety Act proceeding, I conclude that no ~isciplinary proceedings 

are warranted. 

There is one further matter which should be mentioned. This concerns 

not only the particular matter before me today but disciplinary cases 

generally. Both the Solicitor and the attorney retained by counsel for 

the operator have pointed out that at present; the Commission's regulations 

do not set forth how disciplinary proceedings are to be conducted. For 

instance, the regulations do not indicate if an individual referring a 

matter for disciplinary proceedings has the responsibility of presenting 

evidence in support of possible disciplinary action. Of course, circumstances vary. If an Administrative Law Judge of the Commission refers a 

matter for possible disciplinary proceedings, he should not be expected 

to present the evidence himself in any resultant hearing. On the other 

hand, the situation might be different where the Solicitor or an operator 

refers a matter for possible disciplinary proceedings. I recognize that 

under existing regulations the individual against whom possible disciplinary proceedings are considered is given adequate notice, opportunity 

for rep.ly, and a hearing with opportunity to present evidence and cross-: 

examine. Nevertheless, the overall context in which these rights are to 

be exercised is not delineated. Certainly, the judge who presides in a 

disciplinary matter should not have any other function. Th§ situation 

obviously has many facets. I agree that the matter is worthy of attention 

and consideration. 

1921 
The bench decision issued August 6, 1981 is hereby AFFIRMED and 

this matter is DISMISSED. 

Paul Merlin 

Assistant Chief Administrative Law Judge 

Distribution: 

John A. Macleod, Esq., Crowell & Moring, 1100 Connecticut Ave., 

N.W., Washington, DC 20036 (Certified Mail) 

Page H. Jackson, Esq., Office of the Solicitor, U.S. Department 

of Labor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified 

Mail) 

Bevelyn Suter, President, Progressive Mine Workers of America, 

Local 1979 B, P.O. Box 359, Rawlins, Wyoming, 82301 (Certified 

Mail) 

Judge John A. Carlson, Federal Mine Safety and Health Review Commission, 

Office of Administrative Law Judges, 333 West Colfax Avenue, Suite 320, 

Denver, Colorado 80204 (Certified Mail) 

1922 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

SECRETARY OF LABOR,· 

HINE SAFETY AND HEALTH 

AmfINISTRATION (MSHA), 

ON BEHALF OF THEODORE HAZZARD, 

Complainant 

v. 

CANNELTON INDUSTRIES, INC., 

Respondent 

AUG 12 1001 

Complaint of Discrimination 

Docket No. WEVA 81-392-D 

Pocahontas No. 3 & 4 Mine 

DECISION AND ORDER 

This is a complaint for discrimination that came on for hearing .on 

August 4 and 5, 1981 in Beckley, West Virginia. The gravamen of the 

charge was that the operator attempted to interfere with a miner's right 

to seek correction of. what were claimed to be unsafe mining practices 

and conditions in the 4-B and Roadside Mines (Pocohantas No. 3 and 4 Mine). 

The charge arose in the context of a sharp disagreement between the 

complainant and MSHA's Subdistrict Office in Princeton, West Virginia 

over the timing and extent of fire drills prescribed by 30 C.F.R. 

75.1704-2(e), and the requirement for the designation, approval and 

inspection of secondary escapeways, 30 C.F.R. 75.1704-1, -2; 1./ 30 C.F.R. 

75.1707. 

A third consideration that directly affected the actions of the 

parties involved two petitions for modification of the requirement of 

30 C.F.R. 75.305 for weekly methane examinations of at least one entry 

·1/ MSHA has interpreted 30 C.F.R. 75.1704-2(e) as requiring the 

evacuation of all miners from the working face to the loading point every 

90 days. With respect to the designation of approved escapeways, 

Section 317(j)(4) of the Act, 30 C.F.R. 75.1707 provides that belt and 

track or trolley haulage entries b.e separated from escapeways by relatively airtight stopping materials in order to provide a practically 

smoke free escapeway in the event fire should occur in the track and/or 

belt entries. MSHA Underground Inspection Manual II-619. Despite this, MSHA 

has permitted the track and belt entries to be designated as escapeways in 

botl1 the Roadside and 4-B sections. This conflict between the requirements 

of the law and MSHA's practice has been a source of continuing friction between 

the Hine SJ.fety Conunittee and management at this mine. The trial judge 

recommends that the Chief of MSHA's Safety Division work with the District 

and Subdistrict.Offices to effect a clarification and resolution of what 

has been a serious source of contention between labor and management at 

this mine. 

1923 
of each intake and return airway in its entirety. The first petition 

involved the left air return in both the 4-B and Roadside Sections. 

It was granted in September 1979 and permitted the monitoring of the 

airflow on a daily basis·at specified stations instead of traveling 

the entire entry which was deemed unsafe. The second petition filed in 

April 1980 requested a waiver of the same requirement on the right 

return in only the 4-B section. Because of its concern over designation 

of the track and belt entry as a secondary escapeway, its lack of confidence 

in air monitoring systems, ]:_/ and its belief that the right return is 

or can be made ·travelable, the Mine Safety Committee and Local 6029 of the 

ill!WA requested the International Union in Washington appeal MSHA' s grant 

of the second petition in November 1980. At the time of the hearing, 

the complainant and the local union were under the impression that the 

decision on the second petition had not become final. Neither counsel was 

aware of its status. 

On the merits, the evidence unequivocally established that the 

manifold misunderstandings and conflicts between complainant and other 

members of the Mine Safety Committee and with MSHA, management and the 

State Department of mines over walkaround rights, fire drills, evacuation 

procedures, and the petitions for modification when coupled with the 

stresses that stemmed from the explosion and resulting disaster at the 

Ferrell ~line and numerous grievances generated by a realignment of the 

labor force at several of the operator's mines led to a tense labor 

relationship that culminated in a heated verbal exchange between complainant 

and the operator's general superintendent of mines on December 17, 1980. 

Fortunately there is no need to detail this event. Suffice it to say 

that what was said by the management representative went beyond the pale 

of permissible legal reaction to what he in good faith believed to be an 

unjustified provocation. Much of the obvious ill feeling that prevailed 

at the beginning of the hearing was dispelled in the end by the opportunity 

afforded all concerned to thresh the matter out and to get things off 

their chest. For their candid cooperation in this inquiry counsel and the 

parties, especially Mr. Spengler, MSHA's Subdistrict Mgr. are to be commended. 

Because the parties agreed to settle this matter on the terms set 

forth in the consent order entered on the record and adopted and confirmed 

in this decision, the parties are in a position to make a new beginning 

and to commence the work of reconciliation of their diff~rences in an 

atmosphere cleansed of the poisonous suspicions of the past. 

For these reasons, I find the settlement agreed upon in accord 

with the purposes and policy of the Act. 

Accordingly, it is ORDERED that: 

1. Cannelton Industries, Inc., its directors, officers, agents 

and employees be, and hereby are, ENJOINED and DIRECTED 

2/ This stemmed from the failure of such a system at Westmoreland's 

Ferrell ~line in November 1980 to prevent a lethal buildup of explosive 

gas. 

1924 
TO CEASE AND DESIST from making any and all statements, 

verbal or written, designed to interfere with, coerce 

or restrain any miner from freely exercising rights guaranteed 

by the Mine Safety Law, including the right to make, file or 

report alleged safety or health violations or dangers to 

management, MSHA or the appropriate State authorities. 

2. Cannelton Industries, Inc. pay a penalty of $1,500 for the 

violation found on or before Friday, August 21, 1981. 

3. Cannelton Industries, Inc. immediately post on the Mine 

Bulletin Board or in places where notices to employees are 

customarily posted at the Pocohantas No. 3 and 4 Mine 

(Roadside and 4-B Sections), and maintain the same for 

thirty (30) consecutive days from the date of posting, a copy 

of this decision and order. 

Finally, it is ORDERED that upon payment of the penalty agreed 

upon and subject to enforcement of this injunction under the 

contempt powers and procedures of the United States Courts of 

Appeals, the aforesaid consent order and this confirming decision 

be deemed a final disposition of this matter. 

Administrative Law Judge 

Distribution: 

William C. Miller, II, Esq., Cannelton Industries, Inc., Box 1226, 

1250 One Valley Square, Charleston, WV 25324 (Certified Mail) 

James P. Kilcoyne, Esq., U.S. Department of Labor, Office of the 

Solicitor, 14480 Gateway Bldg., 3535 Market St., Philadelphia, PA 

19104 (Certified Mail) 

Theodore H. Hazzard, Box 21, Superior, WV 24886 (Certified Mail) 

Doug Tolley, Vice President, Cannelton Industries, Cannelton, WV 

25936 (Certified Mail) 

1925 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 . 

DENVER, COLORADO 80204 1"u 0 1 •. , ,981 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

Petitioner, 

v. 

THE ANACONDA COMPANY, 

Respondent. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

~~~~~~~~~~~~~~~~~~~~-) 

ORDER 

i"l > '"' l . ~ . 1i '\) .l,.. ~ • . '!Ii.· I 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 81-94-M 

MSHA CASE NO. 24-00689-05018 

MINE: Weed Concentrator 

Respondent has filed a motion to dismiss this case. As reason therefor, 

respondent states that it has been prejudiced by the delay of nearly two years 

between the time the citation in question was issued and the assessment of a 

penalty. The Secretary in opposition to the motion argues that the respondent 

was not prejudiced by the delay as shown by the fact that it had retained 

sufficient evidence to persuade the MSHA assessment officer to reduce the 

penalty at a conference held on November 3, 1980. 

The Federal Mine Safety and Health Act requires the Secretary to notify 

the mine operator of a proposed penalty within a reasonable time after the 

issuance of a citation. The remarks of the Senate Committee clarify the purpose 

for this requirement. 

To promote fairness to operators and miners 

and encourage improved mine safety and health 

generally, such penalty proposals must be forwarded to the mine operator and mine representative 

promptly. The Committee notes, however, that there 

may be circumstances, although rare, when prompt 

proposal of a penalty may not be possible, and the 

Committee does not expect that the failure to 

propose a penalty with promptness shall vitiate any 

proposed penalty. S. Rep. No. 95-181, 95th Cong., 

1st Sess. 34 (1977). 

The Commission reasoned in a recent decision that the abovk expresserl 

intent of Congress demonstrates their overriding concern with effective 

enforcement, and, thus a citation should be vacated only when to do so implements the remedial purpose of the Act. The Commission also recognized the 

secondary purpose of protecting mine operat_or-S-from stale claims. Sec. of Labor 

v. Salt Lake County Road Dept., Docket No. WEST/79-365-M (July 28, 1981). 

1926 
The Commission established a two prong test to determine if the late filing 

of the proposal for penalty addressed to the Commission is in substantial 

compliance with the Act and, therefore, should not result in the dismissal of 

the case. The Secretary must show that there was adequate cause for the delay. 

The mine operator must show that it has been prejudiced by the delay. These 

two requirements are to be balanced against each other with the scales weighing 

heavily on the side of enforcement. However, the objective of effective 

enforcement can be thwarted by the Secretary's inexcusable delay over a 

substantial period of time. The Commission warned the Secretary against any 

unwarranted dilatory action. 

The above test is directly applicable here. Congress perceived that the 

prompt assessment of a penalty was necessary for effective enforcement. In the 

present case, the delay of nearly two years is on its face a blatant disregard I 

of this objective. Contrary to th~ Secretary's statement in its response to 

the motion, Section 815(a) of the ~ct provides the statutory authority for the 

vacation of a citation where the Secretary has been so dilatory in assessing a 

penalty that effective enforcement of the Act is impossible. 

In the present case the citation was issued on December 5, 1978. Due to 

the delay in the assessment of a penalty, this case was not ripe for the 

adjudication of the penalty until the filing of the proposal for penalty on 

February 5, 1981. The Secretary offers no reason for the delay. Such a lengthy 

delay is inherently prejudicial to the operators' preparation of a proper 

defense. 

For the above stated reasons, the motion to dismiss is granted. This case 

is dismissed with prejudice. 

Distribution: 

James H. Barkley, Esq., Office of 

United States Department of Labor 

1585 Federal Building, 1961 Stout 

Denver, CO 80294 

/John J. M;orris 

( /.(\'.dministrgtive Law Judge 

the Solicitor 

Street 

Karla M. Gray, Esq., The Anaconda Company 

Post Office Box 689 

Butte, Montana 59703 

1927 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

HINE SAFETY AND HEALTH 

AD'.'UNISTRATION (MSHA), 

v. 

CHEMICAL LIME, INC., 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 1 4 19\ll 

Petitioner 

Respondent 

Civil Penalty Proceedings 

Docket No. CENT 80-231-M 

A/O No. 41-00013-05004 

Docket No. CENT 80-232-H 

A/O No. 41-00013-05005 

Mine: Clifton Quarry and Plant 

DECISION 

On January 19, 1981, the Petitioner filed a motion for summary decision 

based on a record jointly stipulated by the parties. This motion was resubmitted with amendments on May 4, 1981. As grounds for its motion, Petitioner 

asserted the following: 

1. The parties have stipulated to all material facts 

including jurisdiction, coverage, the existence or occurrence of the alleged violations, and the appropriateness of 

the penalties proposed. 

2. The only remaining issue to be resolved by the 

Review Commission is whether Defendant, as owner-operator of 

a mine, can be cited for violations of the Act committed by 

its independent contractors while employed at Defendant's 

mine property. This question has been addressed and answered 

most recently in Secretary of Labor v. Old Ben Coal Company, 

(FMSHRC Docket No. VINC 79-119), 1 MSHC 2177, and Secretary 

of Labor and United Mine Workers v. Monterey Coal Company 

(FHSHRC Docket No. HOPE 78-467), 1 MSHC 2232 where the 

Commission held that as matter of law, owner-operators can 

be held responsible for violations of the Act committed by 

its contractors. As the present case is indist.inguishable, 

at least with respect to the independent contractor issue, 

from Old Ben, and Monterey Coal, supra, the Secretary is 

entitled to a Summary Decision affirming the contested 

citations, as a matter of law. 

In the Joint Motion for Submission of Proceedings upon Stipulated Facts, 

the parties admitted that no genuine issue remained as to any material fact. 

1928 
The submitted stipulations are as follows: 

The following matters are hereby agreed and stipulated 

to by and between the parties hereto for consideration in 

connection with any Motion to Dismiss, Motion for Summary 

Judgment or Decision filed or to be filed herein, as well 

as any hearing or trial herein and any appeals resulting 

from rulings on such motions, hearing or trial. Each of the 

parties reserves the right to disavow all or any part of this 

Stipulation in connection with proceedings in any action other 

than those in connection with any 11otion to Dismiss, Motion 

for Summary Judgment or Decision, as well as any hearing or 

trial and any appeals resulting from rulings thereon, and no 

matters set forth in this Stipulation shall have or be given 

any collateral estoppel or res judicata effects in any other 

action or proceeding, exceptl:he collateral estoppel or res 

judicata effect of the judgment or decision of the tribunal 

or Court rendered herein based upon such Stipulation, or 

parts thereof. 

This Stipulation, along with the Complaints and Answers 

filed herein, and all matters incorporated by reference, constitute the entire record in this proceeding. 

I. Definitions 

Where used in this Stipulation: 

1. MSHA refers to the Mine Safety and Health 

Administration. 

2. Plaintiff refers to Ray Marshall, Secretary of 

Labor, U.S. Department of Labor. 

3. Defendant refers to Chemical Lime, Inc. 

4. The Act refers to the Federal Mine Safety and 

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

5. The Commission refers to the Federal Mine Safety 

and Health Review Commission. 

6. Clifton Quarry and Plant refers to a limestone 

quarry and plant. 

7. Souther refers to Gene Souther Equipment. 

8. Wales refers to Wales Industrial Service. 

1929 
II. CENT 80-231-M 

9. In September 1979, defendant owned mining rights to, 

and was conducting and causing others to conduct 

mining activities subject to the Act at the proposed 

limestone quarry and plant, designated by MSHA as 

Clifton Quarry and Plant. 

10. On September 24, 1979, an inspection of said Clifton 

Quarry and Plant was conducted by a duly authorized 

representative of plaintiff pursuant to Section 

103(a) of the Act, and as a result of this inspection, defendant was issued the following citation: 

CITATION NUHI3ER DATE ISSUED 30 CFR STANDARD 

00154761 09/24/79 56.9-45 

A copy of this citation is * * * incorporated herein 

by reference. ]:_/ 

11. Souther is a separate, independent contractor retained 

by defendant to install a new conveyor system for 

Chemical Lime, Inc. 

12. Wales is a separate, independent contractor retained 

to assist Souther in the installation of a new conveyor system for Chemical Lime, Inc. 

13. Souther and Wales worked on the installation of the 

conveyor system at the Clifton Quarry and Plant 

during the time in question and were independent contractors within the meaning of §45.4 of the Secretary's Proposed Regulation referred to in paragraph 37 

1/ Citation No. 154761 was issued pursuant to section 104(a) of the Act. It 

alleged a violation of 30 C.F.R. § 56.9-45 and described the pertinent condition or practice as follows: 

"Two sections of conveyor frame with walkway had been loaded on a flat 

bed trailer and were not secured. When additional material was loaded on 

the overhanging walkway of one of the conveyor sections it tipped over and 

fatally injured an employee." 

Section 56.9-45 requires the equipment to be hauled shall be loaded and 

~rotected so as to prevent sliding or spillage. 

The citation was terminated within 10 minutes of its issuance. The 

action taken to terminate the citation was given as follows: 

"Operator was instructed on the need to secure equipment before adding 

additional material on the load." 

1930 
below, that time through all times pertinent to this 

proceeding. 

14. Citation No. 154761 refers to activities or omissions 

of Souther and/or Wales' employees or conditions of 

Souther and/or Wales' equipment or facilities relating 

to the performance of the contracted installment of 

the. conveyor system at the Clifton Quarry and Plant. 

15. The Production Supervisor of defendant had discussed 

safety procedures with the independent contractors 

prior to the accident on the day the accident 

occurred. 

16. The condition described in Citation No. 154761 was 

abated by the employees of Souther and Wales. 

17. The citation does not allege, and it is a fact that 

none of the defendant's employees, equipment or 

activities caused or contributed to the alleged 

violation. 

18. None of the defendant's employees ever perform and 

work for Souther or Wales at the Clifton Quarry and 

Plant. 

19. Defendant's employees had no authority to control 

the manner, methods, and details of the performance 

of contracted work by Souther or Wales and their 

employees, and this is outlined in the contract 

between Chemical Lime and the independent 

contractors. 

20. Defendant does and did have employees permanently 

present at the quarry and plant, however, no company 

personnel were present when the accident o.ccurred. 

21. Defendant's contracts with Souther and Wales require 

compliance with applicable local, State and Federal 

laws, including the Federal Mine Safety and Health 

Act. 

22. As a matter of law, Souther, Wales and defendant are 

now "operators" within the definition of §3(d) of the 

Act [30 U.S.C. §802(d)] as amended and pursuant to 

other relevant provisions. 

Ill. CENT 80-232-H 

23. In September, 1979, defendant owned mining rights to, 

and was conducting and causing others to conduct 

1931 
mining activities subject to the Act of the proposed 

limestone quarry 1 and plant, designated by MSHA as 

Clifton Quarry and Plant. 

24. On September 24, 1979, an inspection of said Clifton 

Quarry and Plant was conducted by a duly authorized 

representative of plaintiff pursuant to section 

103(a) of the Act, and as a result of this inspection defendant was issued the following citations: 

CITATION NUMBER 

154762 

154763 

DATE ISSUED 

09/24/79 

09/24/79 

30 CFR STANDARD 

50 .10 

50.12 

Copies of these citations are * * * incorporated 

herein by reference. 2/ 

25. These citations were issued pursuant to Section 

104(a) of the Act and comply with the provisions 

thereof in all particulars. 

26. Citation No. 154762 refers to activities or omissions of employees of defendant. 

2/ Citation No. 154762 was issued pursuant to section 104(a) of the Act. It 

alleged a violation of 30 C.F.R. § 50.10 and described the pertinent condition or practice as follows: 

"A fatal accident occurred at approximately 11:30 Af·1 on 9/20/79 and 

the Dallas Subdistrict Office was not notified until 2:30 PH on 9/21/79." 

Section 50.10 requires that an operator immediately notify MSHA if an 

accident occurs. 

The citation was terminated 5 minutes after it was issued. The action 

taken in abatement was given as follows: 

"The operator was informed of his need to report a serious accident 

immediately." 

Citation No. 154763 was issued pursuant to section 104(a) of the Act. 

It alleged a violation of 30 C.F.R. § 50.12 and described the pertinent condition or practice as follows: 

"A fatal accident occurred at the mine property on 9/20/79 and the 

accident site had been altered when the accident was reported to MSHA in as 

much as the equipment and material had been moved to a different location." 

Section 50.12 requires that an accident site be kept unaltered until 

completion of all investigations pertaining to the accident. 

The citation was terminated within 10 minutes of its issuance. The 

action to terminate was given as follows: 

"The operator was instructed on the need to preserve the evidence until 

investigation is completed." 

1932 
27. The condition described in Citation No. 154762 was 

abated by employees of defendant. 

28. As a matter of law, defendant was an "operator" 

within the then definition of §3(d) of the Act 

[30 U.S.C. §802(d)] and pursuant to other relevant 

provisions. 

IV. General Hatters 

29. Subject to the qualifications of the preamble paragraph of this Stipulation: 

a) The parties agree to the jurisdiction of the 

Commission over this proceeding. 

b) The parties agree the mines, operators and 

miners mentioned herein were subject to all 

provisions of the Act at the time of the 

occurrence. 

c) The parties agree the conditions alleged in 

each citation in fact occurred on the dates 

described in each citation and that the same 

constitute violations as follows: 

Citation 154761 a violation of 30 CFR §56.9-45 

Citation 154762 a violation of 30 CFR §50.10 

Citation 154763 a violation of 30 CFR §S0.12 

d) For the limited purpose of agreeing to facts on 

which the Review Commission may rely to assess 

a penalty in this case, should it deem such an 

assessment appropriate, the parties agree that 

the size of respondent, defendant's history of 

previous violations, the gravity of the violations, respondent's good faith in abating the 

violations, and the negligence of the respondent 

with respect to the violations are accurately 

reflected and set forth in the proposed assessment issued to respondent. 

Further, with regard to the negligence of the 

respondent with regard to the citations the 

parties agree and stipulate that respondent had 

instructed the subcontractor thoroughly in safe 

work procedures the morning prior to the accident and that the accident was therefore not 

foreseeable. 

1933 
30. HSHA policy in existence at the time the citations 

mentioned herein were issued provided for the issu~ 

ance of citations or orders at the time pursuant to 

Section 104(a) of the Act for Mine Safety and Health 

Violations to entities identified to HSHA by a 

Federal Mine Identification Number. 

31. A Federal Hine Identification Number may be issued to 

any entity registering with the Mine Safety and Health 

Administration upon a demonstration that that entity 

controls, or is capable of controlling the activities 

affecting the health and safety of mine personnel. 

However, only one mine identification number is 

issued at any given mine. 

32. Federal Mine Identification Numbers have been issued 

by MSHA to entities other than mine owners at mines 

subject to the Federal Mine Safety and Health Act. 

33. Neither Souther nor Wales possessed a Federal Mine 

Identification Number for Clifton Quarry and Plant, 

the Federal Mine Identification Number having been 

issued to defendant. 

34. Not having a Federal Mine Identification Number, 

neither Souther nor Wales could be issued a citation and therefore the defendant, as opposed to 

either one of the independent contractors, was 

proceeded against. 

35. This agency wide policy to directly enforce the Act 

against only owner-operators for contractor violations was an interim policy pending adoption of 

regulations providing guidance to inspectors in the 

identification and citation of contractors. 

36. On October 31, 1979, MSHA announced the availability 

of a draft proposal which would allow identification 

of certain independent contractors as operators under 

the Act, by publication at 43 Federal Register 50716. 

Forty-five days were given to comment on the draft 

rule. 

37. On August 14, 1979, a proposed regulation for independent contractors (30 CFR Part 45) by which MSHA could 

identify certain independent contractors as operators 

under the Act, was published at 44 Federal Register 

47746. The colllr.lent period for this proposed regulation closed on October 15, 1979 and the regulation 

has been enacted. 

1934 
Documents attached to Petitioner's Motion to Amend Stipulation established 

that the size of Chemical Lime, Inc., was 94,315 man-hours per year in 1978 

and that it received a total of eight prior assessed violations. In the 

absence of evidence to the contrary, it is found that the penalties assessed 

herein will not adversely affect the ability of Responde~t to continue in 

business. 

Pursuant to 29 C.F.R. § 2700.64(b), a motion for summary decision shall 

be granted if it is shown (1) that there is no genuine issue as to any material fact; and (2) that the moving party is entitled to summary decision 

as a matter of law. 

The stipulations entered into by the parties have resolved the issue of 

whether the violations occurred as alleged. Each of the six statutory criteria were also resolved. No genuine issue as to any material fact remains 

undeter:nined. 

Furthermore, it is clear that Petitioner is entitled to summary decision as a matter of law. The parties have agreed that the only remaining 

issue to be decided is whether Respondent may be held liable for violations 

com:nitted by its contractors. As noted by Petitioner in its motion, the 

Commission has found that, as a matter of law, an owner-operator can be 

held responsible without fault for a violation of the Act committed by its 

contractor. Secretary of Labor v. Old Ben Coal Company, 1 MSHC 2177 (1979) 

(Old Ben). In view of the absence on the record of any basis on which to 

distinguish the instant cases from Old Ben, it is found that Respondent is 

liable for the three violations at issue herein. 

The following findings of fact are made with regard to the remaining 

statutory criteria: 

Citation No. 154761: Although the violation which gave rise to this 

citation resulted in a fatality, the violation was not caused by any negligence on Respondent's part. The violation was abated within a reasonable 

period of time. 

Citation Nos. 154762 and 154763: These violations were occasioned by 

a moderate degree of negligence on the part of Respondent. It was improbable,· ho1-1ever, that these violations would result in an accident or injury. 

Both violations were abated shortly after issuance of the respective 

citations. 

Based on the information furnished in the stipulated record and supporting docur;i,ents, and in consideration of the statutory criteria, the 

appropriate penalties in this case are found to be as follows: 

Citation No. 

154761 

154762 

154763 

1935 

Assessment 

$100 

56 

56 
ORDER 

It is ORDERED that Respondent pay MSHA the sum of $212 within 30 days of 

the date of this decision. 

Distribution: 

Forrest E. Stewart 

Administrative Law Judge 

Patricia D. Keane, Esq., Office of the Solicitor, U.S. Department of 

Labor, 555 Griffin Square Building, Suite 501, Dallas, TX 75202 

(Certified Hail) 

Arthur A. March, Esq., 60 East 42nd Street, New York, NY 10017 

(Certified Mail) 

1936 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER. COLORADO 80204 

AUG t 7 1981 

SECRETARY OF LABOR, MINE SAFETY AND 

HEALTH ADMINISTRATION (MSHA), 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

CIVIL PENALTY PROCEEDING 

Petitioner, 

v. 

JOHNSON, STEWART & JOHNSON MINING 

COMPANY, INC., 

Respondent. 

~~~~~~~~~~~~~~~~~~~~-

Appearances: 

Marshall P. Salzman, Esq. 

Office of the Solicitor 

United States Department of Labor 

450 Golden Gate Avenue, Box 36017 

San Francisco, California 94102 

For the Petitioner 

Kay H. Wilkins, Esq. 

Corporate Counsel 

DOCKET NO. WEST 79-175-M 

A/C No. 02-00664-05002 

MINE: Pit No. 1 

Johnson-Stewart-Johnson Mining Company, Inc. 

1635 N. Alma School Road 

Mesa, Arizona 85201 

For the Respondent 

Before: Judge Jon D. Boltz 

DECISION 

The Mine Safety and Health Administration, pursuant to section llO(a) 

of the Federal Mine Safety and Health Act of 1977 (hereinafter "the Act"), 

30 U.S.C. § 820(a), petitions for ~ssessment of civil penalties against the 

respondent for alleged violations of regulations, as more fully set forth 

in three citations. 

At the conclusion of all of the evidence, the parties ag~eed to waive 

the filing of post hearing briefs and have a decision rendered from the 

bench after closing arguments. 

BENCH DECISION 

The parties agree as follows: 

1. The Act grants the undersigned jurisdiction over the parties and 

subject matter of these proceedings. 

2. The respondent is a moderately sized company with a moderate 

history of previous violations. 

1937 
3. The penalties proposed are appropriate to the size of the business 

and the imposition thereof will not impair respondent's ability to remain 

1n business. 

4. The citations were 1n fact issued on the date indicated on the 

citations, July 12, 1978. 

CITATION 377977 

The petitioner alleges a violation of 30 C.F.R. 56.5-50(b). 1/ 

The evidence shows, and I find, that the pit crusher operator was'exposed 

to approximately 200% of the permissible noise exposure based on the tables 

that were placed in evidence by counsel for the petitioner. The dosimeter 

utilized measured noise levels above 90 dBA and the sampling of the pit 

crusher operator took place for a continuous period of 445 minutes. It is 

undisputed that the noise exposure did exceed permissible limits. 

The question, then, is whether or not feasible engineering or 

administrative controls were being utilized to reduce the exposure. In 

this case, the only action necessary was to move the pit crusher operator 

away from the crusher a distance farther than that which he had been 

standing during the course of his exposure. It is undisputed that this 

could have been done by the operator and that the noise exposure would then 

have been within permissible limits. Accordingly, I find that feasible 

controls were not being utilized. I also find that the respondent 

demonstrated good faith in achieving rapid compliance after notification of 

the violation. 

The citation 1s affirmed and the penalty assessed will be $20.00. j 

CITATION 377978 

The petitioner alleges a violation of the same regulation as in the 

previous citation. In the Bench Decision, I stated that this citation 

should be vacated. However, on subsequent review of the transcript, I find 

that the citation should be affirmed. 

A pit laborer was sampled for noise exposure for a period of 445 

minutes. · It is undisputed in the evidence presented that the pit laborer 

was exposed to 158% of the permissible noise level for this period of time, 

or 94 dBA. The permissible level is 90 dBA. Personal hearing protection 

was being worn. Since the employee's exposure exceeded that level listed 

in the table set forth in the regulations, the question again arises as 

1/ [Mandatory.] (b) When employees' exposure exceeds that listed in the 

above table, feasible administrative or engineering controls shall be 

utilized. If such controls fail to reduce exposure to within permissible 

levels, personal protection equipment shall be provided and used to reduce 

sound levels to within the levels of the table. 

1938 
to what, if any, feasible administrative or engineering controls should 

have been utilized by the respondent. 

The petitioner introduced evidence as to the feasible controls that 

could have been utilized. One control consisted of an effort to ascertain 

the sources of greatest noise, so that steps could be taken to remove the 

need for the employee to be at those sources. The MSHA inspector testified 

that he suspected that the overexposure of the laborer occurred when he had 

to work directly under an operating crusher in order to clean up a spill 

from the conveyor. The spill occurred because the skirting was loose on 

the collection box under the conveyor. If the skirting had been properly 

secured there would have been no spill and, thus, there would have been no 

need for the laborer to be in that location close to the extremely noisy 

crusher. The inspector also testified that the respondent could have used 

a noise meter to "go out around the plant and sample". 

The respondent had the burden of going forward with evidence to show 

that feasible controls would have failed to reduce the exposure to within 

permissible levels and, thus, that personal protection equipment was 

properly provided for the pit laborer in order to reduce the sound levels 

to within levels prescribed by the table. On review of the transcript, I 

find that there was no evidence presented by the. respondent to show that 

any feasible administrative or engineering controls utilized would have 

failed to reduce the exposure to within permissible levels. Having failed 

to present evidence on this point, the citation must be affirmed as a 

matter of law. The penalty assessed is $20.00. 

CITATION 377980 

Petitioner alleges a violation of 30 C.F.R. 56.5-S. 2/ A pit 

laborer, who was sampled for dust exposure during a period of 445 minutes, 

was exposed to silica bearing dust in the amount of .92 milligrams per 

cubic meter. According to the threshold limit value adopted by the 

regulations, .42 milligrams per cubic meter should not have been exceeded. 

It ii also undisputed that it was feasible to reduce these harmful airborne 

contaminants by use of water incorporated in the plant's spray system. 

The respondent's witness testified that the spray system was on the 

crusher equipment, but because the plant had recently been moved the water 

system had not yet been connected to the main source of water supply. 

2/ Mandatory. Control of employee exposure to harmful airborne 

~ontaminants shall be, insofar as feasible, by prevention of contamination, 

removal by exhaust ventilation, or by dilution with uncontamir;tated air. 

However, where accepted engineering control measures have not been 

developed or when necessary by the nature of the work involved ... , 

employees may work for reasonable periods of time in concentrations of 

airborne contaminants exceeding permissible levels if they are protected by 

appropriate respiratory protective equipment .... 

1939 
The witness also testified that production was started before hooking up 

the water devices. If the installation had be~n completed before production was commenced, the pit laborer would not have been exposed to 

harmful airborne contaminants in exce.ss of the threshold limit value 

prescribed by the regulation. Thus, this citation is affirmed and the 

penalty assessed is $10.00. 

ORDER 

The foregoing Bench Decision with regard to Citations 

377980 is affirmed ·and Citation 377978 is hereby affirmed. 

is ordered to p~y a civil penalty of $50.00 within 30 days 

this Decision. 

Distribution: 

Marshall P. Salzman, Esq. 

Office of the Solicitor 

United States Department of Labor 

450 Golden Gate Avenue, Box 36017 

San Francisco, California 94012 

Kay H. Wilkins, Esq. 

dministrative Law Judge 

Corporate Counsel 

Johnson-Stewart-Johnson Mining Co., Inc. 

1635 N. Alma School Road 

Mesa, Arizona 85201 

1940 

377977 and 

The respondent 

of the date of 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

Petitioner, ) 

) 

v. ) 

) 

KAISER SAND AND GRAVEL COMPANY; ) 

) 

Respondent. . ) 

) ~~~~~~~~~~~~~~~~~~~-

DECISION 

Appearances: 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 80-89-M 

A/O No. 04-01827-05006 F 

MINE: Radum Pit and Mill 

Marshall P. Salzman, Esq., Office of the Solicitor, United States 

Department of Labor, 450 Golden Gate Avenue~ Room 11071, Box 36017, 

San Francisc6, California 94102 

For the Petitioner 

Paul M. Heylman, Esq., Schmeltzer, Aptaker and Sheppard, P.C., 1800 

Massachusetts Avenue, N.W., Washington, D.C. 20036 

For the Respondent 

Before: Judge Virgil E. Vail 

Statement of the Case 

The above-captioned civil penalty proceeding was brought pursuant to 

Section llO{a) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 820(a) (hereinafter referred to as "the Act"). 

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

California on September 11, 1980. Richard C. Anderson, a mining engineer, 

testified on behalf of the petitioner. Donald Streitz, Vernon Allen, 

Tinnie Gunter and Claire Hay testified on behalf of the respondent. 

Post-hearing briefs have been filed by both parties. Based on the 

evidence presented at the hearing, a stipulation of facts entered into 

between the parties during the course of the hearing and the contentions of 

the parties, I find the following facts were established. 

Findings of Fact 

1. Respondent operates a sand and gravel pit and mill near 

Pleasanton, California. (Tr. 10). 

1941 
2. Citation no. 371557 was issued to the respondent as the result of 

a fatal accident which occurred on June 12, 1979, involving Vaughn F. 

Higgins (hereinafter referred to as "Higgins"). 

3. Higgins was employed by the respondent at the Radum Pit and 

Operation from June 23, 1976 until the time of his death. 

4. Higgins was employed in the capacity of a dragline oiler, an 

occupation at which he had worked for the ten years preceding his death. 

5. Sometime before 5:10 a.m. on June 12, 1979, Higgins was driving 

his own pickup truck enroute to work when he drove onto the blocked old 

service road to the respondent's pit. 

6. Higgins proceeded down this road until he was approximately 18 

feet from a dirt pile blocking the road and then he stopped. 

7. Tire tracks indicate that Higgins then backed his truck up the 

service road, a distance of 82 feet, at which point the vehicle went over 

the left side of the road, falling 47 feet, crushing the truck's cab and 

killing Higgins. 

8. The old service road was approximately 400 feet in length but was 

blocked by a dirt pile approximately 20 feet in height at a point 183 feet 

down the road. 

9. The pile of dirt prevented further vehicular movement down the old 

service road on June 12, 1979. 

10. The old service road was approximately 27 feet wide with a slight 

downgrade of approximately 2 to 5%. There was a drop-off of approximately 

47 feet on the left side and an embankment of approximately 10 to 12 feet 

high on the right side. 

11. A Coroner's autopsy revealed that Higgins's blood contained 6.5 

mcg/ml of Phenobarbital. 

12. The old service road had been in use for a period of three to four 

weeks prior to the accident. 

13. On June 11, 1979, the day prior to the fatal accident, at 

approximately 6:30 p.m., the old service road was "blocked off" by a dirt 

pile when the Ko-Cal feeder was moved over and placed on the old service 

road. (Tr • 38) • 

14. A new service road into the pit had been opened for approximately 

two weeks prior to the fatal accident. (Tr. 38, Exhibit 2). 

1942 
15. On June 12, 1979, sunrise at Pleasanton, California was at 5:45 

a.m.; Pacific Daylight Time (Exhibit 4). 

16. There were no witnesses to the fatal accident. 

ISSUE 

Whether the respondent violated mandatory safety standard 30 C.F.R. 

56.20-11 by failing to place a barricade or warning sign at the entrance to 

the old service road on or before June 12, 1979? 

Discussion 

Citation no. 371557 1; charges the respondent with having violated 

mandatory safety standard-56.20-11. The standard provides that: 

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 sole issue is whether the respondent: violated 56.20-11 by failing 

to place a barricade or post warning signs at the entrance to the old 

service road. The respondent argues in its post-hearing brief that the 

company should not be cited in this instance since the hazard, a drop off 

on the side of the old service road, was an obvious hazard. Respondent 

further argues that the requirements of standard 56.20-11 applies only to 

health and safety hazards that are not irrnnediately obvious to employees. 

In support thereof, respondent points out that the deceased was a long time 

employee of the respondent and familiar with the operation of the pit; that 

he knew the Ko-Cal feeder and the pendulum were moved every five to nine 

days, and that on the day prior to the fatal accident, the employees in the 

pit had begun to move this equipment to a point which would block off the 

old pit service road. Further, respondent argues that on June 12, 1979, 

when Higgins arrived for work he should have observed the equipment and the 

dirt pile barricade blocking the old pit service road from the entrance to 

the service road. Based upon these arguments, the respondent contends that 

the hazard was obvious. 

1/ A fatality occurred at about 5:10 a.m. (June 12, 1979) on an abandoned 

pit service road. The road was not barricaded or posted against entry. An 

employee entered the road and backed his vehicle over the edge. The road 

had been in use as the pit service road for about 6 weeks and was the main 

entrance into the working pit area. 

1943 
The known facts in this case do not appear to be contradicted. As set 

out in the statement of facts, Higgins arrived at the pit sometime before 

5:10 a.m. on June 12, 1979 and started down what had previously been used 

as a service road into the pit. He apparently found that at a point 183 

feet down the road there was a pile of dirt placed as a barricade to 

prevent further travel. In attempting to back up, he b•cked ov~r a b~nk 

and was killed. Beyond these facts, much of the respondent's arguments as 

to what Higgins knew or should have known is conjecture since no one 

actually saw the accident. 

From the above facts, it must be concluded that Higgins did not know 

that the service road was blocked, or if he did know or should have known 

he forgot. The evidence does not show that Higgins would have known that 

the dirt barricade was placed across the road. This road had been driven 

by another of respondent's employees, Mr. Vernon Allen, on the night prior 

to the accident after 6:00 p.m. and it was not blocked. (Tr. 49). The 

evidence further shows that the road was blocked around 6:30 p.m. on June 

11, 1979 and that no one knows what time Higgins left work that day. (Tr. 

42). A time card for Higgins showed that he quit work on June 11, 1979 at 

6:00 p.m. (Tr. 44). 

From this evidence it cannot be assumed that Higgins knew the old 

service road was blocked by the pile of dirt placed thereon at approximately 6:30 p.m., on the day prior to the fatal accident. The fact that 

Higgins started down the road on the day he was killed would indicate he 

did not know it was blocked. Therefore, if a hazard existed, it was not 

obvious. Furthermore, Mr. Allen testified that when he arrived at the 

respondent's pit at approximately 5:20 a.m. for work, he also started down 

the old service road to enter the pit (Tr. 50 and 55). Mr. Allen, in 

response to why he drove down this road on June 12, 1979, after testifying 

that he knew it would be blocked, stated that he did so from force of habit 

as he had been using the same road for a couple of weeks prior thereto. 

(Tr. 55). 

Another employee, Tinnie Gunter, also testified that when he arrived 

for work on June 12, 1979, he started down the old service road to the pit 

from force of habit. The witness also testified that he had passed the 

pile of dirt placed as a barricade the night before on his way out. (Tr. 

60). 

From the evidence of record and the testimony of the witnesses 

referred to above, a sign or barricade at the entrance to the old service 

road would have warned or reminded the respondent's employees that the road 

was closed and should not be travelled. The respondent argue~ that 

standard 56.20-11 does not require warning signs where safety' hazards exist 

that are immediately obvious to employees, that is, the drop off on the 

left side of the road over which Higgins truck fell and crashed. 

Respondent further argues that "obvious", as used herein, means "plain, 

1944 
evident, or known" whereas the standard applied herein refers to safety and 

health' hazards ·which employees cannot reasonably be expected to know of; 

rather than those which employees know or can reasonably be presumed to 

know of. 

I am persuaded by the evidence of record that the old service road in 

this instance should have been posted by a sign or barricade at the 

entrance warning employees that the road was closed to travel. The fact 

that two employees, other than Higgins, started down this road on the day 

of the fatality, through force of habit indicates that the assumption made 

by the respondent that these employees should know differently, is 

insufficient. Further, a hazard did exist which is borne out by the 

results of the fatal accident. When Higgins arrived at the dirt barricade 

blocking the road, he was faced with either turning around or backing up 

the hill. That he decided to back his pickup truck up the hill, rather 

than turn around is immaterial at this time as any opinion of some other 

course of action would at best be second guessing. The fact is that the 

vehicle went over the side of a 47 foot embankment causing Higgins death. 

The dirt pile barricading the road in combination with the steep embankment 

is the hazard here. The evidence indicates there was not a berm on this 

road to warn drivers of approaching the edge of the road. If the road was 

not to be used at all, then a berm is not required. However, by placing 

the dirt pile a distance of 183 feet down the road from the entrance and 

failing to barricade or post notices that the road was closed at the 

entrance creates a hazard that is not immediately obvious to employees on 

the day shift and at the particular time this accident occurred. 

Respondent further argues that they should not be held responsible for 

the aberrant and unpredictable actions of its employees, in this case the 

action of Higgins. Testimony was given that Higgins should have known of 

the barricade, that he was a fast driver and under the influence of drugs. 

As stated previously, the evidence does not show that Higgins left the pit 

the previous night after the dirt barricade was placed across the road. 

Also, that force of habit, as exhibited by witnesses Allen and Gunter 

starting down the old service road, showed that a sign or barricade at the 

entrance would have warned or given notice of the roads condition to those 

employees who either did not know or forgot the discontinuance of its use. 

The testimony as to Higgins prior 'driving habits is not controlling 

here as it does not relate to the violation of the standard alleged 

herein. The violation was the failure to barricade or post signs warning 

of a safety or health hazard. Further, no witnesses saw the accident; or 

Higgins driving his truck prior to the accident, nor was there any evidence 

to show he was driving carelessly. 

The fact that the Coroner's report showed that Higgin's blood contained a drug is meaningless unless medical testimony or expert testimony 

is utilized to indicate what conclusions can be drawn from such tests. The 

District of Columbia Court of Appeals in the case of Lister v. England 195 

A. 2d 260 (D.C. App. 1963) held that blood analysis results are not even 

* 

1945 
admissible unless introduced by expert testimony. Recause, as the Court 

stated, "without benefit of such testimony or resort to the statutory 

standard's the· result of the analysis is meaningless." See Also Holt v. 

England 196 A, 2d 87 (D. C. App. 1963) and City of Sioux Falls v. 

Christensen, 116 N.W. 2d 389, (S. Dak. 1962). 

The argument of the respondent that they should not be held liable for 

the conduct of the employee, if it was aberrational and unpredictable, has 

been considered by the Federal Mine Safety and Health Review Commission. 

The Review Commission has consistently held that the operator is liable for 

violations of the mandatory safety standards without regard to fault. 

United States Steel v. Secretary of Labor 1 BNA MSHC 2151 (1979) and 

Secretary of Labor v. Marshfield Sand and Gravel 1 BNA MSHC 2475 (1980). 

For the reasons stated above, I conclude that a violation did occur. 

Penalty Assessment 

I find that the citation issued by the inspector described a violation 

of 30 C.F.R. § 56.20-11. The respondent should have been aware of the 

hazard that existed on the morning of June 12, 1979 and that it would not 

be immediately obvious to its employees and therefore was negligent in 

permitting it to exist. However, in determining the extent of the 

respondent's negligence, I have considered the fact that this same service 

road had been used for some time by the employees coming and going to the 

pit and was removed from use as a means of access to the _pit the preceding day by placing a dirt barrier across it. After such continuous past 

use, the action of Higgins in backing up this road a distance of 82 feet 

when he could have taken other means of exit, such as turning around and 

driving up, would appear to lessen the degree of negligence of the employer 

herein. 

The respondent is a relatively large company and has a modest history 

of prior violations. The violation was abated immediately after the 

citation was issued. I conclude that a penalty of $2,000.00 should be 

assessed. 

ORDER 

The respondent ts ordered to pay the sum of $2,000.00 within 30 days 

of the date of_ this decision. 

--··-

Administrative Law Judge 

1946 
Distribution: 

Linda Bytof, Esq. 

Office of the Solicitor 

United States Department of Labor 

450 Golden Gate Avenue, Box 36017 

San Francisco, California 94102 

Mr. Clair Hay 

Kaiser Sand & Gravel Company 

3311 Stanley Boulevard 

P.O. Box 580 

Pleasanton, California 94566 

1947 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

RUSHTON MINING COMPANY, 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Petitioner 

Respondent 

Civil Penalty Proceeding 

Docket No. PENN 81-24 

A.C. No. 36-00856-03037F 

Rushton Mine 

DECISION APPROVING SETTLEMENT 

The parties have reached a settlement of the five violations involved 

in the above docket in the total sum of $22,000. MSHA's initial assessment 

therefor was $35,000. The terms of the settlement are as follows: 

Citation/Order Number 

615758 

802229 

802230 

802228 

802232 

Original Assessment 

$ 2,000 

10,000 

10,000 

10,000 

3,000 

$35,000 

Compromised Settlement 

$ 750 

6,500 

6,500 

7 ,000 

1,250 

$22,000 

The reductions from the original assessment appear warranted. 

1. Order No. 615758 was issued for a violation of 30 C.F.R. § 75.201-l(b) 

and originally involved a penalty assessment by MSHA of $2,000. In conjunction with this order, section 104(d)(2) Order No. 802229 was issued for a violation of 30 C.F.R. § 75.200 for which Respondent was initially assessed a 

penalty of $10,000. These two orders were both assessed for excessive roofcontro.l widths. The first order was issued because no additional support was 

provided as required by the regulation. The inspector observed that for 350 

to 400 feet, the width of the area was 21 to 24 fr~et instead of 20 feet as 

required by the regulation. The second violation, of drawings 7, 8, and 9 

of the approved roof-control plan, was issued because the plan requires the 

roadway to be limited to 16 feet in width. These two violations were issued 

for the same length of roadway. Therefore, they duplicate each other. 

Accordingly, it is appropriate to reduce these penalties. Although these 

orders were issued in the course of a fatality investigation, it is conceded 

1948 
by MSHA that the excessive widths did not contribute to the fatality. The 

fatality occurred during pillaring operations. This area had been developed 

many years before. When it was developed, the widths did not have to be narrowed as currently required. The Respondent mine operator was in the process 

of adding additional support to this roadway. The operator had not yet started 

pillaring the area. The approved roof-control plan provides, in relevant part, 

that roadways must be narrowed to 16 feet where pillaring is being done. However, as stated above, pillaring was not yet being performed. Rather, the 

operator was adding. additional support to the entries surrounding the pillars 

and HSHA concedes that the operator was not unreasonable in interpreting the 

plan to allow additional support to be installed prior to narrowing the roadway. Additionally, MSHA indicates that the operator did intend to narrow the 

roadway after adding the additional support. Accordingly, because the two 

orders duplicate each other, because MSHA concedes it initially overevaluated 

the operator's negligence, and since this violation did not contribute to the 

fatality which occurred, penalties of $750 and $6,500, respectively, as agreed 

upon by the parties, are approved. 

2. Order No. 802230 was issued for a violation of 30 C.F.R. § 75.201. 

MSHA originally assessed a penalty of $10,000. MSHA has submitted the 

fatality investigation report relevant to this order. As MSHA points out, 

this report has in it a sketch of a mine map showing the section as it 

appeared when the fatality occurred. The Respondent operator was in the 

course of pillar recovery. It had begun pillaring in sequence along one row. 

Thereafter, it left several blocks of coal unmined due to bad roof surrounding 

the area. It then continued mining this same row of pillars. Upon completion 

of this row, the operator moved one row outby and began pillaring across the 

entries. At this point, the operator did not intend to go back inby to remove 

the pillars it had omitted. MSHA concedes that this is an acceptable mining 

method,.!_·~·· where the operator believes that it is unsafe to mine certain 

pillars, the operator may omit those pillars provided it continues in sequence 

from that point. However, the state mine safety and health inspectors disagree 

with the Federal Government's position. The day prior to the fatality, the . 

state inspectors were in the mine. They told the operator that it was necessary to return inby to the three pillars that had been omitted. Thus, the 

operator was required to add additional support throughout the area going 

toward the pillars that had orginally been omitted. These particular pillars 

are designated as Nos. 6, 7, and 8 on the sketch provided by MSHA. By mining 

in this fashion, that is, going partially through one row then going outby 

another row and then returning inby, the operator failed to maintain a uniform 

pillar line. This is a violation of 30 C.F.R. § 75.201 and exposed miners to 

unusual dangers because it is, according to MSHA, a faulty pillar recovery 

method. This contributed to the accident as it caused excessive heaviness in 

an area of already poor roof. Accordingly, because the operator was following 

the instructions of the state inspector, MSHA concedes that the operator's 

negligence was initially overevaluated. MSHA also indicates that if this 

matter was to proceed to hearing, an expert witness for Respondent would 

testify that mining in this fashion does not create pillar points and is not 

less safe then mining straight across. Accordingly, the reduction to $6,500 

is approved. 

1949 
3. Order No. 802228 was originally assessed at $10,000. It involved a 

fatality. The operator was adding additional support to a developed entry in 

the course of pillaring operations. Respondent's old roof-control plan did 

not require 4-foot centers nor as extensive a bolting pattern as required by 

the current plan. The victim, who was a bolter helper, and the bolter himself 

were in the process of installing additional supports in accordance with the 

new plan when the fall occurred. MSHA indicates that there is a dispute as to 

whether this was spot bolting or rebolting. In either case,.MSHA concedes the 

operator was acting in good faith. MSHA also concedes that· the operator was 

taking extensive measures to make sure that this potentially dangerous area 

was given care. It is also significant to note that during this additional 

bolting stage, the section foreman told the bolters to be sure to make the 

roof safe by doing whatever was necessary. At first, 6-foot bolts were being 

used. When it was determined that this may not be sufficient, 8-foot bolts 

and metal straps were used. One of these straps was already in and more were 

to be inserted when the accident occurred. For these reasons, MSHA concedes 

that the degree of the operator's negligence was not high. The reduction to 

$7,000 appears appropriate and is approved. 

4. Citation No. 802232 was issued for a violation of 30 C.F.R. § 75.200. 

The citation charges the operator with not adequately training its bolting ·personnel in compliance with safety precaution No. 2 of the plan. MSHA indicates 

that the object of this citation was to charge the operator with not properly 

instructing its bolters on "rebolting" requirements. However, the bolter felt, 

and the operator agreed, that "spot" bolting was being conducted. MSHA concedes that this discrepancy does not indicate inadequate training, but rather 

the inherent conflict between what spot bolting and rebolting actually are. 

MSHA concedes the operator's negligence is lower than initially evaluated. 

The agreed-on penalty of $1,250 is approved. 

ORDER 

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

stipulated penalties totaling $22,000 to the Secretary of Labor within 

30 days from the issuance date of this decision. 

Michael A. Lasher, Jr., Judge 

Distribution: 

Barbara K. Kaufmann, Esq., Office of the Solicitor, U.S. Department 

of Labor, 3535 Market Street, Room 14480, Philadelphia, PA 19104 

(Certified Mail) 

Timothy H. Biddle, Esq., Crowell & Moring, 1100 Connecticut Avenue, N.W., 

Washington, DC 20036 (Certified Mail) 

1950 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 AUG 2 o 19fll 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY AND HEALTH 

ADMINISTRATION (M_SHA), 

Petitioner 

v. 

NATIONAL CEMENT COMPANY, INC., 

Respondent 

Docket No. SE 81-17-M 

A.O. No. 01-0027-05017 F 

Ragland Plant 

DECISION 

Appearances: Murray A. Battles, Attorney, U.S. Department of Labor, 

Birmingham, Alabama, for the petitioner; J. Ross Forman, 

III, Esquire, Birmingham, Alabama, for the respondent. 

Before: Judge Koutras 

Statement of the Case 

This proceeding concerns a proposal for assessment of civil penalty 

filed by the petitioner against the respondent on January 30, 1981, 

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 issued pursuant to the Act and the implementing mandatory 

safety and health standards. Respondent filed a timely answer in the 

proceedings and a hearing was held on July 14, 1981 in Birmingham, 

Alabama, and the parties appeared and participated therein. The parties 

waived the filing of post-hearing arguments, but were afforded the 

opportunity to make arguments on the record and they have been 

considered by me in the course of this decision. 

Issues 

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

respondent has violated the provisions of the Act and implementing 

regulations as alleged in the petition for assessment of civil penalty 

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

that should be assessed against the respondent for the alleged violations 

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

Additional issues raised by the parties are identified and disposed 

of in the course of this decision. 

1951 
In determining the amount of a civil penalty assessment, section 

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

(1) the operator's history of previous violations, (2) the appropriateness 

of such penalty to the size of the business of the operator, (3) whether 

the ope~ator was negligent, (4) of the effect on the operator's ability 

to continue in business, (5) the gravity of the violation, and (6) 

the demonstrated good faith of the operator in attempting to achieve 

rapid compliance after notification of the violation. 

Applicable Statutory and Regulatory Provisions 

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

30 U.S.C. § 801 et ~· 

2. Section 119(i) of the 1977 Act, 30 U.S.C. § 820(i). 

3. Commission Rules, 20 CFR 2700.1 et ~· 

Stipulations 

The parties stipulated to the following: 

1. National .. Cement Company, Incorporated is the owner and operator. 

of the Ragland Plant located in Ragland, St. Clair County, Alabama. 

2. The inspector who issued the subject order and termination 

was a duly authorized representative of the Secretary of Labor. 

3. A true and correct copy of the subject order/citation and 

termination were properly served upon the operator in accordance with 

section 107(d) of the 1977 Act though National denies it is subject to Act. 

4. Copies of the subject order/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. 

5. The appropriateness of the penalty, if any, to the size of 

the coal operator's business should be determined based upon the fact 

that in 1979, the Ragland Plant produced 353,981 man-hours per year, and 

the controlling company, National Cement Company, Inc., had annual man-hours 

of 402,353. 

6. The history of previous violations should be determined based 

on the fact that the total number of assessed violations in the preceding 

24 months is 80 and the total number of inspection days in the preceding 

24 months. 

1952 
7. The alleged violation was abated in a timely manner and the 

operator demonstrated good faith in attaining abatement. 

8. The assessment of a civil penalty in these proceedings 

will not affect the operator's ability to continue in busin~ss. 

The jurisdictional question. 

During the course of the hearing, respondent's counsel for the first 

time asserted that the Ragland Plant is not a "mine" within the meaning 

of the Act, and he contended that the respondent conducted a "milling 

operation" which is outside MSHA's jurisdiction (Tr. 91). Although 

Commission Rule 29 CFR 2700.5, requires an operator to deny any jurisdictional 

facts as part of its answer, respondent has never asserted that it is 

engaged in a milling operation which is outside MSHA's jurisdiction. 

Although its answer filed February 17, 1981, contains a denial that 

respondent operates "any coal or other mine", respondent admits that it 

operates "a limestone quarry, the products of which enter commerce 

within the meaning of the Act." 

I take note of the fact that respondent's history of prior violations 

reflects that it has been served with a total of 87 citations for the period 

October 29, 1978 through October 28, 1980, and that respondent has 

paid these assessments without prate t. Further, the inspector who 

issued the citations testified that the mine has been regularly inspected 

by MSHA and that the respondent has never objected or contended that the 

inspectors were acting without enforcement authority or jurisdiction 

over its mining operations (Tr. 15, 56). I also take note of the fact 

that MSHA Form 1000-179, which is attached as "Exhibit A" to the petitioner's 

initial proposal for assessment of civil penalties, filed January 30, 1981, 

contains a notation that prior to December 4, 1979, the Ragland Plant 

was known as the "Ragland Quarry and Mill"., 

Section 3(h)'(l) of the Act defines "coal or other mine" as including, 

inter alia, "lands, excavations, structures, facilities, equipment, machines, 

tools, or other property * * * used in, or to be used in, the milling of 

* * *minerals, or the work of preparing * * *minerals." 

The legislative history of the 1977 Act clearly contemplates that 

jurisdictional doubts be resovled in favor of Mine Act jurisdiction. ' The 

report of the Senate Committee on Human Resources states: 

The Committee notes that there may be a need to resolve 

jurisdictional conflicts, but it is the Committee's intention 

that what is considered to be a mine and to be regulated under 

this Act be given the broadest possible interpretation, and it 

is the intent of this Committee that doubts be resolved in favor 

of inclusion of a facility within the coverage of the Act. 

1953 
S. Rep. 95-181, 95th Cong., 1st Sess. (May 16, 1977) at 14; 

Legislative History of the Mine Safety and Health Act, Committee Print at 

602 (hereinafter cited as Leg. Hist.). 

"Milling" is defined in pertinent part by the Mining Dictionary, 

(pg. 707), as "the grinding or crushing of ore", and 30 CFR 56. 2 defines 

a "mill" as including "any ore mill, sampling works, concentrator, and any 

crushing, grinding, or screening plant used at, and in~onnection with, 

an excavation or mine". 

The Ragland Plant is in the business of producing cement, the principal 

ingredient of which is the limestone which is mined from a nearby quarry 

owned by the respondent. The extracted limestone is used in the production 

of the cement which occurs at the plant site in question. The term "cement" 

is defined, amongst several definitions, as "a finely ground powder which, 

in the presence of an appropriate quanity of water, hardens and adheres 

to suitable aggregate, thus binding it into a hard agglomeration that 

is known as concrete or mortar." A Dictionary of Mining, Mineral, and 

RelatedTerms (U.S. Department of the Interior, Bureau of Mines) (1968) 

at p. 186. 

Inspector Wilkie testified that respondent's quarry is located 

approximately seven miles from the plant, and that the limestone material is 

blasted at th=quarry, loaded onto contract trucks by front-end loaders, 

and then hauled and dumped at the plant, where it is ultimately processed 

into cement. He described the cement-making process, which includes the 

screening and crushing of the quarried material for the production of 

cement and mortar. The finished raw product is then bagged and shipped 

by railroad cars or trucks. Plant production does not include the making 

of brick, pipe, or other concrete pre-fabricated products (Tr. 56-59). 

He also alluded to the fact that prior to 1980 respondent used another 

quarry which was approximately a mile from the plant and that the limestone 

from that quarry was crushed, loaded, and conveyed to the plant in question 

by conveyor belts. However, that quarry was flooded and is no longer used, 

but respondent never objected to any inspections which he had previously 

conducted at that facility (Tr. 61). 

Inspector Wilkie described the plant operation in question as a milling 

operation and indicated that it had a separate MSHA mine identification 

number than the respondent's pit and quarry, and he confirmed the fact 

that'he has inspected other similar cement plant operations in the State 

of Alabama and Georgia and that MSHA has enforcement jurisdiction over 

these operations (Tr. 61). The plant or mill area itself covers an area 

of approximately two and one-half acres, and Mr. Wilkie characterized it 

as a limestone milling operation (Tr. 94). 

Limestone is a form of sedimentary rock, and the term "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 

1954 
irregular fragments of rock crushed or ground to smaller sizes after 

quarrying." QE_ cit., p. 284. These definitions suggest that cement 

production at the plant in question requires, at a minimum, the crushing 

of limestone to produce a finely ground powder used in the finished 

product. This-being the case, I believe that the respondent's plant may 

also be characterized as a "crushed stone operation" subject to the 

mandatory regulatory requirements of Part 56, Title 30, Code of Federal 

Regulations. 

The record adduced in this proceeding reflects that the crushed 

limestone for the plant comes from company-owned quarry, that the cement 

was produced by the dry process, and the finished product was stored 

in silos for shipment in bag and bulk. The kiln which is used for a part 

of the cement making process is fueled by coal which is processed through 

the coal feed hopper where the accident in question occurred. (Tr. 92-93). 

With regard to respondent's assertion that it conducts a milling 

operation, it seems clear to me that those activities would still be 

subject to the Act, as well as to MSHA's enforcement jurisdiction. 

Section J(h)(l) of the Act states that: "[i]n making a determination 

of what constitutes mineral milling for purposes of this Act, the Secretary 

shall give due consideration to the convenience of administration 

resulting from the delgaation to one Assistant Secretary of all authority 

with respect to the health and safety of miners at one physical establishment." 

Since mineral milling or preparation is not specifically defined 

by the Act, the Mine Safety and Health Administration (MSHA) and the 

Occupational Safety and Health Administration (OSHA) have entered into 

an agreement by which they define their respective jurisdictions. 39 Fed. 

Reg. 27382, April 22, 1974, superceded by 44 Feel. Reg_. 22827, which became 

effective on March 29, 1979. Pursuant to this agreement, safety and health 

infractions which occur on mine sites and in milling operations, such as 

cement plants, come under the enforcement jurisdiction of MSHA and its 

mandatory safety and health standards. In those instances where the 

provisions of the Act and the implementing standards found in Parts 55, 

56, 57 do not cover safety and health hazards on mine or mill sites, 

OSHA has enforcement jurisdiction. 

It seems clear to me that the statutory definition of a mine establishes 

that it was Congress' intent that MSHA regulate any milling activity 

which is an integral part of a mine, since mines fall within the specialized 

jurisdiction of MSHA and since mine employees typically operate such 

facilities. On the facts of this case, it also seems amply clear to me 

that the respondent's cement plant, even if it can be classified as a 

milling operation, is still an integral part of its limestone mining operation. 

Without the raw mineral material (limestone) respondent could not produce 

cement. Therefore, it seems further clear to me that respondent's 

operations, whether they be characterized as a crushed stone operation 

or a milling operation, are both subject to the Act as well as to MSHA's 

enforcement jurisdiction, and my conclusions in this regard are based on 

the statutory aforementioned definition of the term "mine" as well as 

the MSHA-OSHA memorandum of understanding. 

1955 
Respondent has presented no evidence or testimony to rebut the 

petitioner's assertion that the plant is subject to the Act as well as 

to MSHA's enforcement jurisdiction. Under the circumstances, and in view 

of the aforementioned discussion with regard to this issue, respondent's 

jurisdictional arguments are REJECTED. 

Discussion 

The citations in issue in this case were served on the respondent 

after the conclusion of an investigation conducted by MSHA to ascertain 

the circumstances concerning a fatal accident which occurred at the plant 

in question on October 29, 1980. The official accident report is a part 

of the record (exhibit P-3), and briefly stated, the fatality occurred 

when an employee fell into a coal feed hopper while apparently attempting 

to free a coal.hang-up and became entrapped in the coal and suffocated. 

Citation No. 082769, issued on October 31, 1980, charges a violation 

of section 56.16-2(b), and the condition or practice described is as 

follows: 

A fatal accident occurred at this operation on October 29, 

1980, when an employee entered a coal feed hopper and became entrapped and suffocated. The grizzly on which the 

man normally would have stood to free a hang-up had been 

removed. 

Citation No. 082768, October 31, 1980, cites a violation of 30 CFR 

56.16-2(c), and the condition or practice described is as follows: 

A fatal accident occurred at this operation on October 29, 

1980, when an employee entered a coal feed hopper without shutting off and locking out the discharge equipment. 

Additionally, the victim was not wearing a safety belt or 

harness, when the bridged coal collapsed, the employee because 

entrapped and suffocated. 

Testimony and evidence adduced by the petitioner 

MSHA Inspector William L. Wilkie testified as to his mining background 

and experience and confirmed the fact that he had conducted an accident 

investigation at the subject plant in October of 1980. He detailed the 

procedures he followed in conducting the investigation, summarized the 

statements taken from persons at the plant during the course of the 

investigation, and identified photographs of the hopper in question 

as well as a copy of the investigative report which he compiled (Tr. 15-23, 

exhibits P-11 through P-19, P-3, R-5). 

Mr. Wilkie characterized a "grizzly" as the vernacular term for a 

grate, and he indicated that it was not in place over the hopper when he 

arrived at the plant and that he could not see one anywhere in the immediate 

1956 
area. However, he did observe 6 or 9 steel supports inside the hopper 

which served as a support for the grizzly when it was in place. Mr. Wilkie 

testified that he interviewed shift foreman Howard Burnham and recorded 

in his notes what he believed Mr. Burnham told him about the accident 

(exhibit P-4), and that he also wrote up a statement for his signature 

describing the accident (exhibit P-6). Mr. Burnham told him that the 

accident victim Norris Johnson was standing on the coal in the hopper 

attempting to free up some coal with a long rod, and that after inserting 

his rod into the coal two times the bridged coal gave way and buried 

Mr. Johnson up to his hips. Mr. Burnham attempted to free Mr. Johnson 

from the coal, but after 10 to 15 minutes he became exhausted, shut down 

the vibrator, and went for help. Two or three men jumped into the hopper 

and frantically attempted to uncover Mr. Johnson from the coal while a 

man was attempting to push Mr. Johnson's legs up through the bottom of 

the hopper. Mr. Johnson was extracted from the coal and the rescue squad 

arrived on the scene, administered oxygen and CPR, all to no avail 

(Tr. 23-33). 

Mr. Wilkie testified that Mr. Burnham admitted to him that there 

was no safety belt at the hopper, and that it was kept in a locker in the 

kiln control room. Mr. Burnham also told him that he did not instruct 

Mr. Johnson to get into or out of the hopper, and Mr. Burnham made 

an admission that both he and others had often stepped out onto the coal 

pile to unclog it (Tr. 36). 

Mr. Wilkie confirmed that he issued the citations in questions, and 

he stated that a fellow inspector, R. L. Everett assisted him during the 

investigation and that Mr. Everett assisted him in filling out the 

inspector's narrative statements (exhibits P-1, P-2, Tr. 39-45). 

Inspector Wilkie explained the reasons for the issuance of the citations 

in this case as follows (Tr. 45): 

A. All right. The reason I issued these citations, I 

was obligated to issue them under the standards that 

I'm obligated to carry out. And had either one of these 

items been used; had there been a grizzly on the hopper 

bin, there would have been no accident. Had there been 

a safety belt used, there would have been no accident. 

Q. But the grizzly now -- there is no standard as such 

that a grizzly has to be on there, is that true? 

A. The grizzly was used, in this case, as a sizing device. 

Q. Yes. But it was also used well --

A. It was used as a walkway. 

Q. It would have been an adequate walkway under the 

standard. 

A. It would have. We would have accepted it. 

1957 
And, at pages 95-97: 

Q. Now, on the first citation here, 082769, which is 

Petitioner's Exhibit 1, when you cited them for a violation of 56.16-2(b), I take it you did so on the theory 

that the grizzly also served as a suitable walkway or 

passageway and since it was not there, since it had been 

removed and not replaced, that they didn't have a suitable 

walkway or passageway. Is that the theory on which you 

issued the citation? 

A. Yes, sir. 

Q. Would Subsection (c), that first sentence, also suffice 

to describe the function of the grizzly, and if a grizzly 

were not present could you also have cited them with (c), 

which says where persons are required to enter, et cetera, 

that a platform or staging shall be provided? 

A. Yes, sir. I would have issued that (c) since they 

did not cut off the discharge and they did not use the 

safety belt. 

Q. Well, leave the safety belt and discharge aside now, 

and let's just concentrate on whether or not that first 

sentence, which requires them to have a ladder or platform 

or staging. Would that first sentence under (c) also have 

sufficed for a missing grizzly? 

A. Yes, sir, it could have. .. 

Q. Now, look up under "l" of the standard, where it says, 

"Shall be equipped with mechanical devices or other effective 

means of handling materials so that during normal operations 

persons are not required to enter or work where they are 

exposed to entrapment by the caving or sliding of materials." 

Would the grizzly fall into the category of "equipped" 

with mechanical devices or other effective means? 

A. It would fall under "effective means." It would serve 

as a walkway there. 

* * * * * * * * * * * * 

Q. So you could have used either "l" or (c), but you chose 

(b), right? 

A. Right. 

Q. Now, let me ask you this. Isn't it true this grizzly 

is not a walkway or passageway in the usual understanding 

of that term, is it? 

I mean, people don't usually egress? 

\ 

1958 
A. No. In this case, the reason is the bin was enclosed on 

three s·ides; there was no other way to get in there except 

to step over and either stand on those supports or walk 

the grizzly to free a hangup. 

Had the grizzly been in there, there would have been 

no accident. Had the grizzly been out and the man had to 

free a hangup like it was, had he had on a safety belt there 

would have been no accident. 

Inspector Wilkie testified that Mr. Burnham told him that the grizzly 

had been removed for four or five months, and although Mr. Wilkie had 

conducted prior inspections at the plant, he could not state with any 

certainty if he observed the grizzly in place (Tr. 47). The citations 

were abated as soon as the investigation was completed and a new grizzly 

was purchased and installed over the hopper (Tr. 51). A safety rope 

and belt were installed at the hopper bin and a cable was also installed 

inside the hopper to facilitate the coupling of the belt or rope (Tr. 53). 

These actions remedied both of the citations (Tr. 79). 

On cross-examination, Inspector Wilkie stated that he could not 

specifically recall inspecting the hopper during any of his prior 

inspections. He confirmed the fact that there is no specific safety 

standard that requires a grizzly to be installed, and stated that a 

grizzly is a grating device to size the coal and keep out extraneous 

materials. He also indicated that a grizzly may serve as a walkway 

and that MSHA has accepted this, but conceded that if coal were piled 

on top of the grizzly, a person would have to walk over it (Tr. 65). 

Mr. Wilkie described the hopper area, and he confirmed the fact that 

Mr. Burnham was emotionally upset at the time that he interviewed him 

shortly after the accident. He also described the operation of the 

vibrator feeder pan at the bottom of the hopper and he believed that it 

vibrated the walls of the hopper (Tr. 66-77). 

In response to further questions, Mr. Wilkie stated that Mr. Burnham 

advised him that the grizzly supports which are fixed to the walls of 

the hopper are used for employees to stand on when freeing up coal hang-ups 

in the hopper (Tr. 86). 

MSHA Inspector Barton Collinge testified' that he discussed the 

citations with Mr. Wilkie before they were issued, and he stated that 

there is no mandatory safety standard which requires a hopper of the 

type in question to have a grizzly installed on it (Tr. 113). He indicated 

that the purpose of the grizzly is to facilitate the sizing of the coal 

which was dumped into it and to prevent hang-ups. He explained the purpose 

of the hopper, and indicated that it constituted a "screening process", 

and that from his experience, when coal is hung up in the hopper it is 

freed up by someone barring it down from the top. Usually, one stands 

on the grizzly and places the bar between the openings for this purpose, 

and in the instant case he did not know whether it could have been freed 

up by someone standing on the hopper edge (Tr. 114-116). 

1959 
With regard to a question as to why the "walkway or passageway" 

subsection was cited, Mr. Collinge responded as follows (Tr. 117): 

THE WITNESS: Travelways -- bringing it under travelways, 

it isn't really a travelway as such. It's not meant to be 

a walkway. However, it is an area to do a function, and 

the function was to free the hangup, and this is a normal 

function in hoppers. 

To be _very honest, we put it under this section because this standard deals with bins and hoppers. We have 

had too many fatalities in our area in bins and hoppers. 

We're very sensitive to them. 

And, at pages 121-122: 

THE WITNESS: Underground. But, if you'll pardon me, 

I know a word here and there is important, but coming back 

to the fact, the fact remains that there was a place to 

work, whether they call it a platform or a walkway, and 

the ·men would work on there, I would work on there. If it 

was your job to make sure that coal went through there, 

and to make sure the bin didn't hang up, as it would at 

times with damp coal, to go out and punch it down and get 

out of there. [sic] 

Now, if the term "platform" would have been better, 

maybe I couldn't argue that point. But "walkway", "platform", the function remained the same. 

In further explanation as to why a separate walkway citation was 

issued, Mr. Collinge stated that the removal of the grizzly resulted in 

the removal of the walkway (Tr. 136-137), but he conceded that the grizzly 

could also be classified as a platform under subsection (c), and that 

the use of the two terms "is a matter of choice of words" (Tr. 144). 

Further, explanation as to the issuance of a separate citation is reflected 

in the following trial colloquy (Tr. 154-155): 

JUDGE KOUTRAS: In this case, it seems to me that the 

three conditions that were cited: the grizzly not being 

there, failure to lock out, failure to provide a balt 

or lanyard, all theoretically could come under (c) --

MR. BATTLES: I agre~ with that. 

JUDGE KOUTRAS: And since two of them only came -- the 

belt and failure to lock out is in one, why wasn't 

the other also included in there and then we just have 

one citation. See? 

1960 
And that's what one of the defenses is, is that here 

you're coming at us with a double barrel for a $20,000 

assessment for essentially a violation of (c) rather than 

(b) and (c). And that's simply what I'm trying to understand, is the theory as to why it was split out the way 

it was. 

Anything further, Mr. Battles, from the Government? 

MR. BATTLES: No, that's all,, Yo.m: Honor. But looking 

at these, they do seem to be ambi'gμo.us and overlapping. 

Talking about the first. ane is; waJJtways: arrd.1 passageways --

JUDGE KOUTRAS: Jiiat: a: minute. What's ambiguous and 

overlapping? 

MR. BATTLES: (b) and (c). 

JUDGE KOUTRAS: That's all right; there's nothing 

unusual about that. 

MR. BATTLES: That's what I'm saying. This doesn't 

surprise me. 

Testimony and evidence adduced by the respondent 

Harold·Burnham testified that he was the shift foreman on October 29, 1980, 

and the accident victim, Norris Johnson, was employed as a general laborer 

working under his supervision. Prior to the accident, he had instructed 

Mr. Johnson to unstop the coal hopper, and this is normally done by 

inserting an air lance from the bottom underside of' the hopper at the 

vibrator pan, and freeing the coal by air pressure. Mr. Johnson had 

unstopped it once during the shift, but when it was clogged a second time, 

he instructed Mr. Johnson to go back to the hopper to check it out again, 

but he did not go with him, since he had to continue making his shift 

rounds (Tr. 160-167). 

Mr. Burnham testified that when he drove up the incline to the 

hopper entrance and got out of his truck, he observed Mr. Johnson on 

the west side of the hopper standing on the metal ledge with a short 

bar, and the coal was banked up inside the hopper. He identified the 

location where Mr. Johnson was standing by reference to photographic 

exhibits R-1 and R-4. Mr. Burnham stated that as he approached the 

hopper on foot, Mr. Johnson had moved to the east side of the hopper and 

appeared to be standing on the hopper ledge which serves as a support 

for the grizzly. Mr. Johnson was using a long pole in his attempts 

to free up some coal which had apparently clogged in the hopper, and as 

he worked the pole through the coal it "caved out" and caught Mr. Johnson 

as he was standing on the coal. Mr. Burnham reached over the hopper: 

ledge and grabbed Mr. Johnson's arm in an attempt to free him,.,but~thec 

1961 
coal had him pinned against the side of the hopper (exhibit R-2). 

Mr. Burnham then left the scene to turn the vibrator off and to summon 

assistance, and in two or three minutes he had .returned with three other 

persons to assist Mr. Johnson (Tr. 167-171). 

Mr. Burnham testified that the accident was an instantaneous 

occurrence, and just as Mr. Johnson stepped out onto the coal pile 

and inserted the rod, the bottom coal fell out. The use of the 

air lance from underneath the hopper had apparently created a cavity 

under the coal pile, and when the pole was inserted it gave way and caught 

Mr. Johnson (Tr. 173). Mr. Burnham stated further that he had in the past 

stood on the hopper ledge to free up coal which had lodged in the hopper, 

but that he had never instructed anyone, including Mr. Johnson, to walk 

out onto the coal pile itself. The usual practice was to free any stoppage 

from the underside with the air lance, and that "seventy-five percent 

of the time it'll break loose from the bottom with an air lance" (Tr. 174). 

Be did not believe that the fact that the vibrator was on contributed 

to the severity of the accident, and he knew that the grizzly had been 

removed, and he assumed that it was off for some four or five months 

(Tr. 175). 

On cross-examination, Mr. Burnham stated that bars are kept at the 

hopper ~ocation to facilitate the freeing up of clogged coal when it cannot 

be freed up from the underside by means of the air lance. He conceded 

that he knew that the grizzly had been removed from the hopper for four 

or five months and that no life lines or safety belts were around the 

hopper area during this time. He did not know whether any safety belts 

or lines had ever been used during the time the grizzly was off the hopper, 

and he personally never observed any in use (Tr. 177). He conceded that 

a belt or a line could have been tied off on a nearby catwalk handrail, 

but that he had never had any occasion to use safety belts or lines 

because the majority of the time, any clogged coal could be freed up by 

use of the air lance (Tr. 178). 

Mr. Burnham confirmed that Mr. Johnson was standing inside the metal 

edge or ledge of the hopper at the moment the coal gave way, and he identified 

the metal supports which hold the grizzly in place as those which are 

depicted in photographic exhibit P-19, indicated that they are located 

all around and inside the perimeter of the hopper and that he has stood 

on them while attempting to free up clogged coal, and he candidly admitted 

that he did not use a safety belt (Tr. 181). 

Mr. Burnham stated that he did not know why the grizzly was removed, 

but he did state that it was too small and slowed down the payloader 

which dumped the coal into the hopper, and due to constant bumping by 

the payloader, the grizzly was ''in bad shape'' (Tr. 182). With regard 

to the vibrator, Mr. Burnham stated that it does not touch or shake the 

hopper itself, but works independent of it (Tr. 183). 

In response to further questions, Mr. Burnham indicated that the 

function of the grizzly was to keep excess debris out of the coal which 

dumped into the hammer mill and that at times the payloader would shake 

1962 
or bump the grizzly so as to break up the large lumpy coal which was 

dumped on top.(Tr. 184). He also indicated that as a general laborer, 

Mr. Johnson worked on different shifts on a rotation "as needed" basis. 

He considered Mr. Johnson to be an excellent employee and he never had 

any problems with him (Tr. 199). Mr. Burnham stated that it never 

occurred to him to provide a safety line or belt at the hopper during 

the time the grizzly was off (Tr. 200), and he stated that in the event 

maintenance were required everything would be shut down (Tr. 202). 

In response to a question as to why he believed the accident happened, 

Mr. Burnham stated as follows (Tr. 205): 

A. Well, there's the possibility that he could have 

been in a little too big of a hurry and he misjudged the 

ledge that he supposedly thought he was standing on. 

Q. Let's assume that he were standing on the ledge, do 

you think that's a good practice, for someone to stand on 

that ledge and take a pole and stick it down in that coal? 

A. Well, I have done it myself, but I've never told 

anybody to, no, sir. 

Q. You know, people sometimes do things and later 

reflect on it. Would you do it again? Stand inside on 

that ledge and poke a stick down there without a life line 

or a belt? 

A. No, sir. 

Q. Do you normally shut down or lock out that equipment 

when you poke from under with the air line? 

A. No. sir. 

Q. You don't require them to do that? 

A. No, sir. There's nothing there to. 

Robert A. Daffron, Assistant Administrative Supervisor, and Plant 

Safety Director, testified as to his duties as safety director, and he 

indicated that they include safety inspections, monthly meetings with employees 

and supervisors, and the correction of safety deficiencies as they 

are brought to his attention. He detailed the procedures he follows 

in considering safety complaints which are brought by the safety committee, 

and he produced a copy of the company's safety rules and practices (exhibit R-7). 

Mr. Daffron also stated that as a general rule both he and the union 

safety representative accompany all MSHA inspectors on their safety 

inspections, and that safety notices and similar·materials are posted 

on a bulletin board maintained in the canteen, as well as other plant 

locations. He also indicated that copies of the part 56 mandatory safety 

1963 
requirements have been furnished to the employee union safety committee 

as well as to all union officers. With regard to the grizzly in question 

in this case, he testified that no one ever complained that the hopper 

was unsafe because the grizzly had been removed, no safety reviews 

have ever been requested because of any asserted hazard connected with 

the hopper, and he indicated that he was not aware of the fact that the 

grizzly had been removed (Tr. 211-220). 

Mr. Daffron confirmed that a new grizzly was installed over the 

hopper on the day of the accident, and he identified a photograph 

(exhibit P-15) of the new grizzly. He stated that an MSHA inspection 

had been conducted in August of 1980, and no one said anything about the 

missing grizzly (Tr. 222). 

On cross-examination, Mr. Daffron states again that he was unaware 

that the grizzly had been removed, and stated that 40% of his duties are 

devoted to safety matters. He did not know why the grizzly had been 

removed, and he confirmed the fact that he had received a copy of an 

MSHA safety publication (exhibit P-21), dated June 1980, dealing with 

bins and hoppers. He stated that the grizzly which had been removed 

from the hopper in question was not there for safety reasons (Tr. 222-224). 

Regarding the company's safety record as reflected by MSHA's history 

of prior violations (exhibit P-10), Mr. Daffron commented that its 

"not good", and that "We strive for zero, but you never reach zero" (Tr. 226). 

In response to further questions, Mr. Daffron states that Mr. Johnson 

was a very good employee and that he never had any problems with him. 

He also characterized Mr. Burnham as a hardworking, concientious, and 

dedicated supervisor, but did state that the practice of an employee 

stepping to the edge of a hopper to unclog coal in the hopper was not a 

good practice (Tr. 227). 

Gene Allen Sumner, testified that he is employed with the respondent 

as headquarters Secretary and Controller. He testified as to the company's 

corporate make-up, its competitors, and testified that the Ragland Plant 

is the only manufacturing plant owned by the respondent. He also testified 

as to the general market conditions concerning the supply and demand for 

cement, and stated that respondent does not mine any coal, but does purchase 

it. He also alluded to the fact that the respondent has expended in excess 

of 50 million dollars for capital improvements, including air and water 

pollution abatement (Tr. 228-235). 

On cross-examination, Mr. Sumner confirmed .that the respondent 

company is a totally owned subsidiary o"f a 'French .:company, and characterized 

the respondent company as a "small cement company" (Tr. 237). He also 

indicated that the company produces some 700,000 tons of cement annually 

and employs 150 permanent hourly employees in addition to temporary hourly 

seasonal people (Tr. 238). 

1964 
Findings and Conclusions 

Fact of violation - Citation No. 082769 

The respondent in this case has been charged with two violations 

of the provisions of mandatory safety standard 30 CFR 56.16-2, which 

provides as follows: 

Mandatory. (a) Bins, hoppers, silos, tanks, 

and surge piles, where loos~- unconsolidated materials 

are stored, handled or transferred shall be --

(1) Equipped with mechanical devices or other 

effective means of handling materials so that during 

normal operations persons are not required to enter 

or work where they are exposed to entrapment by the 

caving or sliding of materials; and 

(2) Equipped with supply and discharge operating 

controls. The controls shall be located so that spills 

or overruns will not endanger persons. 

(b) Where persons are required to move around 

or over any facility listed in this standard, suitable 

walkways or passageways shall be provided. 

(c) Where persons are required to enter any f~cility 

listed in this standard for maintenance or inspection 

purposes, ladders, platforms, or staging shall be provided. No person shall enter the facility until the 

supply and discharge of materials have ceased and the 

supply and discharge equipment is l9cked out. Persons 

entering the facility shall wear a safety belt or harness equipped with a lifeline suitably fastened. A 

second person, similarly equipped, shall be stationed 

near where the lifeline is fastened and shall constantly adjust it or keep it tight as needed, with 

minimum slack. 

Both of the citations which were issued by Inspector Wilkie in this 

case were the result of the same event, the accident of October 29, 1980. 

Citation 082768 charges a violation of subsection (c), and it was issued 

because the hopper had not been locked out and the accident victim was 

not wearing a safety belt of lifeline. The locking out of the equipment 

and the use of a belt or line are set out as separate and distinct mandatory 

requirements in subsection (c), yet the inspector issued only one citation 

covering both of these requirements. However, he issued citation 082769 

as a separate citation because the grizzly had been removed and was not 

replaced. 

Citation No. 982769 charges the respondent with a violation of 

subsection (b) of section 56.16-2, which requires that suitable walkways 

or passageways be provided where persons are required to move around or 

1965 
over hoppers. The. inspector issued this separate citation because the 

grizzly which normally would be in place over the coal hopper or bin in 

question had bee~ removed and not replaced. The inspector considered 

the grizzly to be a "walkway or passageway", and since it was not in 

place, he believed that a violation of s1ilisection (b) occurred. 

The terms "walkway", "passageway", and "grizzly" are not further 

defined by the regulations, and the term "grizzly" is not even mentioned 

irt section 56.16-2. However, the Dictionary of Mining, Mineral, and 

Related Terms, published by the Bureau of Mines, U.S. Department of the 

Interior, 1968 Ed., at pg. 513, defines "grizzly" as follows: 

a. Gua.rdrails or covering to protect 

chutes, manways, winzes, etc., in mines. Fay. 

b. A device for the coarse screening or 

scalping of bulk materials. See also bar 

grizzly; grizzly chute; live roll grizzly, 

ASA MH4.l-1958. c. A rugged screen for rough 

sizing at a comparatively large size (for 

example, 6 inches or 150 millimeters); it can 

comprise fixed or moving bars, disks, or shaped 

tumblers or rollers. B.S. 3552, 1962. 

Respondent's answer to the proposal for assessment of a civil penalty 

for this alleged violation denies that subsection (b) of the cited 

standard requires that a grizzly or grid be installed in the bin hopper 

or that a walkway is required over the area in question. Respondent 

also maintains that no employee is "required" to move on or over the 

hopper or bin, and argues that the grizzly is not a walkway or passageway 

within the normally acceptable meaning of those terms because the hopper 

is enclosed on three sides and mine employees do not traverse or pass 

through the area as ·a regular means of moving about the area. The 

inspector who issued the citation believed that men routinely were 

required to move over and about the grizzly when it was in place so as 

to facilitate the clearing out any blockage or unusually large chunks 

of coal by means of a long pole or rod which is inserted between the 

opening of the grizzly. 

On the facts presented in this case, I believe it is reasonable 

to conclude that the accident would not have occurred had the grizzly 

been in place. I believe it is also reasonable to conclude that if a 

person walks out on a pile of coal which has been dumped into a hopper 

for the purpose of inserting a long pole or rod in it to free some of the 

coal which has been "hung up" in the hopper chute, he exposes himself 

to a hazardous situation and may become entrapped in the coal as it is 

freed up under his feet. The same may be said of the individual who 

may stand on a grizzly support bracket inside the hopper. He exposes 

himself to the danger of falling into the hopper. In both of these situations, 

I believe that the provisions of either subsection (a)(l) or the first 

sentence of subsection (c) of section 56.16-2, more directly fit the 

facts presented in this case, and my reasons for these conclusions follow. 

1966 
Subsect_ion (a) (1) of section 56 .16-2 specifically requires the 

use of mechanical devices or other effective means of handling materials 

so as to preclude persons from being entrapped by caving or sliding 

materials, and the first sentence of subsection (c) requires the use 

of platforms or staging where maintenance or inspections have to be 

performed. In my view,_ these sections are more directly applicable in 

this case, and strict application and enforcement of these subsections 

are more appropriate than the "walkway or passageway" requirement relied 

on by Inspector Wilkie. 

Petitioner's counsel candidly conceded that the removal of the 

grizzly is not per se a violation of any mandatory safety standard, even 

though the inspector considered it to be an adequate walkway when it 

was in place (Tr. 221). Although recognizing that the inspector 

obviously believed that a grizzly which suffices as a platform may also 

be considered a walkway or passageway, he candidly questioned this 

conclusion, and agreed that the fact that someone has to stand on 

a grizzly doesn't necessarily transform it into a walkway in the normal 

sense of that word (Tr. 100, 104). He also conceded that the grizzly 

in question was not normally used as a travelway or walkway by miners, 

and he observed that while another safety standard covers "safe means 

of access" to working places, that standard was not cited in this 

case (Tr. 102). 

Inspector Wilkie also conceded that there is no mandatory safety 

standard which requires that a grizzly be installed or maintained in 

place over a hopper or bin such as the one which has been cited in this 

case. On the facts of this case, it seems obvious to me that Mr. Wilkie 

views the terms "grizzly", "walkway", and "passageways" as interchangeable, 

notwithstanding the fact that from his own admission a grizzly is another 

term for a grate or filter whose principal function is to size materials, 

and that the grizzly in this case was enclosed on three sides by the 

hopper walls and was not a normal travelway for miners to come and go 

from the area. 

With respect to petitioner's comment in the course of the hearing 

that the respondent could have been cited with a "safe access" violation 

pursuant to section 56.11-1, that was precisely what was done in a recent 

case decided by Judge Steffey on December 1, 1980, in MSHA v. A.H. Smith 

Stone Company, Docket VA 80-2-M. In that case an employee was attempting 

to climb out of a crusher feeder after performing some maintenance, 

somehow lost his footing while standing on the grizzly, and fell into 

the crusher suffering fatal injuries. The company was charged with a 

violation of section 56.11-1, for failing to provide secure and safe 

footing or a handrail to facilitate the employee's safe exit out of 

the crusher. The circumstances presented in the Smith Stone case are 

similar to those which prevailed in the instant case, yet the inspector 

there chose to cite the safe access safety requirements found in section 

56.11-1, rather than those dealing with bins and hoppers. 
As indicated earlier, petitioner has conceded that the removal 

of the grizzly was not in .violation of any safety standard (Tr. 221). 

Further, while Inspector Collinge expressed a concern over reported 

bin and hopper accidents, MSHA's safety publication dealing with the 

hazards connected with bins and hoppers (exhibit P-21) contains not 

one word about the necessity for maintaining grizz.ly' s in place over 

such bins and hoppers. The emphasis in the publication is directed 

to the use of safety belts and lines, and to the deenergizing of the 

equipment, and not one of the sketches depicting miners standing over 

and inside hoppe·rs and bins show a grizzly anywhere in sight. It seems 

to me that if bins and hoppers do in fact present hazardous situations 

in the every day mine work environment, then MSHA should promulgate a 

mandatory standard directed at the specific hazard surrounding the use 

of a grizzly. Reliance on walkway, passageway, and other such 

nonsensical standards to the facts of this case contribute much to 

confuse the issue and very little in terms of safety guidance. 

In this case the petitioner has proposed maximum penalty assessments 

of $10,000, for each of the two citations. Although section llO(a) 

provides that "each occurrence of a violation of a mandatory health 

safety standard may constitute a separate offense", I do not believe 

that multiple violations stemming from the same event should be issued 

in such a manner as to result in arbitrary punitive sanctions. In 

this case, I believe that the inspector relied on subsection (b) because 

he believed that subsection (b) most nearly covered the situation at 

hand. In short, the inspector did the best he could with the standard 

as written, and while I symphathize with an inspector who often must 

choose among standards which may be imprecise, confusing, or contradictory, 

an operator should not be unduly penalized and subjected to an additional 

$10,000 civil penalty assessment because the inspector made the wrong 

choice. In my view, the purpose of a civil penalty assessment proceeding 

is not only to deter future violations, but it should serve to put the 

operator on notice as to what is required of him in terms of future 

compliance. Penalty assessments for alleged violations which come "close" 

to a mandatory standard simply do not achieve these goals. The best 

method that I can think of to cure such a problem is to clarify ambiguous 

standards through the promulgation and application of standards which 

make sense. 

In view of the foregoing, and after careful consideration of all 

of the testimony and evidence adduced on the record, including the arguments 

made by the parties in support of their respective positions, I conclude 

and find that the petitioner has failed to establish a violation of 

subsection (b) of section 56.16-2, as charged on the face of citation 082769. 

I believe that a reasonable interpretation of the terms "walkways" 

or 'passageways" simply does not support the inspector's belief that the 

grizzly was such a walkway or passageway. Respondent's testimony establishes 

that the hopper in question was enclosed _on three sides and that it 

was not regularly used as a means of travel by any mine personnel. 

In my view, the fact that someone must stand on a piece of equipment to 

perform some function does not necessarily transform it into a walkway 

or passageway. Citation No. 082769 is VACATED. 

1968 
Fact bf violat·ion - Citation No. 082768 

Citation No. 082768 charges a violation of subsection (c) of section 

56~16-2, in that the hopper in question had not been locked out and the 

ac0ident victim was not wearing a safety belt or lifeline when he entered 

the hopper to poke ·around with a pole in his attempts to clear out some 

coal blockage. 

It seems clear to me from the testimony and evidence adduced in this 

~ case that Mr .. Johnson was not wearing a lifeline or safety belt as required 

~by the cited standard. Inspector Wilkie testified that he observed no 

safety belt o.r line at or near the vicinity of the hopper, but that one 

was available in the kiln room. Respondent's evidence and testimony 

in defense of the citation does not rebut the fact that Mr. Johnson 

was not wear·ing a belt or lifeline and' shift supervisor Burnham admitted 

this. Although the standard does not tequire that a belt or lifeline 

be kept at a hopper or bin, it specifically requires a person entering such 

a facility' to ·wear' one, and it also requires that a second person be 

nearby ·to tend the line. Under the circumstances, I conclude and find 

that the petitioner has established the ·conditions cited by the inspector, 

and that said conditions constitute a vioiation of the cited standard. 

With:regard to the allegation that the hopper discharge equipment 

had not been,shut off and locked out at the time Mr. Johnson attempted 

'to d~slotlg~ the co~l in.the hopper, I also conclude and find that the 

petitioner has established this fact through a preponderance of the 

evidence -adduced in this case. Respondent has offered no testimony or 

evidepce ·to rebi:it. thii:; fact, and I find that the condit·ions cited 

also constitute a violation of the cited standard. Although there is 

some _ques.tion. as _to.whether the' fact· that the hopper vibrator had not 

;.been shut down' and locked out contributed to the gravity of the violation, 

. this may ·not ·s·erve as .a defense· to the citation, but may serve to mitigate 

the seriousness of the violation. 

One of the respondent's defenses to the citation is the assertion 

that Mr. Johnson was not required to enter the hopper, and since the 

cited.standard uses this language, respondent argues that the petitioner 

has not established that his supervisor Mr. Burnham gave him a direct 

order to enter the hopper, or otherwise required him to do so. This 

defense is rejected. It is clear from the facts of this case that 

Mr. Burnham instructed Mr. Johnson to go to the hopper facility to check 

out ·the coal blockage and to do what was necessary to take care of the 

problem. Although the usual method of freeing up coal from the hopper 

was to use an air.device inserted from the underside of the hopper, 

it is also true that on several ocassions employees had to do this by 

means of long poles or rods which were kept at the hopper for the 

specific purpose of inserting them into the top of the coal to dislodge 

any coal which had hung up in the hopper. Mr. Burnham admitted that 

this was the case, and he also admitted that he himself has used this 

procedure in the past. He also admitted ·that he has stood on the grizzly 

1969 
brackets which are.located along the inside top wall of the hopper and 

inserted the rods or poles into the coal for the purpose of dislodging 

large coal particles or hang-ups. 

A second defense to the citation is the assertion by the respondent 

that Mr. Johnson had not entered the hopper at the time of the accident, 

but was merely standing outside or on the perimeter of a metal ledge or 

"lip" which served as a barrier for the endloader as it dumped the coal 

into the hopper. This defense is likewise rejected. I believe it clear 

from the testimony and evidence adduced in this case that Mr. Johnson 

was standing on a grizzly bracket located inside and along the top inner 

wall of the hopper when Mr. Burnham first observed him, that he stepped 

out onto the coal itself when he inserted the pole or rod, and that he 

was in fact on the edge of the coal pile when the bridged coal gave way 

and pinned him against the hopper wall. Mr. Burnham candidly admitted 

during testimony at the hearing that this was the case, and while it may 

be true that Mr. Johnson may not have been standing clearly out and in the 

middle of the coal pile as implied by the sketch which is a part of the 

accident report (exhibit P-3), I conclude and find that he was standing 

at the edge of the coal pile when it gave way and that this supports a 

finding that he had entered the hopper. Even if he were standing on the 

grizzly bracket, I would still find that he had entered the hopper. 

One final defense suggested by the respondent during the course of 

the hearing is the suggestion that the accident was an unfortunate incident 

which resulted through no fault of the respondent, and that the respondent 

did all that was humanly possible to assist Mr. Johnson and to save his . 

life. Assuming that this were the case, it is clear from the legislative 

history of the act, as well as some of the precedent decision that a 

civil penalty may be imposed on a mine operator for a violation even though 

the operator is without fault, J & H Coal Company, 2 IBMA 20 (1973); 

Valley Camp Coal Company, 1 IBMA 1976, 1 IBMA 245 (1972); Armco Steel Corporation, 

6 IBMA 64 (1976). In other words, lack of negligence cannot excuse a 

violation, but it may be considered in mitigation of the amount of the 

penalty, Webster County Coal Company, 7 IBMA 264 (1977). See also: 

Heldenfels Brothers Inc., 1980 OSHD 24,606, where the Commission affirmed 

the decision of a Judge assessing a civil penalty against an operator 

even though he found that the driver of a mobile scraper was responsible 

for the accident that caused his death. On review by the Fifth Circuit 

on January 15, 1981, the Court affirmed the decision, Heldenfels Brothers, 

Inc. v. Marshall,£!_. al., Civ. No. 80-1607. 

In view of the foregoing findings and conclusions, Citation No. 

082768 is AFFIRMED. 

Size of Business and Effect of Civil Penalty of Respondent's Ability to 

Remain in Business. 

The parties stipulated that a civil penalty assessment in this case 

will not adversely affect the respondent ,.s ability to remain in business. 

With regard to the size of the respondent's cement operation, there is a 

1970 

,•, 

'· 
dispute as t.o whether it is a large or small operation. 

that it is a large operation and its conclusion in this 

on the fact that respondent is a subsidiary of a larger 

whose annual man-hours and production were greater than 

respondent. 

Petitioner asserts 

regard is based 

foreign corporation 

that of the named 

Respondent's secretary~controller characterized the Ragland Plant 

as a "small cement company", employing approximately 150 permanent hourly 

employees, producing some 700,000 tons of cement on an annual basis. 

The parties stipulated that for the year 1979, the Ragland site had 

353,981 man-hours of production at that operation. 

After consideration of all of the evidence and testimony adduced 

with regard to this issue, I conclude and find that the respondent is a 

medium-sized operator for purposes of any civil penalty assessment made 

by me in this case. 

Good Faith Compliance 

The parties stipulated that the violations issued in this case were 

abated in a timely manner and that the respondent demonstrated good faith 

in abating the conditions. I adopt this stipulation as my finding 

concerning this question. 

History of Prior Violations 

The respondent's history of prior violations is reflected in exhibit 

P-10, an .MSHA computer print-out which shows that respondent has paid 

civil penalty assessments for a total of 86 citations issued during the 

time period October 29, 1978 through October 28, 1980. Although Inspector 

Wilkie characterized the respondent's prior compliance history as "poor" 

or "bad", I take note of the fact that the bulk of the prior citations 

concern non-compliance with two standards, namely, the guarding 

requirements of section 56.14-1, and the travelway safe-access requirements 

of section 56.11-1. The prior history reflects only one prior citation 

for a violation of section 56.16-2, for which the respondent paid an 

assessment of $210 on August 18, 1980, approximately two months prior 

·to the accident in question. Since the details of that citation are not 

of rec.ord, · I have no way of evaluating the circumstances of that violation 

as they may reflect on the facts presented in the instant case. The same 

may be said of the 23 prior safe-access citations concerning section 56.11-1. 

Absent any information concerning the circumstances surrounding those 

citations, I have no way of determining whether those prior citations 

involved.a hopper or bin of the type which is the subject of the instant 

proceeding. 

Aside from the itemized listing of the prior citations, I have taken 

into consideration the testimony of Inspe_ctor Wilkie that the respondent 

has always been cooperative during his inspections (Tr. 15), that safety 

director Daffron has been courteous and cooperative on safety matters, and 

1971 
has been eager to take corrective action where required (Tr. 83-84). 

I have also considered Inspector Collinge's testimony indicating his 

belief that the respondent's safety program needs improvement, that 

respondent's safety record, as compared to comparable operations is not 

too good, and the views expressed by both inspectors that safety director 

Daffron does not spend as much time as he should on safety matters 

(Tr. 131). 

In view of the foregoing discussion, I cannot conclude that the 

respondent's overall safety record or prior history of violations is 

such as to warrant any additional increase in the civil penalty which 

I have assessed for the citation which has been affirmed. On the other 

hand, I cannot conclude that respondent'ss:i.fety record is such as to 

warrant any special consideration or reduction in the civil penalty which 

has been assessed for the citation in question. 

Gravity 

The accident which occurred in this case resulted in the untimely 

and unfortunate death of a plant employee. Although the record supports 

a finding that his supervisor and fellow employees did all that they could 

to save his life, the fact is that the violation resulted in a fatality. 

While no one can say for certain that the use of a safety belt or life 

line would have prevented the victim's death, I believe that it may have 

kept him from being covered with coal until more help arrived. Mr. Burnham's 

frantic efforts to keep the victim from sinking deeper into the coal 

pile came to an end after ten or fifteen minutes when Mr. Burnham became 

exhausted and could no longer hold onto to him. A safety belt or line 

tied to the victim would have permitted Mr. Burnham ample time to summon 

additional help and possibly save the victim's life. In these circumstances, 

I find that the violation was very serious and this is reflected in the 

civil penalty which I have assessed for the violation in. question. 

Negligence 

On the facts presented in this case I conclude and find that the 

failure by the respondent to insure that Mr. Johnson had a safety belt 

or line attached to his person while he was poking around the coal 

piled on top of a hopper which had the grizzly removed for a prolonged 

period of time amounted to a reckless disregard for Mr. Johnson's safety, 

and that this constitutes gross negligence. While it is true that the 

accident may have been a sudden or spontaneous occurrence, the record in 

this case establishes that the g zzly which normally covered the hopper 

had been removed for a period of some four or five months and that 

Mr. Burnham was aware of this fact. More surprisingly, the safety director, 

Mr. Daffron, was unaware of this fact, and I can only conclude that his 

ignorance in this regard resulted from his failure to inspect the hopper. 

Although Mr. Daffron stated that the grizzly is normally installed 

to size and filter larger coal particles, the fact is that it was at 

least used part of the time for men to stand on and poke down through 

the openings to free coal which had become lodged in the hopper. Once the 

1972 
grizzly_ was removed, mine management, through Mr. Burnham, should have 

• been aware of the fact that employees would likely stand on the grizzly 

supports inside the hopper so as to facilitate the use of the pole or 

rod to free up the coal, and poles and rods were kept at the hopper for 

this purpose. As a matter of fact, Mr. Burnham admitted that he had 

often done this without the use of a safety belt or line, and he watched 

Mr. Johnson do precisely the same thing on the day of the accident, 

and did not caution him or insist that he wear a safety belt, even though 

one was in the kiln room. The fact that he did not think to provide 

him with a safety belt or.line is no excuse. 

With regard to the question of whether the failure to de-energize 

the hopper or vibrator contributed to the severity of the accident, 

petitioner's counsel candidly admitted that it was difficult to prove 

that this was in fact in case, and he did not believe that this particular 

element of the case was significant. Although recognizing the fact that 

the feeder vibrator was installed in conjunction with the hopper bin 

for a particular purpose, he nonetheless conceded that there is nothing 

in the record to conclusively establish that the fact that the vibrator 

was not shut down prior to the time Mr. Johnson entered it to try and 

dislodge the coal with a pole contributed to the gravity of the violation 

(Tr. 192-194). 

The official accident report states that the vibrator and discharge 

pan were attached to the bottom of the hopper, and it also contains 

the inspectors' conclusions that "failure to ce-energize and lock-out 

the discharge vibrator possibly contributed to the severity of the accident''. 

Inspector Wilkie described the feeder pan vibrator and identified 

it as depicted in photographic exhibits R-5 and P-12 (Tr. 76-77). He 

testified that the feeder pan vibrates and shakes the coal down into the 

pan, which in turn feeds it into the mill. He indicated that it was 

his understanding that the vibrator vibrates the walls of the hopper 

(Tr. 77). He also indicated that no one should enter a bin or hopper if 

the vibrator is on, and even if one were wearing a safety belt, that would 

not suffice for compliance if the vibrator is operating (Tr. 98). 

Respondent's witness Burnham testified that the vibrator feeder 

pan is not attached to the hopper and does not touch it. However, he 

did indicate that the hopper fits down inside the feeder pan and has 

about an inch of clearance all around the pan. The coal drops from the 

hopper into the feeder pan where it is vibrated into a coal hammer mill 

for crushing by means of a belt, and he denied that the vibrator vibrates 

the hopper bin (Tr. 163-164; 183). He also expressed the opinion that 

the fact that the vibrator was on or off would have made any difference 

as to the severity of the accident which occureed (Tr. 174-175). However, 

Mr. Burnham did state that as a general rule it would be advisable to 

lock out the vibrator before entering the hopper (Tr. 207-208). 

1973 
After careful consideration of the testimony and evidence adduced 

with r~gard to the failure to lock out the hopper, I cannot conclude 

that the respondent was grossly negligent, or that the failure to shut 

down the vibrator directly contributed to the severity of the violation. 

Mr. Burnham testified that the vibrator is not required to be de-energized 

when the air spike is used to dislodge coal from the hopper. Further, 

it seems obvious to me that when Mr. Burnham happened on the scene and 

saw Mr. Johnson engulfed hy the coal in the hopper, his first reaction 

was to attempt to free him, and I cannot conclude that his failure to 

immediately shut down the vibrator constituted a serious omission 

on his part. Further, absent any testimony from the inspectors as to 

whether or not the energized vibrator contributed to the gravity of the 

violation, an increased assessment based on speculation in this regard 

is simply not warranted. On the facts of this case, I believe that the 

cone-shaped configuration of the hopper, as well as normal gravity did 

more to prevent Mr. Johnson's ready escape from the hopper than did the 

fact that the vibrator was not shut down, particularly in light of the 

unrebutted testimony by Mr. Burnham that the vibrator is not afixed to 

the hopper and did not affect the severity of the violation. 

Penalty Assessment and Order 

On the basis of the foregoing findings and conclusions, and taking 

into account the requirements of section llO(i) of the Act, I conclude 

and find that a civil penalty in the amount of $7,500 is reasonable and 

appropriate for the citation which I have affirmed, and respondent IS 

ORDERED to pay the assessed penalty within thirty (30) days of the date 

of this decision and order. 

~~K!a~ Administrative Law Judge 

Distribution: 

Murray A. Battles, Esq., U.S. Department of Labor, Office of the Solicitor, 

1929 S. Ninth Ave., Birmingham, AL 35256 (Certified Mail) 

J. Ross Forman, III, Esq., 1600 Bank for Savings Bldg., Birmingham, AL 

35203 (Certified Mail) 

1974 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 • 2i 198) 

SECRETARY OF LABOR, Civil Penalty Proceeding 

MINE SAFETY Ai"\/D HEALTH 

ADMINISTRATION (HSHA), Docket No. LAKE 81-37 

Petitioner A.G. No. 11-01526-03014-I 

v. 

Leahy Mine 

AMAX COAL COHPANY, 

a division of AHAX, INC., 

Respondent 

Appearances: 

Before: 

DECISION 

Rafael Alvarez, Esq., Office of the Solicitor, 

U.S. Department of Labor, Chicago, Illinois, for 

Petitioner; 

R. Stephen Hansell, Esq., Amax i::oal Company, 

Indianapolis, Indiana, for Respondent. 

Administrative Law Judge Joseph B. Kennedy 

Statement and Findings 

This case is before me on cross-motions for suTIL.~ary decision and a joint 

stipulation of facts. The parties have waived the right to an evidentiary 

hearing. Respondent has also filed a motion to dismiss raising the same 

issues as the motion for summary decision. Respondent's motions will be 

considered together. 

The parties have agreed to the following relevant facts: 

On October 12, 1979, inspectors Joseph Wolfe and Ronald Zara of the }line 

Safety and Health Administration conducted an investigation at respondent's 

1975 
Leahy Mine. The inspection was due to the occurrence of an electrical burntype accident which occurred on October 11, 1979, at approximately 3 p.m. 

Prior to October 11, 1979, respondent experienced a continuing problem 

with the elevator motor circuit in the preparation plant, in that the elevator 

motor circuit would "trip" or "overheat" the breaker and as a result respondent would have to reset the circuit and the load in order to continue normal 

operations. 

On October 11, 1979, at approximately 3 p.m., Greg Morris, a qualified 

electrician and employee of respondent since 1968, was assigned to locate and 

repair the problem with the elevator motor circuit in the preparation plant. 

He had been aware of the problem and opened the circuit breaker panel cover. 

He then deenergized only the elevator motor circuit within the panel by 

switching the breaker to the "off" position. Other circuits within the panel 

were not deenergized. Mr. Morris proceeded to check each connection with his 

screwdriver to see if there were any loose connections that were causing the 

problem. 

In the course of checking the circuit, Mr. Morris used a screwdriver on 

an energized circuit above the open breaker, which caused an electrical arc. 

As· a result, Greg Morris was severely burned on the face, neck, and arms. 

He was hospitalized for approximately one (1) week and lost three (3) weeks 

of work. 

On October 12, 1979, respondent received Citation No. 0774168. It 

charged that a violation of 30 C.F.R. § 77.500 occurred in that the circuit 

197£) 
supplying three-phase, 480-volt AC power to the No. 2 elevator was not deenergized prior to work being performed on the circuit. Respondent abated the 

citation by instructing all electrical foremen and electricians not to work on 

energized electrical equipment and by posting the regulation in the bathhouse 

and preparation plant. 

The special assessment in Citation No. 0774168 was not received until 

September 25, 1980, approximately 11-1/2 months after the accident occurred. 

In 1980, respondent employed approximately 329 employees at the Leahy 

Mine. The daily production at the mine is approximately 7,434 tons of coal; 

annual production is 2,713,357 tons. Respondent operates nine surface mines 

and one deep mine employing 3,620 miners and 801 non-mine employees. Annual 

production of all of respondent's mines was 40,547,065 tons in 1980. Respondent had 35 violations assessed in the 24 months prior to the instant violation. Respondent does not contend that payment of the maximum penalty would 

impair its ability to continue in business. 

Conclusions 

A. 

1. The operator contends that it is contrary to law for MSHA to wait 

almost 1 year for the proposed assessment of a civil penalty. Section 105(a) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et~· 

(the Act), requires that the Secretary notify the operator by certified mail 

of the civil penalty proposed to be assessed "within a reasonable time." 

Respondent argues that as a matter of law, 361 days is not a reasonable time. 
Petitioner has argued that the necessity of assessing the penalty under 

30 C.F.R. Part 100 procedures caused the delay and that respondent has shown 

no prejudice resulting from this delay. 

Respondent has been unable to point to a single item of evidence or a 

single witness unavailable to it today that would have been available if the 

assessment had been proposed at an earlier date. Absent a showing of prejudice, I conclude that MSHA, as a matter of law, has not violated section 

105(a) of the Act. In this I agree with Secretary of Labor v. Heldenfels 

Brothers, Inc., 1 MSHC 2414, (April 8, 1980), rev. den., 2 FMSHRC 

(May 1980), aff'd. mem. 636 F.2d 312 (5th Cir. 1981), in which the judge found 

220 days was not an excessive amount of time for the assessment of a civil 

penalty, absent a showing of actual prejudice. 1_/ I find the assessment of 

the penalty in this case was not,~~, prejudicial to the operator's right 

to a fair hearing nor ultra vires as claimed by the operator. 

Respondent also asserts that taking a period of almost 1 year for a 

proposed assessment violates 30 C.F.R. § 100.5 and is not in accord with the 

purposes and policies of the Act. Section 100.S(b) states: "The Office of 

Assessments shall make an initial review of the citation or order and shall 

l/· USHA has at last clarified what it considers a reasonable time for the 

serving of an initial proposed assessment in a civil penalty case. See, MSHA 

Policy Memorandum No. 81-3A. Hy determination that 1 year for the assessment 

of a proposed penalty is not in violation of the Act is also in accord with 

the Commission's recent decision, Secretary of Labor v. Salt Lake County Road 

Department, 3 FHSHRC (July 28, 1981), in which the Commission found that 

a late filing of a proposal for a penalty under Commission Rule 27 is excused 

by the Secretary's claim that a lack of clerical personnel and a high volume 

of cases caused the delay. The Secretary in this case has pointed out that 

the need to comply with the requirements of Part 100 was the reason for the 

length of time taken by the Office of Assessments. 

1978 
immediately serve by regular mail a copy of the Results of the Initial 

Review." This section requires that the results of the initial review, when 

completed, must be served "il1ll!lediately." There is no evidence that the Office 

of Assessments failed to serve Respondent immediately once it had made its 

initial review. Therefore, Respondent's argument is without merit. Furthermore, although it is clear that prompt assessment of penalties promotes the 

safety of the miners and the policies of the Act, where there has been some 

delay but no showing of prejudice to the operator, the purposes of the Act 

would be completely defeated by a dismissal of the case. The Supreme Court 

has said in reference to the 1969 Act: 

[i]f a mine operator does not also face a monetary penalty for 

violations, he has little incentive to eliminate ·dangers until 

directed to do so by a mine inspector. The inspections may be 

as infrequent as four a year. A major objective of Congress 

was prevention of accidents and disasters; the deterrence provided by monetary sanctions is essential to that objective. 

National Independent Coal Operators' Association v. Kleppe, 423 U.S. 388 (1976). 

2. Under 30 C.F.R. § 100.4, the Mine Safety and Health Administration 

may issue a special assessment in cases of "fatalities and serious injuries 

* * *·" Where the victim spent 1 week in the hospital, lost 3 weeks of work, 

and could have been killed, it is futile to argue that the injury was not 

"serious." I note that respondent's own Supervisor's Report (R..'\-4) characterized the injury as "serious." It also was not improper for the Office of 

Assessments to make use of a Special Assessment without a finding of negligence. The Supreme Court has held that where a proposed assessment is subject 

to~ novo review, there is no requirement that the proposed assessment 

include findings of fact. Kleppe v. Delta Mining, Inc., 423 U.S. 403 (1976). 

1979 
Under section llO(i) of the Act, the administrative law judge assesses 

penalties de novo. Secretary of Labor v. Shamrock Coal Company, 1 MSHC 2069 

(June 7, 1979). He is in no way bound by the proposal of the Assessment 

Office nor by the procedures of Part 100. Secretary of Labor v. Co-op Mining 

Company, 1 MSHC·2356 (April 21, 1980). The respondent can present evidence as 

to each of the statutory criteria to the administrative law judge and such 

evidence will be given full consideration. Therefore, respondent has in no 

way been prejudiced by any deficiency in the proposed assessment. 

B. 

Respondent contends that no violation of 30 C.F.R. § 77.500 occurred 

because: 

[t]he portion of the panel on which work was to be done was, 

in fact, de-energized before work was done on the equipment. 

(Proposed Stipulation of Fact No. 16). The problem arose when 

the qualified electrician attempted to adjust a connection on a 

separate part of the panel which was a separate circuit, * * *· 

[Emphasis in original.] Respondent's Me1aorandum in Support of 

t1otion for Summary Decision. (R. Memo). 

The question before the court is whether the victim was performing work 

on an energized circuit at the time of the accident. It makes no difference 

if the victim had deenergized another circuit, if he also worked on a live 

circuit. Both the company's argument and the record as a whole support the 

conclusion that the victim deliberately performed some action on an energized 

circuit. 

MSHA Accident Report Form 7000-1, completed by Richard G. Stanfield (RX-3) 

states: "[a]s he [Mr. Morris] was tightening connections on the top side of 

1980 
the circuit breaker with the power on, the screwdriver came in contact with 

the side of the motor control center causing voltage to go phase to phase on 

top of the breaker. 11 The work activity listed on the fonn is 11 repairing 

electrical circuit breaker." 

The Amax Coal Company Supervisor's Report (RX-4) similarly described the events: 

He [Mr. Morris] turned the breaker off and checked the connections on the motor starter and heaters. Then he started to 

tighten the connections on the top side of the circuit breaker 

with the power on (480 volts). He tightened the first one 

when he started on the second one the crewdriver [sic] 

contected [sic] with the side of the motor control~* * 

As a contributing cause, the report lists 11 employee failed to de-energize 

circuit breaker before performing electrical maintenance. 11 

The program coordinator, William Melcher, reported that Greg Morris "said 

he knew better; that he knew there was no way he could lose control of that 

screwdriver - he had both hands on it11 (RX-7) (Emphasis in original). 

The statement signed by Mr. Earl Butler, foreman, (RX-8) reports that 

Mr. Morris checked each connection behind the [open] breaker to see if there 

was a loose connection. 11When he didn't find any problem, he did go to the 

line side of the breaker * * *· Greg told Homer Pits and Gary Degenhardt that 

he screwed up, he knew better than that, he just wasn't thinking at the time. 11 

Pete Rhodes investigated the accident for the company and prepared an 

interoffice memorandum (RX-9). He concluded: 

1981 
[n]o electrical work should have taken place on any part of the 

• circuit while it was energized. The electrician reportedly 

stated that he was trying to tighten the lug screws on the 

bottom part of the refuge elevator breaker and has mistakenly 

worked on the top. This I would consider as an unsafe act or 

error by a qualified electrician. 

From the· statements made by company officials and reportedly by Mr. Morris, 

I conclude that Mr. Morris intentionally attempted to repair part of a live 

electrical circuit rather than pull the main breaker. 

The company contends that Mr. Morris was testing or troubleshooting at 

the time of the a~cident, citing Secretary of Labor v. United States Steel 

Corporation, 2 FMSHRC 3220 (November 3, 1980). This contention is in direct 

contradiction to the evidence cited above. Mr. Morris was attempting to 

tighten the lug screws at the time he received the electrical shock. No evidence has been put forward to show that· any procedure he may have contemplated required that the electrical circuit be live so that he could test for 

an electrical problem. In United States Steel, supra, the judge found that 

the mechanic was merely attempting to loosen a bolt so that he could remove a 

guard and observe the oil hose on the continuous miner. If the mechanic had 

not been able to see the oil leak, the oil pump would have had to be restarted 

so that the oil leak could be located. In this case, Hr. Morris assumed that 

the problem with the elevator originated in the circuit box and was attempting 

to repair the circuit by tightening all the screws without deenergizing all 

the circuits. 

Even if Mr. Morris did not intend to work on the upper energized circuits, 

he was in violation of section 77.500. The MSHA Inspector's Manual states: 

1982 
"[w]hen work is performed in close physical p~oximity to exposed electrical 

circuits or parts, they shall be deenergized * * *· All circuits within an 

electrical enclosure shall be deenergized before work is performed within the 

enclosure unless. such energized circuits are guarded by suitable physical 

guards or adequate physical separation." The photographs and sketches provided by respondent (RX-9; RX-10) show that both the energized and deenergized 

circuits were located within the same circuit box. The very hazard presented 

by working on circuits located in close proximity to energized circuits, is 

the danger of contacting such circuits. I find that a violation of section 

77.500 did, in fact, occur. 

c. 

Respondent asserts that it should be relieved of liability under the 

Isolated Misconduct Defense. Although there is such a defense under the 

general duty clause of the Occupational Safety and Health Act, the Mine Act 

is a strict liability statute and the operator is liable for violations of 

its agents and employees under the doctrines of respondeat superior and 

vicarious liability. Secretary of Labor v. Ace Drilling Coal Co., Inc., 1 

FMSHRC 2357 (April 24, 1980) aff'd mem. 642 F.2d 440 (3rd Cir. 1981); 

Secretary of Labor v. Warner, 1 MSHC 2446 (April 28, 1980); U.S. Steel 

Corporation v. Secretary of Labor, 1 MSHC 2151 (September 17, 1979); 

Secretary of Labor v. Nacco Mining Company, 3 FMSHRC 848 (April 29, 1981); 

cf. Houston Systems Manufacturing Company, Inc., 1981 OSHD, CCR, , 23,024. 

The claim of employee misconduct, which the operator has failed to 

support, can be considered a mitigating circumstance under the negligence 

1983 
criteria of section llO(i) of the Act. "Only conduct that is willfully reekless, obviously inexplicable, demented or suicidal can reduce imputable conduct amounting to gross negligence to that of slight negligence." Warner, 

supra; accord, Marshfield Sand and Gravel, Irie., 1 MSHC 2475 (June 10, 1980). 

The company admits that Mr. Morris's conduct was not willfully reckless, 

demented or suicidal (R. Memo at 17). I must agree. This is not a case in 

which a supervisor or foreman took it upon himself to perform an inexplicable 

action which caused danger only to himself. Here an ordinary employee subject 

to the oversight and direction of others performed a task in a manner which 

assisted the company in maintaining production. I cannot conclude that the 

miner was unaffected by the knowledge that had he completely deenergized the 

circuit box by pulling the main breaker 4 feet away, he would have shut down 

some 26 other systems, including centrifuges, oil pumps, conveyors, breakers, 

feeders, vibrators, screens, crushers, blowers, etc. 2/ 

Where there is independent negligence on the part of the company, the 

unexpected action of its employee will not relieve the company of liability. 

Consolidation Coal Company v. Secretary of Labor, 1 MSHC 1742 (January 10, 

1979). The company has pointed out that Mr. Morris violated a company rule 

when he worked on an energized circuit, that he had received the required 

electrical refresher training, and that he was a qualified electrician who 

could work without supervision. I do not find this convincing evidence of no 

negligence on the part of the company in the face of other evidence in the 

2/ A finding of negligence on the part of the operator is not meant to imply 

that miners should be immune from liability under section llO(c) of the Act 

for their own negligence. 

19811 
record. Miners respond to the general attitude of the company toward safety. 

Apparently, the company did not discipline Mr. Morris for his disobedience. 

There is no evidence that anyone has ever been disciplined for disobeying 

this or any other company safety rule. The company, on the contrary, argues 

that discipline severe enough to enforce compliance is not available (R. Memo 

at 12). Moreover, the company, after pointing out the number of systems 

involved, has argued that the regulation at issue cannot require deenergizing 

all power leading to the circuit or power equipment in all cases (R. Memo at 

15). \lhere it is necessary to shut down part of a plant in order to work on 

a circuit safely, this is exactly what the regulation and common sense 

require. I find that the miner could not have been unaware of this attitude \ 

on the part of the company. It is entirely understandable and foreseeable 

that an employee would attempt to avoid causing trouble by a dangerous short 

cut of the this kind where violation of the law and company rules never 

result in discipline. I find, therefore, that Mr. Morris' actions were not 

so aberrational as to relieve the company of responsibility for his gross 

negligence or of its own failure to enforce compliance with the safety 

standard. 

Accordingly, the Secretary's motion for summary decision is GRANTED and 

the Respondent's motion to dismiss and motion for summary decision is DENIED. 

It is ORDERED that Respondent pay a penalty of $1,500 on or before Tuesday, 

September 1, 1981, and that subject to payment the captioned matter be 

DISMISSED. 

1985 
Distribution: 

Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, 

Federal Office Building, 230 South Dearborn Street, 8th Floor, 

Chicago, IL 60604 

R. Stephen Hansell, Esq., Amax Coal Company, 105 South Meridian Street, 

Indianapolis, IN 46225 

1986 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

MARK SEGEDI, 

On behalf of: 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

Application for Review 

of Discrimination 

Docket No. PENN 80-273-D 

S. J. EZARIK, et al., 

Complainants Somerset No. 60 Mine 

v. 

BETHLEHEM MINES CORPORATION, 

Respondent 

FINAL ORDER AS TO COSTS AND EXPENSES 

On March 31, 1981, a decision was issued in the above-captioned 

proceeding which contained an order which stated as follows in paragraph 

G: 

G. IT IS FURTHER ORDERED that Respondent reimburse 

the Complainants identified in Part B of this order for 

all costs and expenses, including attorney's fees, 

reasonably incurred in connection with this proceeding. 

Counsel for the parties are directed to confer and 

attempt to agree as to the amount of such costs and 

expenses. If they are unable to agree, the Complainants 

identified in Part B of this order will, within 60 days 

from the date of this decision, file an itemized statement 

of costs and expenses. Thereafter the Administr~tive Law 

Judge will, after affording the parties an opportunity to 

be heard, determine the amount of reimbursable costs and 

expenses to be recovered by the Complainants identified 

in Part B of this order. For this purpose, I retain 

jurisdiction of this proceeding. 

On July 10, 1981, a stipulation, signed by the Complainants' and the 

Respondent's attorneys, was filed which provides as follows: 

In accordance with the order issued by Administrative 

Law Judge John F. Cook, dated June 3, 1981, and pursuant 

to Section G of Judge Cook's order dated March 31, 1981, 

counsel for Complainant and Respondent stipulate that 

Respondent has reimbursed the Complainants for all costs 

and expenses, including attorney's fees ordered by the 

Judge. 

1987 
Accordingly, IT IS ORDERED that the above quoted action by Respondent 

in reimbursing the Complainants for all costs and expenses, including 

attorneys fees, constitutes fulfillment of paragraph G of the order and 

this order constitutes the final disposition of the issues pertaining to 

the assessment of costs and expenses in this case. 

Cook 

··~ 

Distribution: 

Kenneth J. Yablonski, Esq., Yablonski, King, Costello & Leckie, 500 

Washington Trust Building, Washington, PA 15301 (Certified Mail) 

Thomas W. Ehrke, Esq., Senior Industrial Relations Attorney-Coal, 

Bethlehem Mines Corporation, Room 1871, Martin Tower, Bethlehem, PA 18016 

(Certified Mail) 

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

Street, N.W., Washington, D.C. 20005 (Certified Mail) 

I 

I 

" 

1988 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER.COLORADO 80204 

) 

SECRETARY OF LABOR, MINE SAFETY AND ) 

HEALTH ADMINISTRATION (MSHA), ) 

) 

Petitioner, ) 

) 

v. ) 

) 

C F & I STEEL CORPORATION, ) 

) 

Respondent. ) 

~~~~~~~~~~~~~~~~~) 

CIVIL PENALTY PROCEEDING 

DOCKET NO. WEST 79-239 

MSHA CASE NO. 05-02820-03011 V 

MINE: Maxwell 

DECISION AND ORDER 

Appearances: 

James H. Barkley, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

For the Petitioner 

Phillip D. Barber, Esq. 

Welborn, Dufford, Cook & Brown 

1100 United Bank Center 

Denver, Colorado 80290 

For the Respondent 

Before: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

This proceeding arose through initiation of an enforcement action 

brought pursuant to section 105 of the Federal Mine Safety anp Health Act 

of 1977, 30 U.S.C. § 801 et seq. 0978) [hereinafter cited as' "the 1977 

Act" or "the Act"]. The Secretary of Labor, Mine Safety and Health 

Administration [hereinafter "the Secretary"], brought this action against 

C F & I Steel Corporation [hereinafter "C F & 111 ] alleging one violation of 

the Act. The Secretary seeks an order assessing a civil monetary penalty 

against C F & I for its alleged violation of the Act. 

1989 
FINDINGS OF FACT 

1. C F & I is the operator of an underground coal mine located near 

Weston, Colorado, known as the Maxwell Mine. 

2. Products of the Maxwell Mine enter or affect interstate connnerce. 

3. On March 29, 1979, a duly authorized representative of the 

Secretary conducted an inspection of development Unit No. 2 of the Maxwell 

Mine pursuant to section 103(g) of the Act. 

4. In the last crosscut of that unit, the MSHA inspector observed a 

complete cycle of roof bolting utilizing resin grouted roof bolts. The 

inspector observed that the roof bolter never attempted to wait a minimum 

of· ten minutes before torque-testing the installed rod as required, by the 

mine's roof control plan.!/ Subsequent investigation revealed that 

the roof bolting crew was not provided with a torque wrench and that the 

roof bolting machine had a broken set of pressure gagues on its right side. 

5. Order of Withdrawal No. 387995 ]j was issued to C F & I by the 

MSHA inspector for its alleged violation of 30 C.F.R. § 75.203. 1/ 

Additionally, the order contai~ed findings by the inspector pursuant to 

section 104(d)(l) of the Act that the violation was caused by an unwarrantable failure of the operator to comply with a mandatory safety standard. 

1/ Paragraph 9 of the roof control plan then in effect at the Maxwell Mine 

reads: 

"For test purposes, the first resin grouted rod installed in each cycle in 

each working place, after a minimum curing time of 10 minutes, shall be 

checked with a torque wrench or the bolter after installing the first line 

of permanent support and prior to removing any temporary supports. The 

torque applied should be 150 foot-pounds. Should the rod turn in the hole, 

a second rod shall be tested in the same manner. If this rod also turns, 

resin installation shall be discontinued until reasons for failure of the 

resin is determined." 

2/ The condition or practice cited alleges: 

"A torque wrench socket was not provided for the torque wrench for testing 

the installed resin grouted rods. The gauges for the torque value on the 

Long Airdox Roof Bolter Serial No. 52-1086 were also broken. So means was 

not available for testing installed bolts in Unit No. 2." 

3/ Roof bolt tests. [STATUTORY PROVISIONS] When installation of roof bolts 

is permitted, such roof bolts shall be tested in accordance with the 

approved roof control plan. 

1990 
6. At the time of this inspection, C F & I was relying upon prior 

statements made by an MSHA representative specializing· in roof control that 

resin grouted roof bolts should not even be torqued because torquing the 

bolt increases the possibility that the bond between the roof bolt ~nd the 

consolidated epoxy resin may be broken. 

7. The requirement regarding the torque-testing of resin grouted roof 

bolts was subsequently deleted from the mine's roof control plan. 

8. Payment of the proposed penalty will not impair the ability of 

C F & I to continue in business. 

ISSUES 

1. Did Respondent fail to test the roof bolts in Unit No. 2 in 

accordance with the mine's approved roof control plan? 

2. If so, was the violation caused by an unwarrantable failure of the 

Respondent to comply with the mandatory saf~ty standard? 

DISCUSSION . 

The condition or practice cited was in fact a technical violation of 

the mandatory safety standard contained in 30 C.F.R. § 75.203. The Maxwell 

Mine roof control plan does permit the installation of roof bolts, and as 

such, they were to be tested in accordance with the approved plan. That 

plan called for test torquing with a torque wrench or roof bolter "after a 

minimum curing time of 10 minutes." The facts as found indicate this was 

not done. 

CF & I raises the defense that they were excused from the plan's 

torquing requirements by their justifiable reliance on the representations 

of MSHA officials that torquing resin grouted roof bolts was 

counterproductive and, indeed, dangerous. From a technical standpoint, 

this may be true. However, as a matter of law, the requirements of the 

standard are enforceable. In Secretary of Labor, Mine Safety and Health 

Administration (MSHA), v. King Knob Coal Company, Inc., 3 FMSHRC 1417 

(1981), the Review Commission held that a safety standard controls over an 

interpretation of that standard set forth in MSHA's interim inspector's 

manual. I find the situation presented here is analogous to~the cited case 

in that the inspector's representations were merely informal and nonbinding. Relying on the Connnission's reasoning, I find that the requirements of the standard are binding and reject the defense. 

1991 
C F & I raises an additional defense that they were excused from the 

plan's torquing requirements because compliance with the mandates of the 

standard posed·a "greater hazard" to the miners than did noncompliance. As 

authority, C F & I cites Olga Coal Company, v. Secretary of Labor, Mine 

Safety and Health Administration (MSHA), and United Mine Workers of 

America, 1 FMSHRC 1580 (1979), and a line of cases interpreting the narrow 

"greater hazard" defense .recognized under the Occupatio~al Safety and 

Health Act of 1970, 29 U.S.C. § 651 et seq. However, under this Act, the 

appropriate channel to follow .to avoid such a conflict would have been to 

petition the Secretary for a modification of application of the standard 

pursuant to section lOl(c), 30 U.S.C. § 8ll(c). In Secretary of Labor, 

Mine Safety and Health Administration (MSHA), v. Penn Allegh Coal Company, 

Inc., 3 FMSHRC 1392 (1981), the Review Commission held that the defense of 

diminuation of safety is improperly raised in an enforcement proceeding and 

should properly be pursued in the context of the special standard 

modification procedures provided for in the Act. C F & I did not avail 

itself of that avenue of potential relief and to consider the defense in 

this forum would be inappropriate. Consequently, the defense is rejected 

and a violation of the Act is found to have occurred. 

On the issue of whether the violation was caused by an unwarrantable 

failure on the part of C F & I to comply with the mandatory safety 

standard, I find for the Respondent. The evidence establishes that a 

significant degree of confusion ensued from the statements of the MSHA 

inspector regarding the effects of torquing resin grouted roof bolts once 

they had set. I cone lude that it was not unreasonable for C F & I to be 

somewhat confused by these represent at ions. On this basis, the finding of 

unwarrantable failure to comply should be vacated. 

In determining an appropriate civil penalty for the violation., I take 

note of the fact that C F & I's roof bolters did utilize certain procedures 

in setting the roof bolts which allowed them to determine the integrity of 

the epoxy resin during the bolting cycle. By gauging the resistance of the 

bolt in relation to the constant force e:iterted by t:'he drill, the installer 

was able to determine whether the resin had set. This procedure provided 

essentially equivalent protection to that insured by the plan. The fact 

that the torquing requirement was eventually dropped from the Maxwell 

Mine's roof control plan indicates the reduced degree of negligence and 

gravity associated with the violation. 

CONCLUSIONS OF LAW 

1. The undersigned Administrative Law Judge has jurisdiction over the 

parties and subject matter of this proceeding. 

2. Petitioner proved that Respondent violated the Act as alleged in 

Order of Withdrawal No. 387995, but failed to meet the burden of proof that 

the violation of the Act was occasioned by an unwarranted failure of the 

Respondent to comply with its provisions. 

1992 
3. Order of Withdrawal No. 387995 should therefore be affirmed and 

the finding of unwarrantable failure vacated. 

ORDER 

Based upon the foregoing findings of fact and conclusions of law, it 

1s ORDERED that Order of Withdrawal No. 387995 is AFFIRMED and that the 

finding of unwarrantable failure is VACATED. It is FURTHER ORDERED that 

Respondent shall pay a civil penalty in the amount of $100.00 for its 

violation of the Act within 30 days of the date of this Decision. 

Distribution: 

James H. Barkley, Esq. 

Office of the Solicitor 

United States Department of Labor 

1585 Federal Building 

1961 Stout Street 

Denver, Colorado 80294 

Phillip D. Barber, Esq. 

Welborn, Dufford, Cook & Brown 

1100 United Bank Center 

Denver, Colorado 80290 

1993 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

333 W. COLFAX AVENUE, SUITE 400 

DENVER, COLORADO 80204 

FRANKLIN D. KAESTNER, 

Complainant, 

v. 

COLORADO WESTMORELAND INC., 

Respondent. 

) - 24 1911 ) 

) COMPLAINT OF DISCHARGE, 

) DISCRIMINATION OR INTERFERENCE 

) 

) DOCKET NO. WEST 81-24-D 

) 

) MSHA CASE NO. DENV CD 80-28 

) 

) MINE: Orchard Valley 

) ~~~~~~~~~~~~~~~~~~~-

Appearances: 

Franklin D. Kaestner 

P.O. Box 805 

Paonia, Colorado 81428 

Pro Se 

Rosemary M. Collyer, Esq. 

Sherman & Howard 

2900 First of Denver Plaza 

633 Seventeenth Street 

Denver, Colorado 80202 

DECISION 

For the Respondent 

Before: Judge Jon D. Boltz 

STATEMENT OF THE CASE 

On October 20, 1980, the complainant, pro se, filed a complaint of 

discrimination against the respondent based--OUsection lOS(c) of the 

Federal Mine Safety and Health Act of 1977 [hereinafter "the Act"]. The 

complainant alleged that his employment with the respondent was terminated 

on July 1, 1980, since he had developed bronchitis and lung problems after 

working in respondent's underground coal mine. Complainant alleged that he 

"talked to the management at the mine about a less dusty job,"] but was told 

that management could not "create a job for me away from the dust." 

Complainant alleges that when he was hired by respondent and given a 

complete physical examination he was "given a clean bill of health," but 

that he [later] received a letter from the Department of Health, Education 

and Welfare statingthat "traces" of pneumoconiosis were found in his lungs. 

Complainant also alleges that the respondent had other jobs he could 

perform on the outside of the mine or in the shops. 

1994 
Respondent denies that it in any way discharged, discriminated or 

interferred with the rights of the complainant and alleges that complainant 

was terminated because he refused to work underground and that there was no 

position available that would have removed complainant totally from underground work. 

At the completion of complainant's case, respondent moved to dismiss 

the complaint on the basis that complainant had not shown that he had 

engaged in any protected activities whatsoever, "much less adverse actions 

taken as a result of that protective activity." Ruling on the motion was 

reserved until respondent's evidence was presented. 

ISSUE 

Whether or not complainant's complaint of discrimination should be 

dismissed for failure of the complainant to establish a prima facie case. 

More specifically, the question is whether or not the complainant presented 

evidence which standing alone and unrebutted shows that he is entitled to 

relief. 

FINDINGS OF FACT 

Based on evidence introduced during complainant's case, I make the 

following findings of fact: 

1. The complainant was hired by respondent to work at its underground 

coal mine as a general mine worker, conunencing April 10, 1978. 

2. Complainant resigned his employment with the respondent July 20, 

1979, and was rehired August 20, 1979, with subsequent duties as a section 

mechanic. 

3. Commencing approximately October 1979, complainant began to have 

severe coughing attacks underground and had difficulty breathing. 

Complainant attributed the health problems to a lung irritation due to 

dust. 

4. A doctor consulted by the complainant reconunended that complainant 

seek a less dusty job because his current job would create lung problems in 

the future. 

5. On June 27, 1980, and just prior to going underground to work his 

shift, complainant told his supervisor that he did not believe he could 

take the dust any longer. 

6. On July 1, 1980, the complainant was asked by the respondent to 

resign because respondent could not create a less dusty job for him. When 

complainant refused to resign, he was terminated. 

7. Approximately a week or ten days after complainant was terminated, 

respondent attempted to obtain employment for the complainant with another 

mining company, but complainant would not take the employment because he 

"thought if one coal mine was going to kill me in ten years, ••• :mother 

one wi 11 too." 

1995 
8. Complainant had been notified in a letter from the Department of 

Health, Education and Welfare dated February 9, 1979, that his chest x-ray 

showed some evidence of pneunociosis, although breathing tests were normal. 

This letter was not given by complainant to respondent until July 30, 1980, 

approximately 30 days after complainant's employment had been terminated. 

DISCUSSION 

The activity which is protected is set forth in Section lOS(c)(l) of 

the Act. It reads in part as follows: 

No person shall discharge .•. any miner •.. because 

such miner •.• has filed or made a complaint under .•. this Act, 

including .•. notifying the operator •.• of an alleged 

danger or safety or health violation •.• , or because such 

miner ••. is the subject of medical evaluations and potential 

transfer under a standard published pursuant to section 101 

or because such miner ••. has ••. caused to be instituted ••• 

any proceeding under this Act .•. or because of the exercise by such miner ..• of any statutory right afforded by 

this Act. 

In order for the complainant to establish a prima facie case showing a 

violation of section lOS(c)( 1), it is necessary for him to introduce 

evidence that (1) he engaged in a protected activity, and (2) that his 

termination was motivated in any part by the protected activity. Secretary 

of Labor on behalf of David Pasula v. Consolidation Coal Company, 2 FMSHRC 

2786 (1980). 

The complainant testified that he thought the Act was violated because 

of his termination "and I wasn't even given the opportunity to continue 

working underground. It wasn't safety violations. I thought my working 

rights were violated by terminating me because of the health conditions, 

and without even being allowed to continue working underground if I had 

wanted to." 

The complainant introduced no evidence of making any complaint to the 

respondent in regard to an alleged danger or safety or health violation. 

Indeed, there was no evidence of any safety or health violation in the 

mine. There was no evidence that the complainant was entitled to any 

option of transferring from his position to another position in any area of 

the mine pursuant to applicable provisions of the Act. 

During the course of his employment, the complainant had 1 worked a 

total of approximately two years and one month underground. Complainant 

believed that dust encountered in the mine contributed to his bronchitis 

and caused coughing spells. Under these circumstances he wanted a less 

dusty job and informed his supervisor that he did not think he could take 

it (working underground) any longer. The respondent terminated the 

complainant because respondent had no other less dusty jobs in the mine 

and, in any event, complainant was not entitled to the option of 

transferring pursuant to any rights accrued under the Act. 

1996 
Complaina_nt has, thus, failed to show that he engaged in any protected 

activity and has ~herefore failed to establish one of the essential 

ingredients of the prima facie case. 

ORDER 

Respondent's motion, heretofore reserved, is granted and the 

complaint is dismissed. 

Distribution: 

Rosemary M Collyer, Esq. 

Sherman & Howard 

2900 First of Denver Plaza 

633 Seventeenth Street 

Denver, Colorado 80202 

Franklin D. Kaestner 

P.O. Box 805 

Paonia, Colorado 81428 

' .· 1Administrative L'aw Judge v 

1997 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

MATHIES COAL COMPANY, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION .(MSHA), 

Respondent 

SECRETARY OF LABOR, 

HINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MATHIES COAL COI:1PANY, 

Respondent 

DECISION 

Notice of Contest 

Docket No. PENN 80-260-R 

Citation No. 839028; 5/16/80 

Mathies Mine 

Civil Penalty Proceeding 

Docket No. PENN 81-35 

A.O. No. 36-00963-03120F 

Mathies Mine 

Appearances: Barbara Krause Kaufmann, Esq., Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, 

for MSHA; 

Before: 

Jerry F. Palmer, Esq., Pittsburgh, Pennsylvania, for 

Mathies Coal Company. 

Judge Merlin 

This consolidated proceeding is a notice of contest filed by the 

operator challenging a section 104(a) citation and a petition for the 

assessment of a civil penalty based upon the alleged violation set forth 

in the citation. 

A hearing was held on July 22, 1981 at which the parties represented 

by counsel appeared and pre'sented documentary and testimentary evidence. 

At the hearing the parties agreed to the following stipulations 

(Tr. 5-6): 

(1) The operator is the ovmer and operator of the subject mine. 

(2) The operator and the mine are subject to the jurisdiction of 

the 1977 Act. 

(3) I have jurisdictron of these cases. 

1998 
(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) Imposition of a penalty will not affect the operator's ability 

to continue in business. 

(7) The alleged violation was abated in good faith. 

(8) The history of previous violations is average. 

(9) The operator's size is large. 

(10) The witnesses who testify are accepted generally as experts in 

coal mine health and safety. 

At the conclusion of the taking of evidence counsel waived the 

filing of written briefs and agreed instead to make oral argument 

(Tr. 152). I advised the parties that I would issue a decision after 

receipt of the administrative transcript (Tr. 152). 

Discussion and Analysis of the Evidence 

Findings and Conclusions 

This consolidated proceeding arises from an alleged violation of 

30 C.F.R. 75.1722(a) which provides as follows: 

Gears, sprockets; chains; drive, head, tail, and take-up 

pulleys; flywheels; couplings, shafts; saw blades; fan inlets; and 

similar exposed moving machine parts which may be contacted by 

persons, and which may cause injury to persons shall be guarded. 

The condition or practice which is set forth in the contested citation 

and which is the basis for the penalty petition is as follows: 

It was revealed during a fatal accident investigation that 

the automatic elevator and associated parts at the Gamble Shaft 

Portal was not guarded adequately to keep persons from coming in 

contact with the elevator as it was moving in the shaft along the 

stairways at the first and second landings. 

The testimony at the hearing set forth the physical circumstances 

at length. Briefly they are as follows: At the Gamble Shaft Portal an 

elevator transports men between the surface and the underground. The 

elevator has a device called a retiring cam which is attached to and 

protrudes out from one side of the elevator. The retiring cam does not 

move independently of the elevator but rather moves up and down with it. 

When the elevator reaches the top or bottom, the retiring cam hits a 

1999 
switch on the side of the shaft; this contact causes the elevator doors 

to open. Next to the elevator shaft is a stairwell also going from the 

surface to the underground. The stairwell is 273 feet deep with 27 landings 

and eleven steps between each landing. At the top landing there is a 

door to the outside at the surface and at the bottom landing there is a 

door to the bottom of the mine. There are no,other doors out of the 

stairwell. From approximately 24" }/ above the second (i.e. next to 

the top) landing down to the bottom of the mine corrugated metal separates 

the elevator shaft from the stairwell. Where the corrugated metal ends 

above the secqnd landing, there is an "I" beam separating the elevator 

shaft from the stairwell (MSHA Ex. 2). When the elevator passes by 

there is a space of 9 inches between the "I" beam and the elevator. In 

addition, on one side of the elevator shaft beginning at the level of 

the I beam and extending upwards there is a metal grating. There is a 

horizontal space of 26" between the grating and the elevator guide and 

there is a perpendicular space of 54" between the I beam and the top 

landing (MSHA Exh. 2). It is this area, 26" x 54", which the Solicitor 

contends was unprotected and required guarding. 

The grating is significant for another reason. It is only about 2-

1/2 feet below ground level so that an individual walking along the "I" 

beam to the outer edge of the elevator shaft could push out the grating, 

step out and reach the surface. This is just what the decedent was 

doing and how he was killed. The undisputed evidence shows that the 

decedent was trying to sneak out of work early. The decedent had climbed 

the stairs in the stairwell to the top, opened the door at the top 

landing to exit from the stairwell, and stepped qutside onto the surface. 

However, he then saw his foreman. In an attempt not to be seen by the 

foreman, the decedent went back through the door onto the first landing 

and then went down the steps until he reached the "I" beam which as 

already noted separates the elevator shaft from the stairwell. He 

stepped onto the "I" beam going towards the grating with the apparent 

intent to push the grating out and climb up the 2-1/2 feet to the surface 

without being seen. Unfortunately, when the decedent was on the "I" beam 

the elevator began to descend and the decendents' tool pouch or belt was 

caught by the elevator's retiring earn. The decedent fell down the shaft 

and was killed. 

The first and principal issue to be resolved is the existence of a 

violation. 30 C.F.R. 75.1722(a) covers certain specified machine 

components and "similar exposed moving machine parts." There are some 

differences over the measurements involved but there is agreement between 

the parties that the elevator was exposed for most of the area in question 

above the "I" beam. The operator's principal defense is that the elevator 

is not a machine "part" but rather an entire machine and therefore, not 

l./ According to the operator the corrugated metal extended 32" above 

the second landing, but as appears infra, this makes no difference in 

the result. 

2000 
within the standard. I cannot accept this argument because of testimony 

given by the operator's own witness, a metallurgical and environmental 

engineer whose job it is to analyze failures of machines and machine 

components. The engineer made clear that the men were in fact transported 

by the elevator cage_ and that the entire machine in question was composed 

not only of the cage but also of pulleys and motors which supplied power 

to the cage enabling the cage to move. He stated the pulleys were above 

the cage and that the motor also was in another location. It is apparent, 

therefore, that what was cited b.y the inspector was the elev8:tor cage. 

I find this is sufficiently clear from the citation and was known to the 

operator, who was aware of all the circumstances. I conclude that the 

cage together with its retiring cam constituted moving parts of a 

machine made up of the cage, retiring cam and other units described by 

the engineer. 

I have not overlooked the engineer's subsequent testimony that the 

machine parts specifically identified in 75.1722(a) transmit power from 

one source to another whereas he stated this is not true of the elevator 

cage which transports men. I received the indelible impression that 

this purported distinction was offered in recognition by the witness of 

the fact that he had conclusively identified the cage as a machine 

component rather than a total machine. Even assuming the engineer's 

differentiation based upon transferring energy was well-taken and overlooking the fact that the matter was hardly touched upon by either 

counsel at the hearing, I reject this as too fine a distinction for 

present purposes. The Act is to be liberally construed. The operator 

has offered no basis in the law or legislative history for me to so 

constrict the terms in question. In the absence of anything to the 

contrary and in light of the Act's avowed purposes I believe "similar" 

refers to the exposure to moving machine parts. Accordingly, I conclude 

that the cage with the retiring cam itself· falls within the standard. 

Insofar as the cam is concerned, it moves and is exposed. Nothing in 

the standard indicates the moving part has to move independently of 

everything else. 

The next issue is whether the exposed elevator cage and its retiring 

cam "may be contacted" by persons. The principal definition of "may" is 

"to be physically capable." Webster's New World Dictionary (1972); Funk 

& Wagnalls Standard College Dictionary (1966); Random House American 

College Dictionary (1970). The fatality in this case occurred because 

of the wantonly reckless and irresponsible behavior of the decedent in 

attempting to sneak out of work early without his supervisor's knowledge. 

However, the record makes clear that the entire stairwell was required 

to be examined weekly. Moreover, it could be used to enter and leave 

the mine if, for example, the elevator was not working. As already 

noted, there is some difference between the government and the operator 

over the exact dimensions of the exposed space but this is not determinative because regardless of whose measurements are accepted, it is clear 

that an individual while performing his regular routine work duties in a 

prudent manner might lose his fboting and trip and fall on the second 

2001 
landing thereby putting part of his body into the unguarded space and 

coming into contact with the elevator and its retiring cam if the 

elevator were descending at that time. Also, the arm of an individual 

descending the stairs from the top to the second landing could come in 

contact with a descending elevator cage. Admittedly, these events would 

have to occur simultaneously for the hazard to exist. But the history 

of mine disasters has been the history of unfortunate coincidences of 

unlikely factors. I cannot incorporate into this mandatory standard 

some sort of requirement for an indeterminate degree of probability. 

Such a requirement woul_d be wholly subjective and open-ended and if 

pushed to its logical extreme would vitiate the standard itself. Moreover, I have no authority to read into the standard something which is 

not there. 

In light of the foregoing I conclude a violation existed. 

Gravity must now be considered. A fatality occurred. However this 

fatality cannot be divorced from the wantonly reckless and irresponsible 

actions of the decedent. The Solicitor expressly admitted that the 

operator should not be held accountable for the decedent's behavior. I 

believe the proper way to assess gravity is to determine it in terms of 

an individual discharging his work-related duties in a reasonably 

prudent fashion. As already noted, such an individual could trip and 

fall coming into contact with the descending elevator. A serious injury 

could result. However, as has also been discussed, the occurrence of 

such an injury depends upon a coming together of many factors; the likelihood of which is remote. Therefore, this mitigates gravity. I conclude 

the violation was serious. 

Many of the foregoing circumstances, of course, affect negligence. 

I have previously held that a miner's aberrant behavior which could not 

be foreseen or prevented by the operator and which harmed only himself 

cannot be charged against the operator. Nacco Mining Compan_y, Dec. 17, 

1976 (Docket No'IJlllS1'6x99-P). This decision was upheld by the Commission 

in Secretary of Labor v. Nacco Mining Company, 4 FMSHRC 848 dated 

April 29, 1981. See also my decision in Marshfield Sand and Gravel, 

June 10, 1980 (YORK 79-68-M). The aberrational conduct of the decedent 

in this case went far beyond that considered in the cited cases. The 

operator is not to be held responsible for what the decedent did here. 

Nevertheless I find the operator was guilty of ordinary negligence in 

not guarding the area in question. The fact that this type of space had 

not been cited previously for a guarding violation has been taken into 

account but is not a basis for a finding of no negligence. 

As set forth above, the remaining factors affecting the amount of 

the penalty have been stipulated to by the parties. 

After taking all the relevant factors into account a penalty of 

$750 is assessed. 

2002 
ORDER 

The operator is ORDERED to pay $750 within 30 days of the date of 

this decision. 

The operator's Notice of DISMISSED. 

Paul Merlin 

Assistant Chief Administrative Law Judge 

Distribution: 

Barbara Krause Kaufmann, Esq., Office of the Solicitor, U.S. Department 

of Labor, Rm. 14480-Gateway Bldg., 3535 Market St., Philadelphia, 

PA 19104 (Certified Mail) 

Jerry Palmer, Esq., Consolidation Coal Company, 1800 Washington 

Road, Pittsburgh, PA 15241 (Certified Mail) 

2003 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUS 27 1981 

LOCAL UNION 1374, DISTRICT 28, 

UNITED MINE WORKERS OF AMERICA 

(UMWA), 

Complaint for Compensation 

Complainant 

v. 

BEATRICE POCAHONTAS COMPANY, 

Respondent 

Docket No. VA 80-167-C 

Order No. 700382 

June 18, 1980 

Beatrice Mine 

SUMMARY DECISION 

Counsel for the complainant in the above-entitled proceeding filed on 

April 17, 1981, a motion for summary decision pursuant to 29 C.F.R. § 2700.64. 

The motion was accompanied by a joint stipulation of facts signed by counsel 

for both complainant and respondent. Since no factual issues are in dispute, 

I find that the motion for summary decision should be granted. 

The issues to be decided in this case will be based on the parties' 

stipulation of facts set forth below: 

1. The Beatrice Mine is owned and operated by the Beatrice 

Pocahontas Company. 

2. The Beatrice Mine is subject to the jurisdiction of the 

Federal Hine Safety and Health Act of 1977 (the "Act"). 

3. Representatives of the International Union, United Hine 

Workers of America ("UMWA"), are authorized representatives for the 

members of Local Union 1374, employed by the Beatrice Mine for purposes 

of this proceeding. 

4. The administrative law judge has jurisdiction over these 

proceedings. 

5. At times relevant herein Beatrice Pocahontas Company, at its 

Beatrice Mine, and Local Union 1374, UMWA, were bound by the terms of 

the National Bituminous Coal Wage Agreement of 1978 (the "Contract"). 

6. On June 18, 1980, at 6:15 p.m., Ronald Pennington, a duly 

authorized 11ine Safety and Health Administration ("MSHA") inspector, 

issued Withdrawal Order No. 700382 to Beatrice Pocahontas Company at 

its Beatrice Mine pursuant to Section 107 (a) of the Act. 

7. Order No. 700382 was not terminated until 10:30 a.rn. on 

July 10, 1980. 

8. The aforesaid order was issued due to the accumulation of 

explosive concentrations of methane gas in the bleeder entries of the 

No. 3 longwall area of the Beatrice Mine. 

2004 
Issue 

9. No violation of any mandatory health and safety standard 

promulgated under the Act was alleged in the order. 

10. The miners working on the 4:01-p.m.-to-12:00-a.m. shift 

during which the order was issued were paid for the balance of their 

shift in accordance with section 111 of the Act. 

11. T~e miners normally scheduled to work the 12:01-a.m.-to8~00-a.m. shift on June 19, 1980, reported for work. Respondent 

requested that they remain on the surface until it was determined 

whether the order would be terminated. After approximately 1-1/2 hours, 

all underground miners were sent home. 

12. These miners received 4 hours of pay at their regular rates. 

13. If normal mining operations had been conducted at the 

Beatrice Mine on June 19, 1980, between 12:01 a.m. and 8:00 a.m., 

each underground employee normally scheduled to work on that shift 

would have been offered the opportunity to work his/her full 8-hour 

shift. 

14. Union Exhibit 2 (a copy of which is attached) is an accurate 

list containing (a) the names of each underground miner who reported 

to work on June 19, 1980, at 12:01 a.m., (b) his/her rate of pay as of 

June 19, 1980; and (c) the amount of compensation claimed. 

The issue raised by the complaint in this case, according to U~fi~A's 

brief (p. 1), is as follows: 

Are miners idled for six and one-half hours by a Withdrawal Order 

issued on the preceding shift entitled to receive 4-hours compensation 

under Section 111 of the Act where they received 4-hours reporting pay 

in accordance with their collective bargaining agreement? 

In its brief (p. 2), respondent claims that the issue raised by the 

complaint is as follows: 

Under the facts stipulated, are the miners who reported to work on 

the 12:01 a.m. to 8:00 a.m. shift at the Beatrice Mine on June 19, 1980, 

entitled to compensation, under § 111 of the Act, in addition to the 

4-hours' compensation which they have been paid? 

On page 1 of its brief, respondent states that the parties agreed that 

the judge should determine the wording of the issue raised by the complaint. 

I find for the reasons hereinafter given, that the issue raised by the complaint is as follows: 

Are miners idled by a withdrawal order issued on the preceding shift 

entitled to receive 4 hours of compensation under section 111 of the Act if 

they also have received, in accordance with Article IX(c) of their collective 

bargaining agreement, 4 hours of pay for reporting to work? 

2005 
UMWA's Argument 

UMWA's initial brief contends (p. 2) that resolution of the issue in 

this proceeding requires an interpretation 1/ of the relationship between 

the statutory provisions of section 111 of the Act and Article IX(c) of the 

1978 Bituminous Coal Wage Agreement. The pertinent part of section 111 

provides as follows: 

If a coal or other mine or area of such mine is closed by an 

order issued under section 103, section 104, or section 107, all 

miners working during the shift when such order was issued who are 

idled by such order shall be entitled, regardless of the result of 

any review of such order, to full compensation by the operator at 

their regular rates of pay for the period they are idled, but for 

not more than the balance of such shift. If such order is not 

terminated prior to the next working shift, all miners on that shift 

who are idled by such order shall be entitled to full compensation 

by the operator at their regular rates of pay for the period they 

are idled, but for not more than four hours of such shift. """'" 

Article IX(c) of the wage agreement provides as follows: 

Unless notified not to report, when an Employee reports for 

work at his usual starting time, he shall be entitled to four (4) hours' 

pay whether or not the operation works the full four hours, but after 

the first four (4) hours, the Employee shall be paid for every hour 

thereafter by the hour, for each hour's work or fractional part thereof. 

If, for any reason, the regular routine work cannot be furnished, the 

Employer may assign the Employee to other than the regular work. >': >': >': 

As indicated in Stipulation No. 6, Order No. 700382 was issued at 6:15 p.m. 

on June 18, 1980. According to Stipulation No. 10, the miners working on the 

4 p.m.-to-midnight shift, when the order was issued, were paid for the remainder of the shift. Therefore, the first sentence in section 111 of the Act 

was satisfied. As indicated in Stipulation No. 11, the miners on the "next 

working shift" (midnight-to-8-a.m.) after issuance of Order No. 700382 reported 

for work. As also shown by Stipulation No. 11, they were asked to remain on 

the surface for 1-1/2 hours until it was determined whether the order would 

be terminated. After it had been determined that the order would not be terminated on their shift, the miners on the midnight-to-8-a.m. shift were sent home. 

According to Stipulation No. 12, the miners on the midnight-to-8-a.m. shift 

were paid for 4 hours at their regular rates of pay. If Order No. 700382 had 

not still been in effect, the miners on the midnight-to-8:00-a.m. shift would 

have been given the opportunity to work for a full 8-hour shift (Stipulation 

No. 13). 

UMWA's brief (pp. 2-3) refers to the second sentence in section 111 and 

argues that interpretation of payment for miners on the "next working shift" 

must be made in light of the fact that the "period they are idled" pertains 

1/ In its reply brief (p. 2) UMWA changed its position as to the need to 

interpret the.Wage Agreement because no dispute exists as to the meaning of 

Article IX(c) of the Agreement. 

2006 
to a full 8-hour shift. UHWA contends that the awarding of 4 hours of compensation under the second sentence of section 111 is not confined to the 

initial 4 hours of a shift, 11 >'< ;, >'< but becomes effective when the miner no 

longer receives compensation from his/her employer" (Br., p. 3). UM\·;A then 

cites the Commission's decision in Youngstown Mines Corp., 1 FMSHRC 990 (1979), 

in which the Commission held that miners "on the next shift" after issuance 

of a withdrawal 6rder are entitled to compensation for the remaining 4 hours 

of their shift if they are used and paid for abatement work during the first 

4 hours of the shift. The primary reason given for the Commission's holding 

in that case was that the miners would have worked and would have been paid 

for the last 4 hours of the shift if the withdrawal order had not still been 

in effect so as to idle them for the remaining 4 hours of their shift. UMWA 

also cites Peabody Coal Co., 1 FMSHRC 1785 (1979), in which the Commission 

held that miners were entitled to receive 3-1/2 hours of pay for the remainder 

of their shift even though Peabody had paid them for work performed during 

the first 4-1/2 hours of the "next shift" after issuance of a withdrawal order. 

UM:WA's brief (p. 4) states that respondent objects to UHh'A's effort to 

use the Youngstown and Peabody cases as precedents for U~u~A's position in this 

case. Respondent, it is said, seeks to distinguish the Commission's holdings 

in those cases by pointing out that in each of those cases, the miners were 

paid for the first half of their shifts for work actually performed, whereas 

in this proceeding, the miners were kept at the mine site at respondent's 

request for only 1-1/2 hours. Therefore, in this proceeding, U~MA says that 

respondent wants to restrict the Youngstown and Peabody holdings as being 

applicable only to the extent that they would require respondent to pay the 

miners for the first 1-1/2 hours while a determination was being made as to 

whether the order would be terminated on their shift. mmA says that respondent argues, nevertheless, that since the miners were paid for 4 hours, they 

received the full 4 hours of compensation which they are required to be paid 

under the second sentence of section 111. 

UMWA's brief claims that respondent's argument is defective because it 

misconstrues Article IX(c) of the Wage Agreement which clearly provides that 

miners who report for work are entitled to 4 hours of pay regardless of how 

much work is actually performed. Therefore, UHWA argues (Br., p. 5) that 

it is irrelevant that the miners received 4 hours of pay even though they 

were kept at the mine for only 1-1/2 hours before they were sent home. UNWA 

further argues that under Article III(b)(2) of the Wage Agreement, neither 

party to the Agreement waived any rights relating to the Coal Act. U}fl~A 

claims that section 111 of the Act must be interpreted so as to give full 

effect to the parties' intention to preserve both their statutory and contractural rights. UMWA claims that the aforesaid purpose can be achieved by interpreting the second sentence of section 111 so as to treat the first four hours 

of the "next working shift" as non-idle time. U.MWA concludes the foregoing 

portion of its argument by claiming that there is no basis for distinguishing 

the Commission's holdings in the Youngstown and Peabody cases from the facts 

in this case because the important point in this proceeding and in those 

cases is that the miners on the "next working shift" were idled for the last 

4 hours of the shift because of the issuance of a withdrawal order. 

2007 
U}nvA also argues (Br., p. 6) that respondent's interpretation of 

section 111 as providing for no pay over and above the 4 hours which the 

miners have already received 11~< >'< 1< disregards the well-established principle 

recognizing the separate and independent nature of statutory and contractual 

rights." UMWA supports that argument by referring to the Commission's 

decision in the Youngstown case, 1 F.MSHRC at 993, in which the Commission 

rejected an argument to the effect that provisions in the Wage Agreement 

should be allowed. to control an interpretation of section 110 (a) of the 

1969 Coal Act. UMWA also cites a statement by the court in Phillips v. IBMA, 

500 F.2d 772, 777 (D.C.Cir. 1974) that 11 >'< ~<>'<if there is no right of action 

under the Mine Safety Act independent of the usual labor dispute settlement 

mechanisms, there is no right of action under the Mine Safety Act at· all." 

Respondent's Argument 

As indicated above under the heading "Issue", respondent does not agree 

with UMWA's statement of the issue in this proceeding. Respondent claims that 

no reference whatsoever should be made to lTHWA' s contention that the 4 hours 

of compensation which the miners on the midnight-to-8-a.m. shift were paid was 

awarded to them under the "reportin~ pay" provisions in Article IX(c) of the 

Wage Agreement. Respondent argues that it is outside the scope of a disagreement as to the meaning of the second sentence in section 111 of the Act for 

the Commission to consider whether the 4 hours of compensation may have been 

awarded to the miners because they happened to report for work so as to trigger 

a contractual provision which requires respondent to pay the miners for 4 hours 

if they are allowed to report to work. 

Respondent enlarges upon the argument above on page 2 of its brief by 

emphasizing that this is a case which has arisen solely under the provisions 

of section 111. Respondent argues that if any compensation in addition to that 

which has already been paid is found to be due, that determination must be made 

under the provisions of the second sentence of section 111 which clearly provides that the miners on the "next working shift" "who are idled by such order 

shall be entitled to full compensation by the operator at their regular rates 

of pay for the period they are idled, but for not more than four hours of such 

shift" [Emphasis supplied by respondent.]. Respondent states that it is 

abundantly clear that the requirements of the secdnd sentence of section 111 

have been satisfied in this instance. Respondent points out that the order 

in question was issued on the preceding shift and was not terminated at the 

beginning of the midnight-to-8-a.m. shift, or "next working shift" (Stipulation 

~o. 7). Respondent further notes that the miners who reported for work on the 

midnight shift were undoubtedly idled by the order and were entitled to full 

compensation at their regular rates of pay for/the period idled, but for not 

more than 4 hours of that shift. Respondent says that the miners have in 

fact been paid at their regular rates of pay for 4 hours (Stipulation No. 12). 

Therefore, respondent concludes that no further compensation can be found to 

be due under section 111. 

Respondent's brief (p. 3) recognizes that U}fi~A claims that the facts in 

this proceeding require an interpretation of the relationship between the 

contractual provisions of the Wage Agreement and the statutory provisions of 

2008 
section 111. Respondent also acknowledges ill-'TI\TA's argument that respondent's 

position in this case misconstrues the "reporting-pay provisions" of the Wage 

Agreement. Respondent's answer to UMWA's arguments about the Wage Agreement 

is that the Commission has no jurisdiction over the Wage Agreement nor authority to mediate disputes arising under the Wage Agreement. 

Respondent states (Br., p. 4) that even if one puts aside its jurisdictional argument above, there are defects in Ul'f\\TA' s interpretation of 

section 111. For example, respondent takes exception to UMHA's contention 

that the Commission can find that additional compensation is due under the 

second sentence by considering the 4 hours of "reporting pay" awarded the 

miners under the Wage Agreement as "non-idle time". Respondent argues that 

the word "idled", as used in section 111, must be considered to have the 

general meaning given to that word, namely, "not occupied or employed". Respondent says that if an individual is working, then he is working; if he is 

not working, then he is idled. Respondent concludes the foregoing argument 

by noting that there is nothing in the Wage Agreement which can change the 

meaning of a miner's "working/idled status" under section 111. 

Finally, respondent's brief (pp. 4-5) contends that the Peabody and 

Youngstown cases, supra, relied on by UMWA, can readily be distinguished from 

the facts in this proceeding. Respondent points out that in each of those 

cases the miners on the "next working shift" were paid for working during 

the first half of the shift and that the Commission simply held that they 

were idled by the order during the second part of the shift and were entitled 

to receive up to 4 hours of compensation for the remaining part of the shift 

during which they were idled by the order. Respondent, therefore, concludes 

that the Youngstown and Peabody cases do not turn on the question of money 

received, but rather depend on ">': * >': the logical distinction between work 

time versus idle time upon which the Youngstown Mines and Peabody cases were 

decided" (Br., p. 5). 

UMWA's Reply Brief 

UMWA 's reply brief (pp. 1-2) cites the Commission's recent decision in 

Eastern Associated Coal Corp., 3 FMSHRC 1175 (1981), as grounds for rejecting 

respondent's claim that the Commission, in interpreting section 111, is precluded from recognizing provisions regarding "reporting pay" contained in the 

Wage Agreement. UMWA's brief (pp. 1-2) summarizes the holding in the Eastern 

Associated case as follows: 

,., * * In Eastern Associated, the UMWA requested compensation under 

Section 111 of the Federal Mine Safety and Health Act ("the Act") 

following the issuance of a withdrawal order pursuant to Section 

103(k) of the Act. The order was issued a few hours after the 

miners had left the mine in accordance with Article XXII(k) of the 

National Bituminous Coal Wage Agreement of 1978 ("the Contract"). 

This clause provided for the withdrawal without pay of miners from 

the mine for a 24-hour memorial period following a fatality. 

2009 
The Commission declined to award the compensation requested, 

reasoning that there was no causal connection between the idling of 

the miners and the withdrawal order. This result did not extinguish 

or supplant any contractual rights to compensation, since none existed 

under Article XXII(k) of the collective bargaining agreement. The 

Com.~ission stated that in some cases it was necessary to examine contractual pay rights in order to delineate the statutory pay rights 

granted under Section 111. 

Following the summary set forth above, U}TivA's brief relies upon the 

following portion of the Commission's decision in the Eastern Associated case 

(3 FHSHRC at 1179): 

We cannot agree with the Union's contention that denial of 

section 111 compensation would "supplant [the 1977 Hine Act] with 

a contract provision." Br. 3. It is true that we do not decide 

cases in a manner which permits parties' private agreements to overcome mandatory safety requirements or miners' protected rights; nor 

do we unnecessarily thrust ourselves into resolution of labor or 

collective bargaining disputes. See Youngstown Hines, supra, 

1 FHSHRC at 993-995. However, section 111 requires us to determine 

whether there is a pre-existing private entitlement to pay. To 

make that determination, we are occasionally obliged to examine the 

parties' collective bargaining agreement which fixes pay rights. 

In addition, as here, we must sometimes look to the agreement to 

understand the reasons for a private withdrawal. In the present 

case, there is no need for contract interpretation because the 

parties are agreed that the miners withdrew pursuant to the memorial 

provision and have stipulated that under that provision the miners 

were not entitled to pay from Eastern Associated during the memorial 

period. Similarly, the Union's reliance (Br. 2-3 & nn. 2 & 3) on 

certain recitations in the contract that neither party waives its 

1977 Mine Act "rights" would incorrectly transform section 111 into 

a statutory indemnity against absence, loss, or surrender of private 

pay entitlements. While the Union gave up a private claim to pay, 

it has not waived any statutory entitlement. [Commission's emphasis.] 

U}MA's reply brief (pp. 2-3) contends that if the Commission's holding 

in the Eastern Associated case is applied to the facts in this proceeding, 

it will be found that no contractual interpretation is necessary in this 

case either because the parties have stipulated that the miners received 

4 hours of pay for 1-1/2 hours of work (Stipulation Nos. 11 & 12). UffivA says 

that this payment was not the result of a mistake or any generosity on the 

part of respondent, but was rather required by the "reporting-pay provisions" 

of the Wage Agreement. UMWA says there is no dispute about the interpretation 

of the Wage Agreement and that there is no unnecessary intrusion into the 

collective bargaining process by a determination of the relationship between 

the reporting-pay provisions and section 111 of the Act. 

UMWA's reply brief (p. 3) argues that there is a direct causal connection 

between the withdrawal order issued in this case and the failure of the miners 

to receive 4 hours of pay for the final 4 hours of the "next working shift". 

2010 
UMWA contends, finally, that since there was a preexisting private entitlement for the final 4 hours of the shift, the miners are entitled under the 

second sentence of section 111 to receive compensation for those 4 hours 

of idlement resulting from issuance of the order. 

Consideration of Parties' Arguments 

In the portion of my decision entitled "Issue", supra, I stated that 

I would explain why I had largely adopted U}fivA's instead of respondent's, 

statement of the issue. I believe that I am obligated under the Commission's 

decision in the Eastern Associated case, supra, to give recognition to the 

reason that the miners on the "next working shift" received compensation 

for 4 hours "at their regular rates of pay". In the portion of the Commission's decision in that case quoted above, the Commission stated that it 

believed that ">': >': ;': section 111 requires us to determine whether there is 

a preexisting private entitlement to pay" [Commission's emphasis]. In that 

case, the Commission found that no preexisting right to pay existed because 

the miners had waived their right to pay during the 24-hour memorial period. 

In this proceeding, it is undisputed that the miners "on the next working 

shift" were entitled to 4 hours of pay because they had reported for work 

and were kept for 1-1/2 hours until it was determined that the withdrawal 

order would not be terminated during their shift. As UMWA argues, the miners 

were paid for 4 hours of work through no mistake or generosity of respondent, 

but because the \fage Agreement required the miners to be paid for 4 hours 

if they were allowed to report for work. 

My framing of the issue in this case by reference to the payment of 

4 hours of compensation under the Wage Agreement is also supported by the 

fact that in the Eastern Associated case, the Commission referred to the Wage 

Agreement in stating the issue. Its decision began with the following statement (3 FMSHRC at 1175): 

The issue in this case is whether miners are entitled to compensation under section 111 of the * * * Act * * * where a withdrawal 

order under section 103(k) * * * was issued after the miners had already withdrawn from the mine pursuant to their collective bargaining 

agreement's non-compensated "memorial period." * * >'< 

In its Eastern Associated decision, the Commission made it clear that 

each dispute as to the proper interpretation of section 111 would have to be 

made on a case-by-case basis. The Commission also stated that compensation 

might be awarded under section 111 if withdrawal were "independently justified by exigent circumstances". Moreover, the Commission noted in its Eastern 

Associated decision that even if the order in that case had not been issued, 

the miners "would not have worked or reported" for work on the midnight-to8-a.m. shift 'J FMSHRC at 1179). [Emphasis supplied.] 

I think that UMWA correctly interprets the first 4 hours of the "next 

working shift" under the second sentence of section 111 as "non-idle time" 

in contending that the miners are entitled to 4 hours of additional compensation. There are at least two reasons for the foregoing conclusion. First, 

the miners on the midnight-to-8-a.m. shift, or "next working shift" were not 

2011 
idle during the first part of their shift. The act of reporting for work was 

preceded by their driving from their residences to the nine. Exhibit No. 2 

to the stipulations shows that there were 56 of them. In all the cases in 

which I have had testimony concerning the distances miners drive to work, 

I have found that some of them drive a considerable distance. Consequently, 

the act of reporting for work at today's gasoline prices is an activity for 

which the miners are entitled to be paid. The miners were not permitted to 

return home immediately, but were kept at the mine for 1-1/2 hours to their 

detriment. Consequently, the first 4 hours of the shift should be considered 

as "non-idle time". As respondent argues in its brief, a person is idle if 

he is not employed. The miners were employed and they reported for work, so 

I cannot see how they could be considered to have been idle at the beginning 

of their shift. 

My second reason for considering the. first 4 hours of the shift to be "nonidle time" is that I don't agree that respondent has sufficiently succeeded in 

distinguishing the holdings in the Youngstown and Peabody cases from the facts 

in this proceeding. Respondent claims that iri those cases, the miners were 

paid for working during the first part of their shift and that the Commission 

held that they were entitled to be paid for the remaining part of the shift 

because they would have worked during the second part of the shift except that 

they were idled by the failure of the withdrawal order to be terminated. In 

the Peabodv case, the Commission stated that "[i]n order to resolve a possible 

contractual dispute over reporting pay, Peabody permitted the eight miners to 

work the first four and one-half hours of their shift" (1 FMSHRC at 1787). 

In this proceeding, respondent obviously chose to make an interpretation 

of the reporting-pay provisions of the Wage Agreement and chose to pay the 

miners for 4 hours of compensation. Thus, the payment of 4 hours of compensation in this proceeding was in return for the miners having reported for 

work. Consequently, I don't think that the Commission's holdings in the 

Youngstown and Peabody cases can be distinguished from the facts in this 

proceeding. In this proceeding, as in those cases, the miners were paid for 

something they did, namely, reporting for work and staying at the mine for 

1-1/2 hours. 

If a company allows its miners to report for work at all, it knows that 

it will have to pay them for 4 hours under the Hage Agreement. The company 

also knows that it will have to pay for 4 hours under the second sentence of 

section 111 if the order is not terminated. If I were to interpret section 111 

as I am urged to do by respondent, a company would be able to act indifferently about notifying its miners not to report for work and could allow them 

to come to the mine and then leisurely determine within the first 4 hours of 

the shift whether the order is going to be terminated during the "next working 

shift". An imminent danger order had been issued in this instance because of 

an accumulation of explosive concentrations of methane in the bleeder entries 

of the No. 3 longwall area of the mine (Stipulation Nos. 6 & 8). The order 

was issued on June 18 and was not terminated until July 10 (Stipulation 

Nos. 6 & 7). It does not appear that management should have had any great 

difficulty in determining that the order would not be terminated on the "next 

working shift" so that the miners could have been notified not to report for 

work. 

2012 
My decision that the second sentence in section 111 requires that the 

miners in this proceeding be paid for the remaining 4 hours of their shift, 

because they were idled for those 4 hours by the withdrawal order, is not 

unfair to respondent because it· can reduce its exposure to having to pay the 

miners. for 4 hours under the Wage Agreement and for 4 hours under section 111 

by simply notifying the miners not to report for work "on the next working 

shift" when a withdrawal order issued on the preceding shift has not been 

terminated. 

Interest 

UMWA's brief (p. 8) requests that I award interest at the rate of 12 

percent. mrwA correctly cites the Youngstown and Peabody cases, supra, as 

precedents for the Commission's having ordered the payment of interest in 

compensation cases. In ea.ch of those cases, the Commission awarded interest 

at the rate of 6 percent per annum. rn the Peabody case, the judge had 

awarded interest at the rate of 6 percent per month which would be 72 percent 

per annum. The Commission reduced the rate from 6 percent per month to 6 percent per year without.any discussion, presumably because a rate of interest 

of 72 percent per annum cannot be justified even at today's prevailing high 

interest rates. 

I have ordered payment of rates of interest in discrimination cases in 

excess of 6 percent per annum. Except for having indicated in the Peabody 

case that a rate of 6 percent per month is excessive, I do not believe the 

Commission has established any guidelines to be used in determining how to 

arrive at an equitable rate of interest. U~fivA's brief (p. 8) states that the 

National Labor Relations Board has adopted the sliding interest scale charged 

or paid by the Internal Revenue Service on the underpayment or overpayment 

of federal taxes. mruA's brief (p. 8) states that when its attorney checked 

with the Internal Revenue Service, he learned that the current interest rate 

being used by IRS is 12 percent per annum. 

UillvA points out that the federal prime interest rate at which businesses, 

such as respondent, borrow, money is currently almost three times higher than 

the 6 percent rate awarded in the Youngstown and Peabody cases. U~fivA states 

that the disparity between a 6-percent rate and the prime rate serves as an 

incentive for operators to delay payment of compensation owed under the Act 

for as long as possible since the operators are, in effect, borrowing money 

from the miners at about one-third the rate of interest the operators would 

otherwise pay. 

Respondent's brief does not discuss the issue of interest raised in 

U~A~s initial brief. 

It appears to me that u~nvA has made a convincing argument for ordering 

the payment of compensation at a rate of 12 percent. I doubt that any miner 

could borrow money to buy an automobile or house at a rate of interest as lo~ 

as 12 percent. Therefore, I shall hereinafter provide for the compensation 

due the miners under this decision to be paid at a rate of 12 percent. A rate 

of 12 percent is not unfair to respondent and is on the low side when considered from the standpoint of what the miners would have to pay to borrow money. 

2013 
WHEREFORE, for the reasons hereinbefore given, it is ordered: 

(A) The motion for summary decision filed by UHhlA on April 17, 1981, 

is granted. 

(B) The Complaint for Compensation filed on March 23, 1981, is granted 

and respondent is ordered, within 30 days from the date of this decision, 

to pay each miner the 4 hours of compensation shown on Exhibit 2 to the 

parties' stipulations in this proceeding. The compensation shall be paid 

with interest at 12 percent per annum from June 19, 1980, to the date of 

payment. 

• 

Distribution: 

~C.r;J .·· 

Administrative 

Richard C. Steffey 

Law Judge 

~ 

(Phone: 703-756-6225) 

Kurt Kobelt, Esq., Attorney for United Mine Workers of America, 

900 - 15th Street, £\11-J, Wa;=;hington, DC 20005 (Certified Mail) 

Marshall S. Peace, Esq., Attorney for Beatrice Pocahontas Company, 

P.O. Box 11430, Lexington, KY 40575 (Certified Mail) 

Allen Williamson, Superintendent, Beatrice Pocahontas Company, 

Drawer L, Oakwood, VA 24531 

Assistant Solicitor, MSHA, U.S. Department of Labor, 4015 Wilson 

Boulevard, Arlington, VA 22203 

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

Boulevard, Arlington, VA 22203 

2014 
Beatrice Mine as of Jur1e 19, r--q-Q_ 

ME HOUPJ:,Y RATE HOUFS PAID AMJl.Th.1T CLAIMED 

mny A. Absher 10.565 4 43.46 

:rk S •. ~-:rip, Jr. 10.160 4 41.84 

:eve A. Bailey 10.565 4 43.46 

~nr_y Baker, Jr. 10.160 4 41.84 

<l A. Balcrwin 9.498 4 39.19 

)e Ble-..,-ins 10.565 4 43.46 

irl G. Babinski 10.160 4 41.84 

.en Boyd 10.160 4 41.84 

,nny R. Boyd 10.160 4 41.84 

Lrliss R. Breeding 10.160 4 41.84 

tby Brown 9.498 4 39.19 

)lley Caillpbell 9.793 4 40.37 

Lyrrond Clevinger 10.160 4 41.84 

:ssie L. Daniels 10.160 4 41.84 

·ankie L. Deel 10.565 4 43.46 

Llph J • Fitzgerald 10.160 4 41.84 

tadius M. Hagy 10.565 4 43.46 

ladius K. Hagy 10.56' 4 43.46 

1rdon R. Hale 9 .49~ 4 39.19 

tmes D. Hale 10.565 4 43 .46 

ml W. Ha-::.Tis 10.160 4 41.84 

idrew E. Keen 10.160 4 41.84 

:rry R. Keene 10.565 4 43.46 

:-ven D. Kincaid 10.565 4 43.46 

tmeS .n.. Mabe 9.793 4 40.37 

Jnr1ie E. .M:iggard 10.565 4 43.46 

_di'ley A. 1"'.axwell 10.565 4 43.46 

:even G. McBride 10.565 4 43.46 

mny D. Miller 10.160 4 41.84 

~ian D. MJney 10.565 4 43.46 

trrell Owens 10.269 4 42.28 

:rry Lee Perdue 10.160 4 41.84 

:rald W. Plaster 10.160 4 41.84 

iillips c. Presley 10.565 4 43.46 

mes C. Reynolds 10.565 4 43.46 

mald G. P..ichardson 10.565 4 43.46 

:nest Rife 10.565 4 43.46 

mes H. Shortridge 10.565 4 43.46 

Lekey Sh:Jrtridge 10.565 4 43.46 

mald W. Shortridge 10.565 4 43.46 

1dy w. Shortt 10.565 4 43.46 

rrlos Shortridge 9.793 4 40.37 ~:!IDiS C. Smith 10.565 4 43.46 

:-egory K. Smith 10.565 4 43.46 

:-nnld C. Stanley, Jr. 10.565 4 43.46 

·s ddy Stiltner 10.160 4 41.84 

=e Roy Stiltner 9.906 4 40.82 

)bby J. Street 10.565 4 43.46 

1drsv Szaller 10.565 4 43.46 

:-eddie L. :-'ickle 10.160 4 41.84 

3yrrDnd E. Tiller 10.565 4 43.46 

)nnie w. 'Ibney 10.565 4 43.46 

mny W. Vandyke 10.565 4 43.46 ~il Ward, Jr. 10.565 4 43.46 

iward A. Wells 10.565 4 43.46 ~nnis J. White 10.565 4 43.46 

2015 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

1730 K STREET NW, 6TH FLOOR 

WASHINGTON, D.C. 20006 

UNITED MINE WORKERS OF 

AMERICA (UMWA) , 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINIS~RATION (MSHA), 

Respondent 

August 28, 1981 

CONTEST OF ORDER 

Docket No. CENT 81-223-R 

Order No. 1024387; 

5/13/81 

Charleston No. 1 Mine 

ORDER OF DISMISSAL 

On May 13, 1981, a Federal inspector issued a combined 

citation and imminent danger withdrawal order to Garland 

Coal Company. 1/ Contestant claims that the citation should 

be modified to-contain a finding that the violation alleged 

by the inspector constituted an "unwarrantable failure" to 

comply with the cited standard. 2/ The Secretary of Labor 

contends that under the Act, findings of imminent danger and 

unwarrantable failure are mutually exclusive. Without 

passing on the issue raised by the Secretary, I conclude 

that Contestant does not have the right under the Act to 

challenge the citation. 

1/ Section 104(a) directs an inspector to issue a citation 

If, on the basis of an investigation, he finds that an 

operator has violated any mandatory safety or health standard. In this case, the Inspector charged that Garland had 

failed to properly store explosives that had been carried to 

a blasting site, as required by 30 C.F.R. § 77.1303(c). 

Section 107(a) requires an inspector who discovers an 

"imminent danger" to issue an order requiring the operator 

immediately to withdraw all persons from the affected area. 

An "imminent danger" is a condition that could be expected 

to cause death or serious physical harm before it can be 

corrected. Section 3(j). 

The record does not disclose whether Garland has challenged the citation/order before this Commission. Garland 

has not sought to intervene in this proceeding. 

2/ There is no provision for unwarrantable failure findings in imminent danger orders issued under § 107. Contestant is challenging the citation, not the order. 

2016 
Under§ 105(d) of the Act, a mine operator may contest 

"the issuance or modification of an order issued under section 104, or citation or a notification of proposed assessment of a penalty • . . or the reasonableness of the length 

of abatement time fixed in a citation or modification thereof issued under section 104." (Emphasis added.) A miner or 

representative of miners 3/ may contest "the issuance, modification or termination of any order issued under section 104, 

or the reasonableness of the length of time set· for abatement by a citation of modification thereof issued under 

section 104." The words "or citation" are conspicuously 

absent from the list of items a miner or representative of 

miners may contest. Therefore, since Contestant is a representative of miners challenging a citation, the Notice of 

Contest must be dismissed. !/ 

Barring miners and representatives of miners from 

contestng citations may appear to leave an imbalance in the 

Act's enforcement scheme, particularly since miners are 

given a key role in that scheme. But the Act gives the 

Secretary primary responsibility for enforcing the Act. 

With that responsibility must come some measure of discretion. ~/ 

Therefore, the case is DISMISSED. 

1 . 

)

cu1u2 s 4f_1~::,·c:L"/L6L . James A. Broderick 

' Chief Administrative Law Judge 

3/ Contestant's status as a representative of miners has 

not been questioned. 

4/ The U.S. District Court for the District of Columbia 

recently declined to decide whether § 105(d) prevents miners 

and representatives of miners from contesting citations, 

preferring to have the Commission resolve the issue. Council of the Southern Mountains v. Donovan, No. 79-2982 (D.D.C. 

1981), 2 BNA MSHC 1329, 1332, n. 8. 

5/ Miners and representatives of miners may participate as 

parties to Commission proceedings if the mine operator 

elects to challenge a citation, or a civil penalty based on 

it. 29 C.F.R. § 2700.4 

201'7. 
Distribution: By certified mail. 

Joyce A. Hanula, Legal Assistant, United Mine Workers of America, 

900 Fifteenth Street, N.W., Washington, DC 20005 

Robert A. Cohen, Attorney, Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203 

2018 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

V & R COAL CORP., 

Respondent 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 2 8 lf.~1 

Civil Penalty Proceeding 

Docket No. WEVA 81-188 

A.O. No. 46-05166-03015V 

Docket No. WEVA 81-189 

A.O. No. 46-05166-03016 

No. 19-B Mine 

DECISIONS 

Appearances: Catherine M. Oliver, Attorney, U.S. Department of Labor, 

Philadelphia, Pennsylvania, for the petitioner. 

Before: Judge Koutras 

Statement of the Case 

These civil penalty proceedings were initiated 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), seeking civil penalty 

assessments for 12 alleged violations of certain mandatory safety standards. 

Respondent filed a timely answer and notice of contest and a hearing was 

convened on August 11, 1981, in Charleston, West Virginia. The petitioner 

appeared and presented its cases, but the respondent did not and~was 

held in default. Bench decisions were rendered and they are herein reduced 

to writing in accordance with Commission Rule 65, 29 C.F.R. 2700.65(a). 

Issues 

The issues presented in this proceeding are: (1) whether respondent 

has violated the provisions of the Act and implementing regulations as 

alleged in the proposal for assessment of civil penalties filed in this 

proceeding; and, if so, (2) the appropriate civil penalty that should be 

assessed against the respondent for the alleged violations based upon 

the criteria set forth in section llO(i) of the Act. 

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

of the Act requires consideration of the following criteria: (1) the 

operator's history of previous violations, (2) the appropriateness of 

such penalty to the size of the business of the operator, (3) whether the 

2019 
operator was negligent, (4) the effect on the operator's ability to 

continue in business, (5) the gravity of the violation, and (6) the 

demonstrated good faith of the operator in attempting to achieve rapid 

compliance after notification of the violation. 

Applicable Statutory and Regulatory Provisions 

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

30 U.S.C. § 801 et~· 

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

3. Commission Rules, 29 C.F.R. § 2700.1 ~seq. 

Discussion 

The record in these proceedings reflects that the respondent received 

actual notice of the scheduled hearings in Charleston. Further, correspondence 

from the President of V & R Coal Company to the Philadelphia Regional 

Solicitor's Office advises the solicitor that respondent is no longer 

in business, has no assests, and that respondent wishes to "withdraw any 

contest of the above claims". However, as indicated above, the respondent 

failed to appear at the hearing to present any evidence regarding the 

status of its mining operations and I conclude that respondent has waived 

any further right to be heard. I have considered this case de ~ and my 

decisions are rendered on the basis of the evidence and testimony of 

record as presented by the petitioner. 

Findings and Conslusions 

Docket No. WEVA 81-188 

Fact of violations 

MSHA Inspector Melvin C. Harper confirmed that he issued citation 

0661931, upon inspection of the mine on June 2, 1980, and that he 

cited the respondent with a violation of mandatory standard section 75.200 

for failure to follow his approved roof control plan in that a cut of 

coal had been taken out and no temporary roof supports had been installed 

(exhibit G-1). Mr. Harper identified the applicable roof control plan 

(exhibit G-2), and testified that drawing No. 1, item 2, page 14 of 

the plan required the installation of temporary supports and that this 

was the plan provisions violated by the respondent (Tr. 7-16). 

Inspector Harper confirmed that he also issued citation 0661932 

on June 2, 1980, charging the respondent with a violation of section 75.200 

for a roof control violation. Permanent roof supports were not installed 

in an area which had been holed through, and this was in violation of 

drawing No. 2, item 4, page 15 of the applicable roof control plan 

(exhibits G-2, G~3); (Tr. 17-19). 

2020 
I conclude and find that the petitioner has established the fact 

of violation as to both citations issued in this docket and they are 

AFFI&.'1ED. 

Gravity 

With regard to citation 0661931, Inspector Harper testified that he 

believed the violation was serious because the mine has a history of two 

to six inch draw rock, which is unpredictable, and the likelihood of a 

roof fall would be· greater in this case because he believed the cited 

roof conditions had been left unattended since the last production shift 

on May 29. A roof bolter and his helper were exposed to the hazard of a 

possible roof fall (Tr. 21-22). 

Inspector Harper testified that the roof conditions cited in 

citation 0661932 were also serious because of the area of unsupported roof, 

which he estimated to be 20 feet wide by forty feet long, and the fact 

that the draw rock was present. Further, he indicated that the roof 

was totally unsupported, that is, there was not permanent or temporary 

support in the area cited and two men were exposed to a possible roof 

fall (Tr. 23). 

I find the two citations issued by the inspector in this case were 

both very serious violations. They were issued at the approximate 

same location in the section and exposed miners who were present there 

to a possibility of a serious roof fall accident. 

Negligence 

Inspector Harper testified that the roof conditions cited in citations 

0661931 and 0661932 should have been known to mine management because the 

area was required to be pre-shifted and on-shifted. His inspection 

revealed that the cited conditions had been left uncorrected since prior 

shifts, and he could find no indications that the cited areas haa been 

pre-shifted. As a matter of fact, he indicated that these circumstances 

prompted him to issue the citations as section 104(d)(2) unwarrantable 

failure withdrawal orders (Tr. 21-23). 

On the basis of the evidence and testimony adduced by the petitioner 

in this case, I conclude that the citations issued by inspector Harper 

resulted from the respondent's lack of due care and that the respondent 

was negligent. While I believe that the level of negligence borders 

on gross neglect, I am constrained not to make such a finding in this 

case absent any evidence of a deliberate and reckless omission by respondent's 

management. 

Good faith compliance 

Compliance was achieved by the issua·nce of withdrawals orders, 

and while Inspector Harper testified that the conditions were corrected 

2021 
and the roof areas properly supported when he next returned to the mine, 

I cannot conclude that the respondent is entitled to any special consideration 

for rapid good faith abatement of the two citations in question. 

Docket No. WEVA 81-189 

Fact of violations 

MSHA Inspector Issac H. Jenkins, Jr., testified that he conducted 

an inspection at the mine on July 24, 1980, and he confirmed that he 

issued five section 104(a) citations for violations concerning certain 

mandatory electrical safety standards. He confirmed that he issued 

citation 0640452 for a violation of section 75.521, citation 0640453 

for a violation of section 75.703, citation 0640454 for a violation of 

section 75.900, and citations 0640455 and 0640456 for violations of 

section 75.503 (exhibits G-1 through G-5; Tr. 7-33). 

Inspector Jenkins testified as to the conditions which prompted 

him to issue the aforementioned five citations. The first citation 

was issued after he found that grounding conductors for the surface 

lightning arresters were not separated from the underground power cable 

grounding conductor, the second for failure to properly completely 

ground a battery case located on a scoop battery charger to the frame 

of the charger, and the third one was issued for failing to provide an 

adequate ground phase protection for the section feeder breaker power 

cable in that a test conducted by him on the circuit revealed a faulty 

relay switch which failed to open and de-energize the system. As for 

the remaining two citations, he testified that they were permissibility 

violations for a shuttle car which had an excessive opening between the 

cover plate and starter enclosure, and a Galis roof bolter which had 

a damaged light fixture which was not securely fastened to the machine 

(Tr. 7-33). 

Based on the testimony and evidence adduced by the petitioner 

with respect to the aforementioned citations, I conclude and firfd that 

the conditions and practices described by Inspector Jenkins on the face 

of each of the citations which he issued constituted violations of the 

cited mandatory standards, and that his testimony establishes the fact 

of violations as to each of the citations and they are all AFFIRMED. 

Good faith compliance 

Inspector Jenkins testified that all of the citations which he issued 

were abated in good faith by the respondent, and I adopt this conclusion 

by the inspector as my finding as to each of the citations in question. 

Negligence 

With regard to citation 0640452 concerning the inadequately grounded 

lightning arresters, Inspector Jenkins testified that he doubted the 

2022 
respondent knew of the condition cited because the respondent did not 

make the initial electrical installation at the mine, that the condition 

would only be visible to the trained eye, and that there is no requirement 

for a daily pre-shift of the system. As for the remaining citations, 

Inspector Jenkins believed that the respondent should have been aware 

of the conditions cited through weekly or other inspections which should 

have disclosed the conditions cited. 

Considering the testimony of Inspector Jenkins, I find that citation 

0640452 did not result from the respondent's negligence, but that 

citations 0640453 through 0640456 resulted from the respondent's failure 

to exercise reasonable care and that this constitutes ordinary negligence 

as to these four citations. 

Gravity 

I conclude and find that all of the citations issued by Inspector 

Jenkins were serious. Although he testified that the mine is not gassy 

and that the equipment he observed was in otherwise good condition, he 

did indicate that failure to properly ground the lightning arresters 

could have affected the underground mining equipment since the main power 

dable ground system was tied to the same arresters and could have resulted 

in energizing the machine frames. Failure to properly ground the battery 

frame and the defective relay switch could have resulted in shock hazards, 

and the permissibility citations could have developed into more serious 

hazardous conditions due to the continued use of the cited equipment. 

MSHA Inspector Tonv Romeo testified that he conducted an inspection 

of the mine on August 6, 1980, and he confirmed that he issued citation 

0659330 for a violation of section 75.1715 for failure by the respondent 

to follow the mine check in and out system; citation 9659328 for a 

violation of section 75.303 after finding no record of a pre-shift date 

or initials by two belt conveyors; and' citation 0659329 for a violation 

of section 77.410 after finding a payloader being operated on the mine 

surface area without an operable reverse signal alarm (Exhibits G-6 

through G-8; Tr. 38-56). "" 

Inspector Romeo confirmed that he issued citation 0659334, citing 

a violation of section 75.400 after finding an accumulation of dry, loose 

coal and coal dust on the mine floor in the number one entry. He measured 

the accumulations and they measured up to 12 inches deep, 18 inches wide, 

over an area of some 70 feet long. He observed no float coal, and the 

accumulations which he did observe appeared black in color and he saw no 

evidence of any rock dusting. He took several samples from the floor 

in accordance with his usual approved procedures, and submitted them for 

laboratory analysis to support the citation for a violation of section 

75.403 for failure to adequately rock dust (exhibits G-9 through G-11; 

Tr. 48-57). 

In view of the foregoing testimony and evidence adduced by the 

petitioner in support of the citations issued by Inspector Romeo, I 

conclude and find that the respondent violated the mandatory safety 

standards cited and the citations in question are AFFIRMED. 

2023 
Good faith ·comuliance 

Inspector Romeo stated that each of the citations he issued were 

timely abated in good faith, and I adopt this testimony as my finding 

on this issue. 

Negligence 

I conclude and find that each of the citations issued by Inspector 

Romeo resulted from the respondent's failure to exercise reasonable 

care to prevent the conditions cited and that this constitutes ordinary 

negligence as to each of the citations. 

Gravitv 

Inspector Romeo testified that the failure to follow the mine checkin-and-out system was not serious in this case becuase the mine was small, 

and only three of the six men on the one section did not check in. I 

concur in the inspector's conclusions and find that citation 0659330 

was non-serious. 

With regard to the failure to record the results of the conveyor 

belt pre-shift examination, Inspector Romeo stated that he did not know 

whether the examination had in fact been made, but the failure to make 

a record of such an examination by dating and signing the book could 

possibly result in someone not being apprised of possible hazardous 

conditions which may exist in the cited area. I find that this citation 

· is serious. 

With regard to the inoperative back-up alarm on the payloader, Mr. Romeo 

testified that he observed no one in the proximity of the machine 

and he indicated that the truck driver who came to the area to load his 

truck would in fact alight from the truck and operate the paylo~~er himself. 

Thus, he would be the only person in the area, and in these circumstances, 

I cannot conclude that the citation was serious. I conclude that it was 

not. 

With regard to the accumulations and rock dust citations, I find 

that they were both serious. Although Inspector Romeo testified that he 

observed no equipment operating on the day he issued the citations, he 

did see evidence that equipment and machines had operated in the area 

where he found the accumulations of coal and coal dust, and considering 

the extent of those accumulations as well as the results of the rock dust 

samples which reflects percentages far below the acceptable standards, 

I conclude that the citations were serious. Mining was taking place in 

the cited areas, and in the event of a fire, the accumulations as found 

by the inspector would certainly add to the hazard. 

Size of business and the effect of the assessed penalties on the respondent's 

ability to remain in business. 

2024 
\ 

The testimony of the inspectors reflects that the respondent no 

longer operates the mine in question and that MSHA considers it to be 

in a temporary abandoned status. All of the equipment has apparently 

been removed from the mine and production has ceased. Further, by 

failing to appear at the hearing, I have no way of confirming respondent's 

present financial condition and the effect of the assessed penalties on 

the respondent. Under the circumstances, I conclude that the penalties 

will not otherwise adversely affect his operation since he is apparently 

no longer in business. 

As for the size of the operation, the record establishes that at 

the time of the citations the respondent leased the mine from Itmann Coal 

Company, but operated it as respondent's sole mining venture under a 

separate mine identification number. At the time of its operation, the 

mine operated on one production shift, with mine employment of approximately 

24 employees, and daily coal production at 300 tons. Under the circumstances, 

for purposes of any civil penalty assessments, I conclude and find that 

the respondent's mining operations were small. 

History of prior violations 

Petitioner has submitted a computer print-out which reflects that 

during the period June 2, 1978 to June 1, 1980, respondent has paid 

$2,196 for a total of 37 assessed violations issued during this time. 

The paid assessments include one prior citation for a violation of section 

75.200, five prior citations for violations of section 75.503, and one 

each for sections 75.400 and 75.403. Considering the totality of all 

prior paid assessed citations, I cannot conclude that respondent's prior 

history of violations is such as to warrant any additional increases 

over the assessments which I have levied in these cases. 

Penalty Assessments 

On the basis of the foregoing findings and conclusions, I conclude 

that the following penalties are reasonable and appropriate for the citations 

which have been affirmed in these cases: 

Docket No. WEVA 81-188 

Citation No. 

0661931 

0661932 

Docket No. WEVA 81-189 

Citation No. 

0640452 

Date 

6/2/80 

6/3/80 

Date 

7/24/80 

2025 

30 CFR Section 

75.200 

75.200 

30 CFR Section 

75.521 

Assessment 

$ 750 

750 

$1500 

Assessment 

$ 44.00 
Citation No. Date 30 CFR Section Assessment 

0640453 7/24/80 75.703 $ 72.00 

0640454 7/24/80 75.900 72.00 

0640455 7/24/80 75. 503 78.00 

0640456 7/24/80 75.503 78.00 

0659330 8/6/80 75.1715 15.00 

0659328 8/6/80 75.503 38.00 

0659329 8/6/80 77.410 25.00 

0659334 8/6/80 75.400 60.00 

0659335 8/6/80 75.403 28.00 

$ 510.00 

ORDER 

The respondent IS ORDERED to pay civil penalties in the amounts shown 

above, totaling $2,010 within thirty (30) days of the date of these decisions 

and order, and upon receipt by MSHA, these cases are DISi'!ISSED. 

~n4.cav·~~ ~ri~A. Ko~ Administrative Law Judge 

Distribution: 

Catherine M. Oliver, Esq., U.S. Department of Labor, Office of the Solicitor, 

3535 Marekt St., Philadelphia, PA 19104 (Certified Mail) 

James Johnson, V & R Coal Corp., P.O. Box 3324, Charleston, WV 25333 

(Certified Mail) 

2026 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

2 SKYLINE, 10th FLOOR 

5203 LEESBURG PIKE 

FALLS CHURCH, VIRGINIA 22041 

AUG 31 \001 

UNITED STATES STEEL CORPORATION, 

Contestant 

Contest of Order 

v. Docket No. PENN 81-9-R 

SECRETARY OF LABOR, · Robena No. 1 Mine 

Respondent 

SECRETARY OF LABOR, Civil Penalty Proceeding 

Petitioner 

v. Docket No. PENN 81-52 

A.C. No. 36-00909-03042V 

UNITED STATES STEEL CORPORATION, 

Respondent Robena No. 1 Mine 

Appearances: 

Before: 

DECISION 

David T. Bush, Esq., Office of the Solicitor, U.S. Department 

of Labor, Philadelphia, Pennsylvania, for Secretary of Labor; 

Louise Q. Symons, Esq., U.S. Steel Corporation, Pittsburgh, 

Pennsylvania, for United States Steel Corporation. 

Judge James A. Laurenson 

JURISDICTION AND PROCEDURAL HISTORY 

On October 7, 1980, United States Steel Corporation (herein;fter U.S. 

Steel) filed a notice of contest of an order of withdrawal issued on 

September 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). On 

January 24, 1981, the Secretary filed a petition for assessment of civil 

penalty with respect to this same order of withdrawal. Pursuant to the 

Secretary's motion filed February 10, 1981, these two proceedings were 

consolidated. 

Upon completion of the prehearing requirements, a hearing was held in 

Pittsburgh, Pennsylvania, on June 22, 1981. The following witnesses testified on behalf of U.S. Steel: Louis E. Tiberi, Thomas Stavischeck and 

Paul M. Kovell, Jr. Orlando J. Abbadini testified on behalf of the Secretary 

of Labor, Hine Safety and Health Administration (hereinafter HSHA). Both 

parties submitted posthearing briefs. 

2027 
ISSUES 

1. Whether the order was properly issued. 

2. Whether U.S. Steel violated the Act or regulations as alleged 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 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. 

§ 75.200 Roof control programs and plans. 

[Statutory Provisions] 

Each operator shall undertake to carry out on a continuing basis a program to improve the roof control system of 

each coal mine and the means and measures to accomplish such 

system. The roof and ribs of all active underground roadways, 

travelways, and working places shall be supported or otherWise 

controlled adequately to protect persons from falls of the 

roof or ribs. A roof control plan and revisions thereof suitable to the roof conditions and mining system of each coal 

mine and approved by the Secretary shall be adopted and set 

out in printed form on or before Hay 29, 1970. The plan shall 

show the type of support and spacing approved by the Secretary. Such plan shall be reviewed periodically, at least 

every 6 months by the Secretary, taking into consideration any 

falls of roof or ribs or inadequacy of support of roof or 

ribs. No person shall proceed beyond the last permanent support unless adequate temporary support is provided or unless 

such temporary support is not required under the approved roof 

control plan and the absence of such support will not pose a 

hazard to the miners. A copy of the plan shall he furnished 

to the Secretary or his authorized representative and shall be 

available to the miners and their representatives. 

2028 
STIPULATIONS 

The parties stipulated the following: 

1. U. S. Steel owns and operates the Robena Number 1 Mine. 

2. U. S. Steel is involved in the extraction of raw coal from its 

natural deposits in its operations at the Robena Number 1 Mine. 

3. Inspecto.r Orlando J. Abbadini was at all times relevant hereto, an 

authorized representative of the Secretary of Labor. 

4. u. S. Steel and the Robena Number 1 Mine, are subject to the Act. 

5. The Administrative Law Judge has jurisdiction over these proceedings. 

6. The subject order and modification thereof, were properly served by 

a duly authorized representative of the Secretary of Labor, upon an agent of 

U. S. Steel, at the dates, times and places stated therein and may be admitted 

into evidence for the purpose of establishing their issuance and not for the 

truthfulness or the relevancy asserted therein. 

7. The assessment of an appropriate civil penalty in this proceeding 

will not affect U. S. Steel's ability to continue in business. 

8. The appropriateness of the penalty, if any, to the coal operators 

business, should be determined based on the fact that in 1979, the company 

had an annual tonnage of 15,080,435 production tons and the Robena Number 1 

Mine, had an annual tonnage of 671,131 production tons • ., 

9. The alleged violation was abated in a timely fashion and the 

operator demonstrated good faith in obtaining abatement. 

10. U.S. Steel is not chal~enging the inspector's determination that 

the violation was significant and substantial. 

FINDINGS OF FACT 

I find that the evidence of record establishes the following facts: 

1. U. S. Steel. Corporation owns and operates the Robena 

Numb'er 1 Mine. 

2. Inspector Orlando J. Abbadini, who issued the subject withdrawal 

order, was a duly authorized representative of the Secretary of Labor. 

3. Inspector Abbadini is qualified as an expert in the area of mine 

safety and health. 

2029 
4. On.August 26, 1980, Inspector Abbadini, as part of a regular triple A 

inspection, observed the conditions of the roof at Numbers 19 and 20 crosscuts. 

Upon observing slips ·and looseness in the roof in that area, he informed Mine 

Foreman Stavischeck of the conditions. Mr. Stavischeck indicated that he was 

aware of the problem and would take care of it. No citations or orders were 

issued with respect to the roof conditions on that day. 

5. Assistant Hine Foreman Stavischeck was informed of the roof conditions in Nos. 19 and 20 crosscuts by Inspector Abbadini on August 26, 1980. 

6. On September 8, 1980, Inspector Abbadini continued. to perform a 

regular inspection of Robena No. 1 Mine and before going underground was told 

by Mel Tishman, the Motorman, that conditions at number 19 crosscut had not 

improved. 

7. In spec tor Abbadini did not inform management of Mel the Motorman's 

comments about the roof conditions. 

8. On September 8, 1980, Inspector Abbadini asked Assistant Hine Foreman 

Paul Kovell whether the roof conditions in Nos. 19 and 20 crosscuts had been 

taken care of and he replied that they had not been corrected. 

9. On September 8, 1980, Inspector Abbadini, accompanied by Paul Kovell, 

Louis E. Tiberi, General Assistant Mine Foreman, Don Albani, and the UMWA 

walkaround, returned to numbers 19 and 20 crosscuts and through the visual 

and sound methods of testing, determined that the roof required immediate 

attention. 

10. The condition of the roof in the cited area had 

August 26, 1980 and September 8, 1980, to the point where 

of such a nature as could significantly and substantially 

cause and effect of a coal or other mine safety or health 

/ deteriorated between 

the violation was 

contribute to the 

hazard. 

11. On.September 8, 1980, at 12:00 p.m., the inspector issued Order 

No. 841473 under section 104(d) of the Act for a violation of th~ operator's 

approved roof control plan. The order alleged the following: 

The roof along No. 4 entry at No. 19 crosscut switch 

where empties and loads are stored and at No. 20 crosscut, an 

active track haulage for 3 Main 6-1/2 (018) section was loose, 

drummy, broken, potted cavities, with slips running across. 

The roof had fallen around several roof bolts, rendering the 

bolts ineffective. Additional supports had not been 

"installed. This track haulage was used for mantrip travel 

and coal haulage. Assistant Mine Foreman Lou Tiberi and 

General Assistant Tom Stavischeck knew of this reported 

condition. 

12. The conditions were as stated in withdrawal Order No. 841473. 

2030 
13. The operator knew or should have known of the conditions described 

in withdrawal Order No. 841473. 

14. On July 29, 1980, HSHA had issued Citation No. 0837858 to the operator pursuant to section 104(d) of the Act. No complete inspection occurred 

between the date that citation was issued and the date the inspector found 

the instant violation of mandatory health and safety standard 30 C.F.R. 

§ 75.200. 

15. The failure to abate the conditions prior to September 8, 1980, was 

due to the unwarrantable failure of the operator to comply with mandatory 

health and safety standard 30 C.F.R. § 75.200. 

16. The conditions described in withdrawal Order No. 841473 were abated 

in a timely fashion by the installation of four cribs and supplemental 

10 foot conventional bolts. 

17. On September 8, 1980, the order was terminated and at 12:45 p.m. 

withdrawal Order No. 841473 was modified to delete reference to termination 

due date and time. 

18. The operator demonstrated good faith in abating the condition. 

19. Robena No. 1 Mine is a large coal mine and U.S. Steel is a large 

operator. 

20. The assessment of an appropriate civil penalty in this proceeding 

will not affect U.S. Steel's ability to continue in business. 

Violation of 30 C.F.R. § 75.200 

Order No. 814173 was issued for an alleged violation of 30 C.F.R. 

§ 75.200 which requires, inter alia, that "the roof and ribs of all active 

underground roadways, travelways, and working places shall be supported or 

otherwise controlled adequately to protect persons from falls of the roof 

o.r ribs." HSHA contends that the conditions of the roof in the area of 

crosscuts nineteen and twenty were such that the existing roof supports wer~ 

inadequate. U.S. Steel asserts that the roof was well bolted at the No. 19 

crosscut and that there were no slips. The operator also contends that the 

cond·itions in the No. 20 crosscut, specifically a cavity in the roof, did not 

indicate a need for immediate attention. It further states that there was 

no problem with the roof at No. 19 or 20 intersections. 

Inspector Abbadini testified that he initially noticed the roof conditions in Nos. 19 and 20 crosscuts on August 26, 1980, while he was walking 

the haulage out. He saw slips, looseness of the roof and an exposed 

cavity, all of which were close to the manhole where the switch operator 

was stationed. The inspector observed a local fall at the No. 20 crosscut 

about 25 feet from the intersection and he also saw sloughing around some 

bolts in the No. 19 intersection. Since this was an active working area he 

2031 
spoke to Tom Stavischeck, an assistant mine foreman, who indicated that he 

knew about the roof condition and would take care of it. The condition was 

not serious enough to warrant issuing a citation at this time. 

The inspector returned to this section of the mine on September 8, 1980, 

as part of a regular Triple A inspection. Upon arriving he spoke with Mel 

Tishman, the motorman, who complained about the condition at No. 19 crosscut. 

He also spoke with Assistant Hine Foreman Paul Kovell, who indicated that 

nothing had been done to correct the roof problems. The inspector then proceeded to the area in question accompanied by Louis Tiberi, Paul Kovell and 

Donald Albani. There he noticed that roof conditions had worsened, showing 

severe deterioration around the bolts. The slips had opened up due to stress 

from pillar mining. Visual and sound inspection indicated that there was 

dru~miness in the roof. The inspector testified that the condition presented 

a danger of causing a fatal accident and that additional supports, cribs and 

roof bolts were necessary to remedy the situation. 

U.S. Steel presented testimony contradicting the inspector's testimony 

and also challenging his conclusions about the roof conditions and the 

assessed danger. Thomas Stavischeck stated that he spoke with Inspector 

Abbadini on August 26, 1980, and that he was not told about a roof problem. 

He was aware of a cavity in the No. 20 crosscut where there had been a roof 

fall but maintained that it had been there for 5 months with no change in 

size. He saw no slips in the No. 19 crosscut and felt that there were no 

problems with the roof which required immediate attention. 

Paul Kovell, an assistant mine foreman testified that he was not aware 

of any roof problems in the Nos. 19 and 20 intersection prior to September 8, 

1980. He indicated that rehabilitative work was being done at that time 

inside the No. 20 crosscut where there was a cavity. Mr. Kovell stated that 

he had an opportunity to observe roof conditions from a jeep during his 

weekend runs, but had not noticed any slips in the Nos. 19 and 2Q. intersections requiring additional support. 

Louis Tiberi, a general assistant mine forenan, testified that the 

condition was good at the No. 20 crosscut. He had instructed Mr. Kovell to 

bolt a s~all cavity located in the No. 20 crosscut, but the task had not been 

completed by September 8, 1980. Hr. Tiberi insisted that this cavity did not 

present a hazard, and that a man doing a preshift inspection would probably 

not notice it. He saw nothing wrong with the roof in the No. 19 crosscut 

and felt that the additional cribs which were installed to abate the order 

served no purpose and provided no support. Hr. Tiberi, could not remember 

testing the roof for drumminess on the day the withdrawal order was issued. 

U.S. Steel argues that Inspector Abbadini's testimony regarding the violation is not credible. It asserts that Mr. Abbadini had difficulty describing the condition of the roof on August 26, 1980 and September 8, 1980 except 

to say that it looked drummy and had slips. It also found the inspector's 

definition of a slip or a clay vein to be inadequate. U.S. Steel maintains 

2032 
that the testimony of the management witnesses was straight forward and consistent and that their observations concerning the safety of roof conditions 

should be believed. 

HSHA argues that the inspector's testimony regarding roof conditions 

was corroborated by notes which he made contemporaneously with his inspection. It points out that the inspector was consistent in his testimony on 

both direct and cross-examination. Finally, MSHA relies on the inspector's 

qualifications as an expert witness and his ability to judge the safety of 

roof conditions as factors supporting the inspector's credibility. 

In resolving the issue of credibility, I find that the inspector's 

testimony is not unclear or inconsistent. If there are discrepancies, they 

are only minor. As U.S. Steel concedes, the errors were with regard to 

"inconsequential matters" and he was evasive only about "collateral matters." 

(U.S. Steel Brief p. 7 and 8). The instances cited by U.S. Steel do not 

undermine the inspector's qualifications as an expert witness. He kept careful and descriptive notes of his observations which accurately reflect his 

testimony (Exh. G-5 and G-6). He also made a drawing, illustrating the roof 

conditions uhile they were still fresh in his mind (Exh. G-1). 

While the operator's witnesses all agreed that the roof conditions were 

not serious enough to warrant a withdrawal order, they each admitted that 

there was a cavity in the No. 20 crosscut. The operator's exhibit representing the area in question shows a slip which extends into the intersection at 

the No. 20 crosscut. (Exh. 0-2). This drawing reinforces the -inspector's 

testimony rather than management testimony regarding roof conditions. As the 

inspector stated at the hearing, slips indicate that the roof is unstable, 

posing a danger of a roof collapse and a fatal injury. 

The inspector tested the roof for drumminess through the visual and 

sound methods of testing. While the inspector recalled that Mr • .,. Tiberi 

assisted him in these testing procedures, Mr. Tiberi simply states that he 

does not remember whether he tested the roof on September 8. Since the 

inspector's notes indicate that Mr. l'iberi had agreed that the roof needed 

immediate attention, it appears that Mr. Tiberi' s lack of recollection was 

used to avoid acknowledgement of the test results. 

Having concluded that the conditions in the Nos. 19 and 20 crosscut 

were as indicated in Order No. 841473, I find that MSHA has established a 

violation of 30 C.F.R. § 75.200. 

Unwarrantable failure 

U.S. Steel has also challenged the issuance of the withdrawal order 

on September 8, 1980. It claims that it had no notice of the alleged dangerous roof conditions and that it could not. have been aware of any problem 

prior to the inspector's issuance of the order. U.S. Steel also claims that 

the withdrawal order is defective because the inspector did not personally 

observe the conditions which were the subject of the order. It maintains 

2033 
that Mr. Abbadini heard about a roof bolting problem while he was still on 

the surface, and issued the order before going down to actually check on the 

situation. U.S. Steel asserts that the inspector was therefore obligated to 

find violations to support his order even though they did not actually exist. 

Finally, the operator states that Inspector Abbadini received his information 

about roof conditions from a miner and was obligated under section 103(g)(l) 

of the Act to have the complaint reduced to writing and presented to management. It concludes that the inspector's violation of the Act justifies 

vacating the Order. MSHA has countered each of U.S. Steel's arguments and 

maintains that the withdrawal order was issued properly and· should be upheld. 

The term "unwarrantable failure" was defined by the Interior Board of 

Mine Operations Appeals as follows: 

[Aln inspector should find that a violation of a 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 IBHA 280 (1977). 

This definition was approved in the legislative history of the Act. 

S. Rpt. No. 95-181, 95th Cong.; 1st Sess. 32 (1977). 

HSHA argues that U.S. Steel knew or should have known of the roof conditions in Nos. 19 and 20 crosscuts. It presented evidence demonstrating that 

the operator had actual knowledge of the violation. Inspector Abbadini testified that he had observed the roof conditions while engaging in a regular 

inspection on August 26, 1980. He noticed sloughing in No. 19 intersection 

around the bolts. The inspector stated that he was worried about the looseness of the roof and the exposed cavity since it was an active area and close 

to the location of the switch operator. Since the condition was not serious 

at the time, the inspector stated that he told management about the problem 

and recommended bolting and cribbing. During the course of his conversation 

with Tom Stavischeck on August 26, he learned that management was aware of 

the problem and would take care of it. According to MSHA's statement of 

facts, when the inspector arrived on September 8, 1980 to conduct a regular 

triple A inspection, he asked Hr. Kovell whether the bad roof conditions in 

19 and 20 crosscuts had been abated, and Mr. Kovell replied that they had 

not. The inspector then rode the mantrip in with Mr. Kovell and Mr. Tiberi, 

and observed the conditions. Finding that immediate attention was necessary, 

the inspector issued the withdrawal order. 

MSHA also offered exhibits showing the inspector's notes which were 

written following the inspections of August 26, 1980 and September 8, 1980. 

These notes mention the conversations the inspector had with management on 

both inspection days. 

2034 
U.S. Steel contends that the inspector did not inform management prior 

to September 8, 1980 of the roof conditions. Mr. Stavischeck testified that 

the inspector did not mention any roof problems on August 26, 1980. 

Mr. Kovell testified that when the inspector asked him whether the conditions 

at 19 and 20 crosscuts had been taken care of, he replied that he had not 

done any work in these areas. u. S. Steel does not attempt to explain t~· s 

statement, although Hr. Kovell's testimony implies that he did not knm·: 1e 

conditions to which the inspector was alluding. 

After careful consideration of the testimony and evidence submitted, I 

find that U.S. Steel did have actual knowledge of the conditions in Nos. 19 

and 20 crosscuts. The inspector's testimony, together with his notes and 

Mr. Kovell's statement that he had not done any work, lead me to this conclusion. Furthermore, even if the operator was not actually informed of the 

roof conditions on August 26, 1980, it should have known that a dangerous 

condition existed. The operator is required by law to preshift the area and 

as HSHA points out, examination would have revealed the worsening conditions. 

The evidence indicates that management was aware of the cavity in No. 19 

crosscut and additional testing would have revealed the drumminess, sloughing, and slips. Therefore, U.S. Steel knew or should have known of the violation of 30 C.F.R. § 75.200. The inspector's finding of an unwarrantable 

failure is reasonable in light of the facts and circumstances presented. See 

Zeigler Coal, supra, at 296. 

U.S. Steel has also challenged the withdrawal order based upon its 

contention that the inspector did not personally observe the alleged condition but rather issued the order from the surface based upon a miner's complaint. I find this claim to be groundless. MSHA has established that 

Inspector Abbadini came to the mine on September 8, 1980, and spoke with the 

motorman on the surface, who informed him that conditions at Nos. 19 and 20 

crosscuts had not been taken care of. He confirmed this complaint in his 

conversation with Mr. Kovell, and thereupon, proceeded to the area in question accoMpanied by management. He issued the withdrawal order '9nly after 

observing the deteriorated conditions. It was, therefore, validly issued. 

Alleged Failure to Comply With Section 103(g)(l) of the Act 

U.S. Steel's argues that the inspector was required to have the motorman's complaint presented in writing to the operator pursuant to section 

lOJ(g)(l). Although citing no authority, U.S. Steel states that "the purpose 

of this part of the Act is clearly to get a dangerous situation corrected 

as soon as possible." (Brief p. 6). The language of this section clearly 

demonstrates that it is inapplicable to the present situation. The pertinent 

part states: 

(g)(l) Hhenever a representative of the miners or a 

miner in the case of a coal or other mine where there is no 

such representative has reasonable grounds to believe that a 

violation of this Act or a rnan~atory health or safety standard 

2035 
exists, or an imminent danger exists, such miner or representative shall have a right to obtain an immediate inspection by 

giving notice to the Secretary or his authorized representative of such violation or danger. Any such notice shall be 

reduced to writing, signed by the representative of the miners 

or by the miner, and a copy shall be provided the operator or 

his agent no later than at the time of inspection, except that 

the operator or his agent shall be notified forthwith if the 

complaint indicates that an imminent danger exists. 

On both August 26, 1980 and September 8, 1980, Inspector Abbadini was engaged 

in a regular triple A inspection, when he received a complaint from Mel the 

motorman. As the inspector stated at the hearing, "we get these complaints 

every portal we go to, we get all kind of complaints from different miners 

and if any of the complaints are dealing with any Health and Safety, any violations of any Health and Safety Act, we're to follow it up." (Tr. p. 60). 

The inspector did not go to Robena ~line pursuant to a miner complaint and he 

would have inspected the area in question regardless of any specific complaint. NSHA asserts that, "if such conversations by themselves were to make 

an inspection into a 103(g) inspection, the clear language of the Act requiring miner complaints to be written would be subverted, [since] virtually every 

inspection conducted would be considered 103(g) inspections and the inspector 

could he placed in the intolerable position of not being able to talk with 

miners informally for fear of having all enforcement actions vacated for 

failure to get every miner statement placed in writing." I agree with this 

contention, and find that the withdrawal order is valid since there was no 

need for a written complaint pursuant to section 103(g). 

Assessment of a Civil Penalty 

MSl~ has proposed a civil penalty of $1,000.00 for the violation herein. 

In considering, the appropriateness of this penalty, the six criteria set 

forth in section llO(i) of the Act have been considered. The parties have 

stipulated to the size of the operatbr and the effect of the proposed penalty 

on the operator's ability to remain in business. I have considered the 

operator's history of 194 violations over a 2 year period. 

MSHA submits that the operator should be found grossly negligent in 

failing to correct the violation because the evidence shows that the operator 

knew or should have known of the violation. I disagree with this determination since the roof conditions did not deteriorate until after the August 26th 

inspection. The inspector testified at the hearing that he did not issue any 

citations on his initial inspection because the roof conditions were not 

serious at that time. Therefore, although the operator ignored the inspector's instructions ahout correcting the condition, its negligen~e in this 

regard involves only a 13 day period between inspections. U.S. Steel offered 

evidence showing that it was correcting other roof problems which indicates 

that the operator was concerned about roof falls and mine safety. Accordingly, I find that the operator should be charged with ordinary negligence. 

2036 
The inspector testified that the area where the violation occurred was 

an active area since it was the main travelway for entering and exiting the 

working face. He evaluated the likelihood of an accident occuring as 

probable. The inspector indicated that the conditions presented a danger of 

a roof collapse with a probable fatal injury to exposed miners. Based upon 

this evidence, I find the violation to be serious. 

While U.S. Steel did not exercise good faith in correcting the condition prior to September 8, 1981, it did abate the condition immediately upon 

issuance of the withdrawal order. The evidence supports the stipulation that 

the operator demonstrated good faith in achieving timely abatement. 

My reduction in the amount of negligence attributed to the operator 

should be reflected in the civil penalty. I therefore conclude that a penalty 

of $600 should be imposed for the violation found to have occurred. 

CONCLUSIONS OF LAW 

1. The Administrative Law Judge has jurisdiction over the parties and 

subject matter of this proceeding. 

2. U.S. Steel and its Robena Mine are subject to the Act. 

3. Withdrawal Order No. 841473 issued or September 8, 1980, charging 

a violation of mandatory safety standard 30 C.F.R. § 75.200, is affirmed. 

4. The violation of the above mandatory standard was caused by the 

unwarrantable failure of U.S. Steel to comply with 30 C.F.R. § 75.200. 

5. Withdrawal Order No. 841473, was properly issued under section 

104(d)(l). 

6. The violation of the above mandatory standard could significantly 

and substantially contribute to the cause and effect of a coal or other mine 

safety or health hazard. 

7. U.S. Steel's contest of Order No. 841473 is denied. 

8. Considering the criteria specified in section llO(i) of the Act, 

U. S. Steel is assessed a civil penalty in the amount of $600 for the violation of 30 C.F.R. § 75.200. 

ORDER 

WHEREFORE IT IS ORDERED that the contest is DENIED and the subject order 

is AFFIRMED. 

2037 
IT IS FURTHER ORDERED that U.S. Steel pay the sum of $600 within 30 days 

of the date of this decision as a civil penalty for violation of 30 C.F.R. 

§ 75.200. 

Distribution Certified Mail: 

( 

\0. "-''""~ D. ,\~:::~ .. ""~ ... --.-

James A. Laurenson, Judge / i 

/ j 

\j' 

Louise Q. Symons, Esq., United States Steel Corporation, 600 Grant Street, 

Pittsburgh, PA 15230 

David T. Bush, Esq., Office of the Solicitor, U.S. Department of Labor, 

Room 14480 Gateway Building, 3535 Market Street, Philadelphia, PA 19104 

Harrison B. Combs, UHWA, 900 15th Street, NW., Washington, DC.20005 

* United States Government Printing Office; 1981--341-638/ 4360 

2038